MAJOR DENNIS TOINPRE DES – DOKUBO v. THE NIGERIAN ARMY
(2015)LCN/8035(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 24th day of November, 2015
CA/L/911/2013
RATIO
APPEAL: ISSUES FOR DETERMINATION; WHETHER ISSUES FOR DETERMINATION MUST ARISE FROM GROUNDS OF APPEAL
It is trite that issues for determination must arise from grounds of appeal. See IMO v. STATE (1991) 9 NWLR (Pt. 213) 1 where the apex court held thus: “It is now well settled that the issues for determination must not only relate to the grounds of appeal filed but must strictly be confined to them. Any issue for determination which is not founded on a ground of appeal is irrelevant, incompetent and must be discountenanced in the determination of the appeal. per. YARGATA BYENCHIT NIMPAR, J.C.A.
CONSTITUTIONAL LAW: FUNDAMENTAL HUMAN RIGHT; THE MEANING OF FAIR HEARING AND THE TWO PILLARS OF JUSTICE
Fair hearing is no longer a fluid concept but has acquired its own configuration which cannot be over stretched. Fair hearing has been defined by the Supreme Court in several cases, one of which is the case of KOTOYE v. C.B.N. (1989) 1 NWLR (Pt.98) 419 in the following way:
“Thus, fair hearing in the con of Section 33(1) of the Constitution of 1979 encompasses the plenitude of natural justice in the sense of the twin pillars of justice – audi alteram partem and nemo judex in causa sua as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so.” Fair hearing therefore is basically comprised of the twin pillars which determines or circumscribes the parameters of measuring whether it was breached or not. per. YARGATA BYENCHIT NIMPAR, J.C.A.
CONSTITUTIONAL LAW: FUNDAMENTAL HUMAN RIGHT; THE APPLICATION OF THE PRINCIPLE OF FAIR HEARING
The right is fundamental to human beings and not to the status or rank of an accused. The Appellant’s right to fair hearing cannot be overstretched beyond universally and accepted boundaries. The Supreme Court in the case of MAGIT v. UNI – AGRIC MAKURDI (2005) LPELR- 1816 (SC) had this to say: “Fair hearing and what it is all about has been flogged………It has become a fashion for litigants to resort to their right to fair hearing on appeal as if the it is a magic wand to cure all their inadequacies at the trial court – But it is not so and it cannot be so….. the courts must not give a burden to the provision which it cannot carry or shoulder. Fair hearing is not a cut and dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based on the facts of the case before the court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle is helpless or completely dead outside the facts of the case.” The Supreme court again in the case of FRN v. AKUBUEZE (2010) LPELR – 1272 (SC) held as follows: “Fair hearing incorporates a trial done in accordance with the rules of natural justice which in the broad sense, is that which is done in the circumstances which are fair, just, equitable and impartial. It is now firmly settled that the rule of audi alteram partem postulates that the court or other tribunal, must hear both sides at every material stage of the proceedings before handing down a decision at that stage.” Unless the twin pillars of natural justice are breached there cannot be breach of fair hearing. per. YARGATA BYENCHIT NIMPAR, J.C.A.
PRACTICE AND PROCEDURE CHARGE; WHETHER A CHARGE BROUGHT UNDER A LAW THAT IS CONSTITUTIONALLY RECOGNIZED CAN BE UNCONSTITUTIONAL
A charge cannot be unconstitutional provided that it is brought under a law that is constitutionally recognized in the service that arraigned him, see OGBOMOR v. STATE (1985) NWLR (PT.2) 223, AYENI v. STATE (2011) LPELR – 4380(CA). per. YARGATA BYENCHIT NIMPAR, J.C.A.
PRACTICE AND PROCEDURE: CHARGE; THE TIME TO RAISE AN OBJECTION ON THE CHARGE
Furthermore, the time to raise an objection on the charge is immediately it is read to the accused and not thereafter. See MAGAJI v. THE NIGERIAN ARMY (2008) LPELR – 1814 (SC). per. YARGATA BYENCHIT NIMPAR, J.C.A.
TORT: TORT OF NEGLIGENCE: THE DEFINITION OF NEGLIGENCE
Negligence is defined as carelessness, disregard, default in advertence, in difference, in attention, laxity, omission oversight, shortcoming, slackness, remissness, dereliction heedlessness, forgetfulness and thoughtlessness.
Black’s Law Dictionary 9th edition also defines negligence as follows:”
The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. The term denotes culpable carelessness.” per. YARGATA BYENCHIT NIMPAR, J.C.A.
PRACTICE AND PROCEDURE: CHARGE; THE MEANING OF A CHARGE
A charge has been described as a complaint or information as to the offence with which a person is accused and which is delivered to the person accused or charged in a language he understands with sufficient details of the offence. See ALHAJI MOHAMMED KABIR MAMMAN v. FRN (2010) LPELR – 4470 (CA). The object of a charge in a criminal trial includes making an accused person to be fully aware of the case he is confronting and it entails specification and particularization of the elements of the offence in question. This court in the case of AHMED v. FEDERAL REPUBLIC OF NIGERIA (2009) 13 NWLR (Pt 1159) 536 said the purpose of a charge is to give the accused person reasonable notice of the case against him and to enable him prepare adequately for his defence. See also OLAYINKA FARA v. I.G.P (1996) 1 ALL NLR 6. A valid charge is one that states essential particulars as to time, place, and the person against whom in respect of which the crime was committed. It is to give the accused notice of the matter against him. Going by the description of a valid charge, count 3 qualifies as a competent charge. More so, the particulars went further to elucidate the charge to such an extent that the Appellant knew what was in issue to enable him prepare his defence. The main allegation was breach of military duty. The learned counsel to the appellant failed to appreciate that this was a criminal trial and not negligence in a claim in tort. I do not therefore agree with him in his strenuous effort and conclusions in arguing this issue. This issue is resolved in favour of the Respondent. per. YARGATA BYENCHIT NIMPAR, J.C.A.
PRACTICE AND PROCEDURE: JUDGE ADVOCATE; WHO IS A JUDGE ADVOCATE
A judge advocate was described by the Supreme Court thus:
“Under military law, Judge Advocate is an officer of a court-martial who acts as prosecutor. He is also a legal adviser on a military commander’s staff. See Black’s Law Dictionary, Ninth (9th Edtn) 918. It has been held that the Judge Advocate is just in the nature of a state counsel being a legal officer serving in the court martial to prosecute any person arraigned before the court. Indeed, the duty of a Judge Advocate does not extend to taking part in the final decision making. He is comparable with a legal officer from the office of Public Prosecution in the Ministry of Justice, who prosecutes in the common law courts. He only prosecutes by presenting facts and the law to assist the presiding Judge to arrive at a just decision on the complaint or charge presented.” See THE NIGERIAN ARMY v. LT. PATRICK DODO (2012) LPELR – 8288 (SC). per. YARGATA BYENCHIT NIMPAR, J.C.A.
PRACTICE AND PROCEDURE: JUDGE ADVOCATE; ROLE OF THE JUDGE ADVOCATE
The role of the Judge advocate is clearly advisory and he does not decide the guilt of an accused. The court can reject a Judge advocate’s advice and decide otherwise. The principle enunciated in the above listed cases all apply to the trial Judge and not a Judge advocate. per. YARGATA BYENCHIT NIMPAR, J.C.A.
COURT: DUTY OF COURTS; DUTY OF A TRIAL COURT
Evaluation of evidence is the duty of a trial court and is cautiously interfered with by an appellate court, see the case of OSHE v. OKIN BISCUITS LTD (2010) 11 NWLR (Pt. 1206) 482 where the Supreme Court held as follows:
“The settled principle of law is that evaluation and ascription of probative value thereto is pre-eminently that of the trial court which alone has the advantage of seeing and hearing witnesses as they testify. And an appellate court, because of its disadvantage of not seeing and hearing witnesses, would not therefore, ordinarily interfere with the findings of fact of the trial court.” per. YARGATA BYENCHIT NIMPAR, J.C.A.
Before Their Lordships
UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJIJustice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPARJustice of The Court of Appeal of Nigeria
Between
MAJOR DENNIS TOINPRE DES – DOKUBOAppellant(s)
AND
THE NIGERIAN ARMYRespondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of a Special Court Martial convened by MAJOR GENERAL O.A. IHEJIRIKA which tried and convicted the Appellant on the 16th day of June, 2008 and reduced the rank of the Appellant from Major to Captain. Dissatisfied with the decision the appellant filed a notice of Appeal setting out 9 grounds of appeal.
Brief facts of the events leading to this appeal are straight forward.The appellant was a serving military officer and 2i/c to Lt. Col. Owhonda of 149 Battalion and an administrative officer of the Battalion at Ojo Cantonment at the time relevant to this judgment. The C/OLt. Col Owhonda was assaulted, beaten to stupor and subsequently taken outside the barracks by some soldiers as a result of a purported amorous relationship with one Mrs. Oshioghele. The Appellant being the next in command was expected to assume control of the battalion in the absence of the commanding officer and report the incident. He was alleged to have failed to remain accessible and visible to discharge that duty. That he also aided and abetted the assault on the commanding officer. He was
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arraigned on 3 a count charge as follows:
Count 1:
Statement of offence: Failure to perform Military duties punishable under Section 62(b) of the Armed Forces Act?(Cap A20) LFN 2004.
Particulars of offence: In that he at Ojo Cantonment Lagos on or about 29 November 2007 in his capacity as 2 I/C 149 Bn. knowing fully well that the then CO 149 BnLt. Col. CC Owhonda had been assaulted and forcefully taken out of the barrack, negligently performed his duties as 2 I/C of the Bn by failing to take prompt action and to make a formal report of the incident of assault to his Appropriate Superior Authority (ASA) by way of a Situation Report (SITREP).
Count 2:
Statement of offence: Aiding and abetting service offence punishable under Section 98 of the Armed Forces Act (Cap A20) LFN 2004
Particulars of offence: In that he at Ojo Cantonment Lagos on or about 29 November 2007 aided and abetted the assault of Lt. Col CC Owhonda by providing a Sonny Digital camera and Sanyo tape recorder to 79NA/20920 Sgt Courage Enoghayin and Mrs. Patience Oshighele respectively which were used by the later parties during the incident of assault against Lt. Col Owhonda.
Count 3
Statement of
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offence: Failure to perform military duties punishable under Section 62(b) of the AFA (Cp A20) LFN 2004.
Particulars of offence: In that he at Ojo cantonment, Lagos on or about 30 November 2007 in his capacity at (sic) 2i/c 149Bn, after the assault and abduction of the then CO Lt Col C. C Owhonda (N/8559) and knowing fully well that the was the next most senior officer on the ground in the unit negligently performed his Military duties by abandoning the unit from about 301500hrs, November 2007 to about 010300 hrs. December 2007.”
The appellant pleaded not guilty to the 3 count charges and trial proceeded with the prosecution calling 9 witnesses and tendered 8 exhibits. The appellant called 3 witnesses and also testified. He tendered 3 exhibits in defence. At the close of hearing, both sides filed and adopted their written addresses after which the judge advocate summed up the evidence and advised the court as allowed by law. The special court martial delivered its judgment on the 16th day of June 2008 in which it found the appellant guilty on all the counts. As required by law, the Army Council confirmed the sentence on the 19th day of October, 2009. The
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appellant dissatisfied with the conviction and confirmation appealed to this court setting out 9 grounds of appeal.
The appellant filed his brief of argument dated 5th December, 2013 filed on the same day. A reply brief was filed on the 24th January, 2014 in response to the Respondent’s brief. The Respondent filed its brief on the 6th January, 2014. All briefs were adopted at the hearing of this appeal. Both sides formulated issues for determination in their respective briefs.The Appellant formulated 6 issues for determination as follows:
1. Whether the trial, conviction and sentence of the appellant by the court martial breached his right to fair hearing under S.36 (1) of the 1999 Constitution and Article 7 (1) (b) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement Act) CAP A9 Laws of the Federation 2004.
2. Whether charges 1 and 2 can be committed in one and the same transaction to justify their joint trial.
3. Whether abandonment is a military duty which can be performed or negligently performed under S.62 (b) of the Armed Forces Act 2004 and if the answer is in the negative whether charge 3 as constituted is competent.
?4. Whether
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the judge advocate misdirected the court martial and if so whether the reliance by the court on the summing up by the judge advocate in convicting the appellant occasioned a miscarriage of justice.
5. Whether the Army council acted ultra vires and in excess of its powers as a confirming authority.
6. Whether the findings or judgment of the court martial was perverse in law and whether the prosecution proved its case against the appellant beyond reasonable doubt as required by law.
The Respondent on its part distilled 4 issues namely:
1. Whether there is evidence on records to show that the charges against the appellant were proved beyond reasonable doubt at the special court martial
2. Whether charges 1, 2 and 3 offend the rules of drafting charges and whether the charges relate to the same offence.
3. Whether there is evidence on records to show that the Appellant’s right to fair hearing was breached.
4. Whether the Army Council acted ultra vires in the confirmation of Appellant?s sentence and withdrawal of his promotion.
The court shall adopt issues formulated by the Appellant for determination in this appeal even though they appear unwieldy but in
5order to resolve all aspect of the appeal, the court shall consider them as framed by the appellant.
Before delving into the merit of the appeal, the appellant raised a preliminary issue on issue 2 formulated by the respondent on the ground that it does not arise from any of the grounds of appeal and since the respondent did not cross appeal, it cannot formulate an issue outside the grounds of appeal before the court. He urged the court to discountenance the said issue 2 of the respondent.
It is trite that issues for determination must arise from grounds of appeal. See IMO v. STATE (1991) 9 NWLR (Pt. 213) 1 where the apex court held thus:
“It is now well settled that the issues for determination must not only relate to the grounds of appeal filed but must strictly be confined to them?.
Any issue for determination which is not founded on a ground of appeal is irrelevant, incompetent and must be discountenanced in the determination of the appeal.
?The second issue formulated by the Respondent did not go outside the grounds or issues of the appellant. The appellant challenged counts 2 and 3 of the charges contending they cannot be tried together because to him
6the offences cannot be committed at the same time. The respondent resorted by asking whether the two counts offend the rule of drafting charges, i.e. whether they are bad for duplicity.?The said issue 2 has not deviated from the grounds of appeal and therefore the objection is misplaced and hereby discountenanced. The court having adopted the issues distilled by the appellant to be resolved in this appeal shall proceed to determine the appeal.
ISSUE 1
As a prelude to his argument, Appellant’s counsel stated that S.9 (1) , S. 10 (1) and S. 11 of the Armed Forces Act, 2004 establishes the Nigerian Army Council and it is based on these powers that the Army authorized the promotion of the Appellant from the rank of a Major to the rank of Lieutenant – Colonel (Lt. Col,). That the Appellant had already started to receive his pay and allowances in the new rank, yet the Appellant was arraigned before the Special Court Martial in the rank of a Major. Appellant’s Counsel submitted that it was wrong of the Court Martial to overrule the objection of the Appellant on this issue because it contravenes Rule 14 (3) of the Rules of Procedure (Army) 1972 also applicable to S. 181
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(1) of the Armed Forces Act 2004 which requires that an accused is to be charged and tried in his substantive rank.
Counsel to the Appellant submitted that by charging and trying the Appellant in the rank of a Major instead of a Lieutenant – Colonel, the Appellant was highly prejudiced and his right to fair hearing was breached, relied on S. 36 (1) of the 1999 Constitution and Art. 7 (1) (b) and (d) of the African Charter , WILSON v. AG BENDEL STATE (1985) 1 NWLR (Pt 4) 572, W.A.E.C v. AKINKUNMI (2002) 7 NWLR (Pt 766) 327. He further submitted that once an officer has been promoted in accordance with S.?218 (4) (b) of the 1999 Constitution and S. 10 (1) and 11 (b) of the Armed Forces Act , his promotion cannot be put on hold, withheld, suspended or even reduced except by due process of law, i.e., a sentence of a court martial, referred to S. 118 (1) of the Armed Forces Act , Appellant’s Counsel submitted that by reason of the fact that his rank was reduced from Lt. Col. to Captain (two steps below his substantive rank), the Appellant has been made to suffer twice for one offence. Appellant’s counsel submitted therefore that the court should declare the Appellant’s
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trial, conviction and sentence a nullity for breach of fair hearing.
Respondent’s Counsel in his argument stated that the Appellant got a fair hearing, as he was not prejudiced in any way during trial. Appellant was properly represented by counsel, the Appellant Counsel cross examined all prosecution witnesses, all Appellant’s witnesses were allowed to testify and after the Appellant was found guilty, his defense counsel delivered a plea in mitigation of punishment. Counsel referred this Court to the cases of MAGIT v. UNI-AGRIC MAKURDI (2006) 133 LRCN 46, MAGAJI?v. NIGERIAN ARMY (2004) 16 NWLR (pt. 899) 222 in condemning the trend of counsel to whip up an imaginary violation of their client’s right to fair hearing as a means of running away from the facts of the case.
?Respondent’s Counsel noted that the only point canvassed by the Appellant on his right to fair hearing was that the Appellant was tried as a Major instead of being tried as a Lt. Col. pursuant to his promotion on the 29th of November, 2007. With respect to this issue, Respondent submitted that it is clear from Exhibit F (letter of publication of promotion of officers – NA/252/M8 dated 29th
9 November, 2007) that all persons promoted were instructed not to wear their ranks unless authorized by their Commanders. That the Appellant’s commander, Lt. Col. CC Owhonda did not authorize the Appellant to wear his rank in a ceremonial decoration as he was in a hospital as a result of the attack and after the order for the Appellant’s arrest, the Army Headquarters had put the Appellant on a disciplinary list and ordered his promotion be put on hold pending the determination of the case against him. The Respondent Counsel further submitted that the arguments of the Appellant with respect to Army orders or the pay slips of the Appellant showing that he was already enjoying the salary and allowances of a Lt. Col. are not part of the records of the appeal and it amounts to adducing fresh evidence without leave of this court. Counsel stated that promotion is not a right but a privilege, citing the British case of RE: DR. JOHN HUNTER MILLER (2007) COSH 86. Counsel argued that there is nothing to show that the Appellant’s right to fair hearing had been breached, referred to FRN v. AKUBUEZE (2010) 5 – 7 (Pt. 11) MJSC 98, SURGEON CAPTATN C.T OLOWU v. THE NIGERIAN
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NAVY (SUPRA), MAJOR MAGAJI v. THE NIGERIAN ARMY (SUPRA).
However, Appellant’s Counsel in reply to the Respondent?s argument submitted that the Appellants right to fair hearing was breached in that the Army Headquarters expressly withdrew the promotion of the Appellant pending the trial against him thereby predetermining the guilt of the accused and sentencing him before trial. More so, the letter from the Army Headquarters staying the promotion of the Appellant was signed by a Military Secretary who is not a member of the Army Council.
RESOLUTION:
This issue borders on the failure of the Court Martial to observe fundamental right of the appellant. Trying the appellant on the rank of major is the alleged breach of his fundamental right to fair hearing. Appellant argued that it meant he was prejudged guilty as the Military Headquarters had written officially that the promotion of the appellant be suspended pending the outcome of the Special court martial and the appellant was therefore tried on his extant rank of major.
Fair hearing is no longer a fluid concept but has acquired its own configuration which cannot be over stretched. Fair hearing has been
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defined by the Supreme Court in several cases, one of which is the case of KOTOYE v. C.B.N. (1989) 1 NWLR (Pt.98) 419 in the following way:
“Thus, fair hearing in the con of Section 33(1) of the Constitution of 1979 encompasses the plenitude of natural justice in the sense of the twin pillars of justice – audi alteram partem and nemo judex in causa sua as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so.”
Fair hearing therefore is basically comprised of the twin pillars which determines or circumscribes the parameters of measuring whether it was breached or not.
?Can the complaint of the appellant therefore be situated within the twin pillars of natural justice? Can the rank on which an accused military officer is tried have any bearing to the right to fair hearing? The principles of fair hearing are universal and cut across all trials including a court martial trial. It is clear from the record that the appellant did not wear the said rank of Lt. Col. even though the promotion was released. One specific condition of wearing a new rank is clearly spelt out in Exhibit F and principally, that, the
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promotion must be authorized by the commander and in this particular case, it was not authorized and was officially put on hold until the end of trial. So for all intents and purposes, the appellant appeared before the court martial as a major and not a Lt. Col as contended.
The appellant alleged that he earned the salary of a Lt, Col. but there is no such evidence in the record of appeal and nothing showed that he started to enjoy monetary and other benefits of the rank of Lt. Col as at the time of his arraignment or commencement of trial. The fact of earning the salary of a Lt. Col is a fact that must be proved by he who asserts. It was not so proved. The court cannot take judicial notice of what salary the appellant collected at time of trial. He also had not been decorated with the new rank because it was put on hold by the Military secretary, see Exhibit F.
It can also be stated categorically that promotion is not a right in the military but a privilege. The fundamental question is whether appellant’s right to fair hearing was breached? Since the 3 counts of the charge sheet did not require that the rank a person wears is a necessary ingredient to the
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establishment of the offence and the appellant was given a hearing in terms being given an opportunity to defend himself, he was represented by a counsel of his choice and allowed to cross – examine witnesses of the prosecution as required by law, fair hearing was observed in the trial. The right is fundamental to human beings and not to the status or rank of an accused. The Appellant’s right to fair hearing cannot be overstretched beyond universally and accepted boundaries. The Supreme Court in the case of MAGIT v. UNI – AGRIC MAKURDI (2005) LPELR- 1816 (SC) had this to say:
“Fair hearing and what it is all about has been flogged………It has become a fashion for litigants to resort to their right to fair hearing on appeal as if the it is a magic wand to cure all their inadequacies at the trial court – But it is not so and it cannot be so….. the courts must not give a burden to the provision which it cannot carry or shoulder. Fair hearing is not a cut and dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based on the facts of the case before the court. Only the facts of the case can
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influence and determine the application or applicability of the principle. The principle is helpless or completely dead outside the facts of the case.”
The Supreme court again in the case of FRN v. AKUBUEZE (2010) LPELR – 1272 (SC) held as follows:
“Fair hearing incorporates a trial done in accordance with the rules of natural justice which in the broad sense, is that which is done in the circumstances which are fair, just, equitable and impartial.
It is now firmly settled that the rule of audi alteram partem postulates that the court or other tribunal, must hear both sides at every material stage of the proceedings before handing down a decision at that stage.”
Unless the twin pillars of natural justice are breached there cannot be breach of fair hearing.
?The area of complaint highlighted above has nothing to do with fair hearing because trying the appellant on the rank he was wearing at time of arraignment which had not changed cannot be a prejudicial act that would be tantamount to denial of fair hearing or to mean he was presumed guilty before trial. In any case the appellant did not find the trial in which he was tried wanting in the two basic principles
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of fair hearing. The rank of the appellant was not reduced in any way because he appeared before the court martial with the rank of a Major. He never wore the next rank to which he now lays claim.
I do not therefore see where the breach occurred to warrant interfering with the findings of the trial court on the basis of breach of fundamental right to fair hearing. Consequently, this issue is resolved against the appellant.
ISSUE 2
On this issue, Counsel to the Appellant submits that counts 1 and 2 are incompatible and illogical as they cannot be committed in the same transaction as to justify their being tried jointly. According to him, a combined reading of counts 1 and 2 as constituted, is that the Appellant is charged with his failure to report an offence which he aided others to commit. Counsel to the Appellant however states that it will be illogical for the appellant to have aided and abetted the assault on Lt. Col. Owhonda and at the same time reported it because his doing so would have been underlined by some sinister motive, i.e. either to exculpate himself and incriminate some innocent persons.
Learned counsel to the Respondent in response to Appellant’s
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issue was of the opinion that the Appellant is merely avoiding the facts and substance of the allegations in the Charge, and trying to hinge his case on technicalities, he referred to SOLOLA v. THE STATE (2005) 127 LRCN 1001. According to him, the charges were read and explained to the Appellant who took his plea in the presence of his counsel without any objection and he cannot now raise an objection after his plea has been taken, S. 167 of the Criminal Procedure Act , Rule 37 of the Rules of Procedure (Army) 1972 , OBISI v. CNS (2004) 118 LRCN 3916. Respondent’s Counsel further submitted that in any case, counts 1, 2 and 3 do not offend any law and do not relate to the same offence. That the Appellant owed the service a duty under the Armed Forces Act to report the attack/incident on the Lt. Col. his commander which he failed to do and also submitted that reporting the attack as a military duty is clearly severable from aiding and abetting the attack which took place before the duty to report arose.
Appellant’s Counsel in his reply brief submitted that the complaint against count 3 is not a defect or irregularity to which S. 167 of the Criminal Procedure Act
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applies but the complaint is on the unconstitutionality of the Charge for reason that the act of abandonment is not a military duty which can be performed under the Armed Forces Act and consequently the court is divested of jurisdiction. Appellant’s Counsel further submits that contrary to the argument of the Respondent’s Counsel, the objection was taken during trial as it was raised in the Appellant’s written address at the court – martial. Appellant’s Counsel further stated that the Respondent’s counsel has by his submissions, agreed with the Appellant that the act of abandoning the unit is the offence or conduct for which the appellant was charged under count 3.
RESOLUTION:
The contention here is basically challenging the co terminus of count one and two of the charge sheet. The Appellant as a serving officer is strictly under military law and this is not questioned. The first count relates to failure to act as expected when the appellant’s commander is not on sit especially as in this case, where he was forcefully taken out of the barracks in an unusual manner. It states thus:
“Count 1: Statement of offence: Failure to perform Military duties punishable under
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Section 62(b) of the Armed Forces Act (Cap A20) LFN 2004.
Particulars of offence: In that he at Ojo cantonment Lagos on or about 29 November 2007 in his capacity as 2 I/C 149 Bn. knowing fully well that the then CO 149 BnLt. Col. CC Owhonda had been assaulted and forcefully taken out of the barracks, negligently performed his duties as 2 I/C of the Bn by failing to take prompt action and to make a formal report of the incident of assault to his Appropriate Superior Authority (ASA) by way of a Situation Report (SITREP).?
It clearly alleged failure to perform a military duty and the particulars also gave further and better clarification of the act which amounts to failure. Section 62 (b) of the Armed Forces Act, LFN 2004 provides as follows:
“A person subject to service law under this Act who:-
(a) Without reasonable excuse, fails to attend for a parade or other duty of any description or leaves parade or duty before he is permitted to do so; or
?(b) Neglects to perform, or negligently performs, a duty of any description, is guilty of an offence under this section and liable, on conviction by a court – martial, to imprisonment for a term not exceeding two years
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or less punishment provided by this act.”
It is clear therefore that the nature of duty referred to here relates to military duty of any description which the act criminalized. The charge clearly states that by military tradition, the appellant was expected to send a SITREP (Situation Report) immediately the commanding officer was taken by unconventional means out of the barracks. It is expected that there should be a seamless presence of authority in the barrack or unit at all times. There was a breach and for some hours the expected report was not sent.
The trial court found that the report was not sent by the appellant being the 2i/c who automatically steps into the shoes of the commanding officer. Appellant neglected to send the report as required.
The second count alleges aiding and abetting service offence punishable under Section 98 of the Armed Forces Act, LFN 2004 . The Section provides as follows:
“A person subject to service law under this Act who aids, abets, counsels or procures the commission by another person of an offence under any of the provisions of this Act is guilty of the like offence and liable to be charged, tried and punished as a
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principal offender.”
Again the particulars to the second count explicitly stated the nature of the offence charged, the type of aid granted and to whom and how such assistance was used in the commission of a service offence. It states as follows:
“Count 2:
Statement of offence: Aiding and abetting service offence punishable under Section 98 of the Armed Forces Act (Cap A20) LFN 2004
Particulars of offence: In that he at Ojo cantonment Lagos on or about 29 November 2007 aided and abetted the assault of Lt. Col CC Owhonda by providing a Sonny Digital camera and Sanyo tape recorder to 79NA/20920 Sgt Courage Enoghayin and Mrs. Patience Oshioghele respectively which were used by the later parties during the incident of assault against Lt. Col Owhonda.”
A community reading of the two counts does not create any doubt or confusion because they are not mutually exclusive. The first count was failure to report an attack on the commanding officer and the second is aiding the attack by providing soldiers with a camera and a tape recorder in which he used his authority and position to procure. He had fore-knowledge of the planned attack and gave his camera to the soldiers
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with the sole aim of recording the assault as a way of generating evidence against the commanding officer. The appellant also procured a Sony tape recorder to be used to record the amorous conversations of the said commanding officer along with the handcuffs used.
Learned counsel for the appellant dwelt so much on aiding and abetting and that it would have been illogical for the appellant to aid the attack on the commanding officer and still be expected to report the said attack. But indeed that was what the appellant did, he failed to report the assault after aiding the assailants. The trial court found that the appellant did not report as expected due to the fact that he had aided and abetted the soldiers in the commission of the crime. The appellant has failed to show how exclusive the counts are that they cannot be tried together. Their incompatibility is not made out.
?In another breath the appellant submitted that the two courts are oppressive and unconstitutional and it is therefore wrong for the trial court to have tried the appellant on the said charge. How the issue of counts being oppressive was not explained. A charge cannot be unconstitutional
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provided that it is brought under a law that is constitutionally recognized in the service that arraigned him, see OGBOMOR v. STATE (1985) NWLR (PT.2) 223, AYENI v. STATE (2011) LPELR – 4380(CA). The charges are valid under military law and were against a serving military personnel who had voluntarily consented to be under the said law. He cannot now turn round to allege that he was oppressed by the same law. Joinder of charges cannot generally vitiate a criminal trial and once the charge (or count) of a charge sheet satisfies the requirement of law, the burden remains on the accusing authority to prove its allegation beyond reasonable doubt. In the same vein duplicity of charges cannot defeat a trial unless the appellant can establish that it prejudiced the accused or occasioned a miscarriage of justice. Unless that is established by the appellant the appellate court cannot interfere. Once the counts satisfy the legal ingredients of a valid charge, and the accused was not misled, the trial cannot be vitiated. See the case of ALHAJI MOHAMMED KABIR MAMMAN v. FEDERAL REPUBLIC OF NIGERIA (2010) LPELR – 4470 (CA).
?Furthermore, the time to raise an objection on the
23
charge is immediately it is read to the accused and not thereafter. See MAGAJI v. THE NIGERIAN ARMY (2008) LPELR – 1814 (SC).
In sum, the appellant has not established any miscarriage of justice occasioned by count one and two tried together and the issue is resolved against the appellant.
ISSUE 3
It is the contention of the counsel to the Appellant that abandonment is not a military duty which can either be performed or negligently performed under S. 62 (b) of the Armed Forces Act and that it would have been better if the offence of absence from duty was raised in the charge sheet. Thus, he submitted that based on these legal deficiencies, count 3 is incompetent and both the trial and the conviction is a nullity, he relied on MOSES OKORO v. INSPECTOR OF POLICE 14 WACA 370 and MOHAMMED v. THE NIGERIAN ARMY (1998) 7 NWLR (PT 557) 232. Counsel submits that there is a difference between neglect to perform a duty and negligent performance of a duty and that while the former arises where a person fails to perform a duty, the latter implies that the duty was performed in a perfunctory manner, referred to S. 29A Army Act 1955 (Footnote 4a).
Learned Counsel to the
24
Respondent in response submitted that on the construction of Count 3, the Appellant’s counsel seeks to mislead this court as the Appellant was not charged for abandonment but for failure to perform military duties punishable under S. 62 (b) Armed Forces Act and that the phrase “abandoning the unit” was only used to describe the conduct of the Appellant that resulted in the failure to Perform Military duties. He therefore urged this court to resolve issue 3 in favour of the Respondent.
RESOLUTION:
The appellant here questions the competence of count 3 which was reproduced earlier and he questioned whether abandonment is military duty that can be negligently performed. The particulars of the charge alleged the failure of the appellant as acting commanding officer to be available and accessible in the barrack meant he was negligent in his military duties because the service law required the appellant to act expeditiously in taking control and sending a report to the headquarters but was nowhere to be found until several hours after being informed, particularly, from about 301500 hrs. Nov 07 to about 010300 hrs. Dec 07. Failure to take prompt action and be
25
available was a breach of duty as provided by service law. The negligence is his absence from performing military duties at the time expected.
Negligence is defined as carelessness, disregard, default in advertence, in difference, in attention, laxity, omission oversight, shortcoming, slackness, remissness, dereliction heedlessness, forgetfulness and thoughtlessness.
Black’s Law Dictionary 9th edition also defines negligence as follows:”
The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. The term denotes culpable carelessness.”
The count simply describes the act of abandonment as a breach of military duty and the expectation of the appellant not to be absent from the command for those number of hours. Being a military duty it cannot be equated with civilian duty. The law prescribes what can be termed military duty and the appellant is not quarrelling with that fact. However, going by the evidence before the special tribunal it is evident that the appellant did abandon his duty as
26
acting commanding officer for several hours at a crucial time but later surfaced to lamely take control. The argument of the appellant therefore cannot hold. It is apparent that the appellant has failed to appreciate the fact that failure to carry out designated duty amounts to an offence and that failure could include staying away from the duty post or taking charge of a unit as in this case. The appellant having been informed that the commanding officer was assaulted and taken out of the barracks abandoned his duty and casually surfaced many hours later. His absence meant failure to take leadership and control of the unit. He purported to have written a formal report of the incidence but never sent it as at required. The Report was sent by a different officer. His own report was sent after the matter had become public knowledge.
In addition, the appellant is contending with the words used in the particulars to count three. The fact is that the appellant understood the charge and was able to plead to the charge. If the appellant had a challenge to the charge he should have raised the objection at the appropriate time which is before the plea and not in his
27
written address.Having pleaded to the charge, it is too late in the day to object to it now on the ground of words sued. See OKEWU v. FRN (2012) LPELR – 7834 (SC).
Military duties can indeed be negligently performed and a person under military law can abandon his duty. Poor construction or use of words which do not do violence to the basic elements of a charge cannot defeat a charge. Inelegance in drafting a charge is not the same as making the charge incompetent.
A charge has been described as a complaint or information as to the offence with which a person is accused and which is delivered to the person accused or charged in a language he understands with sufficient details of the offence. See ALHAJI MOHAMMED KABIR MAMMAN v. FRN (2010) LPELR – 4470 (CA). The object of a charge in a criminal trial includes making an accused person to be fully aware of the case he is confronting and it entails specification and particularization of the elements of the offence in question. This court in the case of AHMED v. FEDERAL REPUBLIC OF NIGERIA (2009) 13 NWLR (Pt 1159) 536 said the purpose of a charge is to give the accused person reasonable notice of the case against him
28
and to enable him prepare adequately for his defence. See also OLAYINKA FARA v. I.G.P (1996) 1 ALL NLR 6. A valid charge is one that states essential particulars as to time, place, and the person against whom in respect of which the crime was committed. It is to give the accused notice of the matter against him. Going by the description of a valid charge, count 3 qualifies as a competent charge. More so, the particulars went further to elucidate the charge to such an extent that the Appellant knew what was in issue to enable him prepare his defence. The main allegation was breach of military duty. The learned counsel to the appellant failed to appreciate that this was a criminal trial and not negligence in a claim in tort. I do not therefore agree with him in his strenuous effort and conclusions in arguing this issue. This issue is resolved in favour of the Respondent.
ISSUE 4
It is the submission of the counsel to the Appellant that even though the judge – advocate performed his duty under Rule 64 of the Rules of Procedure (Army) 1972 by advising the court on matters relating to law in the issue, he did so in a perfunctory manner, thereby misdirecting the
29
court, specifically with respect to the construction of count 3. He further stated that if the prosecutor meant to charge the accused for deserting the unit as reasoned by the judge – advocate, the charge ought to have been brought under S. 60 of the Armed Forces Act which unambiguously deals with the offence of desertion. Appellant Counsel further queried the reasoning of the judge – advocate who sought to bring up desertion since it is common service knowledge that the offence of desertion is committed when an accused is absent from duty for a period of not less than 21 days with the intention of keeping permanently away from duty. Furthermore, counsel to the Appellant submitted that the judge – advocate had summed up count 2 based on his previous knowledge of the appellant’s case, hence, the judge – advocate was biased, referred to OSAWE v. ASUEN (1992) 4 NWLR (PT 235) 291, NNODEM v. AMADI (1993) 1 NWLR (PT 271) 568, ARUBA v. AIYEJERU (1993) 3 NWLR (PT 280) 126.
?The Respondent did not directly respond to the Appellant’s issue 4 which borders on mis-direction by the Judge advocate with particular regard to the Judge – advocate having a foreknowledge of the
30
facts of the case, thus the Appellant submitted in his reply that the Respondent has conceded to the point and relied on WING COMMANDER TLA SHEKETE v. THE NIGERIAN AIR FORCE (2007) 14 NWLR (pt. 1053) 159.
RESOLUTION:
The requirement of a judge advocate to sit in a court martial is a requirement of the Armed Forces Act, particularly Section 133 (5) and (6). The most important duty is to advise a court martial on matters relating to law which may arise in the course of a court martial trial. The quarrel of the appellant in this issue is that the judge advocate misdirected the court martial on issues of law thereby leading the court into error, with particular emphasis on count three, wherein the issue of negligence and abandonment are key words used in count three.
Of particular interest here is the direction of the judge advocate at pages 399 of the records of appeal. The appellant contends that the advice by the judge advocate that the abandonment of the unit made the appellant to negligently perform his duty under Section 62 of the Armed Forces Act as acting commanding officer is wrong and the appellant argued that it should have been desertion. The appellant
31
by his own showing defined desertion to mean “abandoning the service for a period of 21 days”. Here, the negligent act of abandoning the unit was not up to a day but crucial number of hours. That therefore means desertion is out of the question. The appellant did not perform the duties required of him as the next most senior officer expeditiously and he was not accessible for a period of 12 hours after knowing that the commanding officer had been taken outside the barracks. Furthermore, Section 62 is broad enough to allow the judge advocate give the court martial that slant in the direction he did. When the appellant says the military duty is one that cannot be negligently performed, one may ask if failure to send a SITREP as expected is not a military duty? Was it not negligently performed? The answer is that it was negligently or carelessly performed. So the argument of the appellant is nothing but semantics that has no value or benefit to the appellant in this appeal. The appellant was not misled by the charge, he understood it and thus pleaded not guilty to the charge. There was no misdirection in law since the charge was for the negligent manner in which
32
the appellant performed the military duty and not desertion as the appellant would want the court to believe.
Furthermore, on the fore-knowledge of exhibits by the judge advocate which the appellant contends was prejudicial, the argument of the appellant cannot hold water.
A judge advocate was described by the Supreme Court thus:
“Under military law, Judge Advocate is an officer of a court-martial who acts as prosecutor. He is also a legal adviser on a military commander’s staff. See Black’s Law Dictionary, Ninth (9th Edtn) 918. It has been held that the Judge Advocate is just in the nature of a state counsel being a legal officer serving in the court martial to prosecute any person arraigned before the court. Indeed, the duty of a Judge Advocate does not extend to taking part in the final decision making. He is comparable with a legal officer from the office of Public Prosecution in the Ministry of Justice, who prosecutes in the common law courts. He only prosecutes by presenting facts and the law to assist the presiding Judge to arrive at a just decision on the complaint or charge presented.”
See THE NIGERIAN ARMY v. LT. PATRICK DODO (2012) LPELR – 8288
33
(SC).
Exhibits ‘B’ – the digital camera and Exhibit ‘C’ mini tape recorder were duly admitted in evidence and the fact that they were also used in another trial cannot be prejudicial. They were duly identified and tied up by witnesses to the commission of the offences charged and the appellant was given an opportunity to cross examine witnesses on them. The fact of the judge advocate also being the judge advocate in that other trial without more is a nonstarter. Infact the case SHEKETE v. THE NIGERIA AIRFORCE (SUPRA) is not in favour of the Appellant. The appellant sought to rely on the following cases for the application of his principles:
A. NNODEM v. AMADI (1993) 1 NWLR (PT. 271) 568
B. ARUBA v. AIYELERU (1993) 3 NWLR (PT. 280) 126
C. OTEJU v. OLUGUNA (1992) 8 NWLR (PT. 266) 752
D. OSAWE v. ASUEN (1992) 4 NWLR (PT. 235) 291
E. ADEFULU v. OKULAJA (1998) 5 NWLR (PT. 550) 435
The role of the Judge advocate is clearly advisory and he does not decide the guilt of an accused. The court can reject a Judge advocate’s advice and decide otherwise. The principle enunciated in the above listed cases all apply to the trial Judge and not a Judge advocate. There was therefore
34
no misdirection on points of law by the Judge advocate that amounts to a miscarriage of justice that could impeach the trial. This issue is resolved against the appellant.
ISSUE 5
Counsel to the Appellant submitted that since the Court martial is an executive court, its findings cannot be enforced until confirmed as promulgated by the Nigerian Army Council, S. 9 , 10 , 11 , S, 151 ( 6) and 175 of the Armed Forces Act . Also referred to LT. COL. AKINWALE v. NIGERIAN ARMY (2001) 16 NWLR (PT. 738) 109 and LT. COL KOMONIBO v. NIGERIAN ARMY (2002) 6 NWLR (PT 762) 94. However, Appellant’s Counsel contends that in the purported exercise of the Army Council’s powers, the Army Council imposed a higher punishment on the Appellant by reducing the 4 years seniority granted the Appellant in the rank of captain to three (3) years which violates S. 151 (3) of the Armed Forces Act and ultra vires the statutory powers and duties of the Army Council, NIGERIAN ARMY v. IYELA (2008) 7 – 12 SC 35, OVU v. COP (1960) SCNLR 251 . In the same vein, counsel to the Appellant contends that the Army Council ought not to have confirmed the withdrawal of the promotion of the Appellant since
35
the court martial had never at any time pronounced on withdrawal of the Appellant’s promotion to Lt. Col. He submitted that any excessive exercise of the powers of the Army Council will render its act null and void ab initio and referred to OLANIYAN v. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT 9) 598, NZE v. THE NIGERIAN PORTS AUTHORITY (1997) 11 NWLR (PT 528) 210.
On this issue, Respondent’s Counsel submitted that the Army Council confirmed the sentence of the Court Martial which reduced the Appellant?s rank from a Major to a Captain and in doing so adjusted the Appellant’s seniority based on what was available. He posits that it was within the Army council’s administrative powers under S. 10 (1) of the Armed Forces Act and does not amount to giving a higher punishment than that awarded by the Court Martial. Respondent’s Counsel further submitted that as regards the withdrawal of the Appellant’s promotion, a promotion is a privilege and not an actionable right, he referred to RE: DR. JOHN HUNTER MILLER and urged this Court to resolve this issue in favour of the Respondent.
?In response, Appellant’s Counsel argued that the Army Council in the exercise of its
36
administrative powers cannot violate the provisions of S. 151 (1) (b) and (3) of the Armed Forces Act which are clear, plain and unambiguous, referred to ALHAJI ALIYU v. JUDICIAL SERVICE COMMISSION KADUNA STATE (1998) 14 NWLR (PT 589) in stating that the provisions of the Act should be given their plain interpretation.
RESOLUTION:
The Armed Forces Act vests the authority of confirming any sentence passed by a court martial on a commissioned officer in the service of the particular council, in this case, the Army council as per Section 152 (b) of the Act. Therefore, whatever sentence a court martial passes, it is still subject to confirmation according to the law. The Army council in this case at its meeting of the 19th day of October, 2009 confirmed the findings and sentence passed by the court martial on the appellant, see page 461 of the record of appeals. However, the contention of the Appellant is that the Army council went outside or exceeded its powers in substituting the sentence from reduction of rank from major to captain with 4 years seniority with a reduction in rank from Major to captain but with 3 years in seniority. This action the appellant
37
contends is ultra vires of the powers of the Council because it can only confirm but not increase sentence. The provisions of S. 151 (4) of the Armed Forces Act provides as follows:
“If the confirming authority confirms the sentence of a court – martial, the confirming authority may –
a. Remit in whole or in part a punishment awarded by the court-martial; or
b. Commute a punishment so awarded for such other and lesser punishment or punishments as may be prescribed by this Act.
Clearly, the Confirming authority did not commute the punishment with another lesser punishment. Commute in law means to reduce (a sentence) to one less severe. More so, a clear reading of the word “with such other and lesser punishment” implies that the confirming authority, in confirming the sentence of a court martial, can substitute a sentence imposed by a court – martial for a lesser one but it has no power to completely upturn or increase the findings of a court – martial. The question to answer now is whether the actions of the Confirming authority amounts to increase in the sentence handed down by the court martial.The Respondent sought to hinge the justification of the Confirming
38
Authority’s action on the provisions of S. 10 (1) of the Armed Forces Act . For clarity, the provision reads as follows:
(1) Subject to the provisions of subsection (2) of this Section , the Army Council shall be responsible, under the general authority of the Chief of Defence Staff, for the command, discipline and administration of and for all other matters relating to the Army.
(2) The responsibility of the Army Council shall not extend to the operational use of the Army.
In my opinion, I do not see how this section justifies the actions of the confirming authority. By reducing the 4 years seniority granted the appellant in the rank of captain to 3 years, the Confirming authority had increased the punishment awarded by the Court Martial. This is because the Appellant now has a longer time to stay in the rank of captain before being considered for promotion to the next rank. That notwithstanding, I do not agree with the Appellant that excessive exercise of the powers of the Army Council will render the entire sentence null and void. This court is empowered by virtue of S. 186 (3) of the Armed Forces Act to substitute for the finding of the court – martial such
39
sentence as it thinks proper, being a sentence which, under Section 118 or 119 of the Act , could lawfully have been passed for the offence specified or involved in the substituted finding. The section reads as follows:
“(3) Where –
a) An appellant has been convicted of an offence committed under circumstances involving the higher of two degrees of punishment, and it appears to the Court of Appeal that the court-martial by which he was tried ought to have found him guilty of the offences as being committed under circumstances involving the lower degree of punishment; or
b) An appellant has been convicted of an offence and it appears to the Court of Appeal that the court – martial by which he was tried ought to have found him guilty of the offence subject to exceptions or variations,
The Court of Appeal may, instead of allowing or dismissing the appeal substitute for the finding of the court-martial a finding of guilty of the offence as being committed under circumstances involving the lower degree of punishment or, as the case may be, is guilty of the offence subject to exceptions or variations and pass on the appellant, in substitution for the sentence passed on
40
him by the court – martial, such sentence as it thinks proper, being a sentence which, under Section 118 or 119 of this Act , could lawfully have been passed for the offence specified or involved in the substituted finding, but not being a sentence of greater severity.”
It is only when the confirming authority confirms the sentence that the sentence becomes that of the court martial. This court is statutorily empowered to substitute a sentence where a sentence was unlawfully handed out with a lawful one. It is therefore in the exercise of that power that this court restores back the sentence that the appellant be demoted to the rank of Captain with 4 years seniority.
In the circumstances therefore, this issue is partly resolved in favour of the Appellants.
ISSUE 6
In his argument, counsel to the Appellant states that the prosecution must prove its case beyond reasonable doubt in criminal cases, Section?138 (1) Evidence Act and R v. EKA 11 WACA 38 but that the prosecution in this case failed to discharge this duty. Counsel to the Appellant further submitted that there is abundant evidence to show that the Appellant sent a SITREP to Head Quarters 8 Bde as shown by
41
“Exhibit E” tendered by the prosecution and “Exhibit G” (SITREP 70) tendered by the Defence. According to the Appellant, it does not matter that SITREP 70 was signed by Major D. O. Donibo since the said SITREP 70 was sent during the tenure of the Appellant as Ag Co. Appellant counsel further stated that the complaint of PW4 was not that the Appellant did not send a SITREP but he ought to have sent a Special SITREP which the situation demanded.
Appellant Counsel further stated that there are inconsistencies in the testimonies of PW4 and PW9 and such evidence which is equally open to interpretation consistent with the accused person’s innocence must be construed in favour of the accused person, ALABI v. THE STATE (1993) 7 NWLR (PT 307) 511, NWOKEDI v. COP (1977) ALL NLR (REPRINT) 11, OJOBOR v. THE QUEEN (1957) SCNLR 218, CARLEN (NIG) LTD v. UNIVERSITY OF JOS (1984) NWLR (pt 323) 631 . Furthermore, Appellant argued that the totality of the evidence of the prosecution in support of Count 2 is at variance with the particulars of the offence. Appellant Counsel further submitted that the Appellant cannot be convicted of aiding and abetting the assault by providing the
42
assailants with a digital camera and a tape recorder since the digital camera and the tape recorder were not used to assault Lt. Col. CC Owhonda and relied on OKOLI UKATA v. THE QUEEN (1958) SCNLR 371. That the issue is not that of ownership but rather the use to which the instruments were put and those behind the use. Appellant Counsel therefore submits that the charge was speculative and based on suspicion which cannot ground a conviction, KALU v . THE STATE (1993) 3 NWLR (PT 279) 20.
Appellant further submitted that the absence of the Appellant from his house simpliciter is not tantamount to abandoning his unit. That as shown by evidence, the Appellant during the period was at a house adjacent to his to fix his laptop and such evidence was not contradicted by the prosecution. According to Counsel, the word “abandon” is stronger than the word “absent” and connotes hostilities associated with war. He further alleged that the Court made self – damaging remarks and the findings of the Court martial were perverse in law because the prosecution failed to prove its case against the appellant as required by law, OKPIRI v. JONAH (1961) ANLR 112; IKE v. UGBOATA (1992)
43
6 NWLR (PT. 301) 539; UBA LTD v. LOUIS (1994) 4 NWLR (PT 336) 110.
On the other hand, learned counsel to the Respondent submitted that the records before this court shows that all three counts against the Appellant were proved beyond reasonable doubt. With regards to count 1, counsel to the Respondent submitted that the ingredients of proving a charge of failure to perform military duties under S. 62 of the Armed Forces Act are analyzed in SURGEON CAPTAIN C.T. OLOWU v. THE NIGERIAN NAVY (2011) 12 MJSC (Pt 1) 163 and it was proved. Respondent Counsel pointed out specific testimonies of the witnesses to buttress this point. He also relied on the following cases: STATE v. OLADOTUN (2011) 5 (PT 1) MJSC 132, MUFUTAU BAKARE v. THE STATE (1987) 3 SC 1; OKERE v. THE STATE (2001) 2 NWLR (PT 697) 397 and USUFU v. THE STATE (2007) 1 NWLR (Pt. 1020) 94. In proof of Count 2, Respondent’s Counsel stated that the Appellant contradicted himself under examination – in – chief by claiming that he gave the tape recorder and camera to Mrs. Oshioghele to use during her birthday celebration at the instance of Lt. Col Owhonda whereas he had by his voluntary statement to the Military
44
Police admitted to giving the recorder to Mrs. Oshioghele to assist her in recording her conversations with Lt. Col. Owhonda. He submitted that where the statement of an accused made before the trial is inconsistent with his testimony at the trial, the court should reject both as unreliable, IKEMSON v. THE STATE (1998) 1 ACLR 80, R v. UKPONG (1961) 1 ALL NLR 25, ONUBOGU v. THE STATE (1998) 1 ACLR 67, UBANI v. THE STATE (2004) 1 MJSC 92. Respondent Counsel stated that the fact that the Appellant planned and masterminded the attack on Lt. Col, Owhonda is evident by the cold indifference with which the Appellant treated the news of the attack, the fact that the Appellant frantically tried to remove the tape recorder and camera from the seized car of one of the assailants and also that the Appellant had provided the handcuffs used in the attack. He also sought to show that the Appellant had hatred for Lt. Col. Owhonda and this formed a motive for aiding and abetting the attack on Lt. Col. Cc Owhonda. Respondent Counsel urged this court to hold that count 2 was proved beyond reasonable doubt, he referred to the case of MUFUTAU BAKARE v. THE STATE (SUPRA) and
45 AIGBANJE v. THE STATE (1998) 1 ACLR 168.
On count 3, learned counsel to the Respondent stated that the Appellant abandoned his unit which made it necessary for the officers to go and search for the Appellant in his house and that even when all his phone lines were called, he was not reachable. He submitted that the three counts have been proved against the Appellant beyond reasonable doubt citing OKERE v. THE STATE (2001) 2 NWLR (PT. 697) 397 and urged this Court to resolve the issue in favour of the Respondent.
The Appellant sought to reply to these facts raised by the Respondent but his arguments are basically a rehash of his submissions in his brief.
RESOLUTION:
This issue challenges the evidence before the court and evaluation made by the court martial. It is settled beyond citing of authorities that an appellate court cannot interfere with the evaluation of evidence by a trial court except if it is perverse and or has failed to take relevant matters into account.
?Evaluation of evidence is the duty of a trial court and is cautiously interfered with by an appellate court, see the case of OSHE v. OKIN BISCUITS LTD (2010) 11 NWLR (Pt. 1206) 482 where the
46 Supreme Court held as follows:
“The settled principle of law is that evaluation and ascription of probative value thereto is pre-eminently that of the trial court which alone has the advantage of seeing and hearing witnesses as they testify. And an appellate court, because of its disadvantage of not seeing and hearing witnesses, would not therefore, ordinarily interfere with the findings of fact of the trial court.”
The appellant contends that there was no strong enough evidence before the court martial to establish the charge and that the court martial erroneously found the appellant guilty. It is settled that proof in a criminal trial is proof beyond reasonable doubt and not beyond all doubts. It is also not dependent on the number of witnesses but on whether there is evidence to establish elements of the offence charged. Once there is cogent evidence establishing the offence, a court will without doubt find the accused guilty, see THEOPHILUS v. STATE (1996) 1 NWLR (PT. 423) 151. However, the accused cannot be guilty if any element of the offence stands unproved.
?Count one is alleging negligent performance of military duty. The appellant testified that he sent
47
the report which was found to be false. He also cross examined the Respondent witnesses. The duty expected of the appellant is not denied. The court found that the evidence available proved the said count. The argument of learned counsel to the appellant on the difference between negligence and negligent performance of duty is unnecessary and mere playing with words, it adds up to nothing in defence of the offence alleged. The negligent performance of duty was indeed proved and even by the appellant’s showing he prepared a report which he admitted was sent by a junior officer when he should have signed and sent it himself being the acting commanding officer of the unit. He could not send the report because he could not be seen. He was very negligent in doing what he knew and should have done and at the appropriate time, see the evidence of Pw2 and Pw4. I do not agree that count one was not established by evidence. Appellant admitted his lapses under cross – examination.
?On count two the appellant?s argument has lost sight of the definition of to aid and abet. In simple legal definition, the Black’s law Dictionary 9th Edition defines the two words as
48
follows:
“To assist or facilitate the commission of an offence; or to promote its accomplishment; abet is to encourage instigate or advice the commission of an offence.”
To aid is help or assist, and evidence abound in the record of appeal linking the appellant with the plan and execution of the plot to assault and take away the commanding officer on the allegation of an amorous relationship with Mrs. Patience Oshioghele. The evidence of Pw1, Pw2, Pw3 and Pw6 all attest to the role of the appellant. The appellant himself during cross – examination also admitted knowing about the plot before it was executed and the said exhibits used in committing the offence have a connection with him. He owns the camera and procured the tape recorder to be used along the handcuffs. He held meetings with the key players involved in the plot. The appellant’s reaction to the report that the commanding officer had been kidnapped all attest to his involvement in the plot right from the onset. If this is not aiding and abetting, then, I wonder what the definition of the words could mean. The argument of the appellant lack merit and is discountenanced.
The arguments of the Appellant on
49
Count 3 have been dealt with earlier. It was required of appellant to take control but he disappeared and he knew of the emergency but he went to download programs onto his laptop. Not even his wife knew where he was. His phones were all switched off. The appellant’s non accessibility by his subordinates is constructive abandonment. The word “abandon” also means to withdraw from. The appellant actually did withdraw from taking charge of the battalion, see the evidence of Pw7, Pw8. Is there evidence in support of the third count? The obvious answer is yes; the court martial found so and the finding is supported by evidence before the court.
The court properly evaluated the evidence before it arrived at the verdict which is supported by evidence. The trial court therefore performed its duty of properly evaluating all evidence. There is therefore no need for this court to interfere. The findings are not perverse. This issue is also resolved against the appellant.
On the whole, this appeal fails in part. The judgment of the Special Court Martial convened by MAJOR GEN. O. A. IHEJIRIKA is hereby affirmed.
I make no order as to costs.
UZO I. NDUKWE-ANYANWU, J.C.A.: I
50
had the privilege of reading in draft form, the Judgment just delivered by my learned brother Yargata Byenchit Nimpar, JCA.I agree with her resolutions of the issues articulated. I have nothing more to add. I abide by all the orders contained in the lead judgment including that as to cost.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading the draft copy of the judgment just delivered by my learned brother Y. B. NIMPAR JCA.
?The issues in contention were adequately highlighted and addressed in line with relevant authorities and statutory provisions.
I agree with the reasoning and conclusion reached in the said lead judgment and have nothing extra to add.
?I also allow the appeal in part.I abide by the consequential orders made in the lead judgment.
Appearances
Appellant Absent
J.A. Asemota For Respondent
P. E. Okoaue .
?51
Appearances
APPELLANT IS ABSENTFor Appellant
AND
J. A. ASEMOTA
P. E. OKOAUEFor Respondent
