ALHAJI v. NIGERIAN ARMY
(2022)LCN/16185(CA)
In the Court of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/IB/190C/2017
Before Our Lordships:
Saidu Tanko Hussaini Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
L/CPL IBRAHIM ALHAJI APPELANT(S)
And
NIGERIAN ARMY RESPONDENT(S)
RATIO
THE PRESUMPTION OF THE INNOCENCE OF AN ACCUSED PERSON IN CRIMINAL PROCEEDINGS
The essential contention of the Appellant under this issue is that the General Court Martial was wrong to find him guilty of cowardly behaviour punishable under Section 47(1)(a) of the Armed Forces Act. It is settled law that in criminal proceedings, the accused person is presumed innocent until proven guilty and as such, the Prosecution has the burden of establishing the guilt of the accused person beyond reasonable doubt. See Section 36(5) of the 1999 Constitution and Section 138 of the Evidence Act, 2011. See also the cases of SHEHU v STATE (2010) LPELR-3041(SC), per Tobi, JSC at page 25 paras. E – E, UGBOJI v STATE (2017) LPELR-43427(SC), per Sanusi, JSC at page 28 paras. C – F, Akpakpan v. State (2021) LPELR-56220(SC), per Peter-Odili, JSC at page 12, paras. A – B and ENEBELI v STATE (2021) LPELR-54990(SC), per Jauro, JSC at page 16 paras. D – F.
In discharging its burden of proof, the Prosecution must establish every ingredient of the offence with which the accused person is charged: NWATURUOCHA v STATE (2011) LPELR-8119(SC), Adekeye, JSC at pages 15 – 16, paras. F – C. PER MOHAMMED, J.C.A.
THE POSITION OF LAW ON WHEN A DECISION OF THE COURT IS SAID TO BE PERVERSE
A decision is said to be perverse if it does not draw from the evidence on record or where the Court wrongly applied legal principles to correctly ascertained facts and by so doing occasioned miscarriage of justice. See STATE v SOLOMON (2020) LPELR-55598(SC), per Muhammad, JSC at pages 28 – 29, paras. E – B, UGBOJI v STATE (2017) LPELR-43427(SC), per Eko, JSC at page 57 paras. C – F and STATE v AJIE (2000) LPELR-3211(SC), per Onu, JSC at page 13 paras. D – F. PER MOHAMMED, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN SUBSTITUTE ITS OWN VIEWS FOR THAT OF THE TRIAL COURT
It is settled principle of law that an appellate Court does not as a matter of routine interfere with finding of facts by a trial Court. This is because a trial Court had the pre-eminent position of not only hearing live and firsthand the evidence of facts adduced by witnesses, it has the opportunity of watching the demeanor of the witnesses, while an appellate Court deals only with the cold printed record of what had transpired at trial. Thus, unless the findings of fact by a trial Court is not supported by the evidence on record or it is perverse, an appellate Court cannot interfere with same merely to substitute its own views. See ARISONS TRADING & ENGINEERING CO. LTD. v MILITARY GOVERNOR OF OGUN STATE & ORS (2009) LPELR-554(SC), per Tobi, JSC at page 44, paras. B – D, NDAYAKO & ORS v DANTORO & ORS (2004) LPELR-1968(SC), per Edozie, JSC at pages 22 – 23, paras. F – C and TSOKWA MOTORS NIG. LTD. & ANOR v UNION BANK OF NIGERIA LTD. (1996) LPELR-3267(SC), per Ogundare, JSC at pages 11 – 12, paras. F – B. PER MOHAMMED, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE EVALUTION OF EVIDENCE AND FINDING OF FACTS MADE BY THE TRIAL COURT
As earlier stated, an appellate Court does not interfere with the evaluation of evidence and finding of facts made by a trial Court unless it is shown that such evaluation and/or finding so made is improper or perverse and has occasioned miscarriage of justice: ARISONS TRADING & ENGINEERING CO. LTD. v MILITARY GOVERNOR OF OGUN STATE & ORS (supra), NDAYAKO & ORS v DANTORO & ORS (supra) and TSOKWA MOTORS NIG. LTD & ANOR v UNION BANK OF NIGERIA LTD. (supra). PER MOHAMMED, J.C.A.
ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): The Appellant, an Army Lance Corporal then serving at 93 Battalion attached to the Joint Task Force (JTF) Bomadi, Delta State, was arraigned before the General Court Martial (“the trial Court”) on a four-count charge of cowardly behaviour, offence relating to sentries watch, disobedience of standing order and miscellaneous offences relating to service property, respectively, all punishable under the Armed Forces Act, (AFA), Cap. A20, Laws of the Federation of Nigeria, 2004. Upon a not guilty plea, the Respondent called 4 witnesses (PW1 – PW4) and tendered 13 exhibits in proof of its case, while the Appellant solely testified in his defence and tendered Exhibit D1 through PW3.
In its terse judgment contained at pages 167 of the Record of Appeal, the General Court Martial struck out count 2 for duplicity and found the Appellant guilty of counts 1, 3 and 4 of the charge, and proceeded at page 170 of the Record of Appeal to sentence the Appellant to 1 year imprisonment each of counts 3 and 4, and to 15 years imprisonment on count 1, the sentences to run concurrently.
Dissatisfied with the judgment of the trial Court, the Appellant obtained extension of time on 22nd February, 2017 and appealed to this Court vide Notice of Appeal filed on 27th February, 2017, which is at pages 211 – 216 of the Record of Appeal. The Record of Appeal was transmitted to this Court on the 19th of May, 2017. The parties filed and exchanged briefs of argument.
At the hearing of the appeal on the 11th of May, 2022, the Appellant’s Counsel, Idris Mohammed Esq., who was served with hearing notice, was absent. The Respondent’s Counsel, P. E. Okolue Esq., moved the Court to deem the Appellant’s Brief of Argument as adopted. The Court then invoked Order 19 Rule 9(4) of the Court of Appeal Rules, 2021 and deemed the Appellant’s Brief of Argument as adopted and argued. The learned Counsel for the Respondent then adopted the Respondent’s Brief of Argument.
In the Appellant’s Brief of Argument, the following five (5) issues were distilled from the five grounds of appeal, which issues were also adopted by the Respondent:
1. Whether the General Court Martial rightly found the Appellant guilty of cowardly behaviour punishable under Section 47(1)(a) of the Armed Forces Act, Cap. A20, LFN, 2004. (Distilled from Ground 1).
2. Whether the General Court Martial rightly found the Appellant guilty of disobedience to standing orders punishable under Section 57(1) of the Armed Forces Act, Cap. A20, LFN, 2004. (Distilled from Ground 2).
3. Whether the General Court Martial rightly found the Appellant guilty of miscellaneous offences relating to service property under Section 68(1) of the Armed Forces Act, Cap. A20, LFN, 2004. (Distilled from Ground 3).
4. Whether the General Court Martial was seized of jurisdiction to try the Appellant. (Distilled from Ground 4).
5. Whether the judgment of the Court is not against the weight of evidence. (Distilled from ground 5).
Since parties are at ad idem as to the above five issues for determination in this appeal, I shall proceed to determine the appeal on the said five issues. In so doing, I shall however start with issue 4 which challenges the jurisdiction of the trial Court to try the Appellant before considering the other issues in their order.
ISSUE 4: Whether the General Court Martial was seized of jurisdiction to try the Appellant.
On this issue, the learned Counsel for the Appellant had relied on the Supreme Court decision in SOCIETY BIC S.A. v CHARZIN IND. LTD (2014) 4 NWLR (Pt. 534) 535, paras. E – A, to contend that a Court can only have jurisdiction if it is properly constituted, the subject matter is within its jurisdiction, the action is initiated by due process of law and all conditions precedent to the exercise of jurisdiction have been fulfilled. He submitted that the case against the Appellant was not initiated by due process of law because the Judge Advocate being the Assistant Director Legal Services of the Nigerian Army had advised the General Officer Commanding (GOC) on the drafting of the offences and it was upon the strength of his advice that an offence had been committed that the GOC initiated the charge. He argued that the Judge Advocate must have formed an opinion as to the guilt of the Appellant and cannot fairly advice a Court Martial without bias. He pointed out that throughout the proceedings, the General Court Martial relied heavily on the advice of the same Judge Advocate that formed an opinion about the guilt of the Appellant.
Relying on Section 36(1) of the 1999 Constitution and the cases of PRINCE ABUBAKAR AUDU v FRN (2013) 5 NWLR (Pt. 1348) 410, para. F, BRIG. GEN. GABRIEL ANYANKPELE v NIGERIAN ARMY (2000) 13 NWLR (Pt. 684) 225, paras. A – B, FAWEHINMI v THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (1985) 2 NWLR (Pt. 7) 300 and BABATUNDE v STATE (2014) 3 NWLR (Pt. 1395) 585 – 586, paras. H – C, learned Counsel submitted that it is evident from the record of proceedings that the doctrine of nemo judex in causa sua was negated leading to a breach of the Appellant’s right to fair hearing. He referred, inter alia, to the Convening Order for General Court Martial at page 13 and its amendment at page 20 as well as the charge at pages 32 – 35 of the Record of Proceedings and argued that the Appellant cannot be reasonably expected to believe that he would get a fair hearing before the said General Court Martial. He submitted that the effect of breach of fair hearing is that it renders the entire proceedings a nullity. He relied on AUDU v FRN (supra) at page 414, paras. H – A; LT. COL. IBERI RTD. V ATTORNEY GENERAL OF THE FEDERATION (2014) 5 NWLR (Pt. 1401) 643 – 645, paras. H – A, and urged the Court to resolve this issue in favour of the Appellant.
Arguing per contra, the learned Counsel for the Respondent submitted that the trial and conviction of the Appellant had no element of lack of fair hearing in it, as the Appellant was given every material and opportunity necessary to defend his case. On the Appellant’s argument over the status of the Judge Advocate, learned Counsel cited and relied on the Supreme Court decision in LT. CDR. C. OBISI v CHIEF OF NAVAL STAFF (2004) All FWLR 193, per Pats Acholonu, JSC, and argued that the decisions of the Court of Appeal which appeared to regard the Judge Advocate as a member of the Court had been overruled and no longer represent the position of the law. He pointed out that contrary to the Appellant’s argument, the GOC who convened the General Court Martial was not the same person who confirmed the sentence. He submitted that once a Court Martial is convened, the decision or findings and sentences of such Court if they relate to soldiers are forwarded through the officer who convened the Court to the Chief of Army Staff for confirmation, and in the case of a commissioned officer, to the Army Council as established by the Act itself. He argued that the principle in the case of BRIG. GEN. ANYANKPELE v NIGERIAN ARMY (supra), and others cited by the Appellant are now spent.
RESOLUTION OF ISSUE 4:
The Appellant has questioned the jurisdiction of the General Court Martial to try him, essentially challenging the Constitution of the General Court Martial, contending that the Judge Advocate, who was the Assistant Director Legal Services of the Nigerian Army, had advised the General Officer Commanding (GOC) on the drafting of the offences, and it was upon the strength of his advice that the charge against the Appellant was initiated. Relying on the maxim nemo judex in causa sua and the cases of AUDU v FRN (supra) and LT. COL. IBERI RTD. v A. G. FEDERATION (supra), the Appellant had argued that the Judge Advocate must have formed an opinion as to the guilt of the Appellant. The Appellant also argued that the authority that convened the General Court Martial was the same authority that confirmed the Appellant’s case, and as such there was no fair hearing in the trial, conviction and sentence of the Appellant.
With regard to the Appellant’s challenge to the Constitution of the General Court Martial, the argument of the Appellant which tends to regard the Judge Advocate as a member of the General Court Martial is a misconception of the position of the law. Sections 129 and 133 of the Armed Forces Act of 1993 provide for the Constitution of a General Court Martial and Special Court Martial. Section 129 of the Act provides that:
There shall be, for the purposes of carrying out the provisions of this Act, two types of Courts Martial, that is –
(a) A General Court Martial consisting of a President and not less than four members, awaiting member, a liaison officer and a Judge Advocate.
(b) A Special Court Martial, consisting of a President and not less than two members, a waiting member, a liaison officer and a Judge Advocate.
Section 133(1) of the Act then provides that “subject to the provisions of Sections 128 and 129 of the 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. In LT. CDR. C. OBISI v CHIEF OF NAVAL STAFF (2004) LPELR-2184(SC), the Supreme Court considered the above Sections and pronounced upon the status of a Judge Advocate when His Lordship Pats-Acholonu, JSC, held at page 10, para. D – G, as follows:
“Black’s Law Dictionary describes the term “Judge Advocate” in American parlance as a principal legal adviser on the staff of a military commander … or more broadly to any officer in the Judge Advocate General Corps or Department of one of the US Armed Forces. Webster’s 20th Century Dictionary describes a Judge Advocate “as a military legal officer, especially an officer designated to act as prosecutor at a Court Martial.” He is not a member of the Court but he must be present to do his work to prosecute the alleged offender… The Judge Advocate is not a member of the Court and cannot be described as such. From S. 129 of the Armed Forces Act, 1993, (the Judge Advocate) position as it relates to the strict composition of the GCM is the same as waiting member. It is on this authority that I said the Court of Appeal was wrong in holding that by operation of the law the Judge Advocate is a member of the GCM.”
From the above decision of the Apex Court, the contention of the Appellant that the GCM was not properly constituted because the Judge Advocate was the Director of Legal Services who advised on the drafting of the offences, it misconceived and the case of AUDU v FRN (supra) and LT. COL. IBERI RTD. v A. G. FEDERATION (supra), do not represent the position of the law. As expressly provided in Section 133(1) of the Armed Forces Act, a Court Martial is properly constituted if it consists of the President of the Court Martial, not less than two other officers and a waiting member. I therefore have no hesitation in discountenancing the Appellant’s contention. I hold that the fact that the Judge Advocate was the Assistant Director Legal Services of the Nigerian Army who had advised the General Officer Commanding (GOC) on the drafting of the charge against the Appellant does not affect the Constitution of the GCM since the Judge Advocate is not a member of the GCM. Contrary to the Appellant’s assertion, the GCM was properly constituted and the GCM was seized of jurisdiction when it heard and determined the Appellant’s case.
As for the Appellant’s contention over lack of fair hearing, his argument was that the authority that confirmed his case was the same authority that convened the GCM. I have examined the Record of Appeal. As rightly posited by the Respondent, the Record of Appeal shows at pages 13 – 19 that the GCM was initially convened vide Convening Order dated 22nd January, 2009 by Major-General EE Bassey, the then General Officer Commanding (GOC), 2 Division, Nigeria Army, Ibadan. Pages 20 – 31 of the Record then shows that amendments were made to the Convening Order to replace Major-General EE Bassey with Major-General LP Ngubane, the new GOC, 2 Division, Nigeria Army, Ibadan as the convening authority. As for the confirming authority, the Appellant himself had affirmed in his Notice of Appeal on page 211 of the Record that the findings and sentences of the GCM were confirmed by the Chief of Army Staff and not the GOC 2 Division. Thus, contrary to the Appellant’s assertion, it was not the same authority that convened the GCM that confirmed the Appellant’s case.
Therefore, there was no breach of fair hearing as argued by the Appellant. I so find and hold. In consequence, issue 4 is resolved against the Appellant. Having resolved issue 4 relating to the jurisdiction of the GCM in the affirmative, I now proceed to consider the other issues.
ISSUE 1: Whether the General Court Martial rightly found the Appellant guilty of cowardly behaviour punishable under Section 47(1)(a) of the Armed Forces Act, Cap. A20, LFN, 2004.
On issue 1, learned Counsel for the Appellant cited Section 47(1) of the Armed Forces Act (AFA) and submitted that the Respondent failed to prove that the ingredients of the offence of cowardly behaviour under the said Section, as none of the Respondent’s witnesses was present to the location at the time of the attack and all the testimonies of the witnesses relate to the aftermath of the attack. He added that the attack took place in the night where vision was impossible without aid of light. He argued that the testimonies of the witnesses relating to the attack was hearsay evidence which was not admissible. He cited UBN v ISHOLA (2001) 15 NWLR (Pt. 735) 47. Referring to pages 95 – 96 of the Record of Proceedings, learned Counsel pointed out that the Appellant had in his evidence stated that he had engaged the enemy but came under superior enemy fire even as he was able to secure his personal weapon. He added that the fact of superior enemy fire was corroborated by the evidence of the Respondent’s witnesses and none of the witnesses controverted the Appellant’s evidence. He relied on OGUNYADE v OSHUNKEYE (2007) 15 NWLR (Pt. 1057). He argued that even if it is assumed that the Appellant abandoned his post, he did so after further resistance could not be afforded and this is a valid defence under Section 47(4) of the AFA. Further relying on Section 138 of the Evidence Act, 2011, as well as OBI v STATE (2013) 5 NWLR (Pt. 1346) 84, paras. D – F and ADAMU v STATE (2014) 10 NWLR (Pt. 1416) 465, paras. A – B, he submitted that the Respondent failed to prove the ingredients of the offence of cowardly behaviour against the Appellant beyond reasonable doubt.
In the counter argument on behalf of the Respondent, learned Counsel for the Respondent submitted that the Appellant’s case fell squarely under Section 47(1) of the AFA. He pointed out that the Appellant had admitted at page 151 of the record that on 2nd August, 2008 he was on sentry with his Guard Command and was behind the sand bag at the Jetty which is 2 meters to the Gunboats, and that the evidence of PW2 at pages 89 – 116 and that the Sgt. Peter Usur, the investigating officer at pages 117 – 143 of the Record all support the Appellant’s assertion that he was on duty on 2nd August, 2008.
On whether the Appellant had left his post, Counsel referred to the evidence of Sgt. Charles Tondo (PW2). He argued that the evidence showed that although the Appellant was in the Gunboat, he fled the location at the sight of the enemy, the militants. He particularly referred to the admission of the Appellant that he was on duty at the Gunboat as well as the other supporting evidence of PW1, PW2 and PW3. He submitted that none of the exceptions which could provide a defence to the Appellant had occurred. He added that there was no superior order for the Appellant to vacate the post, no want of provision or lack of logistic support or inability to offer resistance. Counsel pointed out that the Appellant had a guard command and other soldiers deployed along with him and he did not invite them or exhaust or fire half of the ammunition in his magazine before abandoning his post. He argued that the Appellant’s story that some unknown persons tried to grab his rifle and his magazine pulled off in the struggle but he was able to retrieve same and continue to fire was an afterthought because he had earlier told the CO in the presence of PW2 that he did not fire. Counsel wondered why the Appellant did not exhaust the 39 rounds of ammunition before absconding from his post. He urged this Court to disregard the confused statement and narration of the Appellant as an afterthought and uphold the verdict of the General Court Martial as confirmed by the confirming authority.
RESOLUTION OF ISSUE 1:
The essential contention of the Appellant under this issue is that the General Court Martial was wrong to find him guilty of cowardly behaviour punishable under Section 47(1)(a) of the Armed Forces Act. It is settled law that in criminal proceedings, the accused person is presumed innocent until proven guilty and as such, the Prosecution has the burden of establishing the guilt of the accused person beyond reasonable doubt. See Section 36(5) of the 1999 Constitution and Section 138 of the Evidence Act, 2011. See also the cases of SHEHU v STATE (2010) LPELR-3041(SC), per Tobi, JSC at page 25 paras. E – E, UGBOJI v STATE (2017) LPELR-43427(SC), per Sanusi, JSC at page 28 paras. C – F, Akpakpan v. State (2021) LPELR-56220(SC), per Peter-Odili, JSC at page 12, paras. A – B and ENEBELI v STATE (2021) LPELR-54990(SC), per Jauro, JSC at page 16 paras. D – F.
In discharging its burden of proof, the Prosecution must establish every ingredient of the offence with which the accused person is charged: NWATURUOCHA v STATE (2011) LPELR-8119(SC), Adekeye, JSC at pages 15 – 16, paras. F – C.
Section 47(1) of the Armed Forces Act under which the Appellant was charged for cowardly behaviour in Count 1 provides as follows:
47(1) A person subject to service law under this Act who, when before enemy: –
(a) Leaves the post, position, watch or other place where it is his duty to be; or
(b) Throws away his arms, ammunition or tools, in such manner as show cowardice or otherwise behaves in such manner as to show cowardice, shall be guilty of an offence under this section.
From the above provisions of Section 47(1) of the Act, the ingredients of the offence of cowardly behaviour are as follows:
(i) That the accused is subject to service law;
(ii) That the accused when before the enemy left his post, position watch or other place where it is his duty to be or has thrown away his arms ammunition or tool in such manner as to show cowardice or has otherwise behaved in such manner as to show cowardice.
The first ingredient which is that the accused is subject to service law, is not in controversy, since the Appellant was a Lance Corporal in the Nigeria Army and therefore subject to the service law.
As for the second ingredient, the Appellant’s essential argument is that the decision of the GCM that he was guilty of cowardly behaviour is perverse. A decision is said to be perverse if it does not draw from the evidence on record or where the Court wrongly applied legal principles to correctly ascertained facts and by so doing occasioned miscarriage of justice. See STATE v SOLOMON (2020) LPELR-55598(SC), per Muhammad, JSC at pages 28 – 29, paras. E – B, UGBOJI v STATE (2017) LPELR-43427(SC), per Eko, JSC at page 57 paras. C – F and STATE v AJIE (2000) LPELR-3211(SC), per Onu, JSC at page 13 paras. D – F.
Thus, for an Appellant to upturn the decision or judgment of a trial Court, he must establish one or more of the following:
(i) That the trial Judge failed to make proper use of his opportunity of seeing, hearing and observing the witnesses.
(ii) That the trial Judge failed to exercise his discretion judiciously and judicially.
(iii) That the trial Judge drew wrong conclusion from the accepted evidence or formed an erroneous view thereon.
(iv) That the findings on the evidence are perverse.
See NEWMAN OLODO & ORS v CHIEF BURTON M. JOSIAH & ORS. (2010) 12 SCM 157, per Adekeye, JSC at page 182, paras. A – B, MARKUS NATTNA GUNDIRI & ANOR v REAR ADMIRAL M. H. NYAKO (2014) 2 NWLR (Pt. 1391) 211, per Ogunbiyi, JSC at page 24O, paras. A – C, EVOEGBU & ORS v EZIKAIHE (2015) LPELR-41832(CA), per Ige, JCA at pages 27 – 28, paras. E, AGBAJE v INEC & ORS (2015) LPELR-25651(CA), per Agim, JCA (as he then was) at pages 74 – 75, paras. F – A.
The Appellant’s first contention is that none of the Respondent’s witnesses, PW1, PW2, PW3 and PW4 witnessed the attack as to testify that the Appellant abandoned his post and acted in a cowardly manner, especially when the attack took place at night without the aid of light. He argued that the evidence of those witnesses is at best hearsay and inadmissible in law. Conversely, the Respondent had referred this Court to the evidence of the Appellant at pages 151 and 194 of the Record, his statement in Exhibit P8 at page 195 of the Record, as well as the evidence of PW2 at pages 96 – 99 of the Record and that of PW1 at pages 56 – 60 of the Record. The Respondent had then submitted that apart from the fact that the Appellant admitted that he was on duty at the Gunboat, the evidence of PW1, PW2 and PW3 substantiates that the Appellant abandoned his duty post and was found at the Company Headquarters between 5 – 6 a.m. on the 23rd of August, 2008.
I have examined the evidence on record. Contrary to the Appellant’s assertion that the evidence of the Respondent’s witnesses was hearsay, the Appellant himself had in his evidence-in-chief at page 151 of the Record of Appeal admitted that during the attack on the 2nd of August, 2008 he was on sentry duty behind the sand bag in front of the Gunboat with his Guard Commander Cpl. Kabiru Danlami, in accordance with the instructions of Sgt. Moses Young that they should perform sentry outside and when it is 11 o’clock the next detail should enter the Gunboat. The Appellant had in Exhibit P8, his statement made at the Military Police Office stated at pages 194 of the Record of Appeal as follows:
“I was still on observation when I heard strange footsteps behind me. I turn around quickly and ordered a halt at the advancing figure. On the demand to know the identity I heard a gunshot towards my direction, so I quickly dashed down close to a mud house where there was darkness. I was trembling but with courage. There, someone held my rifle, AK 47 Bull 64195 Bn and was dragging to collect it to a point that I fell down but still firm with the rifle. My magazine of 50 rounds of 7.62 special fell off which made it difficult for me to fire. I quickly recovered it from the dark while firing continued. On the notice of much fire to my direction, I dashed away to the Sector Headquarters 400 meters where I met P/C Abubakar Musa one of the boats pitor and Lcpl Ahmed Tata. They told me that they were coming from Local Government Secretariat where according to them the Gunboats were floating. As at the time I was escaping, my Guard Cmdr, Cpl Kabiru Danlami was the only person that return fire during the encounter.”
In addition to the above evidence of the Appellant, PW1, Col. AD Ali-Keefi, the Commanding Officer, 93 Bn, had also testified at pages 59 – 60 of the Record, as to how upon being informed of militant attack on the Gunboats at Bomadi, he had arrived at the Company Headquarters at Bomadi around 03:00 hours, where he was received by Sgt. Charles Tondo (PW2), who informed him that one of the sentries at the Gunboats (the Appellant) was around at the headquarters. He had also stated that when the Appellant was brought before him, he had asked the Appellant what happened, and when the Appellant informed him that they were under fire by militants, he had inquired from the Appellant whether he had fired back and when the Appellant said he did not, he had ordered that the Appellant be detained. PW1 had also testified that when the Appellant was brought before him again, he asked the Appellant to tell him the truth as to whether he was at the location when the attack actually happened, and the Appellant had replied that he was not there.
PW2, SSgt. Charles Tondo attached to the 93 Bn had also testified at page 96 of the Record, that during the militant attack he had mobilized reinforcement and gone to the location, and that after they tried to recover the Gunboats, he had to take stock of the wounded, killed and missing, and it was at that point that he discovered that the Appellant and his second, who were on duty during the attack, were missing. PW2 stated that the Appellant was later seen at the Company Headquarters within the hours of 5 and 6 a.m. in the morning of 3rd August, 2008. At page 97 of the Record, PW2 specifically stated that when the Appellant was later seen at the Company Headquarters in short knickers the CO had in his presence and the presence of the Adjutant and other soldiers interviewed the Appellant as to what happened and whether they had tried to repel the attack, and that the Appellant gave in and admitted that they were not there at the time of the attack. The Statement of the Appellant in Exhibit P8 and the questions and answers which were recorded by PW3, the investigator, also confirm the earlier testimonies of PW1 and PW2.
It is settled principle of law that an appellate Court does not as a matter of routine interfere with finding of facts by a trial Court. This is because a trial Court had the pre-eminent position of not only hearing live and firsthand the evidence of facts adduced by witnesses, it has the opportunity of watching the demeanor of the witnesses, while an appellate Court deals only with the cold printed record of what had transpired at trial. Thus, unless the findings of fact by a trial Court is not supported by the evidence on record or it is perverse, an appellate Court cannot interfere with same merely to substitute its own views. See ARISONS TRADING & ENGINEERING CO. LTD. v MILITARY GOVERNOR OF OGUN STATE & ORS (2009) LPELR-554(SC), per Tobi, JSC at page 44, paras. B – D, NDAYAKO & ORS v DANTORO & ORS (2004) LPELR-1968(SC), per Edozie, JSC at pages 22 – 23, paras. F – C and TSOKWA MOTORS NIG. LTD. & ANOR v UNION BANK OF NIGERIA LTD. (1996) LPELR-3267(SC), per Ogundare, JSC at pages 11 – 12, paras. F – B.
The Appellant herein who complains that the decision of the General Court Martial (GCM) finding him guilty of cowardly behaviour is wrong or perverse has the duty of establishing that the GCM made improper use of the opportunity of seeing the witnesses who testified. He must demonstrably show that there was improper evaluation of the evidence proffered before the trial Court and/or that relevant laws or judicial decisions on the subject matter were misapplied or misconstrued. Above all, he must establish that the wrong evaluation of the evidence or misapplication of the law had led to miscarriage of justice, thus making it imperative for the appellate Court to intervene and re-evaluate the evidence or properly apply the law. See MRS ELIZABETH IRABOR ZACCALA v MR KINSLEY EDOSA & ANOR (2018) 6 NWLR (PART 1616) 528, per Muhammad, JSC at 545, paras. B – D and AGBAJE v INEC & ORS (2015) LPELR-25651(CA), per Agim, JCA (as he then was) at pages 74 – 75, paras. F – A.
In the instant case, the Appellant has failed to establish that the decision of the General Court Martial that he was guilty of cowardly behaviour under Section 47(1) of the Armed Forces Act was not predicated on the evidence on record or that it was perverse. On the contrary, the printed record shows that the decision of that GCM was clearly borne from the evidence adduced before it. Therefore, this Court cannot interfere with that decision. In consequence, issue 1 is also resolved against the Appellant.
ISSUE 2: Whether the General Court Martial rightly found the Appellant guilty of disobedience to standing orders punishable under Section 57(1) of the Armed Forces Act, Cap. A20, LFN, 2004.
In his submissions on this issue, learned Counsel for the Appellant cited Section 57 of the AFA and the case of BRIG. GEN. GABRIEL ANYANKPELE v NIGERIA ARMY (supra) at pages 233 – 234, paras. D – A, where the ingredients of the offence of disobedience of standing order were stated. He submitted that a cursory look at Exhibit P10 tendered by the Respondent reveals that it is not a standing order but only a signal sent to all combat units containing intelligence information of a possible attack on locations and enjoining all troops to be on alert. On the second ingredient relating to the publication of the standing order, learned Counsel pointed out that there is nowhere the Respondent established that the Lt. Akinola, officer commanding had acknowledged receipt of Exhibit P10 let alone publish same at a recognized place to make it binding on officers and soldiers under his command. As to whether the order was of a continuing nature, Counsel reiterated that Exhibit P10 is only intelligence information about the possibility of attacks on locations and fear of attack from own troops, enjoining all troops to be on high alert and it was not meant to routinely regulate the conduct of soldiers and officers. Counsel also submitted that the Respondent failed to establish that the said standing order was known to the Appellant, since it was not established that the said order was posted in any recognized place. He referred to the evidence of PW4, the Gun Boat Crew Commander who stated that he had no standing or sentry orders.
Learned Counsel contended that the failure to prove one element of the offence would amount to failure of the Prosecution to prove its case beyond reasonable doubt. Citing OBI v STATE (2013) 5 NWLR (Pt. 1346) 87, paras. D – F, he urged this Court to resolve this issue in favour of the Appellant.
On his part, learned Counsel for the Respondent submitted that there were standing orders and referred to the evidence of PW2, as well as Exhibits P4 and P10 at pages 184 and 201 of the Record of Appeal, respectively. He pointed out that PW2 had categorically stated that the standing orders were pasted at the Gun Boat for soldiers on duty to read. It was argued that the fact that Exhibit P10 was admitted through PW3, the investigator does not mean that it was not pasted on the Gun Boat. He pointed out that PW2 was the Company Sergeant Major (CSM) who the Appellant was directly under. He further argued that the fact that the Appellant admitted that he was behind the sand bag which is outside the Gun Boat shows that he had contravened the order and therefore ought to be punished. He urged the Court to hold that the charge was duly proved against the Appellant as required by law.
RESOLUTION OF ISSUE 2:
Section 57(1) & (2) of the Armed Forces Act under which the Appellant was charged and convicted for disobedience to standing order, provides as follows:
(1) A person subject to service law under this Act who contravenes or fails to comply with a provision of an order to which this section applies, being a provision known to him, or which he might reasonably be expected to know, 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 less punishment provided by this Act.
(2) This section applies to standing orders or other routine orders of a continuing nature made for any formation, unit or body of troops or for any area, garrison or place, or for any ship, train or aircraft.
From the above provision, the ingredients of disobedience of standing order are:
(i) That the accused is subject to service law;
(ii) That there was a standing order or other routine order of a continuing nature made and published for the formation, unit or body of troops or for any area, garrison or place, or for any ship, train or aircraft to which the accused is deployed;
(iii) That the Accused knows or is reasonably expected to know of the standing order or other routine order;
(iv) That the Accused had contravened or failed to comply with the standing order or other routine order.
See also BRIGADIER-GENERAL GABRIEL AYANKPELE v NIGERIAN ARMY (2000) 13 NWLR (Pt. 684) 233 – 234, paras. D – A.
The Appellant’s first argument is that Exhibit 10 a signal cannot be termed a standing order especially as it only contained information as to intelligence gathered about the possibility of attacks of locations and fear of attack from own troops and enjoined all troops to be on high alert. The Respondent had however pointed out that there were two orders which were Exhibit 4 and Exhibit 10 at pages 184 and 201 of the Record of Appeal, respectively. Exhibit 10 was admitted through PW3 while Exhibit 4 was admitted through PW2. The Respondent had referred to the evidence of PW2 at pages 91 – 92.
It is instructive that PW1, Col. DH Ali-Keefe had in his evidence at pages 70 – 71 of the Record stated that there were Standing Order issued for those who were on duty at the Gunboat and that as the commanding officer of the 93 Bn of the Nigeria Army, the Standing Orders were issued and signed by him. He had then identified the said Standing Orders which were admitted through him as Exhibit P4.
In addition, PW2 had stated during examination in chief at pages 91 – 92 of the printed Record of Appeal that:
Prosecution: Yes, as the CSM of the Coy how are the soldiers posted on sentry in the gunboat supposed to perform their duty?
PW2: My Lords, they are supposed to perform their duty in the gunboat.
Prosecution: Can you tell the Court how you came to know about this?
PW2: My Lords, there are standing orders to that effect.
Prosecution: That standing order you are talking about where is it placed in the location for him to know about it?
PW2: My Lords, a copy of it is pasted in each of the gunboats.
Also at page 96, PW2 continued to give evidence as it relates to the standing order is as follows:
Prosecution: My Lords, may I apply to recall the exhibits; my Lords, may I also recall Exhibit P4, the Standing Orders. You told the Court that you have standing orders pasted in vessels for those who are on duty to see it?
PW2: Yes, my Lords.
Prosecution: If you see a copy of the Standing Orders can you recognize it.
PW2: Yes, my Lords.
Prosecution: Take a look at this Exhibit and tell the Court whether that is it.
PW2: It is exactly the copy of it.
The said Exhibit P4 at pages 184 – 185 of the Record of Appeal is clearly titled: 93 BATTALION NIGERIAN ARMY GUARD LOCATION STANDING ORDERS. It contains 32 standing orders. As for Exhibit P10 contained at page 201 of the record, it is a signal as stated by the Appellant. However, contrary to the Appellant’s assertion, the said signal contains not only intelligence information relating to possible attacks, but also the following orders: ALL TPS T0 REMAIN ON HIGH ALERT AND MAINT AGGRESSIVE PTL RO DEFEAT ANY ATTK(.) GUNBOATS IN ALL LOC TO BE MANNED AT ALL TIMES AND TO BE ON STANDBY TO SP OTHER LOCS(.) ENSURE GUNBOATS ARE FUELED ACIDLY(.) ALL TO NOTE FOR COMPLIANCE(.)
Contrary to the Appellant’s position therefore, the evidence on record, especially that of PW1, PW2 and Exhibit P4, show that there were indeed standing orders of a continuous nature pasted at the gunboats. In fact, during cross-examination of PW2, who was the Company Sergeant Major (CSM) and under whom the Appellant was, re-affirmed at page 103 of the Record, his earlier testimony that the Standing Orders were pasted in the Gunboats where the Appellant was on sentry duty at the material time. Interestingly, the Appellant in arguing that there were no standing orders, had restricted his argument to only Exhibit P10 and did not refer to Exhibit P4, the 93 BATTALION NIGERIAN ARMY GUARD LOCATION STANDING ORDERS contained at page 184 of the Record.
Now, it is pertinent to state that by the express provisions of Section 57(1) of the AFA, the element of knowledge required to be established under the Section, is either a subjective or an objective one. The Prosecution may prove actual knowledge by establishing that the accused person had actual notice or knowledge of the standing order, or it may establish that the standing order was pasted or placed at such a conspicuous place as to reasonably expect that same ought to come to the notice or knowledge of the accused person. As shown above, the Respondent had done this by establishing that the Standing Orders were pasted on each of the gunboats.
As rightly observed by the Respondent’s Counsel, the reliance by the Appellant on the case of ANYANKPELE v NIGERIAN ARMY (supra), is misplaced, because it is clearly inapplicable to the facts of this case. In ANYANKPELE’s case (supra), the Senior Officer was posted to Liberia a year after the letter containing the order banning the importation of cars was sent, and he was neither informed nor was the letter published or pasted in recognized places within the Unit. In the instant case, it was established by evidence that the Standing Orders were pasted in each of the Gunboats as stated by PW2. By Section 57(1) of the AFA, the Appellant is reasonably expected to know of those Standing Orders.
As for the Appellant’s argument over the evidence of PW4 who denied knowledge of the Standing Orders, PW4’s evidence did not rule out that evidence of PW2 to the effect that the Standing Orders were indeed pasted at the Gunboats, in which case even PW4 is by Section 57(1) of the AFA presumed to have knowledge of the said Standing Orders. Also, apart from the evidence of PW2 at page 91 – 92 that the sentries were supposed to perform their duty inside the Gunboats, PW3 also stated in his evidence at page 123 of the Record that from his investigations, the sentries were supposed to perform their duty inside the Gunboat manning the armaments while on duty. By the Appellant’s admission as earlier shown above, he had stated that at the time of the attack he was behind the sand bag instead of inside the Gunboat. PW1 had also testified at page 60 of the Record of Appeal that when he asked the Appellant to tell him the truth of what happened that day, the Appellant had admitted to him that he was not at the location when the attack happened.
In response to a question as to where the soldiers on sentry duty at the gunboats were supposed to perform their duty, PW1, the Commanding Officer of the 93 Bn, had stated at page 70 of the Record that:
“The soldiers in the gunboat were supposed to perform their duty in the gunboat not outside the gunboat.”
As earlier stated, an appellate Court does not interfere with the evaluation of evidence and finding of facts made by a trial Court unless it is shown that such evaluation and/or finding so made is improper or perverse and has occasioned miscarriage of justice: ARISONS TRADING & ENGINEERING CO. LTD. v MILITARY GOVERNOR OF OGUN STATE & ORS (supra), NDAYAKO & ORS v DANTORO & ORS (supra) and TSOKWA MOTORS NIG. LTD & ANOR v UNION BANK OF NIGERIA LTD. (supra).
In the instant case, the printed record clearly shows that the finding by the General Court Martial that the Appellant is guilty of disobedience to standing orders punishable under Section 57(1) of the Armed Forces Act, Cap. A20, LFN, 2004 is borne by the evidence in the printed Record of Appeal. As such this Court cannot interfere with that finding of the trial Court. It is for this and all the above reasons that I also resolve issue 2 against the Appellant.
ISSUE 3: Whether the General Court Martial rightly found the Appellant guilty of miscellaneous offences relating to service property under Section 68(1) of the Armed Forces Act, Cap. A20, LFN, 2004.
Learned Counsel for the Appellant cited Section 68(1) of the AFA and the case of ODUNLAMI v NIGERIAN NAVY (2013) 12 NWLR (Pt. 1367) 49 – 50, paras. G – H, where the ingredients of the offence of losing public or service property were stated. He argued that the Respondents have failed to establish that the Appellant had charge of the property and that he intentionally lost the property and that he had no defence in law or fact. He cited KALU v NIGERIAN ARMY (2010) 4 NWLR (Pt. 1185) 433 at 446, and pointed out that PW2 had stated at page 104 of the Record and in his statement in Exhibit P5, that on 2nd August, 2008 at about 10:20 pm there was an incident of attack by militants and that he was at the Coy. HQ when he heard sporadic gun firing from the direction of the Gun Boat. He added that the Appellant had explained to the CO at page 112 of the Record how they were overwhelmed by the enemies. Relying on OGUNYADE v OSHUNKEYE (2007) 15 NWLR (Pt. 1057), he submitted that this unchallenged and uncontroverted evidence ought to be accepted by the Court.
On whether the Appellant had defence in law or fact, learned Counsel submitted that there is uncontroverted evidence that the Appellant engaged the enemy until he became overwhelmed by superior fire power, and as such he cannot be said to have intentionally lost the service property. Citing Section 68(2) of the AFA, he also argued that the Gun Boat was neither under the exclusive control of nor entrusted to the Appellant. He urged the Court to resolve this issue in favour of the Appellant.
In his counter submission, learned Counsel for the Respondent pointed out that the Appellant had admitted that he is subject to service law and that service properties were lost, but contended that he was not a Gun Boat Commander but a junior officer and he was not assigned a Gun Boat and had no exclusive control of the Gun Boats. Counsel submitted that the Appellant has misconstrued the law under which the Appellant was charged. He argued that the operative words in Section 68(1)(a) of the AFA are: “entrusted with properties listed in the Charge” and not whether he was in exclusive control or was a Gun Boat operator. He added that the Appellant had at page 151 of the Record that he was on sentry at all the material time. He argued that the Appellant was detailed to guard and control access to the Gun Boat and as such the Appellant cannot argue that he was not in charge of the Gun Boat and all the armaments therein. He also pointed out that when the Gun Boat was recovered the following day the armaments have been removed. He referred to the evidence of PW1 at pages 67 – 68 of the Record and that of PW2 at page 98 of the Record, and argued that they were never contradicted.
Learned Counsel further submitted that from the record of the Court, the Appellant did not fire and even if he fired 11 rounds out of 50 rounds of ammunition it was not a good defence since he had sufficient ammunition to defend the Gun Boat but chose not to fire. He added that only God knows what happened to the 11 rounds of ammunition because even though the Appellant said he fired in his sorn evidence before the Court, he had earlier confessed to the CO and the CSM including the investigator that he did not fire, and that only his guard commander Cpl. Kabiru Danlami returned fire. Learned Counsel cited the case of UCHECHI OVISA v THE STATE (2018) 11 NWLR (Pt. 1631) 453, to the effect that where a witness had made an extrajudicial statement which is inconsistent with his sworn testimony on oath and gives no reasonable explanation for same, the only option is to disregard the evidence of the witness. He urged this Court to hold that the ingredients of the charge were proved and the Appellant was rightly found guilty as charged.
RESOLUTION OF ISSUE 3:
In ODUNLAMI v NIGERIAN NAVY (2013) LPELR-20701(SC), the Supreme Court, per Rhodes-Vivour, JSC stated the ingredients of the offence of losing service property. In that case, the Court held at pages 24 – 25, para. C, as follows:
“To succeed in a charge under Section 68 (1) (a) supra the onus is on the prosecution to prove beyond reasonable doubt that: (a) the accused is subject to service law; (b) the accused had charge of or was in care of the service property; (c) the said service property is lost; (d) the accused intentionally lost the items; (e) the accused has no defence in law or facts.”
In the instant appeal, there is no controversy that the Appellant is subject to service law and that service properties were lost which were the Gunboats and the military armaments in them. Even though the Gunboats were later recovered, the armaments in them were lost to the attackers. The Appellant’s contention is that he was not a Gun Boat Commander but a junior officer and he was therefore not assigned a Gun Boat and had no exclusive control over same. As rightly observed by the learned Counsel for the Respondent, the Appellant had clearly misconstrued the law under which he was charged. Section 68(1)(a) of the Armed Forces Act which creates the offence of loss of public or service property states that:
“A person subject to service law under this Act who loses a public or service property of which he has the charge or which forms part of the property of which he has the charge or which has been entrusted to his care 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 less punishment provided by this Act.”
The above section provides for two scenarios in which the public or service property can be in the custody of the accused person before the offence can be committed. The accused must be either in charge of the property or the property must have been entrusted to his care. In the instant appeal, the Appellant had admitted in his evidence at page 151 of the Record of Appeal that on the 2nd of August, 2008 he was on sentry duty. In his words, he stated that:
‘Yes, my Lords, on the 2 Aug., 08, I was on sentry with my Guard Comd, then Kabiru Danlami, so, I was behind the sandbag according to the instruction from our Guard Comd, then Sgt. Moses Young, that we should perform sentry duty outside. When it is eleven o’clock, the next detail will enter the gunboat which is…”
In addition to the above testimony of the Appellant, PW1, Col. DH Ali-Keefi, the Commanding Officer of the 93 Battalion, had testified at page 60 of the Record that when he arrived at the Coy Hqts location at Bomadi he had asked Sgt. Charles Tondo (PW2) who were on sentry during the attack at the Gunboats and the Appellant was brought to him who confirmed that he was one of those on sentry duty during the attack.
In addition, PW1 had at page 67 of the Record stated what was inside each of the Gunboats to include: 2 in-boat engines; 2 brawling machine guns, one at the front and one at the rear; an anti-tank grenade launcher AGL 40; the gun mouth where the guns are and a shield to protect the gunner from fire; and communication gadgets and radar as well as personal items for boarding by crew members. At page 68 of the Record, PW1 proceeded to state that when the Gunboats were recovered, all the brawling machine guns, the AGL 40, the ammunitions, life jackets, camouflage jackets were taken away, while one of the radars of the boat was destroyed.
Also at page 131 of the Record, PW3, while giving evidence under cross-examination stated that during his investigations of the attack, he discovered that arms and ammunition were carted away by the attackers.
It is therefore apparent that the finding of the GCM that the Appellant was guilty of losing service property entrusted to his care under Section 68(1)(a) of the AFA is predicated on the evidence in the printed Record of Appeal and is not improper or perverse and has not occasioned any miscarriage of justice. This being so, this Court cannot interfere with it: ARISONS TRADING & ENGINEERING CO. LTD. v MILITARY GOVERNOR OF OGUN STATE & ORS (supra), NDAYAKO & ORS v DANTORO & ORS (supra) and TSOKWA MOTORS NIG. LTD & ANOR v UNION BANK OF NIGERIA LTD. (supra). In consequence, issue 3 is resolved against the Appellant.
ISSUE 5: Whether the judgment of the Court is not against the weight of evidence.
On this issue, the Appellant had relied on the cases of FJSC v THOMAS (2013) 17 NWLR (Pt. 1384) 549, paras. B – C, and argued that none of the Respondent’s witnesses witnessed the attack so as to categorically state that the Appellant committed the offences with which he was charged. He also argued that the evidence of PW1 contradicts the evidence of other witnesses of the Respondent regarding the attack. Citing AMAECHI v STATE (2016) LPELR-40977(CA); and ADISA v THE STATE (1991) 1 NWLR (Pt. 168) 490 at 500, he argued that speculations have no place in adjudication.
It was also the submission of the learned Counsel for the Appellant that the judgment of the GCM contained at page 168 of the Record of Appeal is in contravention of Rule 76(1) & (2) and (3) of the Rules of Procedure Army, 1972, pointing out that the throughout the proceedings there is nowhere the President and the Judge Advocate signed the record of proceedings and the judgment of the GCM is undated and unsigned. He argued that this has rendered the verdict and the entire exercise a nullity, relying on LCPL HAMIDU MUSA v NIGERIAN ARMY (2016) LPELR-41595(CA) and LIEUTENANT YAHAYA YAKUBU v CHIEF OF NAVAL STAFF (2004) NWLR (Pt. 853) 94 at 114 – 115, paras. A – B.
Learned Counsel also submitted that in convicting and sentencing the Appellant, the GCM never evaluated the evidence and did not give any ratio or reasoning to support its findings on issues presented to it as required by Section 245 of the Criminal Procedure Act. He urged the Court to set aside the judgment of the GCM as same cannot be supported by evidence.
Arguing per contra, the learned Counsel for the Respondent submitted that there are abundant evidence before the GCM, including the Appellant’s voluntary admissions to sustain the judgment of the GCM. He argued that the Appellant’s counsel had only reproduced evidence which tends to support his case but failed to reproduce the admissions made by the Appellant in various pages of the record. He particularly referred to the evidence of the Appellant at pages 151 and 154 of the record.
On the Appellant’s argument over failure of the GCM to evaluate evidence in its judgment, learned Counsel for the Respondent referred this Court to the decision of the Supreme Court in the case of OLOWU v THE NIGERIAN NAVY (2012) All FWLR (Pt. 608) 789 and submitted that the duty of evaluating evidence is on the Judge Advocate. As for signing of the judgment, he pointed to page 11 of the Record where the GCM’s pronouncement was signed by the President and the Judge Advocate and dated at Ibadan the 31st day of January, 2011. He submitted that a GCM not being a regular Court, has no business complying with the standard of the Criminal Procedure Act. He relied on F.E. AGBITI v THE NIGERIAN ARMY in Appeal No. CA/L/361/2005, judgment delivered by Galinje, JCA (as he then was) on 11th December, 2007, and submitted that the MML, 1972 are only rules made for the Court and even as they are to be obeyed, it has been consistently stated that the Courts should not be slaves to the rules.
RESOLUTION OF ISSUE 5:
On the Appellant’s argument over the failure of the GCM to evaluate evidence in its judgment as required by the Criminal Procedure Act, it is pertinent that I state right away that the rules of procedure applicable in a General Court Martial is not the Criminal Procedure Act. Rather, by virtue of Section 181(1) of the Armed Forces Act the “rules of procedure relating to trial by Courts-martial and summary proceedings in the various services of the Armed Forces is the Rules of Procedure (Army) 1972, the Court-Martial Procedure for Royal Navy BR II and the Rules of Procedure (Air Force) 1972 shall apply mutatis mutandis unless otherwise provided.” For this reason, the argument of the Appellant hinged on Section 245 of the Criminal Procedure Act is misconceived.
Indeed, in the case of OLOWU v THE NIGERIAN NAVY (2011) LPELR-3127(SC), the Supreme Court stated the nature of a Military Court Martial and distinguished it from a conventional Court, when His Lordship Muntaka-Coomassie, JSC held at pages 24 – 25, paras. B – B, as follows:
“…the Military Court Martial is unlike the conventional Court, Courts Martial operate a criminal procedure akin to jury trial. Section 141 of the Armed forces Act of 1993 spelt out this function of the Judge Advocate who summed up the case of the parties, after the close of the case, addresses of the parties, and direct the members of GCM on the applicable law and the voting procedure to adopt. While evaluation and ascription of value to the evidence adduced at the trial is done by the Judge in the conventional Court. In the military Court Martial, this is done by the Judge Advocate. In the un-reported case decided by the Court of Appeal, Lagos Division, LT. Col. M.F. Komombo v. The Nigerian Army App. No. CA/L/114/2000 delivered on 10/12/2001, my learned brother Chukuma-Eneh JCA as he then was, on this point held as follows: “I have gone through the submission of both Counsel and the record of proceedings. I confirm that the lower Court did not give reasons for its findings and judgment. That the trial at the lower Court was by jury and the proceedings complied with the relevant procedures. After the conclusion of evidence and addresses of Counsel on both sides, the Judge Advocate summarized the case of the parties and directed them on the applicable law and the voting procedure to adopt. Thereafter, the jury returned a verdict of guilty. I agree with the learned Counsel for the Respondent that this is in conformity with Decree No. 105 of 1993 Section 141 thereof.”
See also AGBITI v NIGERIAN NAVY, Appeal No. CA/L/361/2005, judgment delivered by Galinje, JCA (as he then was) on the 11th of December, 2007, wherein this Court cautioned against reading into the law and rules of procedure inherent in the conduct of the affairs of the members of the Armed Forces that which will breed indiscipline and destroy the chain of command.
In the instant appeal, it is clear from the Record of Appeal that after the conclusion of the evidence and address of the parties, the Judge Advocate evaluated and summed up the evidence of the parties at pages 163 – 166 of the Record before the GCM took a plea of mitigation at pages 168 – 169 and judgment convicting the Appellant at page 167 of the Record. The GCM then took a plea of mitigation at pages 168 – 169 before pronouncing its sentence at page 170 of the Record of Appeal. In other words, the procedure as stipulated by the Apex Court in OLOWU v THE NIGERIAN NAVY (supra), had been duly followed in the trial of the Appellant before the GCM.
On the Appellant’s argument over the requirement of signing of the record of proceedings, it is correct that Rule 76 of the Manual of Military Law applicable to Court Martial by virtue of Section 181 of the AFA provides that immediately after the conclusion of the trial, the President and Judge Advocate (if any) shall date and sign the record of the proceedings, after which the President and the Judge Advocate shall forward same as directed in the convening order.
As rightly observed by the Respondent, page 11 of the Record of Appeal shows that after pronouncement of the sentence on the Appellant, the President had announced the conclusion of the trial and the proceedings was then signed and dated at Ibadan by the Judge Advocate and the President on the 31st of January, 2011, as required by Rule 76(3) of the Manual of Military Law. Thus, contrary to the argument of the Appellant, the Record of Appeal shows that the proceedings before the GCM complied with the rules of procedure under which it was conducted both as it relates to the evaluation of the evidence adduced before that Court and as to the signing and dating of the proceedings.
Whilst considering issues 1 – 3 above, I have already found that the findings of guilt pronounced upon the Appellant by the GCM in relation to the offences for which the Appellant was charged were in consonance with the evidence led before that Court. In so doing, I had particularly referred to the admissions made by the Appellant. I therefore hold that the Appellant has failed to establish that the judgment of the GCM is against the weight of the evidence led before it. Hence, I also resolve this issue against the Appellant.
Having resolved all the issues for determination in this appeal against the Appellant, the appeal is obviously devoid of any merit. I so hold and accordingly dismiss the appeal and affirm the judgment of the General Court Martial delivered by Col. B.S. Ipinyomi on the 30th of March, 2010 in the case of NIGERIAN ARMY v LCPL IBRAHIM ALHAJI.
SAIDU TANKO HUSSAINI, J.C.A.: My brother, Abba Bello Mohammed, JCA has avail me with the draft copy of the leading judgment prepared by him. And upon reading the judgment I find myself unable to disagree with him on any of the issues so admirably considered and pronounced upon in the leading judgment. I have nothing more to add except to say that the appeal before us lacks merit and I order that the same be dismissed. I so order.
MOHAMMED DANJUMA, J.C.A.: I have the privilege to read in draft, the lead judgment of my learned brother, ABBA BELLO MOHAMMED JCA. I agree with the reasoning and conclusion that this appeal is devoid of merit and is hereby dismissed. I abide by all the consequential orders in the lead judgment.
Appearances:
Idris Mohammed, Esq. For Appellant(s)
P. E. Okolue, Esq. For Respondent(s)