CAPTAIN K. A. ADETA v. NIGERIAN ARMY
(2016)LCN/8216(CA)
In The Court of Appeal of Nigeria
On Friday, the 26th day of February, 2016
CA/K/234/2015
RATIO
COURT: WHETHER MEMBERS OF A PANEL OR TRIBUNAL CAN BE SUBSTITUTED
The issue of the substitution of members of a panel or tribunal has been settled by the Supreme Court in NDUKWE V. LPDC (2007) 5 NWLR (PT.1026) 1, wherein it was held:
‘A mere variation in the composition of a panel or tribunal or Court does not affect the substance of the inquiry conducted, can neither affect the judgment or decision of such a body, nor render the same a nullity, In the instant case, the decision of the 1st appellant was in substantial compliance with the relevant law and rule applicable to the proceedings of the 1st respondent Furthermore, the appellant failed to show how the variations in the panel of the 1st respondent that heard the charge against him and that which delivered its judgment occasioned a miscarriage of justice against him.” per. UWANI MUSA ABBA-AJI, J.C.A.
EVIDENCE: BURDEN OF PROOF; ON WHICH OF THE PARTY LIES THE BURDEN OF PROOF OF THE APPELLANT’S GUILT
It is trite that it is on the prosecution to prove the guilt of the Appellant and not for the Appellant to prove his innocence. See AKHIMIEN V. THE STATE (1987) NWLR (PT.52) or (1987) 3SC. 734; IGBABELE V. THE STATE (2006) 6 NWLR (PT.975) 100. Thus, is expected that the Respondent should by all means established the negligence and guilt of the Appellant by calling on the witnesses who were part and parcel of the attack, yet there is no record of any failed attempt to forward these eyewitnesses to give evidence in order to establish the negligence of the Appellant despite the complaints of failure of the shiller and the tank. In OJO V. GHARORO (1999) I NWLR (PT.615) 374 AT 387 PARA D, it was held that “The evidence of an eye witness is the best evidence and it attracts the most probative value. Such evidence which is direct is relevant and admissible and towers high above hearsay evidence.” per. UWANI MUSA ABBA-AJI, J.C.A.
JUSTICES:
UWANI MUSA ABBA-AJI Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
Between
CAPTAIN K. A. ADETA – Appellant(s)
AND
NIGERIAN ARMY – Respondent(s)
UWANI MUSA ABBA-AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Nigerian Army, 1 Division General Court Martial sitting at 3 Division Officers Mess, Maxwell Khobe Military Cantonment, Jos, presided over by Col. JJ Ogunlade (N/8845) as President, Col. MT Waboke (N/9081), Col. JO Sokoya (N/9382), Col. M. Kadri (N/9659), Col. MW Abubakar (N/9814), Col. AA Bamgbose (N/9453) Col. NA Abdulrahim (N/8986) and Col. EM Albara (N/9115), as members;
Lt. Col. B Garke (N/9478) as Waiting Member and Capt. A. Mohammed (N/12687) as Judge Advocate, delivered on 20/1/2015 and confirmed on 8/4/2015, wherein the Appellant contrary to Section 62 (b) of the Armed Forces Act, CAP A20, LFN 2004, was convicted and sentenced 2 years imprisonment subject to confirmation by Appropriate Superior Authority (ASA) as contained at page 113 of the records.
The charge against the Appellant contained on the NA Form 8252 at page 6 of the records reads as follows:
STATEMENT OF OFFENCE: Failure to perform military duties punishable under Section 62 (b) of the Armed Forces Act CAP A20 Laws of the Federation of Nigeria
2004.
PARTICULARS OF OFFENCE: In that you at Giwa Barracks Maiduguri on or about 14 March, 2014 negligently performed your duty as the No. 3 Platoon (Tango 3) Commander which facilitated the attack of Giwa Baracks by suspected Boko Haram terrorists.
KC OSUJI
Mai Gen
GOC
The facts of the case are that the Appellant who at the material time of this case was a Captain of the Nigerian Army at Depot Nigerian Army and the Platoon Commander of Tango 3 at Giwa Barrack, Maiduguri, Borno State. That on or about 14/3/20/4, he negligently performed his duty as the No.3 Platoon (Tango 3) Commander which facilitated the attack of Giwa Barracks by suspected Boko Haram terrorists. Therefore, he with other military personnel was tried by a Court martial in Kaduna and convicted as charged and sentenced to 2 years imprisonment. During the trial, the prosecution called 1 witness and tendered Exhibits PW1(a) and PW1(b).
The Appellant being dissatisfied with the said conviction and sentence appealed with the leave of this Court granted on the 1/715, vide a Notice of Appeal dated and filed on 3/72015, wherein he raised 14 Grounds of Appeal hereunder
reproduced without their particulars:
GROUNDS OF APPEAL
GROUND ONE
The learned President and members of the General Court Martial erred in law when they tried and convicted the Appellant on a charge which is incompetent ab initio thereby occasioning a grave miscarriage of justice.
GROUND TWO
The learned President and Members of the General Court Martial erred in law when they failed to rule on the Appellant’s objection to the competence of the charge before proceeding to trial which error has thereby occasioned a grave miscarriage of justice.
GROUND THREE
The learned President and Members of the General Court Martial erred in law when they failed to evaluate the evidence of the prosecution before pronouncing Appellant guilty of the offence for which he was charged.
GROUND FOUR
The learned President and Members of the General Court Martial erred in law when they proceeded with the trial of the Appellant when they were not properly constituted which error robs the General Court Martial the requisite jurisdiction to entertain the charge’
GROUND FIVE
The learned President and Members of the General Court
Martial erred in law by convicting the Appellant when vital witnesses were not called by the prosecution to prove the charge which error has occasioned a grave miscarriage of justice.
GROUND SIX
The learned President and Members of the General Court Martial erred in law and acted without jurisdiction when they relied on assumption rather than quality evidence to convict the Appellant
GROUND SEVEN
The learned President and Members of the General Court Martial erred in law when it held that simply because the barracks was overrun signifies his guilt,
GROUND EIGHT
The learned President and Members of the General Court Martial erred in law when it held that the Appellant did not exercise standard of care simply because the barracks was overtaken by the insurgents.
GROUND NINE
The learned President and Members of the General Court Martial erred in law when it relied on speculative evidence rather than quality evidence in convicting the Appellant.
GROUND TEN
The learned President and Members of the General Court Martial erred in law and acted without jurisdiction when they were improperly constituted and yet
proceeded to hear and convict the Appellant.
GROUND ELEVEN
The learned President and members of the General Court Martial erred in law and acted without jurisdiction when there was a change in composition of the Court and the Appellant was not asked of his opinion and yet proceeded to try and convict the Appellant
GROUND TWELVE
The President and Members of the General Court Martial erred in law when they held:
“The accused had the duty of care and render explanation as to what happened in his platoon locality. The standard of care toward the defence of his platoon locality and coordination of his men was absent.
Thereby shifting the onus of proof to the accused person, which error has occasioned a miscarriage of justice.
GROUND THIRTEEN
The Court Martial erred in law in convicting the Appellant for the offence charged, when the ingredients of the offence were not proved by the prosecution, which error has led to a miscarriage of justice.
GROUND FOURTEEN
The judgment is unreasonable, unwarranted and cannot be supported having regard to the evidence,
In accordance with the Rules of this Court, the
Appellant filed his Brief of argument dated and filed on 24/7/2015, settled by Lateef Fagbemi, SAN, wherein he formulated 4 issues for the determination of the appeal to wit:-
i, Whether the Court Martial was properly constituted so as to give it jurisdiction and competence to try the Appellant? (Grounds 4, 10, 11),
ii. Whether the Court Martial was right in trying and convicting the Appellant based on a charge which was prima facie incompetent? (Ground 7)
iii. Whether the Court Martial was right in not ruling on the preliminary objection duly raised against the competence of the charge before proceeding to trial when issues have been duly joined by parties on both sides? (Ground 2); and iv. Whether from the totality of the materials presented by the prosecution, the charge against the Accused/Appellant was proved beyond reasonable doubt (Grounds 3, 5, 6, 7, 8, 9, 12, 13 & 14);
The Respondent on the other hand, in adopting the issues formulated by the Appellant, filed its Brief of argument dated 20/11/2015 but deemed properly filed on 1/12/2015, settled by A. I. Omachi, Esq. Consequently, the Appellant filed a Reply Brief dated and
filed on 14/12/2015.
At the hearing of the appeal on 19/1/2016, the Counsel to the Appellant adopted his Brief of argument and prayed this Court to allow the appeal and set aside the conviction and sentence of the Appellant while the Counsel to the Respondent adopted his Brief and urged the Court to sustain the conviction and sentence of the trial Court Martial.
I shall consider this appeal on this lone issue bundled thus: Whether the trial General Court Martial had the jurisdiction to try and convict the Appellant for the offence charged as proved beyond reasonable doubt.
ISSUE:
Whether the trial General Court Martial had the jurisdiction to try and convict the Appellant for the offence charged as proved beyond reasonable doubt.
It is submitted that for a Court to have jurisdiction, none of its members must in any way be disqualified to sit on the panel. He cited MADUKOLU V. NKEMDILIM (1962) 2 NSCC 374, ATOLAGBE V. AWUNI (1997) 9 NWLR (PT.522) 536. It is argued that one Col. A. Garba (N/9496) was replaced with one Col. N.A. Abdulrahim (N/8986) in the 7-man panel of the convening order, thus the Court martial panel that tried and
convicted the Appellant was not properly constituted. He quoted OKEREKE V. YAR’ADUA (2008) 12 NWLR (PT.1100) 95 AT 118, MADUKOLU V. NKEMDILIM (supra). Again, that by the convening authority of 21/8/2014, Col. J.O Sokoya (N/9382) who participated in the arraignment of the Appellant was removed and replaced with one Col. P. U. Ashim (N/8734) without giving an opportunity to the Appellant to object contrary to Section 137(1) OF THE ARMED FORCES ACT. CAP A20 VOL. I LFN 2004 and AGBITI V. NIGERIAN NAVY (2011) 4 NWLR (PT.1236) 175 AT 212.
Additionally, that by the particulars of the charge against the Appellant under Section 62 (A) of the Armed Forces Act, Cap A20 LFN, 2004, there is no clear picture to the Appellant of the reason for his arraignment contrary to the law in ENAHORO V. QUEEN (1965) VOL.4 NSCC PG.98. He contended that while Section 62 (a) wherein the Appellant was charged provides for ‘failure to perform some specified duties’, Section 62 (b) provides for the issue of ‘negligence in the performance of a duty’, thus there is no correlation whatsoever between the statement of the offence and the particulars of the offence stated in the charge,
hence the charge ought to have been struck out in limine. He relied on ENAHORO V. QUEEN (supra).
It is submitted hereunder by the learned senior Counsel to the Appellant that a Court of law must mandatorily rule on all issues properly raised before it one way or the other and failure amounts to denial of fair hearing especially if it borders on jurisdiction. He relied on U.U.U.V, ISUOFIA V. U. V. UNION (2011) 6 NWLR (PT.1243) 394 AT 412, OVUNWO V. WOKO (2011) 17 NWLR (PT.1277) 522 AT 546, ANSA V. CROSS L INES LTD. (2005) 14 NWLR (PT.946) 645 AT 665. It is his submission therefore that this failure is fundamental and vitiates the trial of the Appellant.
It is the submission of the learned senior Counsel that it is on the prosecution to establish the guilt of the accused since he is presumed innocent. He cited CHIANUGO V. STATE (2002) 2 NWLR (PT.750) 225 AT 239, OKOTO V. STATE (1988) 5 NWLR (PT.94) 255. He stated that this burden is static. He cited NWANKWOALA V. STATE (2005) 12 NWLR (PT.940) 637 @ 641 . He argued that the Respondent introduced the element of ‘negligence’ but failed to prove same. He relied on GEORGE V. F.R.N , (2014) 5 NWLR (PT.1399) 1 @
24. He said that the Appellant was convicted and sentenced based on hearsay evidence since none of the eyewitness was called to testify. He relied on UTTEH V. STATE (1992) 2 NWLR (PT.223) 257 @ 273, YUSUF v. OBASANJO (2005) 18 NWLR (PT.956) 96 @ 176-177. He concluded that the Court martial assumed and speculated on facts and did not properly evaluate the evidence. He relied on AJOLORE V. STATE (1993) 4 NWLR (PT.289) PG.572 @ 594, ONISA ODU V. ELEWUJU (2006) 13 NWLR (PT.998) 517 @ 532, ILORI V. TELLA (2006) 18 NWLR (PT.1011) 267 @ 289, AGBITI V. NIGERIAN NAVY (2011) 4 NWLR (PT.1236) 175 @ 216, He urged this Court to resolve this issue in his favour and set aside the decision of the Court martial.
The learned Counsel to the Respondent on the other hand submitted that the Court martial was properly constituted. He stated that the competence of a Court martial is derived from the convening order issued by the convening officer. He relied on BAKOSHI V. CHIEF OF NAVAL STAFF (2014) 15 NWLR (PT.896) 290. He submitted that there was an amendment and ratification to the earlier convening order which substituted the name of Col. A. Garba (N/9496) with Col. N.A.
Abdulrahim (N/8986). He relied on NIGERIAN AIR FORCE VS. EX-WING COMMANDER L.D. JAMES (2003) FWLR (PT.143) 257. Furthermore, that at the commencement of the Appellant’s trial, he was given an opportunity to object to the membership of the Court martial as constituted, hence, that there was compliance with Section 27(1) of the Rules of Procedure (Army), 1972. He also submitted that Col. P.U. Ashim never participated in the trial of the Appellant and the removal of Col. J. O. Sokoya did not affect the quorum of the panel pursuant to Sections 129 (a) and 133 (1)(3)(b) of the Armed Forces Act which allow for a minimum of not less than 4 members and 2 members with the President respectively in cases tried by the Appellant. He relied on AGBITI V. NIGERIAN NAVY (2011) 4 NWLR (PT.1236) 175, OLOWU V. NIGERIAN NAVY (2011) 18 NWLR (PT.1279) 659.
On the defect of the charge, it is submitted that the Appellant objected to it through his Counsel after his plea was taken. He argued that failure to object to a defective charge before plea is taken forecloses the right of the accused. He relied on Rule 37(1) of the Rules of Procedure (Army) 1972, OBAKPOLOR V. STATE (1991) 1
NWLR (PT.165) 113, SHEKETE V. NIGERIAN AIR FORCE (2007) 14 NWLR (PT.1053) 159, Similarly, that the Court martial, the Appellant and Respondent were unanimous that the Appellant was charged under Section 62 (b) of the Armed Forces Act, Cap A20 LFN, 2004, and not under Section 62 (a). Thus, the Appellant was never misled about the nature of the offence. He relied on SHEKETE V. NIGERIAN AIR FORCE (supra) 159 AT 195-196 PARAS H-A and Section 185 (1) of the Armed Forces Act.
It is submitted that the Appellant did not object to the fact that no ruling was delivered and acquiesced same but now makes it a subject matter of appeal. Thus, it is trite that he cannot be heard on appeal. He relied on SHEKETE V. NA (supra) AT 199 G. He stated that even if an objection was raised by the Appellant, it was not on the jurisdiction of the Court martial but on a perceived defect in the charge which the Appellant subsequently conceded that he was charged under Section 62(b) of the AFA. It is argued that the non-delivery of a ruling to his objection did not amount to breach of fair hearing since there was a waiver. Besides, that same had not occasioned a miscarriage of justice to
the Appellant. He relied on WORLU V. UMETO (2010) ALL FWLR (PT.503) 1369, SULE v. STATE (2009) ALL FWLR (PT.48l) 809, U.B.N. PLC V. IKWEN (2000) 3 NWLR (PT.648) 233, OJO V. F.R.N. (2009) ALL FWLR (PT.494) 1461. He submitted that no miscarriage of justice occurred.
On proof beyond reasonable doubt, it is submitted that the Respondent called PW1 through whom Exhibits 1A and 18 (the extrajudicial statements of the Appellant) were tendered, which contain damning ingredients of the offence charged. That the ingredients of the offence in Section 62 (b) of the AFA and as listed under SURGEON CAPTAIN C. T. OLOWO V. NIGERIAN NAVY (supra) AT 686-687 PARAS G-D are that the accused person is subject to service law and neglected to perform his duty or negligently performed his duty. Thus, that is incontestable that the Appellant was subject to service law. Further, that by Exhibit 1B, he admitted that he was negligent. Besides, that he offered no evidence in rebuttal of the evidence adduced by the Prosecution. He relied on SSGT, GODWIN IMHANRIA 1 & 2 ORS VS. NIGERIAN ARMY (2007) 14 NWLR (PT.1053) 76, DIBIEE V. STATE (2005) ALL FWLR (PT.259) 1995, IGABELE V.
STATE (2005) ALL FWLR (PT.285) 568.
Again, that the evidence of PW1 was not hearsay since he was the investigating officer who obtained the extra-judicial statement of the Appellant as Exhibits 1A and 1B. He urged this Court to resolve this issue in his favour and dismiss the appeal.
Permit me before delving into the Issue to comment on the Reply Brief of the Appellant dated and filed on 14/12/2015. I see no new issues in the argument of the Respondent that necessitated a Reply brief from the Appellant. A Reply brief is not for re-argument or adumbration of issues but for addressing new issues raised in the Respondents brief, if any. See NITEL PLC V. OCHOLI (2001) FWLR (PT.74) 254 AT 267. The Reply Brief filed by the Appellant is nothing but repletion of re-arguments and I cannot allow it to stand. Moreover, a Reply Brief that does not proper sensu address new issues will amount to injustice and denial of fair hearing if allowed except if the Respondent will also be given a second bite of the Cherry.
The Appellant was to be tried by a panel of Court martial constituted by a convening order dated 6/8/2014 wherein 7 members were constituted
including one Col. A Garba (N/9496) as the 6th member. However, a day after the trial of the Appellant properly, which commenced on 20/8/2014 as contained at page 12 of the records, there was a re-constitution of the panel in the earlier convening order of 6/8/2014 vide an “AMENDMENT NO. 3 TO CONVENING ORDER FOR A GENERAL COURT MARTIAL BY MAJOR GENERAL KC OSUJI… at page 138 of the records dated 21/8/2014, wherein a substitution was sought of Col. JO Sokoya (N/9382) with one Col. PU Ashim (N/8734). Similarly, there was another “AMENDMENT NO. 5 TO CONVENING ORDER FOR A GENERAL COURT MARTIAL BY MAJOR GENERAL KC OSUJI…” dated 14/10/2014 contained at page 150 of the records, wherein Col. A Garba, the 6th member in the original convening order of 20/8/2014 was substituted with one Col. NA Abdulrahim (N/8986). It is on record that the said substitution of Col. A Garba (N/9496) with Col. NA Abdulrahim (N/8986) was alleged to have been done pursuant to Amendment No.5 dated 14/10/2014. Calculatedly, this was done after about 2 months into the full trial of the Appellant.
It is contended by the Respondents learned Counsel that this substitution and
amendment ratified the original convening order and that Col. PU Ashim never participated in the trial of the Appellant. It is contended also that there was compliance with Rule 27(1) of the Rules of Procedure (Army) 1972 which provides as follows:
Rule 27(1) of the Rules of Procedure (Army), 1972:
“The order convening the Court and the names of officers appointed to try the accused shall be read in the hearing of the accused who shall be given an opportunity to object to any of those officers in accordance with Section 92 of the Act.”
It is on record at page 3 that there was compliance with the said Rule 27(1) wherein the Appellant was in the last 3 lines asked to object to being tried by the President and the officers whose names he had heard but he responded “NO”. The next question to ask is: were the names of the officers substituted in the list of officers he was to be tried It is apparent that the name of Col. N.A. Abdulrahim (N/8986) who substituted Col. A Garba (N/9496) was in the list of officers he was to be tried as evident on page 2 of the records when his trial commenced properly 21/8/2014. However, Col. PU Ashim (N/8734) who
was said to substitute Col. JO Sokoya (N/9382) did not appear thereon. Thus, Col. JO Sokoya (N/9382) remained among the panel that tried the Appellant. It is equally observable that Col. PU Ashim (N/8734) who was alleged to have substituted Col. JO Sokoya (N/9382) did not feature in the trial of the Appellant. The question that arises then is: Can the Appellant be tried by a panel of 6 or 7 Members for the offence he was charged with?
It was held by the Supreme Court in AGBITI V. NIGERIAN NAVY (2011) 4 NWLR (PT.1236) 175 AT 221 that a Court is competent to entertain a case when – (a)It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another, and (b)The subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction, (c)The case comes before the Court initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See also
MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341 AT 348.
On the constitution and jurisdiction of a Court
Martial,Section 133 (1) of the Armed Forces Act, LFN, 2004, provides:
Section 133 (1):
“Subject to the provisions of Sections 128 and 129 of this Act, a Court-martial shall be duly constituted if it consists of the President of the Court-martial, not less than two other officers and a waiting member.”
Section 133 (3) (b) provides:
“Where an officer is, to be tried, the President shall be above or of the same equivalent rank and seniority of the accused and the members thereof shall be of the same but not below the rank and seniority of the accused,”
Thus, the minimum number of members is 2 whereas in the present appeal, we have about 7 members that tried and convicted the Appellant.
Furthermore, Section 137 (1) OF THE ARMED FORCES ACT, CAP A20 VOL.1 LFN 2004 provides:
“An accused about to be tried by a Court Martial shall be entitled to object, on any reasonable grounds, to any member of the Court Martial or the waiting member whether appointed originally or in lieu of another officer.”
It is observed clearly that this provision gives a right and entitlement to the Appellant to object to the re-constitution of any member of the
Court martial. It is clearly a burden and responsibility on the Appellant and not on the panel of the Court martial. Failure by the Court martial does not amount to any breach since it is not its responsibility to do that. Thus, failure on whom this duty lies cannot be visited on the Court martial. As in all cases, the Appellant ought to have cried out and objected but whereas he chose to be mute, it is trite that he has waived that right. Besides, it is on record that the Appellant loudly at the last line of page 2 did not object to it.
The issue of the substitution of members of a panel or tribunal has been settled by the Supreme Court in NDUKWE V. LPDC (2007) 5 NWLR (PT.1026) 1, wherein it was held:
‘A mere variation in the composition of a panel or tribunal or Court does not affect the substance of the inquiry conducted, can neither affect the judgment or decision of such a body, nor render the same a nullity, In the instant case, the decision of the 1st appellant was in substantial compliance with the relevant law and rule applicable to the proceedings of the 1st respondent Furthermore, the appellant failed to show how the variations in the
panel of the 1st respondent that heard the charge against him and that which delivered its judgment occasioned a miscarriage of justice against him.”
See also ADEIGBE V. KUSIMO (1965) ALL NLR 248. I cannot therefore entertain any scruples and doubt that the Court martial that tried the Appellant was properly constituted and therefore had jurisdiction to try the Appellant.
Was the Appellant tried and convicted based on an incompetent charge It is contended by the Appellant’s learned senior Counsel that there is no correlation between the statement of the offence and the particulars of the offence for which the Appellant was tried and convicted. It is on record at page 6 that the Appellant was charged thus:
“STATEMENT OF OFFENCE: Failure to perform military duties punishable under Section 62 (b) of the Armed Forces Act CAP A20 Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE: In that you Giwa Baracks Maiduguri on or about 14 March, 2014 negligently performed your duty as the No. 3 Platoon (Tango 3) Commander which facilitated the attack of Giwa Barracks by suspected Boko Haram terrorists.”
On page 16 lines 4-6 of the records,
the Appellant after the above charge and particulars were read to him, was asked and he responded:
“Do you understand the charged?
Yes Sir,”
It is therefore not in dispute that the Appellant understood the charge, the particulars and their connection before he pleaded “Not guilty Sir.” There is nothing in this charge that goes to the jurisdiction of the Court martial. If there was any, it is but a defect. It is therefore the law as rightly held by Per Ogbuagu JSC in MAGAJI V. NIGERIAN ARMY (2008) 8 NWLR (PT.1089) 338, that any objection to a charge for any formal defect on the face thereof or for any perceived irregularity relating to procedure, shall be taken immediately after the charge has been read over to the accused and not later. See also OKAROH V. STATE (1990) 1 NWLR (PT.125) 129, (1990) 1 SCNJ 124. This is in tandem with the law and Rule under which the Appellant was tried and convicted. Rule 37 (1) of the Rules of Procedure (Army), 1972 provides:
Rule 37 (1) :
“An accused before pleading to a charge may object to it on the grounds that it is not correct in law or is not framed in accordance with these Rules, and if he
does so, the prosecutor may address the Court in answer to the objection and the accused may reply to the prosecutor’s address.”
Interesting too is the fact that the Appellant, the Respondent and the trial Court martial were agreed and unanimous that the Appellant was charged, tried and convicted under Section 62(b) of the Armed Forces Act, 2004. This is so abundantly and indelibly reflected at page 66 of the records, page 82, page 95 and page 112 whereon all conceded and expressly submitted that the Appellant was charged and tried under Section 62 (b) of the Armed Forces Act.
There was indeed an objection by the Appellant on page 16 of the records on the defect of the charge which was also hotly argued especially from pages 33-36 of the records. It is on record that the trial Court martial observed and rightly that it was a clerical error and advised same to be corrected or amended as recorded on page 37 lines 9-12. It is contended that no ruling was given by the trial Court martial and the Appellant calls on this Court to set aside the trial Court martial’s decision based on it. I think the Appellant is asking for the impossible. As I earlier held
and submitted, there is only a defect to the charge and is not material or fatal to the jurisdiction of the Court martial. Further, the Appellant has by his conduct submitted to the jurisdiction of the Court martial. There is nothing on the record that shows that there was an objection by the Appellant for the non-delivery of ruling by the Court martial on this issue. It clearly shows however that the trial continued until judgment was delivered. Failure to deliver a ruling on every issue cannot amount to denial of fair hearing although it is desirable and can be fatal only where there is miscarriage of justice. This issue was rightly treated in OJO V. F.R.N (2008) 11 NWLR (PT.1099), (2009) ALL FWLR (PT.494) 1461 AT 1513, where it explained thus:
“Rightly, the principle of law is that when a party submits an issue for Court’s determination, the Court is expected to consider and pronounce upon that issue one way or another, However, the essence of fair hearing is that the parties must be given an equal opportunity to be heard throughout the trial, that is, when the trial commences with the taking of the plea of the accused person on the charge. On the
whole, the right to be heard is a fundamental and indispensable requirement of a valid judicial decision, However, fair hearing is in the procedure followed in the determination of the case, and not in the correctness of the decision…The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his own observation justice has been done in the case. Moreover, the question whether there has been a denial of fair hearing being one of substance and not of form will always be decided in the light of the realities of any particular case? In the case of: Irolo v. Uka (2002) 14 NWLR (Pt.786) p.195 my Lord Ogundare, JSC of blessed memory observed at page 237 paras, C-D that:
The trial Judge did not resolve the issue of traditional history. That is bad enough, it is his bounden duty, on the evidence before him, to resolve it either way,?
It was however held in that case that failure of a Court to decide on one of the issues placed before it does not amount to a denial of fair hearing but only an abandonment of a duty placed on the Court to adjudicate.”
It is the duty of the prosecution to
prove its case beyond reasonable doubt. It is not essential to prove the case with absolute certainty but the ingredients of the offence charged must be proved as required by law and to the satisfaction of the Court. See OBIAKOR V. STATE (2002) 10 NWLR (PT.776) 612.
The Appellant was charged under Section 62 (b) of the Armed Forces Act, 2004, which provides:
Section 62 (b):
A person subject to service law under this Act who-
(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 or any law punishment provided by this Act.”
The ingredients of this charge therefore are (1) That the accused person is subject to service law, (2) That the accused person neglected to perform his duty or negligently performed his duty described in the charge.
It is incontestable that the Appellant was under the service law, thus, the first ingredient has been proved against him.
The next step is whether the Appellant negligently performed the duty assigned to him In DES-DOKUBO V. THE
NIGERIAN ARMY (2015) LPELR-25969(CA), negligence is defined as carelessness, disregard, default, inadvertence, indifference, 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.”
It is the case of the Respondent against the Appellant, that as No. 3 Platoon Commander, he was negligent in the performance of the duty assigned to him by “not been on ground to defend their line of action” and “to ensure that the QRF men are alert” and as at the time he went there, it was the place the terrorist initiated into the Barracks. The Appellant however denied and stated that he was at his duty post and “assisted other officers in mobilizing the men into their trenches starting from the guard post in my platoon to repel the attack.” In his
extra-judicial statement to the Respondent at pages 171 and 173, he amongst other things asserted that he was in his office when the attack was lunched:
“we engaged the BHTS and later when the shiller which would have given support ,,,refused to fire due to mechanical fault…the tank; but couldn’t bring maximum damage to the detention facility due to the constructed fence and other structures hindering the line of fire of the tank. The tank crew also complained to me when I asked them to move forward in order to engage the detention camp properly that the tank could not move…”
It is pertinent to note that there was a list of people to have been interviewed which the Appellant gave which may include the shiller operators, the tank crew and the other military officers that were engaged in repelling the terrorists. These are the witnesses I believe the PW1 to the Respondent at page 59 paragraph 6 admitted under cross-examination that “The facts are gathered from the witnesses that I interview in the cause of my investigation.” It has been further revealed and admitted also that the PW1 was not among the soldiers who
repelled the terrorists or among the shiller operators or among the tank crew.
In a sensitive and serious case as this, to prove negligence cannot be fairly established by an “interrogatory/investigation report.” I think the Respondent never considered the enormity of the case before it and the standard to prove the negligence of the Appellant. It is trite that it is on the prosecution to prove the guilt of the Appellant and not for the Appellant to prove his innocence. See AKHIMIEN V. THE STATE (1987) NWLR (PT.52) or (1987) 3SC. 734; IGBABELE V. THE STATE (2006) 6 NWLR (PT.975) 100. Thus, is expected that the Respondent should by all means established the negligence and guilt of the Appellant by calling on the witnesses who were part and parcel of the attack, yet there is no record of any failed attempt to forward these eyewitnesses to give evidence in order to establish the negligence of the Appellant despite the complaints of failure of the shiller and the tank. In OJO V. GHARORO (1999) I NWLR (PT.615) 374 AT 387 PARA D, it was held that “The evidence of an eye witness is the best evidence and it attracts the most probative value. Such evidence which
is direct is relevant and admissible and towers high above hearsay evidence.”
I wonder and am still wondering why PW1, who investigated the matter and interviewed the eyewitnesses and admitted that he was not a witness, could not field the eye witnesses to establish the negligence of the Appellant Of course, it is not the service law or the military law that negligence under Section 62(b) AFA should not be proved by direct evidence where available. On the need to call witnesses, Per Oputa, JSC in ONUOHA V. STATE (1989) NWLR (PT.101) 23 held:
“Under the Adversary System which we operate here in Nigeria, parties alone take issues with one another. The Court as the judex cannot and does not. The need to call witnesses arises from the onus on a party to establish its own side of any given issue, Since the Court does not take issues with either party, the Court has no business calling witnesses except as, and where so provided by any written law.”
Similarly, the Court had to shed light on this when it held in OMOTAYO V. THE STATE (2012) LPELR-9358(CA):
“The question is why did the prosecution not call any of these eye witnesses mentioned
by the 1st accused to give evidence No explanation whatever was given for the failure to call any of them. There was no evidence in the record of appeal that attempt to secure their attendance was unsuccessful. In short, no effort whatever was made to all any of them. On this issue the Supreme Court case of Onah v. State (1985) 3 NWLR (Pt.12) 236 is quite illuminating… Just as in the above case, I think that the failure by the prosecution to call vital witnesses who were present at the time of the shooting is fatal to their case.”
In fact, PW1 cannot pass the hallowed and time honoured factors to be considered when dealing with the question of veracity and credibility of a witness which include among others:- 1. His knowledge of the facts to which he testifies 2. His disinterestedness 3. His integrity 4. Whether the evidence is contradictory or is contradicted by the surrounding circumstances. See ONUOHA V. STATE (1989) NWLR (PT.101) 23. Aside that PW1 has no knowledge of the facts he testified about, there is no guarantee that he is disinterested in the case. The failure of the Respondent to call the soldiers who were interviewed as having been
witnesses to the attack cannot be lightly treated. Again, the Court in the case of YUSUF v. STATE (2007) 1 NWLR (PT.1020) 94, held:
“The complainant had stated that she was attacked and when she was attacked two men came to her assistance and the situation was such that the two men were vital witnesses since their evidence would have been conclusive in support that there was indeed an armed robbery. The trial Court thought not but on appeal, the Court of Appeal held thus at page 118:- “There is no evidence in the record of appeal that attempt to secure the attendance of those vital witnesses by the prosecution was frustrated by certain circumstances. This is a criminal trial. The prosecution is bound to call all material witnesses in order that the whole facts may be put before the Court. Although the prosecution need not call a host of witnesses on the time point where there is a vital point in issue and there is a witness whose evidence will settle it one way or the other that witness ought to be called having played prominent role ought to have been called as witnesses. Failure to call them is fatal to the prosecution’s
case”.
Before I let this case to rest, it was held in OBOT V. STATE (2014) LPELR-23130(CA) that hearsay evidence is evidence which does not derive its value solely from the credit given to the witness himself but which rests also, in part, on the veracity and competence of some other person. Thus, where a third party relates a story to another as proof of the contents of a statement, such story is hearsay. See also JUDICIAL SERVICE COMMITTEE V. OMO (1990) 6 NWLR (PT.157) 407 CA. At pages 59 and 60 paragraphs 6 and 2 respectively, the PW1 stated:
“The facts are gathered from the witnesses that I interview in the cause of my investigation.
They were facts I gathered from my witnesses my lord that is my stand on this issue”‘
The Evidence Act, 2011 by Section 37 defined hearsay evidence as a statement; (a) Oral or written made otherwise than by a witness in a proceedings; or (b) Contained or recorded in a book, document or and record whatsoever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.” Section 38 of the same Act goes further
to state categorically thus:- “Hearsay evidence is not admissible except as provided by or under any other provision of this or any other Act.
In EDET V. STATE (2014) LPELR-23124(CA), it was held:
“Consequently, the evidence of PWI was a narration of what Mrs. Lawani said and not what PW1 witnessed or knows personally. Such evidence is unacceptable and offends Section 38 of the Evidence Act 2011. That piece of evidence must be expunged from the record of Court.”
See JAMB V. ORJI & ORS (2007) LPELR-8107(CA). The evidence of PW1 is but hearsay that cannot be relied on to prove the second ingredient of the offence under Section 62 (b) of the Armed Forces Act, 2004, and since there is no other evidence to rely on again except the testimony of the Appellant, this appeal must succeed as he is entitled to the benefit of doubt.
Although I have resolved all the other issues in favour of the Respondent, on proof of negligence to perform his duty contrary to Section 62(b) of the Armed Forces Act, CAP A20, LFN 2004, this appeal is allowed. In conclusion, the conviction and sentence of the Appellant in the judgment of the trial Court martial delivered
on 20/1/2015 and confirmed on 8/4/2015 is hereby set aside. The Appellant is hereby discharge and acquitted.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading the judgment of my learned brother, UWANI MUSA ABBA AJIJCA before it was delivered. I agree with the reasoning of my learned brother and the conclusion that there is merit in the appeal. I allow the appeal and abide by the consequential orders.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had the advantage of reading in draft, before now, the judgment delivered by my learned brother, UWANI MUSA ABBA AJI, J.C.A. My learned brother has had dealt with the issues raised in the appeal creditably, especially the evidence of the only witness PW1 for the prosecution at the Court Martial. Since the witness (PW1) was not at the scene of event at the Giwa Barracks on the fateful day, what he was told by those present at the scene of the incident are but hearsay as defined by Section 37 of the Evidence Act. The prosecution failed in its duty to prosecute diligently when it neglected to call those who were present at the scene of the event
at the Giwa Barrack on the fateful day.
I am therefore in full agreement with the reasonings and conclusions of my learned brother that the prosecution failed to prove the charge against the appellant as required by Section 135 (1) of the Evidence Act; therefore, the appeal ought to succeed, and be allowed. I, too, would and do hereby allow the appeal, set aside the conviction and sentence of the appellant, He is hereby discharged and acquitted, accordingly.
Appearances
Lateef Fagbami, SAN. For Appellant
AND
A. I. Omachi, Esq. For Respondent
