In The Court of Appeal of Nigeria

On Thursday, the 18th day of March, 2004




JAMES OGENYI OGEBE   Justice of The Court of Appeal of Nigeria

PIUS OLAYIWOLA ADEREMI   Justice of The Court of Appeal of Nigeria

MUSA DATTIJO MUHAMMAD   Justice of The Court of Appeal of Nigeria



  1. CPL. SEGUN OLADELE – 90NA/2911059
    2. LCPL. WARRIBOKO AKIO – 79NA/12450
    3. LCPL. BALA USMA – 79NA/32598
    4. LCPL. JIMOH LAMIDI – 79NA/16330
    6. PTE SUNDAY UMESI – 91NA/32/3938
    7. LCPL. JACOB OKHE – 79NA/10393
    8. PTE OTOKORO KENNETH – 79NA/31155
    9. PTE DAVID SUNDAY-79NA/12172
    10. PTE OLADIGBO ABUBAKAR – 91NA/32/4812
    11. PTE TAIWO SURAJUDEEN – 91NA/3112804
    12. PTE JONATHAN ADAMU – 93NA/35/301996
    13. PTE OKWUDILI ANYANKWO – 93NA/37/3058
    14. PTE SULEIMAN DAUDA – 93NA/2709
    15. PTE USMAN ALIYU – 93NA/37/419
    16. PTE ERIBO OSADOLOR – 95NA/39/2301
    17. PTE GAMBO ISHAQ ? 95NA/40/3871
    18. PTE MOHAMMED WASE ? 95NA/39/2129
    19. PTE UBA MOHAMMED ? 96NA/4217594
    20. PTE CHRISTIAN NGUMA ? 93NA/37/1830
    21. PTE ISAH SULEIMAN ? 96NA/43/9605
    22. PTE MOHAMMED MADI – 96NA/4113096
    23. PTE DAN-BAUCHI ALIYU – 96NA/42/4512 Appellant(s)




ADEREMI, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the General Court Martial delivered on the 22nd of December, 2000 whereby the appellants were convicted and sentenced to terms of imprisonment ranging from life imprisonment to some years of imprisonment. The General Court Martial sat at the Cantonment Officers Mess, Ikeja, Lagos. The said appellants had been court martialed for the following offences the counts of which run into 3(three):
1. Mutiny, punishable under section 52 (2) of the Armed Forces Decree No. 105, 1993 (as amended).
2. Conduct to the prejudice of good order and service, discipline, punishable under section 103(1) of the Armed Forces Decree No. 105, 1993 (as amended).
3. , Disobeying a particular order, punishable under section 56(1) of the Armed Forces Decree No. 105, 1993 (as amended).
Briefly, the facts leading to this appeal are as follows:
The appellants were part of the Nigerian Army personnel serving ECOMOG PEACE KEEPING FORCES in Liberia and Sierra Leone. In the course of their service, they sustained wounds and injuries consequent upon which they were flown back to Nigeria and kept at the Yaba Military Hospital, Lagos where they contended that the medical treatment given to them was inadequate and indeed worsened their already deteriorating health conditions. They were, therefore, referred to Hassabo International Hospital, Cairo, Egypt for further treatment from specialist doctors. Again they claimed that the medical treatment which they received in Egypt was grossly inadequate and that they were not given their estacode. It was their further contention that they were subjected to untold hardship which prompted them into protesting. Some top senior military army officers amongst them used their position in the military to order the immediate return of the appellants against all medical advice and thereafter ordered that the appellants be arrested, detained and court-martialed; hence the offences charged. As I have earlier said, they were tried convicted and sentenced after the prosecution had called 9 (nine) witnesses and tendered 32 (thirty-two) exhibits while the accused persons called 10 (ten) witnesses and tendered 18 (eighteen) exhibits.
Being dissatisfied with the judgment of the General Court Martial, the appellants have appealed to this court and have identified four issues for determination; they are in the following terms:
1. Whether the conviction of the appellants by the General Court Martial was not wrong when it held upon the totality of the evidence adduced at the trial that the charges of mutiny, conduct to the prejudice of good order and service discipline and disobeying a particular order have been established against each of the appellants beyond reasonable doubt.
2. Whether from the totality of the evidence and materials placed before the General Court Martial, the prosecution had proved its case beyond reasonable doubt.
3. Whether the General Court Martial or any Court Martial as a court established by a decree and recognized by the Constitution is not expected to write its judgment and make the findings in any case known with reasons adduced to that effect.
4. Whether the Constitutional right of fair hearing of the appellants were not breached by the composition of the General Court Martial and the entire trial.
The respondent, in their brief of argument, expressed their approval of and adoption of the four issues identified by the appellants for determination.
On issue No. 1 the appellants submitted in their brief of argument that no legal reason had been adduced by the prosecution, the respondent, to justify the sustenance of the charges the ingredients of mutiny as contemplated under section 52 (2) of the Armed Forces Decree No. 105 of 1993 or any other offence beyond reasonable doubt and which ingredients were clearly spelt out in section 52 (1) of the Decree were never shown from the records to have reflected the conduct of the appellants. Indeed, it was their further submission that they lacked the capacity to carry out mutiny given the circumstances of their traveling and the condition of their health. The court martial, it was again argued failed to ascertain critically whether the acts of the accused persons came within the purview of the offences of mutiny, conduct to the prejudice of good order and service discipline and disobeying a particular order. The offences as charged were not proved beyond reasonable doubt, it was again argued adding that the appellants merely demanded for what was due to them, thus the defence of bona fide claim of right would avail them, reliance was placed on the decisions in Amadi v. The State (1993) 8 NWLR (Pt.314) 644; Nwuzoke v. The State (1988) 1 NWLR (Pt.72) 529; Tonga v. COP (2000) 2 NWLR (Pt.645) 485; and Ahmed v. The State (1999) 7 NWLR (Pt.612) 641. Having failed to establish or show an existing written or oral order which the appellants allegedly disobeyed; it was submitted that no person shall be charged or convicted for an offence which he is incapable of committing at the time it was alleged to have been committed. No reasons were given for the judgment it was again argued; and all defences available to the appellants were never or thoroughly considered; it was finally submitted on this issue that the appeal be allowed. For their part, the respondent have argued that the court martial was right in convicting the appellants going by the evidence adduced. The trial before a court martial is a jury trial and therefore the court was not bound to give reasons to justify the sentences imposed; Rules 67 of the Rules of Procedure (Army) was cited in support. The duty of the court martial is to comply with section 141 of the Armed Forces Decree No. 105 of 1993 (as amended) and there was compliance, it was submitted. Disobedience or resistance to lawful authority is sufficient to sustain the charge of mutiny.
It is axiomatic, indeed it is well settled in our criminal jurisprudence that proof beyond reasonable doubt is sine qua non to securing a conviction in any criminal proceedings. The onus of discharging that duty generally rests on the prosecution – the person or body asserting. On count 1, the appellants were charged for mutiny punishable under section 52(2) of the Armed Forces Decree No. 105 of 1993 (as amended); the provisions of which are as follows:
A person subject to service law under this Decree who in a case not falling within sub-section (1) of this section, takes part in a mutiny, or incites any person subject to service law to take part in any mutiny, whether actual or intended, is guilty of an offence under this sub-section and liable, on conviction by a court martial, to life imprisonment.
I think it is appropriate at this stage to reproduce the provisions of section 52(1) of AFD referred to in section 52(2) reproduced supra; they are as follows:
A person subject to service law under this decree who:
(a) takes part in a mutiny involving the use of violence or the threat of the use of violence or having as its object or one of its objects the refusal or avoidance of any duty or service against or in connection with operations against the enemy, or the impeding of the performance of that duty or service; or
(b) incites any other person subject to service law under this Decree to take part in a mutiny, whether actual or intended, is guilty of an offence under this sub-section and liable on conviction by a court martial, to suffer death.
I have had a careful study of the ingredients of the offence of mutiny as encapsulated in the appellant’s brief of argument; they are acceptable to me; and they are:
1. that the accused persons are subject to service law;
2. that the accused persons were given an order to carry out a military act;
that the accused persons deliberately and by collusion disobeyed the order;
that the disobedience and the acts strike at the foundation of discipline in the Army;
that the accused persons used violence or threat of violence;
that such act or acts were deliberately designed to put the Nigerian Army in imminent danger.

In criminal jurisprudence it is generally the duty of the prosecution to prove, beyond any reasonable doubt, that the accused person or persons have committed the crime. Where the ingredients are ascertainable as in the instant case, the prosecution must prove beyond any reasonable doubt that the accused person or persons envisaged by the law creating the offence and their acts are in tune with the ingredients of the offence. It must however be said that the phrase, proof beyond reasonable doubt, in the realm of criminal justice, connotes such proof as precludes every reasonable hypothesis except that which he tends to support. Certainly, it is not a proof beyond shadow of doubt. See Dimlong v. Dimlong & Ors. (1998) 2 NWLR (Pt.538) 381. What is the evidence proffered by the prosecution that did sustain the conviction of the appellants, in law? The 5th PW – Col. E.C.N. Azodoh the Commanding Officer of the ECOMOG Task Force testifying said the whole episode started with the appellants shouting that their estacode received from home had been stolen by the officials leading them to Cairo for medical treatment. Despite all entreaties by him to go into the bus at the Airport in Cairo, they refused to move insisting that their estacode be paid. However, some of them left in the bus. He had said that some of the appellants demanded to meet the Nigerian Ambassador to Egypt. Although the Nigerian Ambassador to Egypt was not invited by:PW5 despite the seemingly riotous scene at the Airport in Cairo, that Ambassador came on his own volition. Although it was alleged that some of the accused/appellants went out of the hospital in Cairo to other hospitals for medical attention in protest that they were not receiving good medical attention in Hassado International Hospital to which they were taken to PW5 said he never kept the record of such appellants. This was a vital piece of allegation calling for strict proof or proof beyond reasonable doubt. The suspicion expressed by PW3 that some of the appellants went out of the hospital on their own volition will not suffice. To a suggestion put to him as to whether he met all these people that flouted his order and did not ascertain them; what would be his reason for not so doing, the PW5 said he did not see them commit the offence and it was only reported to him. Mutiny is a criminal offence of a serious dimension. The pieces of evidence that I have reviewed supra have not shown that the appellants disobeyed any order deliberately nor did they use any violence. If any thing at all, all they did was to protest the non-payment of their estacode. Such a protest finds justification on the admission of PW4 that he had paid some soldiers who earlier traveled with some estacode and was emphatic that the appellants were not prohibited but there was no express provision for the payment of estacode to them. There was also the evidence of secretive investigation and selective trial which by itself vitiates the entire proceedings. Issue No. 1 must be answered in the negative. And I so answer it for similar reasons; I also answer issue No.2 in the negative:
On issue No.3, the appellants had argued in their brief that failure of the General Court Martial to give reasons upon which its oral judgment was founded was fatal to the entire proceedings and the judgment itself. The judgment of the court martial had not demonstrated a dispassionate consideration of the issues which reflect the result of the exercise leading to the decision. It was urged that the appeal be allowed and the judgment of the court martial set aside, reliance was placed on a number of decisions the likes of (1) Oro v. Falade (1995) 5 NWLR (Pt.396) 385 at 391; (2) C.C.B. (Nig.) Ltd. v. Onwuchekwa (2000) 3 NWLR (Pt.647) 65; (3) Akujinwa v. Nwaonuma (1998) 13 NWLR (Pt.583) 632; (4) Akibu v. Race Auto Supply Ltd. (2000) 14NWLR (Pt.686) 190; and (5) Ezeakabekwe v. .Emenike (1998) 11NWLR (Pt.575) 529.
In response to the arguments canvassed by the appellants, the respondent, through his brief .had likened the trial before a court martial to that of a jury trial and so there is no need to give reasons for its findings and need not write judgment; it is sufficient for the court martial to just announce its findings in the open court; support for these submissions was found in rules 67 (1) Rules of Procedure (Army) and section 141 (1) of the AFD No. 105 of 1993 (as amended). The General Court Martial, it was further argued, is not bound to give reasons or make findings for its conclusion before giving the verdict under the AFD 105 (as amended).
It is not only the prosecution and the accused persons that are stakeholders who should be interested in the out-come of criminal proceedings. Let it be well known that the general society are equally stakeholders if not the greatest stakeholders who are more interested in the result of any criminal proceedings. The outcome of any criminal trial not only touches on the conscience of the society, it affects or controls its psyche. If it were not so barbaric or Kangaroo criminal system of justice which was applied or operated in the dark days of mankind would have still been prevalent till the present day.
It was the sustained and concerted societal efforts that got the primitive and absolute backward system modified at every stage of human development until we got to the present evolution of our criminal justice system. The society is still not at rest in working out improvement of this system. Criminal justice system in a country that upholds the rule of law as a way of life, cannot but conform with the acceptable standard prevailing in all civilized countries of the world. I make bold to say that Nigeria is not an exception ,we are in democracy and the rule of law must prevail. Some of the counts under which the appellants were charged, carry death penalty, the highest punishment under the law and long-term imprisonment.  Let it be said that members of the armed forces in this country have not denounced their membership of the Nigerian society and it seems to me that they cannot do so in a manner calculated to jettison the provisions of the Nigerian Constitution the groundnorm.
Indeed section 1 (1) of the 1999 Constitution provides:
This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
The offences for which the appellants were tried were alleged to have been committed sometimes in August 2000. The commencement date of the present Constitution is 29th May, 1999.
The members of the Armed forces are not excluded from the application of the provisions of Fundamental Rights the likes of right to life, right to personal liberty, right to fair hearing, right to freedom from discrimination etc. I have looked carefully at the records of proceedings nowhere was it shown that the court martial evaluated the evidence led before it nor had a dispassionate consideration of the issues in controversy. The judgment is bare. In Anyankpele v. Nigerian Army (2000) 13 NWLR (Pt.684) 209, it was observed at page 214:
The judgment of any court or tribunal must be based … in criminal matters, on the evidence adduced in court and the findings of the Judge which are based on the issues raised …
No court or tribunal can negotiate a non-compliance with the above requirements. In the instant case, no reasons were given as to how the conviction of the appellant was arrived at. The court just simply pronounced him guilty on the two charges.
Again in C.C.B (Nig.) Ltd. v. Onwuchekwa (2000) 3 NWLR (Pt.647) 65 at 68 it was held:
The decisions of court must be related to the facts which informed such decisions. Confusion is inevitable whenever pronouncements are made not on the basis of the facts which should influence the pronouncements.
Also in Sagay v. Sajere (2000) 6 NWLR (Pt.661) 360 on the same point it was reasoned at pages 364 and 365 thus:
The requirement that a judgment must clearly demonstrate that the conclusions arrived at in the case were not based on intuition and whim of the Judge but on evidence properly evaluated, and the law is not an insistence on mere form, but derives from the need to ensure and demonstrate that substantial justice has been done in the case.
When a Judge has in his judgment failed to give a fair summary of the cases presented by the parties, and to summarize the evidence and make findings of facts on the various material issues raised in the pleadings, he cannot be seen to have discharged his judicial function properly.
The records of appeal before this court have not shown a resolution of issues presented to the court martial for resolution let alone a clear resolution in the case. The whole proceedings have thus been bedeviled with fundamental vice such that the verdict or judgment of guilt must not be allowed to stand. Issue No.3 is therefore resolved in favour of the appellants.
On issue No.4 for all I have been saying I cannot but resolve it in favour of the appellants. The whole proceedings have been characterized by breach of the principle of fair hearing. See Yekini v. Nigerian Army (2002) 11NWLR (Pt.777) 127.
In sum, having regard to all I have been saying supra, it is my judgment that this appeal is meritorious, the decision of the General Court Martial together with the sentences are set aside and the appellants are discharged and acquitted of all the offences preferred against him.

OGEBE, J.C.A.: I read in advance the lead judgment of my learned brother, Aderemi, JCA just delivered and I agree with his reasoning and conclusion. Accordingly, I also allow the appeal and set aside the conviction and sentences imposed on the appellants. They are discharged and acquitted of the charges preferred against them.

M.D. MUHAMMAD, J.C.A.: I have read in advance the lead judgment of my learned brother, Aderemi, JCA. I agree with him that there is merit in this appeal and allow same on the reasonings contained in the lead judgment.
I abide by all consequential order as well.

Appeal allowed.



Aliens Agbaka, Esq.For Appellant



I.A. Adamu, Esq.For Respondent


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