CAPTAIN BAI HARUNA SABO v. THE NIGERIAN NAVY (2019)

CAPTAIN BAI HARUNA SABO v. THE NIGERIAN NAVY

(2019)LCN/13724(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 31st day of July, 2019

CA/L/715C/2017

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria

Between

CAPTAIN BAI HARUNA SABO Appellant(s)

AND

THE NIGERIAN NAVY Respondent(s)

RATIO

CONTENT OF PROOFS OF EVIDENCE

In the case of INNOCENT NWEKE v STATE (2017) LPELR – 42103 (SC) the Apex Court on the contents of proof of evidence had this to say that;
“Section 220 (1) of the Law provides that an information shall contain Proofs of Evidence. Section 146 of the some law provides as follows:- “The Proofs of Evidence shall consist of: (a) Statement of the charge against the defendant (b) The name, address and statement of any material witness whom the prosecution intends to call; (c) The name, address and statement of any material witness whom the prosecution does not intend to call; Provided that the submission of such names shall not prevent the prosecution from calling any such witness at the trial if the prosecution later so desires; (d) The copy of any report, if available, may by a doctor about the state of mind of a defendant in custody; (e) Records of convictions, if any, affecting the credibility of any witness for the prosecutor; (f) Statements of the defendant; (g) An inventory of all exhibits to be produced to the Court at the trial and (h) Any other statement or document which the prosecution may consider relevant to the case. By this provision, especially Paragraph H, the list of what Proof of Evidence shall consist of is in exhaustive…….. In the instant case, the Appellant’s application at the trial Court was premature as he did not apply formerly for the facilities he required for his defence.” per GALINJE, J.S.C (PP. 11-13, PARAS. G-E). PER OBASEKI-ADEJUMO, J.C.A.

WHETHER OR NOT AN UNSIGNED DOCUMENT IS A WORTHLESS DOCUMENT

The law is that any unsigned document is dead on arrival, meaning to say; it is a nullity, it amounts to a worthless document. Therefore the tribunal overruled the objection in this line.
In OMEGA BANK v OBC LTD (2005) 1 SCNJ 150 the Court held thus;
?…an unsigned document may not be admitted in evidence the Court should not attach any probative value to it because a document which is unsigned has no origin in terms of the matter see also FERDINALD EKPO MBANG v GUARDIAN NEWSPAPER LTD & ANOR (2010) LPELR CA/C/100/2008, GARUBA v KWARA INVESTMENT COY (2005) 5 NWLR (PT 917) 160; TSALISAWA v HABIBA (1991) 2 NWLR (PT 174) 463. PER OBASEKI-ADEJUMO, J.C.A.

BURDEN AND STANDARD OF PROOF IN CRIMINAL MATTERS

The charges are for negligence and there are materials/conditions to prove; whether in a Court martial or regular Court, it is a criminal negligence allegation with far reaching consequences. It must therefore be proved beyond reasonable doubt. It is the duty of the Respondent to prove all conditions beyond reasonable doubt without fail, see; PEOPLE OF LAGOS v UMARU (2014) 2-SC 68
It is trite that the burden of proof is the same under criminal law and the trial procedure is guided by the Evidence Act.
In FESTUS v STATE (2018 LPELR-45868) (CA), this Court held thus;
“In the determination of this appeal, l have reminded myself that this is a criminal appeal……. However, the presumption of innocence is always cast in favor of the accused person. It therefore means that the accused person has no burden to proof his innocence, unless prima facie facts which point to his guilt have been adduced by the prosecution. That presumption of innocence ensuring in favour of an accused person therefore has placed the burden of proving his guilt squarely at the door steps of the prosecution; that burden is static and never shifts. See Sections 131 and 132 of the Evidence Act, 2011. See also Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended See JOHN OLOMO v THE STATE (2014) LPELR 22517 (CA); OLUWATOYIN ABOKOKUYANRO v THE STATE (2016) LPELR 40107 (SC) Per Ogunbiyi JSC, ALOR v STATE (1997) 4 NWLR(PT. 501) P. 571; SUNDAY ADOGA v THE STATE (2014) LPELR 22944 (CA) per Tsamm, JCA and AGBITI v NIGERIAN NAVY (2011) LPELR 2944 (SC). The presumption of innocence cast in favor of the accused person thus places a heavy burden on the prosecution to proof the charge for which the accused is arraigned beyond reasonable doubt. To discharge the burden the prosecution must call credible and sufficient evidence which establishes every or all of the essential elements or ingredients of the offence charged. In other words, it is the established law that the burden of proving the guilt of a person charged with having committed an offence, is. On the prosecution, and that burden can only be discharged if the prosecution is able to adduce credible evidence which proves every ingredient of the offence beyond reasonable doubt. This is required by Section 135 (1) & (2) of the Evidence Act, 2011 which stipulates that: 135(1). If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. (2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. As stated earlier in this judgment, the burden to ultimately prove the guilt of the accused remains always on the prosecution and never shifts. Consequently, if at the close of evidence, and on the totality of the evidence adduced before it, an essential element of the offence is left unproved, or the trial Court is left in doubt as to whether indeed the accused person committed the offence, the prosecution would have failed to prove the guilt of the accused beyond reasonable doubt, and the only verdict is to acquit the accused. See OSUAGWU v STATE (2013) 5 NWLR (PT. 1347) P. 360; NJOKU v STATE (2013) 2 NWLR (PT. 1339) P548; ARUNA v STATE (1990) NWLR (PT.155) P125; THE STATE v FATAI AZEEZ & ors (2008) 4 SC P188 and AFOLALU v STATE (2010) All FWLR (PT. 538) P. 812 AT 828. …PER OBASEKI-ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This Appeal flows from the decision of the Special Court Martial of the Nigerian Navy delivered on 28th of June 2016, wherein the Appellant was charged on a two count charge contrary to Section 62 (b) of the Armed Forces Act, CAP A20 LFN 2004, the Appellant was found guilty of the two counts.

Dissatisfied, the Appellant filed a Notice of Appeal on 28/2/17. The Appellant?s brief was filed 5/6/17 and was settled by Ezeilo Uche, Esq and Ogochukwu Onyekwere, Esq of J. O Onyekwelu & Co., were the following issues were raised for determination:
1. Whether having regard to the totality of the evidence tendered in this case, whether the prosecution can be said to have proven all the ingredients of the offence as contained in the charge sheet, and whether the special Court Martial was right to rely on oral testimony to jettison the content of a documentary evidence and whether the lower Court was right to resolve conflicting testimonies in favour of the Prosecution. (Grounds one, seven, nine, ten, eleven and twelve)
?2. Whether or not the

entire suit is a nullity, and whether the special Court Martial was right to upheld (sic) validity of the case despite the fact that fundamental precondition for commencing a case in Court Martial was expressly violated.
3. Whether an unsigned document carries any evidential value and whether the Special Court Martial was right to rely on unsigned documents in reaching its decision against the Appellant.
4. Whether or not the Nigerian Navy exceeded its allowable limit of approval under the Public Procurement Act, and if the answer is in the affirmative, whether the said failure to comply with the public Procurement Act, renders the entire procurement of the four Houseboats by the Nigerian Navy, a nullity and whether due process was followed in the procurement process. (Ground eight)
5. Whether or not the special Court Martial in overruling the no case submission was right to hold that the Appellant has the duty to prove his innocence.
6. Whether the Appellant can be held responsible for an alleged breach of contract which he the Appellant is not a party to.
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The Respondent?s brief was settled by O. M Atoyebi Esq, D. S Danboyi Esq,

O. D Anjorin Esq, E. T. Odofin ? Jolayemi (Miss), O. B. Akano Esq, M. P. Podos Esq, L. B. Tariu Esq of O. M Atoyebi & Partners, where two issues were raised:
a) Whether having regard to the available evidence and materials placed before the lower Court, the Respondent has not succeeded in proving her case against the Appellant has required by law.
b) Whether having regard to the entire circumstance surrounding this case, the lower Court was right when it sentenced the Appellant to forfeiture of 18 months seniority.

The facts of this case as gleaned from the records before the Court is that the Appellant is an officer of the Nigerian Navy of the rank of Captain, serving on board Naval Headquarters, who was the Director of ship spares (DSS).
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The Nigerian Navy (hereinafter referred to as the Respondent) in an attempt to stamp out crude oil theft in the Niger ? Delta area of Nigeria and to ensure safety in the region, set up a committee and part of the committee recommendations was the need to hire houseboats to monitor and patrol the axis. Two identical contracts for the acquisition of 4 x 40- man houseboats were awarded

to T S Hammas Ltd and MSD Petroleum and Maritime Services Ltd, respectively. T. S Hammas Ltd completed its own project and delivered the two house boats as refurbished by it to the Respondent and same was accepted. The Respondent however, rejected the refurbished houseboats of the MSD Petroleum and Maritime Services for allegedly being unsuitable for Respondent?s purposes. The Appellant with a senior officer (Commodore S. I. Adebayo) was hereafter arraigned for Negligence upon the assertion that the houseboats supplied by MSD Petroleum and Maritime Services were unsuitable.

APPELLANT?S SUBMISSION
The Appellant on issue one, submits that it is a fundamental principle of criminal law that the prosecution is bound to prove all the ingredients of the offence charged beyond reasonable doubt. He cited the cases of AFOLABI v STATE (2010) 5 ? 7 SC (PT 11) 93; PEOPLE OF LAGOS STATE v UMARU (2014) 2 ? 3 SC 68; NWATURUOCHA v STATE (2011) 2 ? 3 SC.
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Counsel further submit that it is also a fundamental principle of law that a documentary evidence is the best type of evidence and that oral or parole evidence cannot be used to vary,

alter or remove the effect of a documentary evidence. He relied on SKYE BANK & ANOR v CHIEF MOSES BOLANLE AKINPELU (2010) 3 SC (PT. 11) 29; CHIEF S. O AGBAREH & ANOR v DR. ANTHONY MIMRA & 2 ORS (2008) 1 SCNJ 409; VINCENT U. EGHAREVBA v DR. OROBOR OSAGIE (2009) 12 SC (PT 111) 123.

Appellant?s counsel posit that the crux of the offence as charged under count one is the Appellant?s failure to diligently supervise the construction of two House boats by one of the contractors, MSD Petroleum and Marine Services Ltd. The second count is hinged on the alleged failure of the Appellant to include technical specifications in the contract for the procurement of the House boats. These are not in any way aligned with the responsibilities of a Director of Ship Spares (DSS) as clearly shown in Exhibits B, C, M, O, T, U and V, that it is not the duty of the Appellant to supervise the refurbishing of the Houseboats.
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The Appellant?s counsel submitted that the express provision of Exhibit C in Article 5 of the contracts regulating the purchase of the houseboats provided the Chief of Logistics (COL) as the supervising officer of the

project. The COL should therefore be held accountable for negligent supervision of the project and/or failure to perform military duty.

The Appellant counsel also submitted that it was the specific responsibility of the Nigerian Navy Policy and Plans Branch, and Project Implementation Monitoring and Evaluation Directorate to supervise all the projects of the Respondent as provided under clause 1& 2 (b), and 3 (e) of Exhibit T and V to inspect all Nigerian Navy projects.

On count one in the charge sheet, the Appellant?s counsel submits that the lower Court held that the Commanding officer of the Appellant who is the COL (PW4) who delegated his responsibilities under Article 5 of Exhibit B and C to supervise the refurbishing of the houseboats being purchased by the Respondent. However, there was nowhere in the evidence where PW4 delegated his responsibility to supervise the project to the Appellant. In PW4?s testimony he categorically told the Court that he only directed the Appellant to liase with the implementation committee and the Appellant carried out his order and reported back to him. The COL also went further to

state that the Director of Ship Design and Acquisition (DSDA) under the Policy and Plans Branch, has the responsibility to fashion out the kind of platform/ship required by the Respondent and this clearly shows that he never delegated any such responsibility to Appellant, being the commanding Officer of the Appellant, PW4 clearly knows that it is not the responsibility of the Appellant to include any technical requirement of the Houseboats, that it is the exclusive responsibility of the above DSDA to do so, he relied on paragraph 8 of Exhibit T (testimony of PW4) as found at page 294 of the records.

Therefore, the findings of the Court that PW4 delegated his Responsibilities under Article 5 of Exhibit B and C is totally unfounded and baseless while the testimony of PW2 agrees that Director of Ship Spares only deals with spare parts of the ships and not ship designs. In accordance with the responsibility imposed on his office in Exhibit V, he visited the ship yards twice, where the vessels were being refurbished to supervise the project and thereafter made a report Exhibit M which was filed same with the Respondent. Appellant submitted that Exhibit T

exonerates it from both Counts.

It is also clear from Exhibit T and O that the commencement of the procurement procedure was not in accordance with the extant and express provisions of Exhibit T, paragraph 4(g); all the projects of the Respondent are to be initiated by the Directorate of plans under the Policy and Plans Branch, but that this project was initiated by the Chief of Training and Operations (CTOPS) under the training and operations branch which was clear breach of due process by the Respondent.

The Appellant commented on the prosecution?s attempt to rely on Exhibit A; the report of the Investigating naval Police Officer, which under cross examination was shown to be baseless and unfounded from a very biased point of view. He asserted that KLASS1 was a 20 man houseboat instead of a 40man houseboat, however, it was equivocally established during trial that KLASS1 is a 40man houseboat which showed that PW1 was not a witness of truth.

Appellant submits that the Lower Court was cherry picking on the available evidence and was out to make a case for the prosecution where none existed and that all evidence in the favour of the

Appellant was either abandoned or given a twisted interpretation by the lower Court. Moreover the lower Court erroneously held that the PW4 delegated his responsibility under Article 5 of Exhibit B and C to the Appellant, as there is no evidence to back up this delegation. Exhibit V and M exonerates the Appellant.

On issue 2, the Appellant submitted that it was a mandatory requirement under the BR 11 and under Section 36 of the 1999 constitution as amended, that the Appellant is accorded fair hearing by attaching proof and summary of evidence must be served on the Appellant together with the charge sheet before the commencement of trial. The failure of the prosecution to attach the witness statement of the PW2, PW5, PW3, PW4 and PW7 to the charge sheet is fatal to his case and an express violation of the Appellant?s right to fair hearing. He relied on the cases of OLOWOYO v STATE (2012) 36 WRN 112, 118 ? 119; AGBITI v NIGERIAN NAVY (2011) 13 WRN SC 1, to state that the breach of the above renders the trial a nullity.

The Appellant also submitted that the prosecution failed to properly activate the jurisdiction of the Special Court

martial when it failed to front load and serve the defence the witness statement on oath of five witnesses, therefore rendering the entire trial null and void. He cited the cases of SPDC NIG. LTD v ISAIAH (2001) 5 SC (PT. 11) 1; MADUKOLU v NKEMDILIM (2001) 46 WRN 1.

He further submitted that the Court martial is bound by the criminal rules of evidence in the same way the civil Court is, and Section 143 (1) of the Armed Forces Act, 2004. He also called on the cases of ABACHA v STATE (2002) 11 SCM 12; OCHIBA v STATE (2011) 12 SC (PT. IV) 79.

The Appellant on issue 3, posit that the lower Court jettisoned the testimony of PW4, that he never asked the Appellant to supervise the project but only instructed him to draft the contract for procurement of the houseboats, and described it as an afterthought. The lower Court relied on Exhibit R; which specifies the 2nd Accused senior officer?s duties relating to technical items.

The Appellant submits that the specifications has nothing to do with the duties of the Appellant and Exhibit R which is alleged by the prosecution to be the Schedule of duties admitted in evidence by the Court is an

unsigned and therefore worthless document He cited the cases of FERDINAND EKPO MBANG v GUARDIAN NEWSPAPERS LIMITED & ANOR (2010) LPELR ? CA/C/100/2008 ? CA/C/98/2008; AREGBESOLA & ANOR v OYINLOLA & ANOR (2010); OMEGA BANK v O. B. C. LTD (2005) 1 SCM 119.

The Appellant on Count 2 reiterated that the lower Court erroneously relying on Exhibit A when, it stated that technical specifications was not contained in the contract despite the fact that Exhibit B prescribed Job specifications.
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On issue 4, the Appellant contends that the entire procurement was a nullity, because it contravenes the provisions of the Public procurement Act, 2007, the chief accounting officer exceeded the allowable limit of approval under the Approved Revised Thresholds for Service ? wide Application as approved by the Bureau of Public Procurement (BPP) in accordance with powers invested in it under the Public Procurement Act, 2007. That under the approved threshold, the Respondent is not allowed to approve contracts in excess of N 250,000,000 without going through the process of pre qualification as contract in the Public Procurement Act, 2007.

The Chief of Account and Budget to the Respondent testified for prosecution during trial, and he stated that the Chief of Naval staff (CNS) limit of approval is N 249,999,999,and yet the CNS approved the sum of N 355,707,000 in respect of the establishment of Choke point Control as shown in Exhibit H. The Chief of Naval staff exceeded his allowable limit of approval and this clearly renders the entire transaction null and void.

The Appellant further submits that another fundamental breach of Section 36 Public Procurement Act, 2007 which provides for contract performance Guarantee as condition for payment of mobilisation fees. The contractors were paid in full by the Chief accounting officer without requesting them to deposit a performance guarantee as required under Section 36 of PPA. This omission renders the entire transaction null and void. He cited the cases of ADENIYI v GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY (1993 ? 1994) ALL NLR 1; OGUALAJI v ATTORNEY GENERAL OF RIVERS STATE & ANOR (1997) 5 SCNJ 240.
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The defence that the procurement was done under emergency procurement by the Chief of Accounts and Budget fails woefully

as the emergency procurement procedure was not justified in accordance with the provisions of Section 43 of the Public Procurement Act, 2007.

Appellant referred to violations in Section 20, 22 and 24 of the Public Procurement Act, 2007 that the Chief Accounting officer shall be responsible for supervising of the projects, planning and organizing the procurement and also ensuring compliance with the provisions of the PPA. The Chief Accounting officer?s failure to comply with the provisions of the PPA amounts to a fundamental violation which cannot be waived.

The Appellant made reference on issue 5 to its no case submission (page 812 ? 837 of the Records), which was made on the basis that the prosecution?s case was frivolous and unfounded and baseless. This was especially so because the evidence before the lower Court could not in any way establish the guilt of the accused. The lower Court also held erroneously that the Appellant had a responsibility to prove his own innocence. He called on the cases of NWATURUOCHA v STATE (2011) 2 ? 3 SC (PT. 1) 111; OBIDIKE v STATE (2014) 2 ? 3 SC 131, 181; ADEKOYA v STATE (2012)

33 WRN 1.

On issue 6, Appellant submits that a contract cannot be enforced against a person who is not a party to it. The Appellant is not a party to any of the contract as he does not derive any personal benefit from any of the contracts. That Appellant only played the administrative role of drafting it on behalf of his commanding officer (who informed the Court that he was satisfied with the drafted contract) and this was done in accordance with an approved template. The Appellant only prepared Exhibit B and C and signed as a witness. The contract remains the document of PW4 and same is not binding on the Appellant because he is not party to same. He cited the cases of UBA v ALHAJI BABANGIDA JARGABA (2007) 5 SCNJ 127; MRS. ETHEL ONYEMAECHI DAVID ORJI v DORJI IES MILLS (NIG) LTD & 2 ORS (2009) 12 SC (PT. 111) 73; CHIEF S. O AGBAREH & ANOR v ANTHONY MIMRA & ORS (2007) 5 SCNJ 127.

RESPONDENT?S SUBMISSION.
The Respondent submitted on issue one that the burden of proving the charge is on the prosecution which is proof is beyond reasonable doubt by proving all the essential ingredients of the crime, and the prosecution has

proved all the essential ingredients of the offences with which the Appellant was charged beyond reasonable doubt. He relied on the cases of THE STATE v AJIE (2000) 7 SCNJ 1 AT 14; ENEWOH v STATE (1989) 5 NWLR (PT. 119) 98 AT 109 PARAS B ? C, and Section 103 of AFA.

STATE v SALAWU (2012) 16 WRNI; TIMOTHY v FRN (2008) ALL FWLR (PT. 402) 1136 AT 1152 PARAS H ? A; AKONO v NA (2000) 14 NWLR (PT. 697) 318; GANI v NA (2001) 28 WRN 167 and OLOWU v NA (2012) AFLR (PT. 1) P. 12 in proof of its case.
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And in proving the ingredients of the offence in count 1, the Respondent called on one CDR AU SANI who stated that Exhibit A provides that the supervising officer is the COL or any other officer authorised to act on his behalf and the COL delegated to the DSS. The Respondent also called on the Chief of Logistics, PW4 who stated categorically that he asked the Appellant to supervise the contract. PW4 also stated that he kept asking about the conditions of the Houseboats from the Appellant and the Appellant stated that they were in good condition. PW4 also stated that, he later discovered that the Appellant never visited the sites of the projects at

all.

The Appellant never challenged or debunk the above evidence of PW4, they are therefore deemed established and need no further proof. Reliance was placed on BUNGE v GOVT. RIVERS STATE (2006) 12 NWLR (PT. 995) 537 AT 599 ? 600 PARAS H ? B; OKOEBOR v POLICE COUNCIL (2003) 444 AT 472 F ?H.

It is the Respondent?s submission that the above pieces of evidence of PW4 corroborate the fact/evidence that the Appellant was actually instructed by the COL to supervise the contracts.

He relied on the case of AKALEZI v STATE (1993) 5 NWLR (PT. 273) 13.

The Respondent in proving the offence under count 2 against the Appellant, relied on the findings of PW1, that provided that the Directorate of Ships Spare (DSS) drafted the contracts, this was corroborated by PW4 in his evidence.

The Appellant admitted in his oral testimony on oath that he drafted the contract He cited the case of EIGBE v N.U.T (2008) 5 NWLR (PT. 1081) 604 AT 632 PARAS. E ? F; CHUKWU v FRN (2013) 12 NWLR (PT. 1369) 488 AT 50- PARAS. E ? H; OSENI v BAJULU (2009) 12 SCNJ 74 AT 89 and KAYDEE v HON. MINISTER (2010) 2 SCNJ 276 AT 301.

The Respondent also noted that PW1 testified that though the contract contained job specifications, it did not contain technical specifications; this was corroborated by PW5 and DW2.

The Respondent further submitted that the exclusion of technical specifications in the contract left lot of gaps in the terms of the contract, which was exploited by the MSD Petroleum Ltd in the procurement of two dilapidated house boats, one of which was forcefully converted from 20 ? man to 40 ? man. The Appellant was suppose to liaise with other branches such as Policy & Plans, Training and Operations and the Naval Engineering Branch had imputes to make with regard to formulation of technical specifications. The Appellant only liaised with the Training and Operations branch.

PW4 testified and stated categorically that he delegated the Appellant to act on his behalf pursuant to Article 5 of Exhibits B and C respectively.

DW5 gave evidence that supports the Respondent?s case and the respondent is entitled to rely on it. The cases of OLATUNJI v ADISA (1995) 2 NWLR (PT. 376) 167 AT PARAS B ? C; MINI LODGE v NGEI (2009) 12 SCNJ 93 AT 114 and

IYERE v B.F.F.M LTD (2008) 18 NWLR (PT. 2008) 18 NWLR (PT. 1119) 800 AT PARAS D ? F S.C was relied upon.

It was the Respondent?s further submission that it has proved its case beyond reasonable doubt as required by law, the Appellant used an old and incompetent templates to draft Exhibits B & C, an act which constitutes a gross negligence on the part of the Appellant.

On Issue 2, the Respondent submitted that the lower Court was right when it sentenced the Appellant to forfeiture of 18 months after considering the entire circumstances surrounding the case. He further submitted that based on the provisions of Sections 103 (1) and 62 (b) of the Armed forces Act, 2004, the lower Court was right when it sentenced the Appellant and he urged this Court not to disturb the findings and sentence as contained in the judgment; he relied on DADA v BANKOLE (2008) 5 NWLR (PT. 1079) 26 AT 57 PARAS. D ? G; AMADI v FRN (2008) 18 NWLR (PT. 1119) 259 AT 282 ? 283 PARAS H ? A and B ? C; KAYDEE v HON. MINISTER (Supra).
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Respondent lastly submitted that it was trite law that evaluation of evidence and ascription of probative

value to the evidence are the primary duties/functions of the trial Court which saw, heard and duly assessed the witness that testified before it. He cited the case of OKEOWO v STATE (2010) 7 SCNJ 95 AT 101 ? 102.

The Respondent went on to respond to issues raised by the Appellant in its brief; On issue 2 he submitted that the issue of non attachment of the written statement on oath of the prosecution?s witnesses and other documents was a new/fresh issue as it was not raised at the lower Court, and for it to be rightly raised in this Court, the leave of the Court has to be obtained. Therefore, the issue is not competent and should be struck out. He relied on AGBOOLA v UBA PLC (2011) 11 NWLR (PT. 1258) 375 AT 400 PARAS. D ? F; UBA PLC v G. S IND. (NIG) LTD (2011) 8 NWLR (PT 1250) 590 AT 637 ? 638 PARAS. H ? C.

The Respondent submitted that the Appellant?s constitutional right as provided for in Section 36 of the 1999 constitution and Section 181 of AFA was not trampled upon, as the Appellant did not apply orally or in writing to the Court for the release/or production of the facilities to prepare for his

defence. His application must have been refused by the lower Court before he can raise the issue of breach of his constitutional right to fair hearing, unless his complaint would amount to an afterthought, he relied on the case of NWEKE v STATE (2017) LPELR 42103 (SC).

The Respondent submitted on issues 3 that, relevancy governs admissibility of evidence either oral or written one, its trite that once a Court finds a document is relevant, it is bound to admit it. ABUUL v BENSU (2003) 16 NWLR (PT. 845) 59.

That even if Exhibit R was expunged from the record, the judgment would remain same, because there are other evidence which substantiates the fact that the Appellant was negligent in the discharge of his duties.

It is the Respondent?s submission that issue 4 before the Court is not whether the Respondent has the power to award the contract for the procurement of the house boats and that it is not the appropriate place for the Appellant to raise the issue especially since they were arraigned for having committed an offence under the Armed Forces Act.
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Respondent submitted that on issue 5 at the stage where the no case submission was

made, the Court cannot decide the substantial case at interlocutory stage; the lower Court is required to see whether a prima facie case has been established to call on the accused and cannot determine the guilt of the accused person to enter his defence. Therefore, the lower Court right to have overruled the no case submission made by the Appellant, he relied on the case of UBANATU v COP (1999) 7 NWLR (PT. 611) 512 AT 522 and EKPO v STATE (2011) 8 NWLR (PT. 712) 292 AT 302.

He contend that the Appellant did not appeal against the lower Court ruling on the no submission which was delivered as an interlocutory ruling, within the 14 days which to appeal the said ruling from the date, and cannot raise it now without a competent leave of the Court especially after the final judgment was delivered. He relied on Section 14 of the Court of Appeal and GARUBA v OMOKHODION (2011) 14 NWLR PART 1269 AT 179, PARA D.

ISSUE 6
The Respondent adopted it submission in issue one and two and urged the Court to resolve the appeal in its favour.

APPELLANT?S REPLY
The Appellant in reply reiterated his submissions made in its brief of argument, he

referred to Article 13 that if any dispute arises out of the execution of the contract, it would be resolved by arbitration and that more importantly the contract was signed by a senior officer on behalf of the Chief of Naval Staff, who signed after he had examined and was satisfied with the content and therefore the document is owned by the person who signed it and not the person that drafted it.

The Appellant also emphasised that it was also the specific responsibility of Policy and Plans Branch under clause 3(d), (e), 4 (g), 7 (d) and 8 (a ? k) of Exhibit T to inspect all Nigerian Navy projects and ensure adherence to standard and Exhibit V (Paragraph 2) the Projecting Implementation Monitoring and Evaluation Directorate (PIMED) to supervise all the projects of the Respondent.

PW4 who is also DW2 categorically stated in his evidence as DW2; that it was the responsibility of the operations branch and not the responsibility of the Appellant to fashion out the technical specifications.
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The Appellant finally submitted that there is no evidence in proof of either and submitted that the said interlocutory ruling on the no case

submission had not been confirmed by the confirming authority as provided for by Section 148 (1) and (3) of the Armed forces Act at the time and cannot be treated as a ruling yet, the final judgment was confirmed after the entire trial process was concluded and final judgment delivered. He therefore urged the Court to discountenance the Respondent?s argument in this regards.

RESOLUTION
The issues of the Respondent generally covers the issues of the Appellant but that of the Appellant are specific and raise fundamental jurisdictional issues which must be carefully singled out and resolved first. Hence for this appeal the appellants issues will be adopted, I shall resolve issues 2 & 3first then 1,4,5 & 6 together.

Issue one
The question is whether this burden was properly discharged by the prosecution?

The charges against the Appellant at the special Court Martial were as follows;
COUNT 1:
That you, captain BAI Haruna Sabo NN/1879 serving onboard naval headquarters sometime between November and December. 2015 as director of ships spares negligently carried out your duty stipulated in the

naval headquarters logistic branch schedule of duties for your appointment to wit: to carry out any other duties that may be assigned from time to time by the chief of logistics naval headquarters, having been directed by the chief of logistics to supervise the contract awarded by the Nigerian navy to Messrs MSD petroleum and marine services signed on 24 November, 2015 for the construction of 2 house boats failed to diligently supervise the said contract which led to the procurement by Messrs MSD Petroleum and marine services of dilapidated house boats unsuitable for Nigerian navy operations, thus failing to comply with the provisions of this order being a provision known to you or which you might be reasonably expected to know and is thereby guilty of an offence under this section and liable on conviction by a Court martial to imprisonment for a term not exceeding 2 years or any less punishment provided by the act.
COUNT 2:
Statement of offence. Failure to perform military duties, contrary to Section 62(b) AFA CAP A20 LFN 2004. That you captain BAI Haruna Sabo NN/189 serving onboard naval headquarters sometime between November and December,

2015 as director of ships spares negligently carried out your duty stipulated in the naval headquarters logistic branch schedule of duties for you appointment to wit: formulation of policies on all requirement of technical items, required for the construction of house boats in the construction contract awarded by the Nigerian navy to Messrs MSD petroleum and marine services signed on 24 November 2015 for the construction of 2 house boats, which omission led to the procurement by Messrs MSD petroleum and marine services of dilapidated houseboats with facilities unsuitable for Nigerian navy operations, thus failing to comply with the provisions of this order being a provision known to you or which might be really expected to know and is thereby guilty of an offence under this section and liable on conviction by a Court martial to imprisonment for a term not exceeding 2 years or any less punishment provided by the act.(Underlining mine)

Issue 2 deals with; ?whether the suit was not a nullity having not complied with the conditions for commencement in a Court Martial case Sections 36 of the amended 1999 Constitution and 181 of Armed Forces Act

provides that fair hearing must be adhered to in a hearing against an accused.

The Appellant alleged that the proof and summary of evidence to the charge sheet was not attached and specifically statements of Pw2 ?Pw5 & 7 were not served on them before the commencement of trail.
In the case of INNOCENT NWEKE v STATE (2017) LPELR – 42103 (SC) the Apex Court on the contents of proof of evidence had this to say that;
“Section 220 (1) of the Law provides that an information shall contain Proofs of Evidence. Section 146 of the some law provides as follows:- “The Proofs of Evidence shall consist of: (a) Statement of the charge against the defendant (b) The name, address and statement of any material witness whom the prosecution intends to call; (c) The name, address and statement of any material witness whom the prosecution does not intend to call; Provided that the submission of such names shall not prevent the prosecution from calling any such witness at the trial if the prosecution later so desires; (d) The copy of any report, if available, may by a doctor about the state of mind of a defendant in custody; (e)

Records of convictions, if any, affecting the credibility of any witness for the prosecutor; (f) Statements of the defendant; (g) An inventory of all exhibits to be produced to the Court at the trial and (h) Any other statement or document which the prosecution may consider relevant to the case. By this provision, especially Paragraph H, the list of what Proof of Evidence shall consist of is in exhaustive…….. In the instant case, the Appellant’s application at the trial Court was premature as he did not apply formerly for the facilities he required for his defence.”
per GALINJE, J.S.C (PP. 11-13, PARAS. G-E)
?As the Respondent?s counsel rightly stated, at the opening of proceedings, the Appellant did not request for proofs of evidence nor ask for time to study same. He said he had no objection see pages 324 of record page 33 -37, this was before the arraignment of the Appellant at page 48-49 unlike the counsel for the 1st accused who made heavy weather about service and time to study same and was granted. The essence and proper interpretation of Section 36(6) (b) of the 1999 constitution was properly examined by their lordship of the Apex

Court thus;
?At page 11 Para B – C the learned jurist further held thus;
“If the Appellant strongly wanted some facilities which were not made available to him, he would have applied formerly to the trial Court for an order compelling the Respondent to make available those facilities which he required for his defence….I hereby reproduce part of the passage as follows:- “Once he becomes aware that he has a charge hanging over his neck for an infraction of the law and makes a request either orally or in writing for any facilities to prepare for his defence, the Court must accede to his request and the prosecution has to comply,” (Underlining is mine for emphasis). This Court did not say at any time that the Respondent must accede to the request of the Appellant, as the latter is incapable of making an enforceable order.
In the appeal at hand there was no record of any request for information before the trial began and even after. The Apex Court on how to make such request and to whom it can be made held in the same case thus;
?…..The proper channel to make such a request, is to the Court which will in turn order the

prosecution to oblige him with all that he required. I am fortified on that view by the case of Ebele Okoye vs COP (2010) SC 279 which was cited and relied on by the appellant herein. Once such request is made, the trial Court must see to it that the prosecution complies with its order to avail or supply the accused/appellant with all the documents which are available. In the light of the above, I must say that the appellant should not complain that his right of fair hearing as enshrined in the provision of Section 36(6)(b) of the 1999 Constitution (as amended) was infringed or violated.”
per AMIRU SANUSI, J.S.C (PP. 28-29, PARAS. C-B)
Recently, the Apex Court put an end to conflicting views of the interpretation and implication of Section 36(6) b of the 1999 constitution as amended in SHEMA & ORS v FRN (2018) LPEPR -43723 SC where it held on the Constitutional right of a person charged with a criminal offence to adequate time and facilities for the preparation of his defence; when would failure to give facilities to an accused amount to a breach of his right to fair hearing thus;
“Section 36(6)(b) of the Constitution provides as

follows: – “Every person who is charged with a criminal offence shall be entitled to be given adequate time and facilities for the preparation of his defence.” This is clearly a constitutional obligation that must be fulfilled before an accused person enters his defence. At what point in time would a failure to give facilities to an accused will amount to a breach of his right to fair hearing. In the case of Okoye & Ors vs C.O.P & Ors which was cited and relied upon by learned senior counsel for the Appellant, this Court per Aka’ahs, JSC said: – “After the accused has entered his plea, but before the actual trial commences, the accused or the counsel representing him should be availed all the facilities that will assist in the preparation of his defence. For avoidance of doubt, what the accused requires is the statement of witnesses and police investigation reports and any medical report, which bears resemblance to the offence allegedly committed by the Accused.” In the instant case the plea of the accused persons had not been taken. Section 36(6)(b) says the documents are required for the accused defence. When the accused is set for his defence and

the necessary facilities are not provided, he can decline to proceed with his defence and insist on his right to be availed with the facilities. If the required facilities are not provided and he is forced to enter his defence and if in absence of his defence the case is determined in either way, he will now be in a position to complain that his right to fair hearing has been violated. In the instant case, the Appellants neither appeared before the Court no pleaded to the charge. I do not see how their rights were violated thereby. I am of the firm view that the lower Court was right when it affirmed the decision of the trial Court.” (Underlining mine)
per GALUMJE, J.S.C (PP. 97-99, PARAS. F-D)
I have perused the record of proceedings and cannot find any request from the (2nd accused) Appellant herein for service of relevant or specific materials and same were denied him.
?I further observe that the 2nd accused counsel who incidentally is the counsel on record for the Appellant always raised objection and requested for time to study statements or exhibits coming in for the first time while the second accused (Appellant) counsel would not

object. See page 98, paragraph 702-101, and see also ruling at page 102, paragraph 716.
Again at page 113 paragraph 806, the Appellant said he was ready to cross-examine the witness who just tendered a fresh document while the 2nd accused asked for time to study same. This was the pattern adopted through the hearing.
No doubt Section 36(6) (b) of the 1999 amended constitution is one of the fundamental rights but the principle now is that it must be demanded and if refused then there is a breach but if one is satisfied with the procedure he cannot turn round and complain of a breach.
On the whole, I cannot appreciate where Section 36(6) (b) of the amended 1999 constitution was violated.

The contention in issue 3 is that the special Court martial relied on an unsigned document in reaching its decision against the Appellant in stating that the document spelt out the responsibilities in the schedule of duties to supervise the project. Exhibit R is at page 1116 ? 1181 in Vol. 3 of the Records, it is titled ?SCHEDULE OF DUTIES NHQ LOGISTICS BRANCH?; it spells out duties of the entire department and it is not signed and

certified like Exhibit I; NAVY ORDER NNO 05/04 at page 1194 was not only signed but was also certified.
At page 1001 in the judgement the special Court held as follows;
?After all, he has no responsibility to any of the branches and /or Directorates, except of course to liaise as the need arises. The Court noted that the 2nd accused senior officer was tasked pursuant to the clause ?any other duties that may be assigned from time to time by the COL? in relation to his schedule of duties as Directors of Ships Spares, which connotes that he can be given any duty, task ,assignments ,work, directive etc as long as it is lawful, but he choose to be selective in what aspect of his duty to comply with…..Consequently the Court upholds that 2nd accused senior officer?s action amounts to failure to perform military duties as charged?

Therefore, it is beyond argument that the special Court relied strongly on this Exhibit.
This reference is to Exhibit R at page 1162 paragraph 2(b) which states:
?Any other duties that may be assigned from time to time by the COL.
?
The law is

that any unsigned document is dead on arrival, meaning to say; it is a nullity, it amounts to a worthless document. Therefore the tribunal overruled the objection in this line.
In OMEGA BANK v OBC LTD (2005) 1 SCNJ 150 the Court held thus;
?…an unsigned document may not be admitted in evidence the Court should not attach any probative value to it because a document which is unsigned has no origin in terms of the matter see also FERDINALD EKPO MBANG v GUARDIAN NEWSPAPER LTD & ANOR (2010) LPELR CA/C/100/2008, GARUBA v KWARA INVESTMENT COY (2005) 5 NWLR (PT 917) 160; TSALISAWA v HABIBA (1991) 2 NWLR (PT 174) 463?
Count 1 is founded on duties of the Appellant contained in the schedule of duties Exhibit R, therefore, it was important and relevant that it is properly signed and certified to be produced in furtherance of the charge. I agree that in a criminal charge of negligence, it is part of the conditions to prove ingredients beyond reasonable doubt. On this note, I agree that the document Exhibit R is worthless and is hereby expunged from the records.

That is not all the Court must check if from the

evidence, there other proofs which would sustain the charge? This would be addressed under issue 1.I. Therefore, I resolve issues 2 & 3 against the Appellant.

I shall move to issue 4, which is; whether the Nigerian Navy (CNS) exceeded their allowable limit. It?s imperative to say from the start that this was not the basis of the charge before the lower Court. Although the issue came up in the evidence and was dealt with in passing by the lower Court, this is ground 8 of its notice of appeal.

Section 36 of the Public Procurement Act provides for procedures for award of a contract that not less than 10% of the contract be paid or an amount equivalent to mobilization fee requested by contractor. Where a statue prescribe steps to be taken it must be followed else renders it null and void, see ADENIYI v GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY 1993-94 ALL NLR 1.
?There are exceptions in Section 43(1) of the same Act which provides for situation of emergency procurement. The chief accountant testified that this was a situation of emergency, the house boats were needed urgently for Niger Delta region, where crude oil theft was

high, I take judicial notice of this. It is to check these excesses; hence the demand of the CNS was urgent. Exhibit O at page 1145 first paragraph and evidence of pw1, 3, 4, 5 on the need for completion within schedule. The house boats were to be ready within 24th November – 7th December a period not less than 2 weeks to get same ready, they had dwelt on hiring but later construction and finally procured same and refurbished to meet target; no doubt it was an emergency situation to roll out these ship to the choke locations.

I, therefore find evidence that, the stated procedure taken and referred to by officers were not complied with, those to vet the document, HSBS and scout for compliance were not there, there was also no proper bidding for the contracts and the contractors were paid in full, a day after the contract was assigned. The relevant specialized departments claimed ignorance till inspection time at delivery. Therefore in my view, it was certainly a rushed affair.

Subsection 3 & 4 of Section 43 requires a report to be filed, the duty of the appellate Court is not to speculate because compliance of the exception was not raised at trial

and it appears during the hearing that some house boats were yet to be delivered, while others were being fitted for special items, therefore I am unable to hold that Sections 43 (3 & 4) were not complied with. More importantly, the accounting officer testified and questions were not put across to him to establish a breach of the entire procedure, nor in cross examination on conditions in Section 43 (3 & 4) of Procurement Act Cap 2007.
All officers who testified agreed that, the correct procedures were not followed because the directives was from the NCS(Naval Chief of Staff) and time was too short, all that was key was the delivery and commissioning time. PW1 was very critical of the entire procedure but clearly fell short of a detailed report as he did not cover areas of why the introduction of 40 bedded HSB instead of 60 recommended and missing special technical details; why the contract was given to more than one company; coupled with why other departments did not show interest until injury time despite being copied the directives to procure the ships.

At page 86 par 622 pw1 stated;
offer letter Exhibit I & J
?THE LOGISTIC

BRANCH through the office of DSS invited MESSERS TS HAMMAS for contractual documentation for procurement of 4x40manHBS……….However MESSERS MSD PETROLUME and MARITIME SERVICE was not among the 4 companies earlier listed to have submitted their bidding and quotation vide ref further more there was no written memo to CNS informing of the inability of TS HAMMA to supply 4HSB NOT any written memo ….?

Furthermore, the contract was by direct labour.
The change from procurement to construction as testified by the Appellant did not change much, he had a duty to look out for things which would affect negatively the Navy and his boss, there was evidence that he did not work alone nor take the decision alone Most of the documentation were not signed by him but by his seniors who had authority over him, the Chief of Accounts/Budget, they did nor query the contract but they appended their signature.

Even the 1st accused, who was far senior in rank, he did not raise any eye brow. The charge is not against whether the Appellant changed the terms of the contract, his overall boss- COL was in Sirilanka and he had to obtain clearance for some

issues, even to deal with the new additional contractor. Therefore, I am of the opinion that this issue is premature the contract is yet to be finalized even though paid for, the issue of complying with conditions for emergency procurement has not arisen.

I resolve this issue in favour of the Appellant.
Issues 1, 4, 5 and 6 shall be taken together, since the evidence more or less overlap.

person. It therefore means that the accused person has no burden to proof his innocence, unless prima facie facts which point to his guilt have been adduced by the prosecution. That presumption of innocence ensuring in favour of an accused person therefore has placed the burden of proving his guilt squarely at the door steps of the prosecution; that burden is static and never shifts. See Sections 131 and 132 of the Evidence Act, 2011. See also Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended See JOHN OLOMO v THE STATE (2014) LPELR 22517 (CA); OLUWATOYIN ABOKOKUYANRO v THE STATE (2016) LPELR 40107 (SC) Per Ogunbiyi JSC, ALOR v STATE (1997) 4 NWLR(PT. 501) P. 571; SUNDAY ADOGA v THE STATE (2014) LPELR 22944 (CA) per Tsamm, JCA and AGBITI v NIGERIAN NAVY (2011) LPELR 2944 (SC). The presumption of innocence cast in favor of the accused person thus places a heavy burden on the prosecution to proof the charge for which the accused is arraigned beyond reasonable doubt. To discharge the burden the prosecution must call credible and sufficient evidence which establishes every or all of the essential elements or ingredients of the

offence charged. In other words, it is the established law that the burden of proving the guilt of a person charged with having committed an offence, is. On the prosecution, and that burden can only be discharged if the prosecution is able to adduce credible evidence which proves every ingredient of the offence beyond reasonable doubt. This is required by Section 135 (1) & (2) of the Evidence Act, 2011 which stipulates that: 135(1). If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. (2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. As stated earlier in this judgment, the burden to ultimately prove the guilt of the accused remains always on the prosecution and never shifts. Consequently, if at the close of evidence, and on the totality of the evidence adduced before it, an essential element of the offence is left unproved, or the trial Court is left in doubt as to

whether indeed the accused person committed the offence, the prosecution would have failed to prove the guilt of the accused beyond reasonable doubt, and the only verdict is to acquit the accused. See OSUAGWU v STATE (2013) 5 NWLR (PT. 1347) P. 360; NJOKU v STATE (2013) 2 NWLR (PT. 1339) P548; ARUNA v STATE (1990) NWLR (PT.155) P125; THE STATE v FATAI AZEEZ & ors (2008) 4 SC P188 and AFOLALU v STATE (2010) All FWLR (PT. 538) P. 812 AT 828. …On the other hand, where the Court considers the totality of the evidence and a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it , thereby entitling the accused person the benefit of the doubt resulting in his discharge and acquittal. …..The template was set by Denning J (as he then was) in the case of Miller v Minister of Pensions (1947) 2 All E. R. P371 at 373 paragraph H as follows: The degree is well settled, it needs not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond shadow of doubt. ……… probable, the case is proved beyond reasonable doubt but

nothing short of that will suffice.”
per AKINBAMI, J.C.A (PP. 3-8, PARAS. C-D)
See also the cases of OTUOME v FRN (2017) LPELR – 42783 OBIAKOR v THE STATE (2002) 10 NWLR (Pt. 1043) 564, 585; OLADELE v. NIGERIAN ARMY (2004) 6 NWLR (Pt. 868) 166; OSUAGWU v. THE STATE (SUPRA) AT PAGE 62 PARAS E-G; AWOSIKA v. THE STATE (2010) 9 NWLR (Pt. 1198) 49; RABIU v. THE STATE (2010) 10 NWLR (Pt. 1201) 127; CHUKWUMA v. FRN (2011) 13 NWLR (Pt. 1264) 391; STATE v. OLADOTUN (2011) 10 NWLR (Pt. 1256) 542; OCHIBA v. THE STATE (2011) 17 NWLR (Pt. 1277) 663; ARUNA v. THE STATE (1990) 6 NWLR (Pt. 155) 125 and AMEH v. THE STATE (1978) 6-7 S.C. 27?. Therefore, the law in this respect is iron cast.
The charge is that; he negligently carried out his scheduled duty in such a way that it led to the procurement of the dilapidated HBS unsuitable for the Navy.

This leads to issue 1 wherein, the only documentary exhibit relied upon was Exhibit R which has been declared a nullity and was expunged from the record. Therefore, scanning through the evidence on the record which respondent contends is sufficient to convict but provided no evidence to back his assertion.

I shall referred to those touching on this issue.

The charges cut into two; supervision of the HSB and the issue of supervising the work on the boat. Definitely count 1 deals with the procurement of the boat, the contract and eventual signing of the contract which was by direct labour. The job was for Chief of logistics who is PW4/PW2 ADMIRAL AYANKKPELE who testified for Navy and was recalled to testify for (the 2nd accused person) the Appellant.

PW2?s evidence at this stage is relevant because his was an integrity evaluation of the HSBS but his evidence at page 111 par 792 is thus;
?The PIMEDI is A unit that is set up to evaluate all Nigerian Navy projects including the terms of contract. THEN TO monitor whether those projects are being executed in accordance with the terms of contract and then advise the CNS Whether in the opinion of the PIMED the contract is being executed according to when they will be delivered on time as specified in the contract and then competence of the contract ,if it finds out that the man is not competent advise on the termination of the contract?.
?
He said the boats he inspected and

worked on, in his observation were corrected and passed the fitness test but could not say the same about the other two, because another committee was constituted and another set of HSBS were purchased. With these evidence on record can it be said that the Appellant had these schedule duties, when there was a clearly cut out department for this, even the terms of the contract were to be evaluated. Where is the evidence of specific duty for the Appellant and the negligence in handling same? The Appellant did not have monopoly over this and therefore could not be negligent in this area. PW2 & 4 had testified that he was not solely in charge, 2nd accused person was a rear admiral much more senior in ranking than the Appellant.

Permit me, at this junction to place on record that this case emanated from the Nigerian Navy a military formation under the armed forces and there is a strict enforcement of ranking seniority wise, and there are constrictions and limits to asserting authority therein, the Appellant is a Captain under trial.
In ADEBAYO v NIGERIAN NAVY 2018 (LPELR)-45957(CA) incidentally the 1st accused in the joint trial leading to this appeal

this Court held thus;
“…In resolving this issue, it is pertinent for me to reproduce Section 103 of the Armed Forces Act, CAP A20 for ease of reference. The Section provides thus; “(1) A person subject to service law under this Act who is guilty of a conduct or neglect to the prejudice of good order and service discipline 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) It shall be defence to a charge under Sub-section (1) of this section that the conduct or neglect of the accused had already been charged under Section 45 to 102 and Section 104 to 114 of this Act.” The Supreme Court in the case of FRN v MOHAMMED USMAN & ANOR (2012) 3 SC PT.1 AT 128 held thus; “The prosecution must prove the elements of the offence strictly as contained in the charge, since the purpose of the charge is to give notice to the defence of the case it is up against.” In the instant case, the parties are in agreement that for an accused person to be guilty of the offence of conduct to the prejudice of service disciple contrary to

Section 103 of the Armed Forces Act CAP A20 LFN 2004, the prosecution is required to prove the following ingredients; 1. That the accused was subject to service law, under the Act; 2. The accused must have been charged with a specific duty by the relevant authority; and 3. That his conduct prejudiced service discipline. See also paragraph 3.09 at page 9 of the Respondent’s brief of argument. It is trite law that, if the prosecution fails to proof one of the ingredients of the offence, the charge must fail. See the case of PEOPLE OF LAGOS v. UMARU (2014) 2-3 SC 68. It is not in dispute between the parties that the Appellant was subject to service law. The evidence on record shows that the Appellant was appointed to chair a committee established to conduct a survey and on the spot assessment of areas and requirement for the establishment of choke point control regime (CPCR). See page 1112 of the record of appeal. The term of reference of the committee as can be seen at pages 1113 of the record are as follows; a. carry out on the spot assessment of the recommended choke point to be manned. b. Determine actual cost of hiring 40-man houseboats for initial 3 months

including generator and other relevant support facilities. c. Determine the best way to deploy the houseboats, boats and personnel. d. Determine the appropriate internet facilities and actual cost for each of the houseboats. e. Liaise with NOD, commands and units to determine how to make available 12.7mm caliber weapons and ammunitions for each of the houseboats. f. Workout the modalities for the installation of booms. g. Any other relevant information that would facilitate the establishment of CPCR. As evident from the record of appeal, the charge against the Appellant was due to his failure to inform the appropriate superior authority of the fact that one of the 2 boats contracted for construction awarded by the Nigerian Navy to MSD Petroleum and Marine Services, is a 20-man capacity house boat instead of 40-man capacity houseboat, as agreed between the parties and contained in the contract paper dated 24 November 2015 MOU No. NN/CA/163/2015. Now can it said that by virtue of the Appellant’s chairmanship of both on the spot assessment of areas and requirement for the establishment of choke point control regime, and the request for logistics and attendant

PowerPoint presentation to the POS’s, the Appellant was fully in-charge of the project and owed the Nigerian Navy the duties to supervise and report any inadequacies including the forceful conversion of 20-man house boat to 40-man house boat by the MSD Company, as contended by the Respondent I do not think so. By Article 5 of the memorandum of agreement between the Nigerian Navy and the MSD Petroleum and Marine Services Ltd (The contractors), the contract shall be supervised by the chief Logistics of the Nigerian Navy. See page 1083 of the record of appeal. Also PW2 at page 144 of the record of appeal testify under cross-examination by the defence thus; “Defence: Sir you gave evidence that the chief of logistics is in charge of the contract am I right PW2: That’s right.” There is no evidence that the Chief of logistics, who testified as PW4, delegated his supervisory duties in respect of the contract to the Appellant. Also, Clause 2 (b) of Exhibit V (Nigerian Navy Order NNO/11/12 (ESTABLISHMENT OF NAVAL PROJECT IMPLEMENTATION AND EVALUATION DIRECTORATE AND PLANS BRANCH (NN PIMED) provides that the duty of the PIMED includes thus; “Monitor, evaluate and ensure

proper execution of all NN Ship repairs, projects & contracts with the highest standard of integrity, ethics, professionalism and make recommendations for milestone payment obligations.” Here, also there is no evidence on record that the Appellant was the director of the PIMED nor is there any evidence that he was expressly delegated by the director of the PIMED to supervise the contract on his behalf. Therefore, the Respondent’s contention that the Appellant was fully in-charge of the project, and he owed the Nigerian Navy the duty to supervise the project and report any inadequacies including the forceful conversion of 20-man HB to 40-man HB with the negative effect associated with it, is grossly misconceived and not supported by evidence. In the instant case, the Respondent has failed to prove and show that it is the Appellant’s duty to inform the Nigerian Navy that one of the houseboat supplied is a 20-man capacity house boat, instead of 40-man capacity house boat, as contained in the contract paper dated 24 November 2015 MOU No. NN/CA/163/2015, or how the entire Appellant’s conducts prejudiced service discipline as alleged. I have earlier said that I

am in agreement with the learned Appellant’s counsel that if there is any dispute arising from the failure of the contractor to supply to specification, the Appellant cannot be affixed with liability in that regard, in the absence of any evidence that he is a director or member of that company. On the issue of application of arbitration clause, Article 13 of the memorandum of understanding clearly states that any dispute arising out of the agreement which cannot be settled by the parties, shall be referred to and settled by arbitration in accordance with the provision of the Arbitration Act, Cap A18 LFN, 2004. I do not agree with the learned counsel for the Respondent that there are two situations that came to play in this case. I have earlier in this judgment said that, there is no evidence on record to show that it is the Appellant’s duty to inform the Nigerian Navy that one of the houseboat supplied is a 20-man capacity house boat, instead of 40-man capacity house boat. Also, the facts of this case clearly show that, the grievance of the Respondent centered on the breach of contract between it and the MSD contractor. It is my view that the Respondent should

have complied with Article 13 of the memorandum of understanding. The Respondent’s argument that the fact that the Nigerian Navy has punished its own for misconduct will not put an end to the use of arbitration on the contract if necessary, is misconceived. This issue is resolved in favour of the Appellant.”
per ABOKI, J.C.A (PP. 20-26, PARAS. C-E)
The above appeal was based on the same evidence adduced, the Appellant definitely will take benefit of this in view of the evidence of PW2 PIEMED.
I adopt the above apt analysis to this case. The prosecution merely failed to prove the duty breached and disobeyed.
Again and most relevant is the evidence of PW4/DW2, he is the chief of logistic who was stipulated to supervise the contract in Article 5 of the agreement, see page 1083 of the Record. He is the overall boss of the department and in between them are other senior officers, he was also not on ground during the crucial procurement and pre procurement of HSB events but he was briefed when consent was to be obtained to add another due to time constraints. See evidence of DW1 which was not faulted.
?PW3 at pages 1432-144 paragraphs

1069 -1080 stated that CNS directed that instead of hiring they should procure and referred the memo to CTOB and some principal staff for the regime and Chief of Training and Operations represented the memo to procurement of HSB. The CNS drafted to Chief of Accounts and Budget, he now got to the Appellant who stated the view of authorities, he obtained the necessary supporting documents for HAMMAS from LT COMMODORE Etsu before eventual approval of CNS who directed CTOPS to kick start .
?His department was directed to make payment, he demanded for guarantees from the contractors but Appellant was reluctant to give same but his superior who was in the same committee gave his personal guarantee. Up to this stage, the procurement was sealed there was nothing Appellant did wrong; there was nothing negligent about it. His office was into supervision and to provide documentation but he did not do this, Lt Cdr Etu (also a member of the committee to locate choke areas) did it and CS together with Pw3 paid the contractors. I have not seen any proof of the act of negligence, he was just a witness of all the procurement agreement; see Exhibit A & C, he was

subject to superior officers, he did not make the approval for procurement, CTOB did and the 2nd accused; head of committee, who is also a commodore did.
The request for payment of contractors was signed for by AYANKPEKELE, furthermore, Exhibit B dated 24th November, 2015; the memorandum of understanding between contractors and NN was signed for CNS by one Commodore Yakubu of logistics while SABO-Appellant signed as a witness.
Article 5 says COL is supervisor for the project for general administration.
It is important to note that, parties are bound by the agreements they enter into, therefore the memo, Exhibit B says construction of this presupposes that, it a new project and any deviation is not in line with the bound agreement notwithstanding the introduction of the term by Appellant into the document.
The evidence of the DW4 in my view does not contradict his later evidence as PW1 in the sense that, he testified as the boss and the delegating authority, and made it clear that there are senior officers in the department confirming that, he was under a very senior officer and could not go ahead even though he was delegated. I disagree

with the findings of the tribunal that he made a u-turn, the questions differ and he takes responsibility for the events and now states who does what, and the extent of his delegation as stated in Article 5. He used a template which has never been changed and it behoves on the necessary department to input the changes as stated by PW2. It was after he pointed out defects that, they were corrected and it was accepted by the navy unlike that other which he could not comment upon, the navy having put it under another committee.
The evidence of the Appellant and cross examination was clear and unchallenged, he stated and corroborated that he used the template in the Navy for construction and that this was refurbishment Expert evidence given was that ordinarily a HSB is built for oil companies or servicing companies and if the navy wanted they could have told them, it is not the speciality of Appellant, its PW2 who evaluates.
In the light of the above, the prosecution failed woefully to establish that, negligence, if any on his part had led to procurement of these boats. What then is Negligence in this con? This Court defined it in NEPA v AUWAL 2010

LPELR- 4577(CA) thus;
?Otaru v Idris (1999) 4 SC (pt 11) 87 at 92, the Supreme Court defined the tort of Negligence to be:- “That NEGLIGENCE is the omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do. Further, negligence consists of failure to exercise due care in the circumstances in which a duty of care exists. It was further submitted that a duty of care, namely that which is owed to persons so closely and directly affected by the act of another and who ought to be in his contemplation existed vide Donoghue v Stephenson (1932) AC 562 at 580 – 581. Such that in the final analysis the tort of NEGLIGENCE involves (i) a careless act or omission and (ii) a duty to the person injured.”
per OKORO, J.S.C. (P. 18, PARAS. A-E)
Against this definition, in my view, the Appellant was too junior in rank to make meaningful contribution to the procumbent which was done in breach of stated procedures and above all differed from the ordinary construction, payment was on 8th December 2015, while signing was 24th November, about one week the CNA?S

directive was on 10th November the committee report which had interested contractor was 15th November 2015, therefore, the procurement had been agreed upon before the input of Appellant and if at all, it was not the single participation of the Appellant. The seemly contractions by the prosecution witnesses by law ought to be resolved in favour of the appellant and is hereby resolved in its favour.

On count 2; failure to include technical specification, I adopt the analysis in count 1. The proper department to do this is PIEMDS who is in charge. It is in evidence that the template of agreement used was in use and had not been changed, even if there is no evidence that he has authority to do so, he did not signed same its the duty of the signee to ensure that what was prepared was in line with the instructions before appending signature. There is no evidence that he was a member of the establishing committee.
?
Prosecution?s evidence did not cover the schedule of terms of duty, which was general administration, it?s not the duty of COL to supply technical details, whether as delegated or not there was no omission. You can only carry out a

delegated assignment within the authority and statutory duty of the person delegating, it can never be at large even in the military setting. In OMATSEYE v FRN (2017) LPELR – 42719 (CA) this Court held on whether a delegated power can further be delegated;
“It is trite that a delegated power cannot be further delegated as decided in the case of BAMGBOYE v UNIVERSITY OF ILORIN (1999) 10 NWLR (PT.622) 290, the principle of law is that a person to whom an office or duty is delegated cannot lawfully devolve the duty upon another, unless he is expressly authorized so to do.”
per NIMPAR, J.C.A (P. 18, PARAS. D-E)

There was nothing to show that it was expressly delegated the prosecution merely stated hearsay except PW4/2 who stated the terms of the delegation which differed from that of prosecution. Therefore, the Appellant never failed to supervise the contract but to do so administratively, the duty assigned was different from the duty in the charge, and in my view negligence has not been proved.
?
The relevant documents were copied but at hearing, the prosecution witnesses feigned ignorance. Pw4 said DSS gets involved but not that he

single-handedly decides the fate of a project. See vol. 1, pages 264-269. Exhibit U & V are on the role of NNPIMED to monitor, evaluate and ensure proper execution of all NN SHIPS repairs/projects/contracts in standard compliance. These are specific obligations.

When asked if specifications applied to new ships, PW1 answered in the negative but in this case, its refurbishment wherein, the size is settled from beginning and refurbished to meet the expectations of the client, it follows that there were no specifications to be followed already laid down for Appellant to adopt, it was not his beat for general administration see Exhibit T; CPPLANS TO BE RESPONSIBLE FOR DESIGN of craft including machinery systems and equipment to meet the operational requirement of NN.
?
If in the opinion of Pw2 the agreements were the same and the BSH of Hammas HSB was better and in line with what was expected (unlike that of Messers MSD PETROLEUM and MARITIME SERVICES) and equipments were to be installed there on. Would any lack of supervision or absence of specific technical details be the fault of the drafters of agreement? I am

afraid absolutely not.

It was due to the contractors who had made a job of refurbishing which is no contributory fault of the Appellant. Furthermore, article 13 provided for arbitration clause which they failed to explore. See evidence of PW2 during cross examination who did not attribute the defects to the fault of Appellant, I find that there is a world of difference between general administration and failure to include technical terms which is a specific duty of director of ships design.

The Navy from the abundance of evidence, is so well structured that it cannot be the fault of a single officer, it?s a management issue since there are structures for which specific duties are set for each aspect of any project, therefore to single out an officer in charge of general supervision for administration is to give a dog bad name and also cover up lapses and gross ineptitude which existed in the entire outfit.. It was momentarily failure of all relevant branches that led to the charges against the Appellant, see page 678, evidence in cross examination of DW3 who said specific supervisory role is the duty of PIMED CPLANDS and CONE.<br< p=””

</br<

This stand of the Appellant was corroborated by the PW2 /DW1 and this evidence was not challenged, the burden of proof was not discharged by the prosecution that, he omitted to specify the technical details of the project. There was no evidence as to how it was the duty of the Appellant even though assigned by his boss, he was not the only one in the department, and it was a collective assignment from the acts of others involved in the project. Besides, the DW2 Ayankpele testified he had an acting COL in his absence, the extent of the assignment which was not challenged or shaken under cross examination.

DW1 (Appellant) stated in evidence/cross-examination that he was assigned the role of liaising with other departments and prepare the contractual agreements and that it was not his role to supervise or provide the specifications for the house boats, see page 667 vol. 3
?
He emphasised that it was the responsibility of LT.C Etsu who was nominated to the committee to represent logistic branch, contrary to the insinuations that there was no provision for specification, it was in Exhibit A & C. He confirmed that the agreement was an old template

from the logistic department. He admitted that due to timelines the agreement was not sent to policy and plan branch.

This stand of the Appellant was corroborated by the PW4 /DW2 and this evidence was not challenged, the burden of proof was not discharged by the prosecution that he omitted to specify the technical details of the project. There was no evidence as to how it was the duty of the Appellant even though assigned by his boss he was not the only one in the department, it was a collective assignment from the acts of others involved in the project besides the PW4 Ayankpele testified the extent of the assignment which was not challenged or shaken under cross examination.

At page 683 paragraph 5012, PW2 said;
?first it is a template in the logistic branch whatever the contract it could be for the construction of this building, it may be for the construction of the desk this is the template that is follow dd, there is no specific definite template for special item, so I don?t expect the man preparing the contract document to ask for certain details ..
?
From the prosecution?s case, it was based on hearsay

and speculations, no evidence was led at the stage at which such specification was to be introduced and if there was another template for such which he omitted to use or that he had the authority to unilaterally change the template for the agreements.

Most crucial of all is there was no evidence on the kind of technical items that ought to be included that was excluded. Therefore I am satisfied that the persecution had failed to discharge the burden of proof on them, the charge has not been proved.

On the last issue, whether the Appellant can be held responsible for an alleged breach of contract which, he the Appellant is not a party to? The contract was between the Nigerian Navy and the contractors but the Appellant is part of the Navy and his department had a part to play, there are evidence that he was statutorily assigned to that schedule or that the COL assigned him specifically. See page 682 evidence of PW2 PAR 5012 PWS said:
?…as far as this particular issue is concerned I do not see how a Captain would supervise an issue where a commodore is the head…?

From the analysis above, the Appellant could not

single-handedly occasion a breach, especially as the terms were the same in both contract A & C. The Hammas delivered with corrections while the other, was not ascertained, since another committee appointed sourced for another. It is not quite certain if they failed to meet standards, the breach is from the contractor and not the Appellant, and it was shown that from start the ship has integrity issues (choice of HSB bought). Furthermore, the deadline of November 24 ? 7th December, 2015 was too close to call for anything to be delivered, the evidence of experts is that the HSBS are built for oil services companies and NNPC and they are from beginning set. It is the sleeping rooms that determine type of boat that are now inserted to meet the type of accommodation needed.

The tribunal termed the evidence a u turn but I find that this is a correct statement in view of all the evidence and hierarchy of Navy officers to a Captain. The Appellant has not been said to benefit from the project nor a director in any of the boat company.
?
In my humble assessment, it was a rushed project where nobody took responsibility of and stood by expecting it to

make the deadline in good shape.

Therefore, the tribunal erred in its holding that the appellant ought to have called for a review of the template in view of the structure of hierarchy and schedule of duties shared by the Navy management, see the community reading of Exhibits AE, AF, T, U, I & J and the evidence adduced thereon.

On this note, I resolve issues 1, 4, & 6 in favour of the Appellant.

Finally, the Respondent in response to the Appellant?s issue 5 had contended that the Appellant did not obtain leave before appealing on the no case submission; this issue has since been settled by the Courts. This Court held in ADIE v OCHUI & ORS (2018) LPELR-46160 (CA) held on the question ?Whether leave of Court is required to argue grounds of appeal emanating from a final decision with grounds of appeal against an interlocutory decision stated thus;
“The other angle to this leg of the objection is that the Appellant did not seek leave to appeal against an interlocutory ruling wherein the Appellant’s witness was disqualified by the Court below. ………On whether an Appellant can raise a complaint

against interlocutory order in an appeal against final judgment, it attracted divergent views on it, but, I agree with the views expressed in the cases mentioned hereunder. In UMANA v ATTAH (2004) 7 NWLR PART 871 P. 63 AT 87, where the case of AONDOAKAA v AJO (1999) 5 NWLR PART 602 P. 206 at 226 was referred to, it was held that a ground of appeal from a final judgment in an election petition incorporating a complaint against an interlocutory decision given in the course of a trial is competent. Further, in OKOBIA v AJANYA (1998) 6 NWLR PART 554 P. 348 Ogundare, J.S.C., said thus: “On the issue that the Court below should not have considered the issue of Exhibit M raised by the Defendants before it as there was no application to appeal out of time against the trial Court’s ruling on Exhibit ‘M’, my simple answer (in addition to what my brother Mohammed, J.S.C. said on the issue) lies in Order 3 Rule 22 of the Court of Appeal Rules which provides: “22. No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as may seem just”. The Court below was,

therefore, not precluded from considering the validity or otherwise of Exhibit ‘M’ notwithstanding that the Defendants did not appeal against the trial Court’s ruling on the document. By virtue of Order 3 Rule 22, they could still raise the issue on appeal as they, in fact, did in the Court below. It is not necessary for them to seek extension of time to appeal against the interlocutory decision of the trial Court.” This principle was recapitulated by the Supreme Court in IWEKA VS. S.C.O.A. (2000) 7 NWLR PART 664 P. 325, again, per Ogundare, J.S.C., thus: “The Plaintiff has argued that the Court below was in error since he complained about the trial Judge’s order in his appeal against the final judgment of Iguh, J. (as he then was) and cited NIPOL LTD. v BIOKU INVESTMENT PROPERTY CO. LTD. (1992) 3 NWLR PART 232 P. 727 at 753 in support. I think the Court below was wrong in the reason given by it for refusing the first motion. Order 3 Rule 22 of the Rules of the Court of Appeal provides: “22. No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as

may seem just.” Under this Rule a party who is dissatisfied with a judgment and who appeals against it may raise complaint against any interlocutory order made by trial Court even though he has not appealed against that interlocutory order when it was made. See OKOBIA v AJANYA & ANOR. (1998) 6 NWLR PART 554 P. 348 AT 364 – 365. At this juncture, it is imperative to turn to the provisions of Order 18 Rule 10 of the 2007 Rules of this Court which is in pari materia with Order 3 Rule 22 of the 2002 Court of Appeal Rules which stipulates: “No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as may seem just.” By the above elucidation of the exception principle by the Supreme Court in the aforestated cases, it would be pointless overstretching this issue beyond here. Whether an Appellant can, in the main appeal raise complaint against an interlocutory order not appealed against, the plain and unambiguous wordings of Order 4 Rule 5 of the 2016 Rules, meaning therefore, that one can complain about an interlocutory order in a final appeal against which he

previously did not file any appeal. I believe this has effectively settled the Respondents’ arguments on issue one and ground 3. It can therefore be authoritatively asserted that Ground 3 and 1, 2 and 4 are competent and could be raised in this final appeal. See also ISHAKU & ORS. v KANTIOK & ORS. (2011) LPELR 8944 (CA) and KIBIYA & ORS. v RABIU (2004) LPELR-12563 (CA).”
per NIMPAR, J.C.A (PP. 20-25, PARA. A)
Again, it?s important to draw attention to the fact that this is a quasi-criminal appeal and a final appeal of which confirmation of any sentence must be confirmed. It is now acceptable, as in the decision cited, in a final appeal to include grounds of the interlocutory ruling.

On the merit, there was evidence that the Appellant was charged with the supervision as contained in article 5 via a delegated authority and that the project was bungled because there was no specification included in the memorandum agreement.
?Pw4 had also created the impression that the project was very badly handled, even though majority of witnesses did not participate at the initial stage; they came in to assess the project after it was

criticized. Therefore, their evidence were basically hear say and presumptions from very senior officers.
At the stage of the prosecution closing its case, there was prima facie case against the Appellant albeit a wrong perception, it was imperative that the extent of his delegation, actual assignment had to be on record. ?The Apex Court in defining the meaning of negligence had this to say in ADESINA v PEOPLE OF LAGOS STATE (2019) LPELR- 46403 (SC)
“Negligence, according to the Oxford Advanced Learner’s Dictionary, is the failure to give enough care or attention. Negligence connotes lack of proper care and attention. It is a careless lack of proper conduct. In OGBIRI & ANOR v. NIGERIA AGIP OIL CO. LTD (2010) L.P.E.L.R. – 4586(CA), I stated, relying on ODINAKA v. MOGHALU (1992)4 N.W.L.R. (Pt. 233) 1 at 15; OJO v. GHARORO (2006) 18 L.R.C.N. 1652 at 1713 ? 1713 …… See also RABIU HAMZA v. PETER KURE (2010) 10 N.W.L.R. (Pt. 1203) 630 at 646 per Muhammad, JSC. Negligence is any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. The term denotes culpable carelessness:

Black’s Law Dictionary, page 1133 9th Ed.”
per EKO, J.S.C (P. 12, PARAS. B-F)
In line with the above, the issue herein is; whether the Appellant exhibited a conduct below legal standards established to protect others against unreasonable harm, in this case the Nigerian Navy or exhibited any carelessness?
The evidence on ground, in my view; the Appellant needed to show that the standard put forward by the prosecution was not on all fours with his statutory duty as per drafting and also different from the delegated authority bestowed on him.
See OMUEDA v FRN (2018) LPELR- 46592 (CA) the most important thing is whether the prosecution has made out a case, given evidence linking the defendant with the offence with which he is charged.
?The evidence of pw4 that he was not there when it started and that the whole project was with operations who recommended the BSH for them to buy, and where he accused the Appellant ?at pages 284 paragraph 2230 and 285 paragraph 2236 that; this is the boat you people are getting for us? did not directly point to the Appellant but collectively to the teams involved, therefore, it

needed the Appellant who was on ground to straighten a misconception and tell his side of the story not really to discharge a burden. See ATUTU & ORS v STATE (2013) LPELR- 22161(CA) where this Court held amongst others that a Court should look out for is, whether something has been produced to make so far indicates it?s worthwhile to continue the proceedings. This is the scenario herein.
It is in this vain, that I disagree with the finding of the Tribunal that PW4/DW2 made a turn; he merely clarified the impact of hierarchy as senior officer in the Navy in charge of COL, and the operation of his department and extent of his delegation in the project.
It is in this vain, that I agree that the rejection of the no case submission was necessary under the circumstances.

I resolve this issue against the Appellant.
On the whole having resolved issues 1, 3, 5 & 6 in favour of the Appellant; the appeal partially succeeds and is allowed. The judgement of the Special Tribunal Martial is hereby set aside and the conviction and sentence of the Appellant by the Special Tribunal Martial is hereby quashed.
?
The Appellant is acquitted and

discharged in Counts 1 & 2. The Appellant is hereby restored and entitled to all seniority (promotions) within 18 months of the sentence forthwith.

MOHAMMED LAWAL GARBA, J.C.A.: I agree.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I agree.

Appearances:

Uche EzeiloFor Appellant(s)

J. A. AdewumiFor Respondent(s)

Appearances

Uche EzeiloFor Appellant

AND

J. A. AdewumiFor Respondent

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