CAPT. O.D. ERIZEA v. NIGERIAN ARMY (2015)

CAPT. O.D. ERIZEA v. NIGERIAN ARMY

(2015)LCN/8073(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 29th day of April, 2015

CA/K/316/C/2014

RATIO

CRIMINAL LAW: SELF DEFENCE; WHEN SELF DEFENCE CAN BE AVAILABLE IN A CRIMINAL CASE

Of course, self-defence must be available only where it emanates from an unprovoked assault. See UWAGBOE V. STATE (2008) 12 NWLR (PT.1102) 621 AT 639 PARAS C-D. per. UWANI MUSA ABBA AJI, J.C.A.

COURT: DUTY OF COURT: THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE

My stake here is that the Respondent has proved this count beyond reasonable doubt and to tamper with the decision of the trial GCM is to usurp its inevitable duty and function as held by Tobi JSC in IGAGO V. STATE (1999) 14 NWLR (PT.637) 1 that:
“The function of the evaluation of evidence is essentially that of the trial judge. Where the trial judge has unquestionably evaluated evidence and justifiably appraised the facts, it is not the business of an appellate Court to intefere and to substitute its own views for the view of the trial Court.” See also the dictum of Per Karibi-Whyte, J.S.C. in EGIRI V. UPERI (1974) 1 N.M.L.R. 22 AT 25 PARAS A-B where he held: “The duty to make primary findings of fact by the evaluation of the evidence before him by the additional advantage of watching the demeanour of witnesses is essentially preserved for the trial Court.” per. UWANI MUSA ABBA AJI, J.C.A.

THE POWER OF THE ATTORNEY- GENERAL; THE LIMITATION OF THE POWER OF THE ATTORNEY GENERAL WHICH HAS TO DO WITH THE REQUIREMENT OF CONSENT OF A HIGH JUDGE TO FILE A CHARGE
It must be stressed that there is also a limitation to the Attorney- General’s power which has to do with the requirement of consent of a High Court Judge to file or prefer a charge and failure to so obtain in filing a criminal charge in the State High Courts nationwide is fatal to the charge. See Osamo, Bob “Fundamentals of Criminal Procedure Law in Nigeria” 2004, Dee-Sage Nigeria Ltd, Abuja, P.125. This must be seen mutatis mutandis with the charge-sheet signed by Col. COC Ekulide, who claimed to have been authorized to sign on behalf of the Commanding Officer. per. UWANI MUSA ABBA AJI, J.C.A.

PRACTICE AND PROCEDURE: CHARGE SHEET: WHAT THE CHARGE SHEET MUST CONTAIN, HOW IT SHOULD BE PREPARED AND WHO MUST SIGN IT

The law on this as provided by Paragraph 43 of the Manual of Military Law provides as follows:
“A C.O having remanded the accused in accordance with R.P.13 will sign the charge-sheet. Care must be taken to ensure that a person who signs the charge-sheet is the C.O of the accused at the date of signing; it must not be signed by another officer on his behalf.” (The underlined for emphasis)
Paragraph 39 of the Manual of Military Law also provides:
“The charge-sheet contains the whole of the issues to be tried at one time and consists of:
(a) The commencement of the charge-sheet;
(b) The charges, each being divided into
(i) The statement of offence, and
(ii) The particulars of the act, neglect or commission constituting the offence;
(c) The signature of the commanding officer; and
(d) The order of trial” (The underlined for emphasis)
Paragraph 14 footnote (b) of the Rules of Procedure (Army) 1972 provides:
“The charge-sheet should be prepared by the unit and the commanding officer will sign it after complying with A.A. 1955, 5.77 (3).” (The underlined for emphasis)
The law remains the law and must be obeyed and it does not matter whether the Appellant was adversely affected by the signing of the charge sheet by another officer unauthorized to so sign. On this note the Apex Court in AGBITI VS. NIGERIAN NAVY (2011) 13 WRN 1 AT 49 per Rhodes-Vivour JSC held:
“If the law states what is required for the Court martial to be properly constituted as regards its members and there is an infraction, no matter how negligible, so long as it is an infraction of the Act the trial ought to be nullified.” In the instant case there is an infraction of the law which requires the appropriate superior authority to determine the charge to be tried by a court martial. In which case the trial based on the charge altered and signed by an officer who is not the appropriate superior authority render it a nullity.” (The underlined for emphasis)
In another place, this Court held in KUDAMBO V. NIGERIAN NAVY (2014) LPELR-22624 (CA) Per OSEJI, J.C.A, thus:
“This is indeed trite and incontestable even in a trial before a Court martial as in this case, but it must be done in accordance with the relevant statutory provision as presented by Section 126 of the Armed Force Act which requires that where an appropriate superior authority in the military determines that it is desirable that a charge shall be tried by a Court Martial, the prescribed steps shall be taken with a view to its being so tried. Hence the convening officer signs the charge for which an officer is to be tried. There is a contrast here with what obtains in the regular Courts where there is a standing and implied mandate enabling any legal officer to sign a charge sheet as well as amend it when necessary.” (The underlined for emphasis). The law here is unambiguous and devoid of double interpretation. It further gives a caveat that the power cannot be exercised by another. It is express that this power of signing the charge sheet has been delegated only to the Commanding Officer; hence power delegated cannot be sub-delegated (Delegatus Non Potest Delegare). See IBADAN CITY COUNCIL V. J. O. ODUKALE (1972) All N.L.R 755. Furthermore, by the rule of interpretation, the express mention of one thing is the exclusion of another (Expessio Unis Est Exclusio Atterius). See A.G. BENDEL V. AIDEYAN (1989) 4 NWLR (PT.188) 646 AT 672 and INEC V. PDP (1999) 11 NWLR (PT.626) 174 AT 191. Because the Commanding Officer has been expressly mentioned, it therefore excludes any other officer from signing a charge-sheet on his behalf. Similarly, though Col. C.O.C. signed on behalf of the General Officer Commanding, there is nowhere that he was armed with a letter or instrument of delegation. per. UWANI MUSA ABBA AJI, J.C.A.

Before Their Lordships

UWANI MUSA ABBA AJIJustice of The Court of Appeal of Nigeria

ABDU ABOKIJustice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRUJustice of The Court of Appeal of Nigeria

Between

CAPT. O.D. ERIZEAAppellant(s)

AND

NIGERIAN ARMYRespondent(s)

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Nigerian Army, 1 Mechanized Division General Court Martial sitting at 1 Division Headquarters Officers Mess, Kanta Road, Kaduna, presided over by Col. M.E. Odion (N/8437) as President, Col. J.O. Obasa (N/9025), Col. A. Garba (N/9496), Col. A.A. Bamgbose (N/9453), Lt. Col. B. Garke (N/9478), Lt. Col. S.I. Abdullahi (N/9854) and Lt. Col. R.B. Akindeyoje (N/9653); as members and Capt. A. Mohammed (N/12687) as the Judge Advocate, delivered on 25/4/2013 and confirmed on 7/11/2013 wherein the Appellant contrary to Section 55(a) of the Armed Forces Act, 2004 was convicted and sentenced to 2 years imprisonment subject to confirmation by ASA as contained at page 296 of the records.

The 2 charges against the Appellant in Charge No: 1 DIV/G1/300/32 contained on the undated NA Form B252 at pages 4-5 of the records read as follows:
STATEMENT OF OFFENCE: Fighting, Quarreling and Disorderly Behaviour punishable under Section 55(a) of the Armed Forces Act AP A20 Laws of the Federation of Nigeria, 2004
PARTICULARS OF OFFENCE: In that

you at Mates Club No 16 Wharf road Zaria on or about 9 August 2012 engaged yourself in a fight with one Emmanuel Fred Ebonyi
COC EKULIDE
Col
For General Officer Commanding
STATEMENT OF OFFENCE: Murder punishable under Section 106 (c) of the Armed Forces Act CAP A20 laws of the Federation of Nigeria, 2004
PARTICULARS OF OFFENCE: In that you at Zaria on or about 9 August 2012 without justification caused the death of one Mr Emmanuel Fred Ebonyi through unlawful act by struggling his car steering with him thereby causing the car to crash into a ditch resulting in the death of the deceased.
COC EKULIDE
Col
For General Officer Commanding

?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, Zaria, within the 1 Mechanized Division of the Nigerian Army, Kaduna. Sometime on or about the 9/8/2012 at about 1:30am, the Appellant was involved in fighting and quarreling with some civilian, Mr. Emmanuel Fred Ebonyi (now deceased) and Femi David at a night club called Mates Night Club, Zaria, Kaduna State, contained at pages 184-187,

199-200 of the records. During the fight, the GCM found that the Appellant rough-handled and kicked several times with his boot the chest of the deceased in the presence of other persons as reflected in the witness statement at pages 336-338 of the records. After they were separated, the Appellant, when the deceased with one Femi David entered their car to go, held the steering of the car which crashed into a ditch resulting in serious injury of the deceased who subsequently died in the hospital. After the matter was reported to the Nigerian Army Military Police, the Appellant was arraigned on 28/1/2013 on a two-count charge of Fighting, Quarrelling and Disorderly Behaviour punishable under Section 55(a) of the Armed Forces Act CAP A20 Laws of the Federation of Nigeria, 2004; and Murder punishable under Section 106 (c) of the Armed Forces Act CAP A20 Laws of the Federation of Nigeria, 2004, whereat he pleaded not guilty to the charges. At the trial, the prosecution called 6 witnesses while the Appellant defended himself and made a no case to answer in respect of charge 2 reflected at pages 207-221 of the records. Consequently, the Appellant was convicted and

sentenced to 2 years imprisonment contrary to Section 55(a) of the AFA, 2004.
The Appellant being dissatisfied with the said conviction and sentence appealed vide a Notice of Appeal dated 3/3/2014 and filed on 20/3/2014, wherein he raised 6 Grounds of Appeal hereunder reproduced without their particulars:
GROUNDS OF APPEAL
GROUND ONE
The Honourable General Court Martial erred in law when it assumed jurisdiction and tried and convicted the Appellant on count 1 of the charge sheet which was not signed by the Appellant’s Commanding Officer required by paragraphs 39 (C) and 43 of the Manual of Military Law (MML) applicable to the General Court Martial.
GROUND TWO
The Honourable General Court Martial erred in law when it relied on the case of NIGERIAN AIR FORCE V. OBIOSA (2003) 4 NWLR (PT.810) 233 to hold that the signing of a charge-sheet can be delegated when the said decision does not relate to nor apply to the question of whether or not a charge-sheet can be signed by a person other than the Commanding officer of the accused person.

GROUND THREE
The Honourable General Court Martial erred in law when it held:
“On count 1, the Court had listened to all the testimonies of the prosecution witnesses and carefully studied their written statements, they were all in agreement of the fact that there was a fight, and in both the written and oral testimonies of the accused he also accepted that he fought with the deceased; the mind of Court (sic) therefore found (sic) that the issue of self-defence raised by the accused has no place in this issue as such he found (sic) guilty as charged in count 1.”
GROUND FOUR
The Honourable General Court Martial erred in law when it failed to sign its record of proceedings/judgment immediately after the conclusion of trial on 25th April, 2013, as mandatorily required by Rule 76(3) of the Rules of Procedure (Army) 1972.
GROUND FIVE
The Honourable General Court Martial erred in law when it held that the prosecution had proved the charge of fighting, quarrelling and disorderly behavior under Section 55(a) of the Armed Forces

Act beyond reasonable doubt and proceeded to impose the maximum penalty of two yeans imprisonment even though there was evidence on record of the Appellant being first offender.
GROUND SIX
The verdict of the Honourable General Court Martial is unreasonable 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 11/7/2014 and filed on 16/7/2014, settled by A.I. Omachi, Esq, wherein he formulated 5 issues for the determination of the appeal to wit:-
1. Whether the trial General Court Martial had jurisdiction to try the Appellant when the charge that formed the basis of the trial of the Appellant was not signed by his Commanding Officers (Ground 1)
2. Whether the trial General Court Martial was right in relying on the decision in OBIOSA vs. NAF (supra) in holding that it had jurisdiction to try the Appellant on the charge, which was not signed by his Commanding Officer.
(Ground 2).
3. Whether the offence of fighting quarrelling and

disorderly behavior under Section 55(a) of the Armed Forces Act is a strict liability offence that admits of no defence of self defence put up by the Appellant (Ground 3).
4. Whether the judgment or finding of the trial General Court Martial was valid same having not been signed immediately it was delivered as mandatorily required by Rule 76 (3) of the Rules of Procedure (Army) 1972.
(Ground 4).
5. Whether the trial General Court Martial was right in holding that the charge in count 1 had been proved beyond reasonable doubt (Grounds 5 and 6).

The Respondent on the other hand, filed its brief of argument dated 23/9/2014 but deemed properly filed on 10/2/2015, settled by Chief A.T.
Udechukwu, Esq, and raised 3 issues:
1. Whether the trial General Court Martial (GMC) was in error when it held that the defence of self-defence cannot avail the accused/appellant and therefore convicted him of the offence of fighting, quarrelling and disorderly behavior under Section 55(a) of the Armed Forces Act (AFA)?
2. Whether the trial of the

accused/appellant upon the charge sheet signed by Col. C.O.C Ekulide on behalf of the General Officer Commanding 1 Division is capable of vitiating the trial of the accused person?
3. Whether the finding/record of proceeding of the General Court Martial in this case signed and dated on the 26th day of July, 2013 by the President and Judge Advocate is valid?

At the hearing of the appeal on 2/3/2015, 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.

I shall consider this appeal on a single issue as bundled thus:
ISSUE
Whether the trial General Court Martial had jurisdiction to try and convict the Appellant and to hold that self-defence cannot avail the Appellant under Section 55(a) of the Armed Forces Act (AFA)?
It is the Appellant’s learned Counsel’s submission that the GCM had no jurisdiction to try the Appellant when the charge sheet was not signed

by his Commanding Officer as required by the Rules of Procedure (Army) 1972, applicable to and binding on Nigeria Army General Court Martial by virtue of Section 181(1) of the Armed Forces Act, Cap. A20 LFN, 2004.
Thus, by paragraph 14 of the Rules of Procedure (Army), 1972, particularly footnote 1(a) & (b), and paragraphs 39 and 43 of Chapter II of the Manual of Military Law, the signature of the Commanding Officer was mandatory on the charge sheet. He defined who a Commanding Officer is as provided in Section 291(1) of the Armed Forces Act and NIGERIAN ARMY V. AMINUN-KANO (2010) 5 NWLR (PT.1188) 429 AT 460 PARAS D-H.
That by the records at page 4, the charge sheet was signed by one Col. C.O.C. Ekulide instead of Maj. Gen. G.A. Wahab (the Commanding Officer of the Appellant). Therefore, the charge sheet being defective, makes the trial and conviction of the Appellant a nullity and liable to be set aside. He referred to OLOWOYO V. THE STATE (2012) 17 NWLR (PT.1132) 346 AT 369-370 PARAS H-A. He submitted that the Court in determining that it has jurisdiction, the case coming before it must be initiated by due process of law. He relied on MADUKOLU

V. NKEMDILIM (1962) 1 ALL NLR 587 and BASINCO MOTORS LTD V. WOERMANN-LINE (2009) FWLR (PT.485) 1634 AT 1655 PARAS B-E.
He equally submitted without conceding that the Appellant did raise an objection to the defective charge sheet but overruled by the GCM.

The Appellant also objected to the jurisdiction of the GCM to try him on a charge sheet not signed by his Commanding Officer. That it was wrong for the Judge Advocate to overrule him on the inapplicable and wrong authorities of NAF V. OBIOSA(supra) and Paragraph 10 of the Convening Order setting up the GCM at pages 297-302 of the records. He thus submitted that the aforestated authorities which have their mother law or sting from Section 131 (4) and 286(1) of the Armed Forces Act, refer to mere “routine correspondences” and have nothing to do with signing of the charge sheet, hence distinguishable with the present appeal.

He again submitted that by the decision of the GCM from line 20 at page 294 to lines 1-5 at page 295 of the records, the GCM did not consider the defence of self-defence put forth by the Appellant but rather held the offence of fighting, quarrelling and disorderly behavior

provided under Section 55(a) of the Armed Forces Act to be a strict liability offence under the service law which is not so provided. Thus, the GCM did not give a reasoning or the basis of the judgment for the decision so held. He relied on NIGERIAN ARMY V. AMINUN-KANO (2010) 5 NWLR (PT.1188) AT 468 PARAS E-G. It is his submission therefore that the Appellant is entitled by law to self-defence by virtue of Sections 59 and 286 of the penal Code and Criminal Code respectively. Thus, though the Armed Forces Act does not provide specifically for self-defence, it is available to the Appellant by the provisions of the Penal Code, Criminal Code and the Criminal Procedure Act as held in SHEKETE V. NAF (2007) 14 NWLR (PT.1053) 159 AT 196 PARAS B-D. He further submitted that it is settled for a court to consider all possible defences raised by the accused. He relied on LAOYE V. STATE (1985) 2 NWLR (PT.10) 832 AT 840 PARAS A-B, AKPABIO V. STATE (1994) 7 NWLR (PT.359) 635 AT 671, MADJEMU V. STATE (2000) 2 CLRN 41 AT 57, ABUBAKAR DAN SHALIA & ORS V. STATE (2005) NCC 24 AT 44-46 and NWAGHINYA V. STATE 21 NSCQR 570 AT 584. Furthermore, that the self-defence raised by

the Appellant is consistent with the presumption of innocence provided in Section 36(5) of the Constitution of the Federal Republic of Nigeria. It cannot therefore be ignored. He referred this Court to OPAYEMI V. STATE (1985) 6 SC 347 AT 352-354. Referring this Court to MAGAJI V. NIGERIAN ARMY (2008) ALL FWLR (PT.420) 6038-639, he maintained that though the GCM is not equated with the regular Courts where strict procedures are required, it is nevertheless bound to observe the rules of fair hearing and natural justice. He cited the case NIGERIAN ARMY V. MOHAMMED (2002) 15 NWLR (PT.789) 42 AT 44-45. He thus submitted that the failure to consider the Appellant’s self-defence is a breach of the rules of natural justice.

The Counsel to the Appellant has also maintained that by the combined effect of Rule 76(1), (2) and (3) of the Rules of Procedure (Army) 1972, the President of the GCM shall announce the judgment in open Court that the trial has been concluded and immediately after conclusion of the trial, the President and the Judge Advocate shall sign and date the record of proceedings. By the records at page 296, the judgment was not signed on 25/4/2013

until after about 3 Months on 26/7/2013.
Thus, this mandatory provision has been breached even as provided by Section 296(1) of the Criminal Procedure Code, Section 245 of the Criminal procedure Act and Section 269(1) of the Administration of Criminal Justice Law of Lagos State. He equally relied on LIEUTENANT YAHAYA YAKUBA V. CHIEF OF NAVAL STAFF (2004) NWLR (PT.853) 94 AT 114 PARAS A-B, which held such a failure capable of rendering the entire exercise a nullity.

It is the contention of the Appellant that by the presumption of innocence of the Appellant provided in Sections 36(5) of the CFRN, 2011 (As Amended) and 135(1) of the Evidence Act, 2011 (As Amended); the burden of proof is on the Respondent. In the instant appeal, the onus is on the Respondent to disprove the evidence of self-defence. He cited LAOYE v. STATE (1985) 2 NWLR (PT.10) 832 AT 840 PARAS A-B.
Unfortunately, that the GCM did not consider the defence. He argued that the self-defence being a complete defence as raised by the Appellant ought to have been established by the Respondent that it was not available to the Appellant. He relied on APUGO V. STATE 27 NSCQR 201 AT 230-

231 and Rule 61 of the Rules of Procedure (Army) 1972. He listed a litany of contradictions in the evidence of the witnesses to the Respondent which he submitted are material and fatal to their case. He relied on M.S.C. EZEMBA V. S.O. IBENEME (2000) 10 NWLR (PT.674) 61 AT 74. That a conviction based on irreconcilable contradictions will be quashed on appeal. He referred to QUEEN V. NSA (1961) ALL NLR (PT.4) 668 AT 670-672, ATIKU V. STATE (2010) 9 NWLR (PT.1199) 241 AT 252 PARA A, BOZIN V. STATE (1985) 2 NWLR (PT.8) 465 and OKONJI V. STATE (1987) 1 NWLR (PT.52) 659. He submitted that the totality of the Respondent’s case is that it was not proved beyond reasonable doubt.
He cited KALU V. NIGERIAN ARMY (2010) 4 NWLR (PT.1185) 433 AT 446 PARAS F-G and urged the Court to resolve the issue in his favour.
The Respondent’s Counsel on the other hand submitted that the GCM was right to hold that self-defence cannot avail the Appellant in the circumstances of the case. He argued that contrary to the submission of the Appellant the Appellant was convicted based on proof beyond reasonable doubt by virtue of section 135 (1) & (2) of the Evidence Act, 2011,

than on treating Section 55(a) of the AFA as a strict liability offence. His contention is that the Respondent in proving its case, called 4 witnesses and discharged the burden placed on it which does not shift as held in OJO V. FRN (2008) 11 NWLR (PT.1099) 467 and TANKO V. STATE (2008) 16 NWLR (PT.1114) 591. Thus, it behoved on the Appellant to prove any exception or exemption in accordance with Section 139(1) of the Evidence Act, 2011. It is further argued that the GCM arrived at its decision based on the evidence before it. He cited AMAECHI V. INEC (2008) 5 NWLR (PT.1080) 277 AT 363. Hence this Court cannot interfere with it. He referred to EBENOGWU V. ONYEMAOBIM (2008) 3 NWLR (PT.1074) 396. He contended that the Appellant in his defence never called any witness to corroborate self-defence or rebut the evidence of the Respondent. He has therefore failed to discharge the burden on him in accordance with Section 139(1) of the Evidence Act, 2011 and MAGAJI v. NIGERIAN ARMY (2008) 8 NWLR (PT.1089) 338 AT 393.
Equally, he submitted that the GCM was right to hold that self-defence was not available to the Appellant since it was an unprovoked assault as

held in UWAGBOE V. STATE (2008) 12 NWLR (PT.1102) 621 AT 639 PARAS C-D.

It is again submitted by the Respondent that the GCM was right and had jurisdiction to try the Appellant based on the charge sheet signed by Col. COC Ekulide. He argued that the Appellant’s complaint about the charge is not because he suffered any miscarriage of justice and his objection thereto was after plea was taken. He submitted that it was signed as provided under Section 286 of the AFA, which governs signing and execution of instruments in the Armed Forces and as held by the Apex Court in NIGERIAN AIR FORCE V. OBIOSA (2003) 4 NWLR (PT.810) 233 AT 269-270. It is similarly contended that the GOC (who is the convening officer) authorized Col. COC Ekulide to sign all routine correspondence relating to the Court on his behalf. Again, that there is nothing to show that the Appellant was adversely affected as a result of the signing of the charge sheet by Col. COC Ekulide. Moreover, that the objection to the irregularity or defect of a charge sheet must be before taking his plea and not after as evidenced at page 11 of the records. He referred to MAGAJI V. NIGERIAN ARMY (supra),

OKAROH V. STATE (1990) 1 NWLR (PT.125) 128 and AGBO V. STATE (2006) 6 NWLR (PT.977) 545.

The Respondent’s Counsel has also submitted that the findings of the GCM dated and signed on 26/7/2013 is valid in accordance with Sections 141 and 148 of the AFA, which means that upon the announcement of the finding, the officers of the GCM will thereafter reduce same into a comprehensive record which is thereafter signed by the President and Judge Advocate before same is forwarded to the confirming authority and until confirmed, it is not a judgment of the GCM. He relied on MAGAJI V. NIGERIAN ARMY (supra) AT 394. That the record of proceedings containing the trial and finding of the GCM was thereafter compiled and signed by the President and Judge Advocate on 26/7/2013 for onward transmission to the Nigerian Army Council in accordance with Section 148 of the Armed Forces Ad, then the conviction and sentence was subsequently confirmed on 7/11/2013 by the Army Council. He urged this Court therefore to dismiss the appeal and uphold the finding of the GCM delivered on 25/4/2013 and confirmed on7/11/2013.

I see no merit to consider the Reply brief of the Appellant

dated 17/2/2015 and filed on same date. Obviously, there are no new issues in the argument of the Respondent that necessitated a Reply brief from the Appellant. Infact, the Respondent has rather abandoned some issues raised and argued by the Appellant which is not helpful to his case and at most deemed admitted. A Reply brief is not for re-argument or adumbration of issues but for addressing new issues raised in the Respondent’s brief, if any. See NITEL PLC V. OCHOLI (2001) FWLR (PT.74) 254 AT 267. I will therefore consider this appeal on the Appellant’s and Respondent’s briefs.

On the availability of self-defence to the Appellant under Section 55(a) of the AFA the contradictions so listed by the Appellant’s Counsel at page 25 of his brief are not so germane to the defence of self-defence put forth by the Appellant save the contradiction in the testimony/evidence of PW2 and that of PW4 hereunder.
PW2 testified at page 8 of lines 3-4 thus:
“We tried to rescue my friend but he was booting on his chest while my friend was lying on the ground. I tried to raise him from the ground I could not before the manager came out we all tried and

rescued him from the Capt hand.”

While the evidence of PW4 at page 81 of the last 2 lines and 82 lines 1-15 went thus:
“Def: None of them was on the ground being pounded on?
PW4: No my lord
Def: If somebody come to Court to say that the accused officer was on top of the deceased and was pounding on him would that person be correct or false?
PW4: I did not see that
Def: But when you came to the scene, it was the accused officer allegedly fighting with a lady?
PW4: Yes my lord
Def: It was in your presence that the alleged fight with the deceased started?
PW4: Yes my lord
Def: And it also ended in your presence when you separated the fight.
PW4: Yes my lord
Def: Which means that no part of the fight incident involving the deceased that you missed as an eye witness?
PW4: Yes my lord”

Truly, as regards the evidence of fight or beating, these 2 testimonies are irreconcilable. Moreover, I

don’t suppose that the main issue here is whether there was a fight or not but who actually was at fault or did trigger the fight. It is in evidence however that the Appellant was already beating a lady outside the club. This has been so corroborated by PW1 at page 19, PW2 at page 21 and PW4 at page 26. The deceased got beaten when he went to intervene or separate the fight. This seems to straighten the facts about the fight. Of course, self-defence must be available only where it emanates from an unprovoked assault. See UWAGBOE V. STATE (2008) 12 NWLR (PT.1102) 621 AT 639 PARAS C-D.

The evidence against the Appellant on how he got the deceased beaten is overwhelming that it cannot be presumed to be a fight but rather a beating which was apparently unprovoked by the deceased. The contradictions listed by the Appellant’s Counsel notwithstanding, the Appellant cannot plead self-defence and I don’t think it can avail him here.
I don’t believe it either that he is entitled to self-defence because it was not a fight. The Court in KALU V. STATE (1993) 3 NWLR (PT.279) 20 AT 29 held:
“As a matter of fact when witnesses to one incident reproduce

the same or uniform account of that incident, the danger is that their evidence has been tailored, tutored and doctored. In actual life, there is bound to be minor variations in the account to truthful witnesses. But when witnesses contradict one another on material particulars, then they should not be believed.”

PW4 should be applauded for being a truthful witness than jettisoning his evidence as contradictory. I of course, must agree with the decision of the GCM on this contained especially at pages 294-295 of the records of appeal.

This is nothing but a foul cry by the Appellant that the trial GCM was not right to hold that the charge in count 1 was not proved beyond reasonable doubt. As earlier stated, the evidence of PW1 at page 19, PW2 at page 21 and PW4 at page 26, had nailed the Appellant’s self-defence and the trial GCM properly evaluated their evidence when it held at pages 294-295 that:
“On count 1, the Court has listened (sic) to all the testimonies of the prosecution witnesses and carefully studied their written statements, they were all in agreement of the fact that there was a fight, and in both the written and

oral testimonies of the accused, he also accepted (sic) that he fought with the deceased. The mind of the Court therefore found that the issue of self-defence raised by the accused has no place in this issue as such be (sic) found guilty as charged in count 1.”

My stake here is that the Respondent has proved this count beyond reasonable doubt and to tamper with the decision of the trial GCM is to usurp its inevitable duty and function as held by Tobi JSC in IGAGO V. STATE (1999) 14 NWLR (PT.637) 1 that:
“The function of the evaluation of evidence is essentially that of the trial judge. Where the trial judge has unquestionably evaluated evidence and justifiably appraised the facts, it is not the business of an appellate Court to intefere and to substitute its own views for the view of the trial Court.”
See also the dictum of Per Karibi-Whyte, J.S.C. in EGIRI V. UPERI (1974) 1 N.M.L.R. 22 AT 25 PARAS A-B where he held:
“The duty to make primary findings of fact by the evaluation of the evidence before him by the additional advantage of watching the demeanour of witnesses is essentially preserved for the

trial Court.”

On whether the GCM had jurisdiction to try the Appellant on a signed charge-sheet by Col. COC Ekulide instead of the General Officer Commanding, may I take on this little ride. Osamo Bob , in his book ” Fundamentals of Criminal Procedure Law in Nigeria” 2004, Dee- Sage Nigeria Ltd, Abuja, P.118 , wrote on the delegation of the powers of the Federal and State Attorneys-General:
” Sections 174(2) and 211 (2) of the 1999 Constitution permit the Attorneys-General of the Federation and States respectively to delegate their powers…against any person in any Court of law in Nigeria except a Court-Martial.”
(underlined for emphasis)
Again, he settled in his book at page 148 that:
“The requirement of consent before filing or preferring a charge also applies to Attorneys-General, except in Kano where Section 185(b) of the CPC has been amended.”
Though the AG can delegate his power of instituting criminal proceedings, the officer must be from within his department. It was also held in IBRAHIM V. THE STATE (1986) 1 NWLR (PT.18) 650:
” i. That the

Attorney-General can validly delegate all his powers to an officer in his department; and
ii. That where an Attorney-General delegated all his constitutional powers to the Director of Public Prosecutions, in writing by gazette, that the charges filed on behalf of the Attorney-General could be signed by a State Counsel.”
It must be stressed that there is also a limitation to the Attorney- General’s power which has to do with the requirement of consent of a High Court Judge to file or prefer a charge and failure to so obtain in filing a criminal charge in the State High Courts nationwide is fatal to the charge. See Osamo, Bob “Fundamentals of Criminal Procedure Law in Nigeria” 2004, Dee-Sage Nigeria Ltd, Abuja, P.125. This must be seen mutatis mutandis with the charge-sheet signed by Col. COC Ekulide, who claimed to have been authorized to sign on behalf of the Commanding Officer.

signs the charge-sheet is the C.O of the accused at the date of signing; it must not be signed by another officer on his behalf.” (The underlined for emphasis)
Paragraph 39 of the Manual of Military Law also provides:
“The charge-sheet contains the whole of the issues to be tried at one time and consists of:
(a) The commencement of the charge-sheet;
(b) The charges, each being divided into
(i) The statement of offence, and
(ii) The particulars of the act, neglect or commission constituting the offence;
(c) The signature of the commanding officer; and
(d) The order of trial” (The underlined for emphasis)
Paragraph 14 footnote (b) of the Rules of Procedure (Army) 1972 provides:
“The charge-sheet should be prepared by the unit and the commanding officer will sign it after complying with A.A. 1955, 5.77 (3).” (The underlined for emphasis)
The law remains the law and must be obeyed and it does not matter whether the Appellant was adversely affected by the signing of the charge sheet by another

officer unauthorized to so sign. On this note the Apex Court in AGBITI VS. NIGERIAN NAVY (2011) 13 WRN 1 AT 49 per Rhodes-Vivour JSC held:
“If the law states what is required for the Court martial to be properly constituted as regards its members and there is an infraction, no matter how negligible, so long as it is an infraction of the Act the trial ought to be nullified.” In the instant case there is an infraction of the law which requires the appropriate superior authority to determine the charge to be tried by a court martial. In which case the trial based on the charge altered and signed by an officer who is not the appropriate superior authority render it a nullity.” (The underlined for emphasis)
In another place, this Court held in KUDAMBO V. NIGERIAN NAVY (2014) LPELR-22624 (CA) Per OSEJI, J.C.A, thus:
“This is indeed trite and incontestable even in a trial before a Court martial as in this case, but it must be done in accordance with the relevant statutory provision as presented by Section 126 of the Armed Force Act which requires that where an appropriate superior authority in the military determines that it is

desirable that a charge shall be tried by a Court Martial, the prescribed steps shall be taken with a view to its being so tried. Hence the convening officer signs the charge for which an officer is to be tried. There is a contrast here with what obtains in the regular Courts where there is a standing and implied mandate enabling any legal officer to sign a charge sheet as well as amend it when necessary.” (The underlined for emphasis). The law here is unambiguous and devoid of double interpretation. It further gives a caveat that the power cannot be exercised by another. It is express that this power of signing the charge sheet has been delegated only to the Commanding Officer; hence power delegated cannot be sub-delegated (Delegatus Non Potest Delegare). See IBADAN CITY COUNCIL V. J. O. ODUKALE (1972) All N.L.R 755. Furthermore, by the rule of interpretation, the express mention of one thing is the exclusion of another (Expessio Unis Est Exclusio Atterius). See A.G. BENDEL V. AIDEYAN (1989) 4 NWLR (PT.188) 646 AT 672 and INEC V. PDP (1999) 11 NWLR (PT.626) 174 AT 191. Because the Commanding Officer has been expressly mentioned, it therefore

excludes any other officer from signing a charge-sheet on his behalf. Similarly, though Col. C.O.C. signed on behalf of the General Officer Commanding, there is nowhere that he was armed with a letter or instrument of delegation.

The said Section 186 of the AFA relied upon by the Counsel to the Respondent that gave jurisdiction to the GCM to try and convict the Appellant based on the signed charge sheet provides:
Section 186 of the AFA provides:
“An order or a determination by an officer of the Armed Forces or service authority may, unless otherwise prescribed by rules or regulations made under this Act, be signified under the hand of an officer authorized in that behalf, and an instrument signifying the order or determination and purporting to be signed by an officer stated therein to be so authorized shall, unless the contrary is provided, be accepted by all courts and persons as sufficient evidence accordingly.”

Section 131(4) of the Armed Forces Act, 2004 provides:
“The senior officer of a detached unit, establishment or squadron may be authorized by the appropriate Superior Authority to order a Court-martial

in special circumstances”

With due respect to the aforestated sections of the AFA and the case of NIGERIAN AIR FORCE V. OBIOSA (2003) 4 NWLR (PT.810) 233 AT 269-270, what is at stake is the signing of a charge sheet and not an Instrument which are both very distinguishable. In fact, what the Supreme Court decided in NIGERIAN AIR FORCE V. OBIOSA (supra) has clearly and distinctly nothing to do with signing of a charge sheet (but an “instrument” or a “convening order for a General Court Martial”) which is the bedrock and bottom-line of jurisdiction to the trial of the Appellant in a GCM. An “instrument” is not and does not include a charge sheet referred to in a GCM. The Appellant to my humble opinion has argued this case better and according to the position of the law regarding GCM at pages 3-12 of his brief. Neither is a charge sheet equated with a “routine correspondence” as argued by the Respondent’s Counsel.

At page 11 of the records, the Appellant through his Counsel objected to the defectiveness of his charge sheet so promptly when he submitted before the GCM at page 11 of the last paragraph of the records thus:
“DC: I am sorry I

intend to raise this objection though we raised it before in other charges before this Court and they were the same I the ruling of the Court on that objection or those objections. My lord been a fresh trial, I expect that the Court will abide by earlier ruling and that objection is cautioned on the person that signed this charges is not a person required by paragraph 43 by the manual of military law to begin the charges in other words the signing of the charges cannot be delegated, that should be (sic) by the convening officer, by law, we are (sic) raising this objection preciously my lord, we know that the Court had overruled on objection, we still tend (sic)to raise it in this trial, we want the objection to be taken before his plea. Most obliged my lord.”

There is no law that prohibits the Appellant from objecting to a defective charge sheet after plea taking. See A.G OF THE FEDERATION V. ISONG (1986) QLRN 75 and DURU V. POLICE (1960) LLR 130.
Section 208 CPC provides for the amendment of a charge sheet after plea thus:
“Section 208 CPC:
(1) Any Court may alter or add to any charge or frame a new charge at any time before

judgment is pronounced.
(2) Every such alteration or addition or new charge shall be read and explained to the accused and his plea thereto shall be taken.”
Section 163 CPA:
“Any Court may alter or add to any charge at any time before judgment is given or verdict returned and every such alteration or addition shall be read and explained to the accused.”
Needless to say, the simplest step to have been taken after the painstaking and strenuous objection of the charge sheet was to amend it and explain it to the Appellant. What would it have caused the GCM to have amended the “allegedly defective” charge sheet after the objection by the Appellant?

Again, on whether the findings of the trial GCM was valid having not been signed immediately after it was delivered, I will like to foremostly consider whether it was a decision that qualified as a judgment or not. The sentence of the GCM at page 296 of the records reads:
“Gentlemen this is the sentence of the court. On count 1, on fighting, quarrelling and disorderly behaviour, the accused officer is hereby sentenced (sic) to two years

imprisonment subject to confirmation by ASA.”

The disturbing question to ask here is: When does the finding or conclusion or decision of the GCM qualify as a judgment of the GCM? To my humble opinion, it is after it has been concluded and signed by the President and Judge Advocate as provided under Rule 76(1),(2) and (3) of the Rules of Procedure (Army) 1972, which says that:
“76. (1) The sentence, and any recommendation to mercy together with reasons for making it, shall be announced in open Court.
(2) When paragraph (1) of this rule has been complied with, the president shall announce in the open Court that the trial is concluded.
(3) Immediately after the conclusion of the trial, the president and judge advocate (if any) shall date and sign the record of the proceeding. The president or the judge advocate shall then forward it as directed in the convening order.”
A judgment generally must contain amongst others the decision of the Court on the points for determination and the reasons for the Court’s decision by virtue of the combined reading of Sections 245 CPA and 268

& 269 CPC. This invariably implies a fact, data and evidence-based determination of the issues as personally observed and carried out by the trial judge. In other words, a judgment must be written by a Judge who has handled the matter and not by any other person on his behalf who did not have the opportunity of observation, analysis and evaluation of the evidence.

I personally do not subscribe to the argument of the Respondent at page 16 of his brief that until confirmation by the Army Council, the pronouncement of the GCM is not a judgment of the GCM. This cannot definitely be the intent of the drafters and must go contrary to other enabling laws and authorities in this country. Simply, can the Army Council or the confirming authority of the pronouncement of the GCM which did not try the accused write or confirm a judgment it did not sit over? Is the confirming authority doing that confirmation with an appellate power and jurisdiction or what? Unless the confirmation is done (no matter how protracted), does that pronouncement of the GCM remain an exercise in futility? What is then the function and duty of the GCM if it cannot after trying an accused

person pronounce judgment and sentence the accused?
I can go on and on to ask many worrying questions. I think that the caveat “subject to confirmation” is for administrative decorum. Besides, what about the 90 days period within which a judgment must be read and pronounced as statutorily provided, does what the Respondent ask not contrary to it? Moreover, Sections 141 and 148 of the AFA stipulate that the confirmation be done within 60 days, which invariably has recognized the 90 days statutory provisions.

The crux of the Appellants case nevertheless is that the judgment/findings of the GCM is not valid having not been signed immediately after it was delivered as mandatorily provided by Rule 76 (3) of the Rules of Procedure (Army) 1972, which I have produced supra. In the said provision, the Rule provides that after signing, “The president or the judge advocate shall then forward it as directed in the convening order.” See Rule 76 (3) of the Rules of Procedure (Army) 1972. This was clearly not done until after 3 Months therefrom. It is on record that the judgment of the GCM was not signed on 25/4/2013 when it was delivered until 26/7/2013.

LIEUTENANT YAHAYA YAKUBA V. CHIEF OF NAVAL STAFF (2004) NWLR (PT.853) 94 AT 114-115 PARAS A-B, the Court held amongst others held:
“…signing and dating of a judgment of a Court Martial is a mandatory requirement and failure of the Court Martial to sign and date the judgment at the time of pronouncing the verdict is void and thus rendered the entire exercise a nullity.”

It is my opinion that the Respondent lacked the jurisdiction to try the Appellant on a charge-sheet not signed by his Commanding Officer, Maj. Gen. G.A. Wahab. Similarly, the verdict of the trial GCM having not been signed immediately it was delivered on 25/4/2013 is not valid.

Notwithstanding my finding that self-defence did not avail the Appellant contrary to Section 55(a) of the AFA and that the Respondent proved its case beyond reasonable doubt, I have no option but to discharge and acquit the Appellant based on his trial on a defective charge sheet and concomitant issues thereto. In conclusion this appeal has merit and it is hereby allowed. The conviction and sentence of the Appellant in the judgment of the GCM delivered on 25/4/2013 and confirmed on 7/11/2013

in Charge No: 1 DIV/G1/300/32 is hereby set aside.
Appellant is hereby discharged and acquitted.

ABDU ABOKI, J.C.A.: I had read before now a copy of the judgment of my learned brother, UWANI MUSA ABBA AJI, J.C.A. and I completely agree with her analysis of the issues raised in this appeal and the conclusion therein.

I too, find merit in this appeal and hereby set aside the judgment of the lower Court delivered on the 25th April, 2013 and confirmed on 7 -11-2013 in charge No. 1
DIV/G1/300/32.

I also abide by the order(s) made in the lead judgment.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Uwani Musa Abba Aji, J.C.A. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein. I have nothing more to add.

Appearances:

A.I. OMACHIFor Appellant(s)

CHIEF A.T. UDECHUKWUFor Respondent(s)

Appearances

A.I. OMACHIFor Appellant

AND

CHIEF A.T. UDECHUKWUFor Respondent