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EGBE v. NIGERIAN ARMY (2020)

EGBE v. NIGERIAN ARMY

(2020)LCN/14325(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Tuesday, June 30, 2020

CA/G/134/C/2019

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Muhammed Mustapha Justice of the Court of Appeal

Between

PTE CHIGOZIE EGBE APPELANT(S)

And

NIGERIAN ARMY RESPONDENT(S)

RATIO

WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE TO THE EVIDENCE

​In addition, this Court is mindful of the fact that with regard to findings of facts, the evaluation of evidence and ascription of probative value to the evidence is the forte of the trial Court, i.e. the GCM in the instant case. Once the trial Court has discharged its duty on the strength of the evidence placed before it, unless it is established that its findings and conclusions were perverse and not supported by the evidence adduced before it, an appellate Court will not interfere where the conclusion reached is correct, even if the reasoning turns out to be wrong – Ndayako V Dantoro (2004) 13 NWLR (Pt. 889) 187; 198. Consequently, an appellate Court is loath to interfere with the Judgment of a trial Court when it was not privileged to see the witnesses testify and observe their demeanour. It is for this reason that appellate Courts do not, as a matter of course, readily substitute their own views for that of trial Courts except where it is established that such decisions were perverse – Sa’eed V Yakowa (2013) All FWLR (Pt. 692) 1650, 1681. In other words, an appellate Court will only intervene to re-evaluate the evidence where it is shown that the findings made and the conclusions reached by the trial Court did not flow from the proved facts, or runs contrary to the proved facts, and so is perverse. PER SANKEY, J.C.A.

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the General Court Martial sitting at 7 Division of the Nigerian Army, Maiduguri in Borno State delivered on 1st February, 2017 by its President, Brigadier-General O.G. Adeniyi and confirmed by the Chief of General Staff (COAS), the confirming authority, on 1st August, 2017.

The brief facts leading to the Appeal are as follows:
​The Appellant was deployed to 101 Battalion Unit stationed at Gwoza in Bornu State. On or about the 5th August, 2014, the Unit came under attack by Boko Haram Terrorists (BHTs). There were casualties and some soldiers did not report back to the Unit after the attack and so were officially declared missing in action (MIA). However, after a period of 272 days, the Appellant surfaced and went to his Mother Unit in Birnin Kebbi claiming that he had been captured by the BHTs during the attack, but that he subsequently escaped and spent about 7 months wandering in the bush and surrounding villages trying to find his way back to his Unit. He said he later on found his way back to his Mother Unit in Birnin Kebbi Sokoto State.

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After some days there, he was instructed to report back to 26 Task Force Brigade Maiduguri where his Mother Unit had earlier on redeployed him. The Appellant therefore reported to Maiduguri where he was interrogated by his Commanding Officer concerning his claims. Not satisfied with his explanations, more so that the Appellant had lost his personal AK 47 Rifle, his Commanding Officer referred him to the Military Police for further investigations. Thereafter, a General Court Martial (GCM) was convened and he was arraigned before it for trial.

​The Appellant was charged on a two-count Charge as follows: Count 1 – for the offence of desertion under Section 60(1) (a) of the Armed Forces Act (AFA) 2004; and Count 2 – under Miscellaneous offences for the loss of service property under Section 68(1) of the Armed Forces Act. At the close of trial, the Appellant was found guilty and sentenced to 14 months imprisonment on Count 1, while he was discharged and acquitted on Count 2. The decision delivered on 1st February, 2017 was thereafter confirmed by the Chief of Army staff as the confirming authority on 1st August, 2017. Dissatisfied with this decision, the

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Appellant filed an Appeal on 30th April, 2018 wherein he complained on three grounds.

At the hearing of the Appeal on 02-06-20, S.A. Onimisi Esq. holding the brief of Jack Iyioku Esq., adopted the Appellant’s Brief of argument filed on 08-10-19 and Appellant’s Reply Brief of argument filed on 02-06-20, deemed duly filed the same day, both Briefs settled by Jack Iyioku Esq., in urging the Court to allow the Appeal and grant the prayers sought in the Appellant’s Brief.

Similarly, A.I. Wokdung Esq. holding the brief of A.I. Omachi Esq., adopted the Respondent’s Brief of argument filed on 12-11-19 and settled by A.I. Omachi, Esq., in urging the Court to dismiss the Appeal.

The Appellant’s Counsel in his Brief of argument, formulated the following three issues for the determination of this Court:
(a) “Whether the trial/investigation of the Appellant by the Commanding Officer is not a condition precedent before the Appellant’s trial at the lower Court. (Ground 1)
(b) Whether the lower Court was right when it admitted Exhibits P2 and P3 which are inadmissible documents and relied on same to arrive at

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its decision which occasioned a miscarriage of justice. (Ground 2)
(c) Whether from the facts and circumstances of this case, the prosecution proved the charge of desertion beyond reasonable doubt putting into consideration the Exhibit D3 to warrant the conviction, sentence and dismissal of the Appellant by the lower Court. (Ground 3)”

On his part, the Respondent’s Counsel in his Brief of argument, distilled two issues for determination thus:
(i) “Whether the General Court Martial lacked the jurisdiction to try the Appellant? (Ground 1)
(ii) Whether the offence of desertion in Count 1 of the Charge was proved beyond reasonable doubt. (Grounds 2 and 3)”

The issues crafted by the Respondent are more succinct and precise and encompass all the issues arising from the grounds of appeal. Therefore, they are adopted in the determination of the Appeal and shall be taken sequentially.

ARGUMENTS
Issue one – Whether the General Court Martial lacked the jurisdiction to try the Appellant?
Learned Counsel for the Appellant submits that the Appellant was not given a fair hearing as he was not made to undergo the

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Commanding Officer’s trial before his trial at the General Court Martial (GCM) as required and prescribed by Sections 123 and 124(2) of the Armed Forces Act (AFA), 2004. He contends that this is a condition precedent which ought to be fulfilled before the Appellant could be tried by the GCM and it cannot be waived. That failure to fulfill the condition precedent rendered the action incompetent and the trial itself before the GCM invalid as it was robbed of jurisdiction to entertain the charge – Madukolu V Nkemdilim (1962) 1 All NLR 587; Eze V Okechukwu (1998) 5 NWLR (Pt. 548) 56.

In addition, Counsel submits that this non-compliance amounts to a breach of the fundamental right of the Appellant to fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Reliance is placed on Oseyomon V Ojo (1997) 7 SCNJ 377; Nwabueze V Okoye (1988) 10-11SC 79; Duke V Govt., Cross River State (2013) 8 NWLR (Pt. 1356) SC 347, 353; and Rules 7(1) and 8 of the Rules of Procedure (Army) 1972.

Based on these submissions, Counsel urged the Court to hold that the Respondent failed/neglected to follow due process before

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initiating the charge against the Appellant at the GCM.

In response, learned Counsel for the Respondent submits that the allegations against the Appellant were properly investigated and so the provisions of Section 123 and 124 of the Armed Forces Act were duly or substantially complied with by the Appellant’s Commanding officer. Hence, the General Court Martial (GCM) had the requisite jurisdiction to try the Appellant. Counsel also submits that the Appellant’s right to fair hearing was not violated either at the trial or in the way and manner the investigation of the allegations against him were carried out by the Military Police on referral by his Commanding Officer for further investigation. He relies on Section 168(1) of the Evidence Act, 2011 which provides for the presumption of regularity with respect to official acts.

​The above submissions notwithstanding, Counsel argues that the summary trial of an accused person by his Commanding Officer is not a condition precedent to his subsequent trial by the GCM because the employment of the word “may” in Section 124(2) as opposed to the word “shall” in Section 123

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makes the provision prescriptive and not mandatory. Therefore, that the decisions in Osomoyon V Ojo (supra); Eze V Okechukwu (supra) and Nwabueze V Obi Okoye (supra) relied on by the Appellant on conditions precedent and the consequences of its breach are not relevant to the facts of the case and the Appeal. Counsel relies on the decision of the Supreme Court in Magaji V Nigerian Army (2008) LPELR-1814(SC) 50, C-G where it held that any alleged non-compliance with Sections 123 and 124 of the Armed Forces Act (supra) is nothing more than a perceived irregularity relating to procedure. Therefore, the question of an alleged non-compliance with these provisions is not a question of jurisdiction but one of procedural irregularity which ought to have been raised before or immediately after the charge was read to the Appellant at the General Court Martial. In this regard, he submits that during the arraignment, neither the Appellant nor his Counsel raised any objection on any ground, either before or after the charge was read. Reliance is also placed on Adeta V Nigerian Army (2016) LPELR-40235(CA) 20-21, G-D. Counsel urged the Court to hold that the jurisdiction of

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the GCM was not affected in any way by the alleged non-compliance with the provisions of Sections 123 and 124 of the AFA (supra), and to resolve this issue in favour of the Respondent.

RESOLUTION
The contention of the Appellant at this stage of the proceedings that the trial GCM lacked the competence to have entertained the charge and to try him when no investigation was carried out by the Commanding officer, is surprising. As was submitted by Counsel, this is because from the printed Record of Appeal, neither the Appellant nor his Counsel raised any form of objection, either before or after the charge was read to the Appellant, on the competence of the charge before the. The law is trite that any objection to a charge for any formal defect on the face thereof or for any perceived irregularity relating to procedure or the like, shall be taken immediately after the charge has been read over to the accused, and not later. Both the Criminal Procedure Act – Sections 167 and 168, and the Criminal Procedure Code have similar provisions. See also Agbo V State (2006) 6 NWLR (Pt. 977) 545, 577-578; Okaroh V State (1990) 1 NWLR (Pt. 125) 128, 136-137.

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Notwithstanding this, I shall still look into the provisions of law in the AFA (supra) governing trials before the GCM which has been referred to by learned Counsel, in this regard.
For ease of reference, Sections 123 and 124 of the Armed Forces Act, 2004 provide as follows:
“123. Before an allegation against a person subject to service law under this Act (in this section referred to as the “accused”) that he has committed an offence under a provision of the Act is further proceeded with, the allegation shall be reported, in the form of a charge, to the commanding officer of the accused and the commanding officer shall investigate the charge in the prescribed manner.
124(1) After investigation, a charge against an officer below the rank of lieutenant colonel or its equivalent or against a warrant or petty officer may, if an authority has power under the provisions of this Part and Part XIII of this Act to deal with it summarily, be so dealt with by that authority (in this Act referred to as “the appropriate superior authority) in accordance with those provisions.
(2) After investigation, a charge against a

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non-commissioned officer, soldier, rating or an aircraftman may be dealt with summarily by his commanding officer subject to and in accordance with the following provisions of this Part and Part XIII of this Act.
(3) A charge not dealt with summarily shall, after investigation, be remanded for trial by a Court-martial. (Emphasis supplied)
There is no gainsaying that Section 123 above provides for the investigation of an offence against a person subject to service law in the “prescribed manner”, while Section 124(1) provides for the Commanding officer to deal with the offence summarily in appropriate cases after investigation. By Section 124(3) however, a charge not dealt with summarily shall, after investigation, be remanded for trial by a Court-martial. ​In addition, Sections 125 and 126 of the AFA (supra) expressly provide as follows:
125. “(1) The following provisions of this section shall have effect where the commanding officer has investigated a charge against a non-commissioned officer or soldier, rating or an aircraftman.
(2) Where the charge is one which can be dealt with summarily, the commanding officer may –

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(a) If of opinion that it should not be so dealt with, take the prescribed steps with a view to the charge being tried by a Court-martial;
126. (1) Without prejudice to the provisions of Part XIII of this Act, a commanding officer, shall, if he cannot adequately deal with a charge, and unless he has dismissed the charge, submit it in the prescribed manner to a higher authority who shall thereupon determine how the charge is to be proceeded with in accordance with subsection (2) of this section.
(2) The higher authority may refer the charge to the appropriate superior authority or take the prescribed steps with a view to the charge being tried by the Court-martial.” (Emphasis supplied)
Therefore, pursuant to the above provisions, the Appellant who was charged for the offence of desertion under Section 60(1) (a) of AFA, (Cap. A20) LFN 2004 was taken before a General Court Martial for a full trial, as against trial summarily by his commanding officer.
​On the issue of the conduct of investigations by the commanding officer in consonance with the requirement in Section 123 of the AFA (supra), the evidence before the GCM discloses

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that soon after the Appellant arrived from Birnin Kebbi to his Division in Maiduguri after his 7 month-absence, he was questioned by PW3, Capt. AM Saidu, the Battalion Adjutant of 101 Bn Bravo Company. PW3 then took him before the Commanding officer, “CO Col. EO Ojabo”. In the words of the PW3, “the CO asked him a few questions and after that he ordered that I should write a letter and take him to MP at Maimalari for further investigation, which I did.”
As part of the investigations, the PW3 was asked to write a statement on what he knows about the Appellant and he did so. This is Exhibit D1 before the trial Court. After the investigation, a report was sent to him by the Military Police which he handed over to the Commanding officer.
​From the evidence on Record, PW1, the Military Police officer in charge of the Investigation Department under the 7 Division Prov. GP, received the Appellant along with the letter from his commanding officer which had been brought by PW3. The letter contained the charges/allegations against the Appellant. In the words of PW3 (at page 12 of the Record):
“It contained that the soldier

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absconded his place of deployment at Gwoza on 5 Aug 14, when the Bn was attacked by some suspected BHTs. That he absconded from the location with his personal rifle AK 47 and he has not been seen until after 272 days, he resurfaced without his personal rifle that was entrusted with him and I was directed to investigate where he has been to with the military rifle that was entrusted in his care. This is where I started my investigation my lord.” (Emphasis supplied)
It was in the course of this investigation that PW3 received the statements of the Appellant, Exhibits P1 and P2, the statement of the PW3, Exhibit D1, as well as the Appellant’s statement of account from Stanbic IBTC Maiduguri Branch, Exhibit P3. In particular, the Appellant wrote down his statement himself and also answered interrogatories in writing, all in furtherance of the investigation carried out by PW1, before his subsequent arraignment and trial before the GCM by the higher/superior authority in the person of the Acting GOC Commanding 7 Division Nigerian Army, Brigadier General V.O. Ezugwo on 05-08-16 in line with the relevant provisions of AFA (supra). Thus, it is apparent

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from the above that, in line with Section 123 of the Act, the commanding officer elected not to try the Appellant summarily and instead referred him to the Acting GOC who convened the GCM before which he was tried. By reason of these pieces of oral and documentary evidence contained in the Record, it would be nit-picking and amount to an artful and ingenious fault-finding to say that the commanding officer did not investigate the allegation against the Appellant before he was arraigned before the GCM for trial. Whether or not the commanding officer initiated/ordered the investigation or he conducted the investigation himself is immaterial, so long as an investigation was carried out under his instruction and auspices and the case was found to be one which the commanding officer elected not to try summarily, but sent it to the superior authority who convened the GCM before which the Appellant was ultimately tried. This is undoubtedly in line with the provisions of the law as set out in the relevant sections of the Armed Forces Act referred to earlier on in the body of this Judgment. ​It is apparent from the wordings of Section 123, and following, of

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the Act (supra) that the intention of the Lawmaker is that a person who is subject to service law should not just be taken off the street and rushed before a General Court Martial until it is determined by a very senior officer, i.e. the commanding officer of the accused soldier, that the allegation is of such a grave nature that it cannot be summarily tried by him, but warrants a full and proper trial before a GCM which is prosecuted by a prosecutor and the accused soldier will be allowed legal representation before his fate is determined. This obviously is so as to protect the rights of an accused soldier and to ensure that those rights are respected since the GCM is subject to the Constitution, as well as the other Laws of the land, such as rules of evidence as contained in the Evidence Act, 2011. From the evidence on Record, it is unfair and certainly not in accord with the facts to contend that the commanding officer failed to investigate the allegations against the Appellant before he was arraigned before the GCM. This is in addition to the fact that the presumption of law in Section 168(1) of the Evidence Act, 2011 on the presumption of regularity of

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official acts is activated and applies in this case, unless and until it is otherwise proved. Finally, such an issue as this was canvassed before the Supreme Court in Major Bello Magaji V State (2008) LPELR-1814(SC) 50, 56 which has since settled the matter on the issue of what may be considered investigations by a commanding officer. Learned Counsel for the Appellant in that case had also contended that there was non-compliance with the provisions of Sections 123 and 124 of the AFA (supra) before the Appellant was arraigned for trial before the GCM, in circumstances which are akin to those in the instant case. Ogbuagu, JSC in his Judgment, interrogated the submissions of Counsel and held that based on the facts on Record, the Appellant’s statement which was recorded after he was cautioned, was a clear indication that an investigation was duly carried out in compliance with these provisions. In the instant Appeal, the statements of the Appellant, in conjunction with the Appellant’s statement of account, as well as oral accounts of the investigation carried out by PW1, bear out the fact that there was full compliance with these provisions as

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to the conduct of investigation under the auspices of the commanding officer before the trial of the Appellant at the GCM. ​It is also my view that contrary to the submissions of learned Counsel for the Appellant, Sections 123 and 124 of the AFA (supra) do not contemplate that two full-fledged trials in respect of the charge/allegations against the Appellant, would take place sequentially, to wit: firstly by the commanding officer and secondly by the GCM. Such an interpretation, as suggested by learned Counsel, would not only be absurd but would amount to double jeopardy. Instead, as reinforced by Rules 7(1) and 8 of the Rules of Procedure Army (1972), the commanding officer is only mandated to carry out such a detailed step-by-step investigation where the accused soldier is tried summarily for the offence. The procedure set out therein amounts to a full blown trial of an accused soldier by his commanding officer after due investigation of the charge against him. This is because (i) a plea is taken, (ii) prosecution witnesses testify, (iii) are cross-examined by the accused, and (iv) the accused calls witnesses in his defence. For the avoidance of doubt,

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the provisions of the substantive law in Sections 123 and 124 of the AFA (supra) accommodates this procedure only where the commanding officer decides to proceed against the accused soldier summarily by way of a summary trial, and not when he is to be charged before a General Court Martial (GCM).
Where however, after due investigation of an allegation, an accused soldier is to be tried by a GCM, then he cannot be made to go through a summary trial procedure in the manner described in Rules 7 and 8 of the Rules of Procedure Army (supra) above. That would be a misnomer and would, as aforestated, amount to double jeopardy which is a contravention of a citizen’s fundamental right under Section 36(9) and (10) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). With the greatest respect to learned Counsel for the Appellant, he has misconceived the provisions of the substantive Law and Rules in this regard and in the circumstances of this case.
Learned Counsel has also relied on the often-cited case of Madukolu V Nkemdilim (1962) All NLR 587 on jurisdiction. With respect, once again the case does not apply here. The General

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Court Martial that convicted the Appellant was properly constituted “as regards numbers and qualifications of the members”. No member of the General Court Martial was disqualified. The offence was within the jurisdiction of the General Court Martial. The case came before the General Court Martial by due process of law and after complying with investigation, a condition precedent to the exercise of jurisdiction of the General Court Martial. Thus, the Appellant has been unable to show how his right to fair hearing has been breached by an alleged non-investigation of the case, which was similarly not established. Indeed, fair hearing is not a magic wand to be waved about as a trump card by Counsel in any and every situation to serve as an anchor in a stormy sea. Section 36(1) of the Constitution (supra) provides-
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and

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impartiality.”
However, the Appellant has failed to show how his right to fair hearing under Section 36(1) has been breached. Hence, Counsel should heed the several admonitions by the Supreme Court that the doctrine of fair hearing as enshrined in Section 36(1) of the Constitution (supra) should cease to be abused by both litigants and Counsel just because a party is struggling to make out a case. See Inakoju V Adeleke (2007) LPELR-1510(SC) 231, per Ogbuagu, JSC; & MM Services Ltd V Oteju (2005) 5 SCNJ 100, 117, 118-119; (2005) 14 NWLR (Pt. 945) 517, per Tobi, JSC and Edozie, JSC. In particular, in the case of Orugbo V Una (2002) 16 NWLR (Pt. 792) 175, 211, Tobi, JSC in his inimitable way, exhorted Counsel on their frequency in brandishing the right of fair hearing in any and every situation, whether merited or not, in these words:
“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation, in the

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interest of fair play and justice. The Courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle, which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.”
The facts of this case certainly do not support the invocation of the principle of fair hearing in favour of the Appellant because the Appellant has not been able to substantiate the allegation of an absence of investigation by the Appellant’s commanding officer. These are the facts. The issue accordingly fails and is resolved against the Appellant.

Issue two – Whether the offence of Desertion in Count 1 of the Charge was proved beyond reasonable doubt.
Under this issue, learned Counsel for the Appellant submits that the Respondent did not prove the offence of desertion under

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Section 60(4) (a) of the Armed Forces Act, 2004. The first basis for this contention is that Exhibit P2 (the Appellant’s additional statement) and Exhibit P3 (the Appellant’s statement of account) both of which the lower Court relied upon in arriving at its decision, are not admissible in law.

For Exhibit P2, Counsel contends that it is the product of a question and answer session prepared by a superior of the Appellant on a sheet of paper and as such, it is not voluntary. Upon its being tendered, the Appellant objected to its admissibility in evidence on this ground. In addition, Counsel submits that he raised an objection to the admissibility of Exhibit P2 on the ground that it was the product of duress and a promise. Also, that during the Appellant’s evidence as DW1, he stated that he was beaten and tortured by PW1 and that this evidence is uncontroverted and so deemed admitted. Consequently, he argues that for these two reasons, the GCM should have ordered for a trial-within-trial to test the voluntariness or otherwise of the confessional statement. He relies on Ehot V State (1993) 4 NWLR (Pt. 290) 644; Okoro V State (1993) 3 NWLR

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(Pt. 282) 425; Nigerian Army V Yakubu (2013) 7 NWLR (Pt. 1355); Namsoh V State (1993) 5 NWLR (Pt. 292) 129, 144, B-D; Salawu V State (2009) LPELR-8867(CA).

In respect of Exhibit P3, which is a computer-generated statement of account of the Appellant with Stanbic IBTC, Maiduguri, Counsel submits that the document failed to comply with Sections 83(1) (b) and 84(1), (2) and (4) of the Evidence Act, 2011, and so it was inadmissible in evidence. He contends that the requirements for the production of a certificate under Section 84(4) to establish that the computer which produced the statement is reliable, as well as oral evidence in respect of same, were not met. Counsel also submits that Exhibit P2 was predicated on Exhibit P3 and so both documents are inadmissible in law, and so any decision predicated on them is invalid and void. Reliance is placed on Anvar V Basheer (no citation supplied); Abubakar V Nasamu No. 2 (2012) 17 NWLR (Pt. 1330) 523.

​On the charge of desertion, Counsel submits that from the facts and circumstances of the case, the Appellant never intentionally deserted his duties and obligations. He contends that the prosecution failed to

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prove the ingredients of the offence of desertion under Section 60(4) (a) of the AFA (supra). Counsel further submits that by Section 122(3) Evidence Act, 2011, the Court is expected to take judicial notice of media reports and the report on the internet of the deadly attack on the Appellant’s Unit at Gwoza by Boko Haram Terrorists (BHTs) on 05-08-14. He argues that the fundamental question to ask is, whether the incident of 05-08-14 which led to the sack of the Appellant’s Unit by Boko Haram Terrorists (BHTs) at Gwoza, amounts to desertion under Section 60(4) (a) of the AFA (supra)? He submits that the prosecution failed to prove that the accused person intended to leave the service of the Armed Forces and that he permanently intended not to join or re-join the Armed Forces. Counsel therefore submits that the trial GCM failed to evaluate the totality of the evidence in arriving at its decision. Reliance is placed on Momoh V Umoru (2011) 6-7 SC (Pt. 1) 80; Boy Muka V State (1976) 9-10 SC 193.

Counsel finally prayed the Court to hold that from the facts and circumstances of the case, including the contents of Exhibit D3, the Respondent failed

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to prove the offence of desertion and the GCM was not justified when it convicted the Appellant for the offence. He urged the Court to allow the Appeal and make a consequential order reinstating the Appellant to the service of the Respondent.

In response, learned Counsel for the Respondent submits that Exhibits P2 and P3, not being documents that are inadmissible per se, were properly admitted when there was no proper objection to their inadmissibility at the point of tendering in evidence. He relies on the Supreme Court decision in Awusa V Nigerian Army (2018) LPELR-44377(SC) 61-62, E-F for the ingredients to be proved in an offence of desertion under Section 60(1)(a) of the AFA (supra), and submits that Exhibits P2 and P3 were offered in proof of these ingredients and were duly admitted in evidence.

​In respect of the objection raised to the admissibility of Exhibit P2, the additional statement of the Appellant, Counsel submits that the ground of objection raised by Counsel for the accused was based on an allegation of “a promise” made to the Appellant when he was making the Statement (pages 21-22 of the Record). He submits that by

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Section 31 of the Evidence Act, 2011, a promise is not a ground upon which a confessional statement that is relevant, can be objected to. Hence, the ground upon which the Appellant raised an objection to the admissibility of the Exhibit P2 in evidence is not one that warranted a trial-within-trial having regard to Section 31 of the Evidence Act (supra).

Counsel further submits that by the same provision, Exhibit P2, although an interrogatory statement of the Appellant recorded in the course of investigation, is not inadmissible merely because it is the outcome of an interrogation, i. e. made in the course of a question and answer session. He submits that the Appellant was sufficiently warned beforehand as is reflected in the words of caution on the Interrogatory Form – Exhibit P2, which were duly signed and dated by the Appellant himself. Counsel distinguished the facts of this case from those in Namsoh V State (supra) and Salawu V State (supra) relied on by the Appellant.

In respect of Exhibit P3, (the computer-generated statement of account), Counsel submits no objection was raised to it on any of the grounds in Section 83 or those in Section 84 of the Evidence Act  ​

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(supra). He refers to the extensive exchange between learned Counsel to the accused person and the Judge Advocate at the GCM at the point when the document was tendered in evidence (pages 70, and 71-80 of the Record). In addition, Counsel contends that the document is relevant and relevance is the cardinal determinant for admissibility – Nwabuoku V Onwordi (2006) All FWLR (Pt. 331) 1236, 1251.

Counsel further submits that Exhibit P3 is a document that is not made inadmissible on the grounds of any statutory exclusionary provisions. Rather, it is admissible upon the fulfillment of conditions stipulated in Section 84 of the Evidence Act (supra). That being so, Exhibit P3 was admissible in evidence per se, there being no objection from the Appellant’s Counsel at the point it was tendered – Anyaebosi V RT Briscoe (1987) LPELR-506(SC) 45-46, E-B. Counsel therefore submits that the objection now strenuously canvassed and argued by the Appellant is too late in the day and therefore unavailing.

​In respect of the submission that Exhibit P3 was inadmissible also because there was an alleged non-compliance with Section 83(1)(b) of the Evidence Act

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(supra) on the ground that PW2, through whom the document was tendered was not the maker, Counsel submits that this also cannot avail the Appellant since the provision does not constitute a statutory exclusion to the admissibility of documents and there was no objection raised in the instant case. The Appellant cannot therefore be heard to raise an objection belatedly or a complaint on appeal by alleging non-compliance with Section 83 (supra) – Onyenwe V Anaejionu (2014) LPELR-22495(CA) 42-43, G-A.

Again, in respect of the alleged tampering and alteration of Exhibit P3, Counsel submits that it was not raised as a ground in the Notice of Appeal nor is it stated as a particular in support of any of the grounds. Thus, the submissions thereon should be discountenanced. In addition, it is not supported by any evidence on Record and Counsel’s submissions cannot substitute evidence – Onuegbu V Okafor (2016) LPELR-41513(CA) 15-16, E-D.

Based on these submissions, Counsel submits that Exhibits P2 and P3 were lawfully admitted in evidence and the GCM was right to have relied on same in convicting the Appellant for the offence of desertion.

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He also submits that even though Exhibit P2 was retracted in Court, it was amply supported and corroborated by Exhibit P3 as well as the testimonies of PW1 and PW2, and so was rightly relied upon by the GCM to convict the Appellant.

Counsel also refers to the Judgment of the GCM (page 214 of the Record) to submit that contrary to the contention of the Appellant, the trial Court properly evaluated the evidence adduced before arriving at its findings, in the course of which it made observations on the Appellant’s demeanor and credibility as DW1. He therefore urged the Court not to disturb those findings.

​In respect of Exhibit D3, a Signal dated September, 2014 tendered by the Appellant’s Counsel wherein the Appellant was declared missing-in-action (MIA), Counsel submits that the Signal was made about one month after the attack on the Appellant’s Unit by Boko Haram Terrorists (BHT). However, in view of the evidence showing that the Appellant refused to return to his Unit thereafter at the earliest opportunity and instead, proceeded on an unauthorized sojourn to Aba in Abia State and Calabar in Cross River State before reporting to his

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Mother Unit in Birnin Kebbi in June, 2015 from where he was referred to 26TF Bn Maiduguri, it does not exculpate him from being absent from duty and so culpable for the offence of desertion – Awusa V Nigerian Army (supra).

Counsel finally submits that the charge of desertion was proved beyond reasonable doubt and that Exhibit D3, taken together with all the evidence adduced before the trial Court proved the guilt of the Appellant beyond reasonable doubt, and the trial GCM properly evaluated all the evidence adduced before it and so, no miscarriage of justice was occasioned by its decision – Section 185 of the AFA (supra); Onagoruwa V State (1993) LPELR-43436(CA) 89-89, D-E. He urged the Court to resolve this issue in favour of the Respondent, dismiss the Appeal and affirm the conviction and sentence of the Appellant.

RESOLUTION
The Appellant herein was charged on a two-count Charge before the trial GCM. However, he was only convicted on Count 1 for desertion, while he was discharged and acquitted on Count 2 for the offence of losing 1 x AK 47 rifle, 3 x AK 47 Magazines and 120 Rounds of 7.62mm (special) ammunition, Service properties of the

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Nigerian Army entrusted to his care. The Charge under count 1 reads as follows:
“Count 1
STATEMENT OF OFFENCE
Being a person subject to service law is charged with desertion punishable under Section 60(1) (a) of the Armed Forces Act Cap A20, LFN 2004.
PARTICULARS OF OFFENCE
In that he, at Alpha Company 101 Battalion Gwoza, Bornu State on or about 5 Aug 2014 absconded from his unit without permission for a period of 272 days while the Unit was engaged in operations against Boko Haram Terrorists.”
The offence of desertion is defined in Section 60(1) (a) of the Armed Forces Act (AFA) as:
“A person subject to service law under this Act who –
(a) Deserts
(b) …
is guilty of desertion 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.”

Upon his arraignment, the Appellant pleaded not guilty. The Respondent therefore adduced evidence in proof of the allegations in the charge through 3 witnesses, being the Military investigator (PW1), the Relationship Manager with Stanbic IBTC Bank in Maiduguri

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(PW2) and the Battalion Commander of the Appellant (PW3); as well as through 3 Exhibits, being the statement of the Appellant (Exhibit P1), the additional statement of the Appellant (Exhibit P2) and the Appellant’s computer-generated statement of account with Stanbic IBTC (Exhibit P3). On his own part, the Appellant testified in his defence and tendered three Exhibits, being Exhibit D1, the Statement of PW3; Exhibit D2, the Signal signed by Major-General A.B. Abubakar dated 03-09-15; and Exhibit D3, the Signal titled “HQ 26 TF BDE equipment and casualty suffered after BHT attack on Gwoza on 5th August, 2014 and Bama on 1st September, 2014 including current BDE parade”, dated 20-09-14, and signed by Col. A. Laguda.

​In order to sustain a conviction for the offence of desertion under Section 60(1) (a) of the Act (supra), the prosecution is required to prove that (i) the Appellant absented himself from work without leave, (ii) with intent to avoid service when his Unit came under attack by Boko Haram Terrorists on 05-08-14 and (iii) failure/refusal to rejoin his Unit thereafter. In this regard, the prosecution offered the evidence of PW1, the

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Military Police officer who was assigned to investigate the allegations when the Appellant was handed over to him upon his arrival at the 101 Division NA in Maiduguri in June, 2015. PW1 gave explicit evidence on how he explained the allegation to the Appellant and cautioned him before he (Appellant) volunteered a statement written in his own handwriting (Exhibit P1), essentially denying the allegations. Thereafter, in the course of his investigations, PW1 discovered from the Appellant that his salary account was domiciled with Stanbic IBTC and that during his 7-month absence from duty, it was his wife, one Becky Gimba, who was making withdrawals from his salary account. PW1 therefore proceeded with the Appellant to his Bank for further investigations. There, the Appellant applied for and received his statement of account covering the period in question, Exhibit P3. Upon their return to the Division, PW1 asked the Appellant further questions in the form of a written interrogatory, which the Appellant answered in his own handwriting, Exhibit P2, the additional statement which was now confessional in nature.

​PW2, a Relationship Manager with Stanbic IBTC

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Bank testified to throw further light on the Appellant’s statement of account, Exhibit P3. Upon being questioned by the prosecutor, he confirmed that during the period in question, the Appellant’s statement of account disclosed that several withdrawals were made from the account via his ATM card from different locations in the country, such as Aba in Abia State, Calabar in Cross River State and Birnin Kebbi in Sokoto State. In addition, a withdrawal was made by the owner of the account himself, i.e. the Appellant, via a counter cheque, but he couldn’t say from what location. PW2’s evidence served to establish that, contrary to the Appellant’s statement in Exhibit P1 that after his escape from the Boko Haram terrorists, he remained in the bush and surrounding villages around Gwoza in Bornu State for 7 months, his ATM was used to withdraw various sums of money at Aba, Calabar and Birnin Kebbi. No doubt this evidence was offered in further substantiation of the charge of desertion.

​The evidence of PW3, Capt. A.M. Saidu, on the other hand was to establish how, when the Appellant finally surfaced in his Mother Unit in Birnin

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Kebbi, the officer in charge there directed him to report back to his Unit in Maiduguri and so called to inform the PW3 of the Appellant’s impending arrival. When the Appellant finally arrived at the Unit in Maiduguri and reported to PW3 in June 2015, PW3 put questions to him on where he had been for this length of time to which he replied that he had been lost in the bush of Gwoza for 7 months after his escape from Boko Haram terrorists and couldn’t find his way back to his Unit. Thereafter, PW3 then took him to the commanding officer who, after also questioning him, directed that he be handed over to the Military Police for further investigation. In compliance with the directive, PW3 prepared a covering letter and handed the Appellant over to the PW1 and upon request from the PW1 (the Investigator), he also wrote a statement on the role he had played so far.

​In his defence, the Appellant testified and called no other witness. He however tendered three documents, namely Exhibits D1, D2 and D3 being the PW3’s statement and two Signals on the attack of the Appellant’s Unit at Gwoza on 05-08-14 declaring the Appellant and other

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soldiers missing-in-action (MIA). The crux of the Appellant’s testimony at the trial GCM (as DW1) is essentially in tandem with his first written statement in Exhibit P1. He stated that after his Unit was attacked by Boko Haram terrorists in Gwoza, he was captured for a short while and his rifle was taken from him. The terrorists beat and tortured him shortly after which Nigerian Air Force Jets came to the rescue, bombarding the area and causing them to flee. He therefore escaped into the bush the same day but couldn’t find his way back to his Unit. He therefore stayed in a village, the name of which he does not know where a man, whose name he did not know, harboured him for a period of three months. Thereafter, with the help of this unnamed villager, he moved to another village which again he could not name, and received shelter from another man, whose name he again did not know, for a further period of four months. After a total period of seven months, he was able to find his way through the bush with the help of the villagers, to Yola in Adamawa State. From there, a good Samaritan paid his transport fare to Sokoto from where he rejoined his

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Mother Unit in Birnin Kebbi. Under cross-examination, the Appellant could not tell if the vehicle in which he travelled to Sokoto encountered any security check-points on the road where he could have lodged a report about his ordeal in the bush or sought assistance. From the printed Record, contrary to the smooth delivery of the Appellant’s testimony in his examination-in-chief, he developed remarkable amnesia and evaded most of the questions put to him by the prosecutor under cross-examination. No wonder the Judge Advocate in his Final advice to the GCM on the facts and the law, made adverse observations on his demeanor and lack of credibility, and it is obvious that the trial GCM agreed with him and acted on it.

Section 60(4) of the AFA (supra) provides –
“For the purpose of the section and other section of the Act, a person deserts who:
(c) Absents himself without leave with intent to avoid service or any particular service when before the enemy.”
​It is not disputed that the Appellant was a person who was subject to service law. The allegation against him in Count 1 of the charge, as buttressed by the evidence, lies under

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Section 60(4) (c) of the Act (supra). He is charged of having absented himself from duty without leave with an intent to avoid service when his Unit came under attack by Boko Haram Terrorists in Gwoza on 05-08-19. The evidence offered in proof of this allegation in the main are Exhibits P2 and P3 tendered through the PW1. There is no doubt that these documents are damning to the Appellant and that explains why he has launched scathing attacks against them in this Appeal.

In respect of Exhibit P2, the Appellant contends that it should be discountenanced because the trial GCM failed to test its admissibility by conducting a trial-within-trial when Counsel had raised an objection contending that it was obtained by duress and through a promise. The Respondent’s Counsel has countered this and contends that the objection raised was in a manner which was vacillating and uncertain ranging on an alleged duress or promise, referring to pages 21-23 of the Record. I have read the objection raised by the Appellant’s Counsel and the exchanges thereon with the prosecution, Judge Advocate and then the ruling of the GCM. I agree in toto that learned Counsel for

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the Appellant was clearly equivocating and imprecise in his objection to the document in question. While he did mention the word “duress”, the substance of the objection was that the Appellant was deceived into making Exhibit P2 based on the promise made to him by PW1 that he would be REJABBED to Jaji like other soldiers in similar circumstances who had returned to their Units after such attacks. For ease of reference, Counsel’s objection as recorded at page 21 of the Record is as follows:
“… my lord, with humility we tend to oppose the admissibility of this so called additional statement of the accused soldier on the ground that the statement was obtained from the accused soldier under duress or with a promise that if admitted as it is that conditions would be made available in his favour. My lord our objection is predicated under Section 29 of the Evidence Act which is basically on the ground of both duress and promise but the higher one is promise.” (Emphasis supplied)

He went further at page 22 of the Record to expatiate thus:
“Earlier statement he made that is the statement of 17th June 2015, so the

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subsequent or additional statement was meant for him to be admitted in other (sic) to contradict his earlier statement simply because a statement of account was obtained and he was given a promise, a promise that if you do, no problem you would get REJABBED just like every other soldier who has absconded. You better say the truth because what you were telling us in your previous statement is not believable and that he has made it that he is not satisfied with what he told him therefore you better admit for your own interest so that you would be treated like every other soldier who had similar problem with you.” (Emphasis supplied)

In the light of the above, it is obvious to me, as it was to the trial GCM, that the objection is grounded on the promise that was allegedly made to the Appellant which apparently persuaded him to make the Additional Statement (P2). I therefore agree with Counsel to the Respondent that the applicable provision in these circumstances is Section 31 of the Evidence Act, 2011 and not Section 29 thereof. By Section 31 (supra), a promise is not a ground upon which a confessional statement which is relevant to a proceedings, can

40

be objected to or used to exclude a document which is relevant in evidence. For the avoidance of doubt, Section 31 of the Evidence Act (supra) provides –
“31. If a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practiced on the defendant for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of these questions or because he was not warned that he was not bound to make such statement and that evidence of it might be given.” (Emphasis supplied)
Therefore the Appellant, having hinged his objection on the allegation that it was obtained by reason of “a promise” that he would be REJABBED along with other soldiers and so essentially his period of absence from duty would be overlooked, cannot succeed on this ground because of the express provision in Section 31 (supra), the additional statement, Exhibit P2, having been shown to be relevant to these proceedings. Thus, Section 29 of the Act (supra) is not applicable.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The second ground for objecting to Exhibit P2 is that it was the result of a question and answer session. From the evidence of PW1, before the written questions in the Interrogatory were given to the Appellant, he was duly cautioned and the express wordings of this caution are contained on the face of the document which he signed. The words of caution on Exhibit P2 read as follows:
“I wish to put some questions to you. You are not obliged to answer any of these questions. But if you do, the questions and answers will be taken down in writing and may be given in evidence.”
Thus, the Appellant having been duly and sufficiently cautioned/warned, signed the words of caution in acceptance of the conditions implicit therein and volunteered answers to these questions, which answers he wrote down in his own handwriting and proceeded to sign and date each of the 7 pages comprising the additional statement, without any evidence of force, duress or the like. In the light of these facts, I agree with learned Counsel for the Respondent that the decisions in Namsoh V State (supra) and Salawu V State (supra) where in contradistinction Police officers,

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as opposed to the accused persons themselves, recorded answers to the questions put to them, are not applicable to the facts of this case.

In respect of Exhibit P3, the Appellant’s computer-generated statement of account, the objection of the Appellant is hinged on Sections 83 and 84(1) (2) and (4) of the Evidence Act (supra). The rules governing the admissibility of documents in Courts are well defined. Once a document is relevant and properly pleaded (in civil cases), it is admissible. However, where the document is also computer-generated, Section 84(1) (2) and (4) of the Evidence Act (supra) provides an elaborate guide on how to treat same where a party seeks to have it admitted in evidence in a trial. ​To begin with, an examination of the Record of proceedings of the trial GCM discloses that at the point of tendering the document, no proper objection was raised by the Appellant against its admissibility. Counsel for the Appellant however sought to introduce a novel practice where he nonchalantly stated that the document could be admitted in evidence “provisionally” in order to save time, and that he would make his objection

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known only at the close of trial in his final address to the GCM. When he was pressed to state the nature of his objection, he firmly declined insisting that he would only make it known at the close of trial in his final address. This adamant position of Counsel led to a hullabaloo taking up much valuable time of the trial GCM until it was ultimately admitted in evidence when Counsel insisted on his position in these terms at page 71 of the Record:
“… I am not against its going in but am trying to give a tip to the honourable Court to expect an address that will come forth after this segment. I don’t know if you get what I am saying.”
​Apart from the arrogance of Counsel in refusing to divulge the ground of his objection and yet insisting on a “provisional objection”, the Supreme Court per Tobi, JSC has long admonished that trial by ambush is not allowed in our hallowed Courts. All cards must be placed on the table by parties so that one side is not taken unawares but is put on notice and is aware of the case he is coming to meet. Where the prosecutor has presented his case upfront and is putting into evidence a vital

44

document which he intends to rely on, it will not do for Counsel for the accused person to play a game of hide-and-seek by refusing to clearly state his position on the admissibility of the document, one way or another, so that the GCM could make a considered ruling on the objection. This is not an election petition where the current rules explicitly provide for a party to reserve his objections until after trial for reasons of expediency and speed given the constitutional time limit of 180 days attached to such trials. Therefore, in the absence of any proper objection to the admissibility of the document, the GCM admitted the document in evidence.
​However, with regard to the conditions set out in the Evidence Act on the admissibility of the document which the Appellant subsequently raised in his final address and is now argued in this Appeal, I agree that it cannot be overlooked. It is indeed the law that relevance governs the admissibility of documents in Court. Nonetheless, where such documents are computer-generated, they must in addition comply with the provision of the statute that governs their admissibility in Court before it can be used, which

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is the Evidence Act, 2011. In the instant case, the conditions are as set out in Section 84(1) (2) and (4) of the Evidence Act (supra).
In the instant Appeal, the PW2 (the Relationship Manager of Stanbic IBTC), through whom the Appellants’ statement of account Exhibit P3, was tendered, readily admitted that he was neither the maker of the document nor was he in a position to certify the device i.e. the computer from which the statement was generated. Consequently, there was a complete lack of compliance with the conditions in Subsections (1) and (2) of the Act (supra) for the admissibility of the document. This position, even though highlighted during the cross-examination of PW2, was not subsequently remedied by the Respondent with the subsequent production of proper certification of the computer, either by oral or documentary evidence in line with Subsection 84(4) of the Act (supra). Learned Counsel for the Respondent readily conceded to this in Paragraph 5.21 of the Respondent’s Brief of argument in this Court where he said:
“Exhibit P3 is computer generated evidence and is therefore inadmissible per se, but admissible subject to

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the conditions stipulated in Section 84 of the Evidence Act, 2011;”
Nonetheless, he has argued that since the document was tendered and admitted in evidence without a proper objection from Counsel for the Appellant, he cannot now be heard to complain. Much as I deprecate the attitude of Counsel for the Appellant in the inappropriate manner in which he made a supposed “provisional objection” at the point the document was tendered, without going on to state his grounds of objection, this Court is unable to close its eyes to the express statutory requirements of the relevant statute on the admissibility in evidence of this character of evidence.
Since there is no gainsaying the fact that the conditions of the statute in Section 84(1) (2) and (4) thereof were not met with/fulfilled, the said computer-generated statement of account should not have been admitted in evidence, and having been admitted, it should have been subsequently discountenanced or expunged from the Record. It is therefore for these reasons that I find that Exhibit P3 is inadmissible in law and it is hereby expunged from the Record – Abubakar V Nasamu (No. 2) 2012) 17

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NWLR (Pt. 1330) 523.

Thus, the question now is, whether from the lawful evidence on Record comprising of the oral evidence of PW1 and PW3, as well as the Exhibit P2 (the Additional Statement of the Appellant), the charge of desertion was proved beyond reasonable doubt? Exhibit P2 is a confessional statement freely made by the Appellant in his own handwriting which by law, is sufficient to prove the Charge against him, even though it was subsequently retracted in Court – Oseni V State (2017) LPELR-42770(CA) 36-37, D-A.
The question is, is there anything outside this confession which makes it likely that the confession is true? I believe the answer to this is in the affirmative and can be found in the evidence of PW1 and PW3, both of whom testified as to the Appellant’s absence from duty without leave for a period of 272 days and his subsequent return in June, 2015. Thereafter, the Appellant himself filled in the gaps of what transpired during this period of 272 days when he was away after the attack by the BHTs, his temporary capture and almost immediate release by them on the same day, and his refusal/failure to return to his Unit to assume

48

duty for a period of 272 days, all the while still receiving his salaries and making withdrawals of same through his salary account with Stanbic IBTC, using his ATM Card and a counter cheque leaf.
​The Charge against the Appellant is that he absconded from his Unit for a period of 272 days from 5th August, 2014 until June, 2015. In Exhibit P2, the Appellant unreservedly admitted to having personally withdrawn various sums of money at various times from his salary account with Stanbic IBTC within the period of 272 days of his absence from duty. From Exhibit P2, these withdrawals were made by the Appellant himself from Aba and Calabar, at a time when he was supposedly lost in the bush and surrounding villages near Gwoza and Cameroon. Specifically, in Exhibit P2, he admitted making the withdrawal of 29-10-14 at Abangwa road in Aba where he had gone to stay with his brother, Ifeanyi Umungama and manned his shop (page A15 of Exhibit P2 contained at the back pages of the Record). Again, on 27-11-14, he made another withdrawal from Abangwa in Aba. Yet again, on 05-05-15, he visited another of his brothers at Calabar where he made a withdrawal of N5000.00 (page

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A16 of the Exhibit P2).
The law is trite that a Court can convict an accused on his retracted confessional statement. However, it is safer to find some evidence outside the confession which makes it likely that the confession is true. I find this quality of evidence in the evidence of PW1 and PW3. Therefore, based on the confessional statement, albeit retracted, and the circumstantial evidence adduced in the trial as reflected in the printed Record, there was sufficient evidence upon which the trial GCM based the conviction of the Appellant for the offence. The trial GCM had the legal basis to rely on the confession in Exhibit P2 to find the Appellant guilty of the charge as it did in its Judgment, particularly at pages 214-220 of the printed Record inter alia as follows:
“It is therefore very clear and beyond reasonable doubt that the accused soldier on escape travelled to the eastern part of the country and unwilling to rejoin legal forces in wilful disregard to known laid down military procedures on rejoining of forces. He clearly intended living the life of a deserter while at the same time enjoying his remuneration and allowances. This is

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criminal, unpatriotic and cannot be overlooked by this Court. Finally it is the opinion of this honourable Court that the prosecution has proved its case against the accused soldier beyond reasonable doubt.”

In respect of Exhibit D3 tendered by the Appellant in his defence, it is a Signal emanating from the Military authorities wherein the Appellant was listed among other soldiers of 26 TF Battalion that were declared missing-in-action (MIA) after the attack on their Unit in Gwoza by Boko Haram terrorists. It is dated September, 2014 and so was sent about one month after the attack on 05-08-14, when the soldiers declared MIA had neither been found dead or alive, nor had they returned to their Unit. However, from the confessional statement, Exhibit P2, the Appellant had actually successfully made his way out of the bush and proceeded post-haste to Aba in Abia State, and then even leisurely visited Calabar in Cross River State to see his brother between the months of September, 2014 and May, 2015. These facts contained in his confessional statement were sufficient to establish that the Appellant was no longer missing-in-action but was in a position to

51

have rejoined his Unit, and yet he refused and/or failed to do so at the earliest opportunity, until June, 2015, 272 days later, when he casually resurfaced at his Mother Unit in Birnin Kebbi. The fact that he resurfaced on his own terms and at a time of his choosing 272 days after the BHTs attack, and reported to his Mother Unit in Birnin Kebbi instead of to the Unit where he had been redeployed prior to the attack, does not exculpate him from being held culpable for for the length of time he had been in desertion. There was clearly no disability preventing him from returning to his Unit. Instead, from his ipsidixit contained in his confessional statement, Exhibit P2, he chose to remain with his brother in Aba, Abia State to help him sell his goods (page A16 of Exhibit P2) in order to avoid further service with his unit in Gwoza, Borno State. This view of what desertion entails has been endorsed by the apex Court in Awusa V Nigerian Army (2018) LPELR-44377(SC) 16, 18, E where it held:
“… culpability for desertion attaches where an Accused fails to join or leaves his unit to avoid service in particular circumstances…”

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Therefore, it is based on all these pieces of evidence and considerations that the trial GCM, after due evaluation, convicted the Appellant for the offence of desertion. I find no reason to interfere with its sound findings.

In respect of the complaint that the trial GCM failed to properly evaluate the evidence, I have again examined the Judgment at pages 213-220 of the printed Record on Count 1 of the charge for which the Appellant was convicted. Contrary to this assertion, I find that in line with the prescription of law, the trial GCM properly evaluated the evidence adduced in arriving at its findings.
​In addition, this Court is mindful of the fact that with regard to findings of facts, the evaluation of evidence and ascription of probative value to the evidence is the forte of the trial Court, i.e. the GCM in the instant case. Once the trial Court has discharged its duty on the strength of the evidence placed before it, unless it is established that its findings and conclusions were perverse and not supported by the evidence adduced before it, an appellate Court will not interfere where the conclusion reached is correct, even if the reasoning turns out to

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be wrong – Ndayako V Dantoro (2004) 13 NWLR (Pt. 889) 187; 198. Consequently, an appellate Court is loath to interfere with the Judgment of a trial Court when it was not privileged to see the witnesses testify and observe their demeanour. It is for this reason that appellate Courts do not, as a matter of course, readily substitute their own views for that of trial Courts except where it is established that such decisions were perverse – Sa’eed V Yakowa (2013) All FWLR (Pt. 692) 1650, 1681. In other words, an appellate Court will only intervene to re-evaluate the evidence where it is shown that the findings made and the conclusions reached by the trial Court did not flow from the proved facts, or runs contrary to the proved facts, and so is perverse.
Additionally, the Armed Forces Act (supra) and Rules of Procedure (Army) (supra) set down the law and procedure governing the findings of a General Court Martial in Section 141(1) of the Act as follows –
“Without prejudice to the provisions of Section 139 of this Act, the finding of a Court-martial on each charge shall be announced in open Court and, if the finding is guilty, shall be,

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and be announced as being subject to confirmation.”
See also Rule 67 of the Rules of Procedure (Army) 1972.
In interpreting this provision and giving flesh to it, in particular on the issue of Judgment writing by a trial GCM, the Supreme Court in the case of Major Bello Magaji V Nigerian Army (2008) LPELR-1814(SC) 67, A-G; (2008) 8 NWLR (Pt. 1089) 338, 394, held that the GCM cannot be equated to the regular Courts where strict procedures are required, as it is no more than a tribunal and, at best, it can be equated to a jury trial. Ogbuagu, JSC intoned inter alia as follows –
“It must be borne in mind that the GCM cannot be equated to the regular Courts, where strict procedures are required. It is no more than a tribunal and at best, it can be equated to a jury trial. Even in the regular Courts, it has been stated and restated that there is no specific style of writing a judgment… I do not think that in the absence of an elaborate and detailed written judgment by the Court Martial, as contended by the Appellant in this appeal that alone should be the ground to set aside the judgment of the Court, once the essential ingredient

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of the offence of sodomy was established beyond reasonable doubt.”
In the light of the above guidance, I am of the view that the Judgment of the trial GCM meets the requirements of the law as it adequately considered the facts of the case, applied the relevant principles of law to the facts and made specific and proper findings on the issues arising and presented to it for determination. Also, the Judgment has not been shown to be perverse as it does not run counter to the evidence nor has it taken into consideration extraneous matters nor shut its eyes to the obvious – Terver V State (2015) LPELR-24787(CA) 17, A. Therefore for all the afore-stated reasons, I resolve issue two against the Appellant.

Consequently, having resolved both issues for determination against the Appellant, I find no merit in the Appeal. It fails and is dismissed.

​Accordingly, I affirm and uphold the Judgment, conviction and sentence of the General Court Martial sitting at 7 Division of Nigerian Army Maiduguri in Bornu State delivered by its President, Brigadier-General O.G. Adeniyi, on 1st February, 2017 and confirmed by the confirming authority on 1st August,

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2017.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to read the draft of the lead Judgment delivered by my learned brother, JUMMAI HANNATU SANKEY, JCA.
I am in total agreement with the reasoning and conclusion reached therein and I have nothing else to add.
I therefore abide by the orders made therein.

MUHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading the judgment just delivered by my learned brother JUMMAI HANNATU SANEKY, JCA. Having resolved both issues for determination in favour of the Respondent against the Appellant. The appeal failed for lack of merit and it is accordingly dismissed. I have nothing more to add. I agree with the conclusion and adopt them as mine.
I abide by all consequential orders.

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Appearances:

A. Onimisi, Esq. for the Appellant holding the brief of Jack Iyioku, Esq. For Appellant(s)

A.I. Wokdung, Esq. for the Respondent holding the brief of A.I. Omachi, Esq. For Respondent(s)