L.T S.W. OSINOWO v. NIGERIAN NAVY
(2019)LCN/12609(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of January, 2019
CA/B/259/2017
RATIO
COURT ANND PROCEDURE: WRITING STYLE OF A JUDGE
“There is no doubt that whatever method a judge adopts in writing, what is important is the clarity of the language in which the judgment is written and delivered and that justice is seen to have been done. See Grand Systems Petroleum Ltd. v. Access Bank Plc (2015) 3 NWLR Pt. 1446 Pg 317 at 324; Brigadier General Maude Aminu Kano v. Nigerian Army & Anor (2008) LPELR-3889 (CA).” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
COURT AND PROCEDURE: DUTY OF THE COURT
“It is the primary function of a trial Court or Tribunal to evaluate evidence of both sides placed before it before arriving at a conclusion and give reasons for reaching that particular finding. See EX-Wo Aloysius Idakwo v Nigerian Army (2004) 2 NWLR Pt. 857 Pg. 249 at 267-268…Also, it is not enough for a Court to say that it believes or does not believe the case of a party, the Court must proceed to state reasons why it does not believe a particular evidence by evaluating the evidence placed before the Court. See Oladehin v. Continental ile Mills Ltd. (1978) 1 LRN 60 at 64; Bozin v. The State (1986) 2 QLRN 69 at 75. In Nigerian Army v. Aminun Kano (2010) All FWLR Pt. 523 Pg 1805, the Supreme Court emphasized that every Court whether civil or military must show basis of judgment especially a verdict of guilty.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
L.T S.W. OSINOWO Appellant(s)
AND
NIGERIAN NAVY Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the Special Court Martial presided over by Captain S.O. Ega at the Nigerian Navy Service Delta Conference Hall, Delta State delivered on the 31st day of March, 2016 upon the convening order of Rear Admiral Akpochi Suleiman upon the complaint of Commodore R.O. Mohammed. The facts that led to this Appeal are as follows:-
The Appellant with five other persons were arraigned before the Special Court Martial for sundry offences and were all subsequently convicted and sentenced by the Court martial. The conviction was confirmed by the Navy Board 2 on the 20th of July 2016 and signed by Rear Admiral S.A.G. Abbah.
The Appellant, being dissatisfied with the decision of the Special Court Martial, has initiated this appeal.
The Appellant, an officer with the Nigerian Naval Service, was appointed the officer in charge of a standby force, a force to be deployed for any activity that concerns the base, including the investigation and arrest of perpetrators of illegal oil bunkering, etc. On the 28th day of November 2015, the Appellant was ordered by Commodore R.O. Mohammed to muster the men of his standby team as he, the Commodore, got wind from two sets of informants, about allegations of crude oil theft around Bennett Island. The Appellant as the head of the standby force led the team to the Island as ordered. The operation was for the purpose of arresting the boats of the crude oil thieves and to arrest any suspect found in the area.
The commodore alleged that he thereafter received complaints from his informant that the boats were arrested and released, and the suspected oil thieves were also released. He also alleged that the Appellant received the sum of N1, 200,000.00 (One Million Two Hundred Thousand Naira) to release the suspects and their boats containing illegal crude oil and that the Appellant burnt an unserviceable boat instead.
This led to the Appellant and five others being arraigned before the Special Court Martial.
The Appellant was arraigned on a four-count charge to wit:
1. Disobedience to particular order contrary to Section 56 (1) of the Armed Forces Act, Cap A20 LFN 2004;
2. Failure to perform military duty subject to Section 62(b) of the Armed Forces Act, Cap A20 LFN 2004;
3. Official corruption contrary to Section 98(1) of the Criminal Code Act Cap C38 LFN, 2004;
4. Perverting justice contrary to Section 126(1) of the Criminal Code Act, Cap C38LFN 2004, pursuant to Section 114 (1) of the Armed Forces Act, Cap A20 LFN 2004.
The Appellant pleaded not guilty to all the counts.
The Special Court Martial entered judgment convicting the Appellant on all four counts and sentenced him to six months imprisonment without option of fine, reduction of rank to sub lieutenant with two years seniority for counts 1 and 2 respectively and dismissal from the service on counts 3 and 4.
Upon conviction even without promulgation, the Appellant was made to start serving his imprisonment which he has completed.
The Appellant’s brief prepared by K.I. Oyibo Esq., and P.S Umoh (Miss) was filed on 21/7/17. Therein, Appellant?s counsel distilled four issues for determination which are set out below:
1. Whether the prosecution proved its case beyond reasonable doubt.
2. Whether the special Court martial considered the defence of the Appellant in its judgment.
3. Whether the Special Court Martial rightly convicted the Appellant on all the counts contained in the charge sheet.
4. Whether the Special Court Martial had the jurisdiction to try and convict the Appellant.
The Appellant also filed a reply brief on 9/11/18.
In the Respondent?s unpaged brief, settled by P.M. Okongwu Esq., and Nenfort Amos Esq., filed on 27/7/18 deemed filed on 13/11/18, five issues were distilled for determination as follows: –
1. Whether the prosecution proved its case beyond reasonable doubt.
2. Whether the special Court martial considered the defence of the Appellant in its judgment.
3. Whether the Special Court Martial rightly convicted the Appellant on all the counts contained in the charge sheet.
4. Whether the Special Court Martial had the jurisdiction to try and convict the Appellant.
5. Whether the Appellant?s appeal is not incompetent having not complied with Section 24(2) (b) of the Court of Appeal Act, Section 183 and 184 (1) of the Armed Forces Act, CAP A20, LFN 2004 and Order 6 Rule 6 of the Court of Appeals Rule 2016 to first sought and obtained leave of this Honourable Court before filing this appeal?
Let me first dispose of issue 5 identified by the Respondent which is whether the Appellant’s appeal is incompetent having not complied with Section 24(2) of the Court of Appeal Act and Section 183 and 184(1) of the Armed Forces Act Cap A20, LFN 2004 and Order 6 Rule 6 of the Court of Appeal Rules 2016 for failure to obtain leave of this Court because the appeal was filed out of time. Counsel cited Nigerian Air Force v. Wing Commander Shekete (2002) LPELR 3193.
Facts are the fountainhead of law. In the supplementary record of appeal filed on 13/11/18 deemed properly filed that day, the motion for leave to appeal to this Court filed on 24/8/16 and the enrolled order of this Court granting the sought leave on 8/6/17 was contained therein.
Prior to the leave obtained, the motion was served on the Respondent at its headquarters in Abuja. Consequently, the factual situation has rendered issue 5 as identified by the Respondent’s counsel superfluous since indeed leave was first sought and obtained before an appeal was filed and entered in this Court. That issue is of no moment in this appeal as Courts are bound by their records. See Leaders of Company Ltd v. Bamaiyi (2010) LPELR 1771 (SC).
I have read the Record of Appeal and the briefs of counsel and my humble view is that the issues for determination can be distilled into two as follows:-
1. Whether the Special Court Martial had the jurisdiction to try and convict the Appellant
2. Whether the Special Court Martial rightly convicted and sentenced the Appellant on all the counts contained in the charge sheet.
ISSUE ONE
Whether the Special Court Martial had the jurisdiction to try and convict the Appellant.
Learned counsel for the Appellant on this issue submitted that jurisdiction is the life wire of adjudication and that the arraignment of the Appellant was faulty and ought to be set aside. Counsel cited Mbah v. The State (2014) 10 NWLR Pt. 1415 Pg. 316 at 320, Rear Admiral Francis Agbiti v. Nigerian Navy (2011) 4 NWLR Pt. 1236 Pg. 175 at 221. Learned counsel argued that Section 181(1) of the Armed Forces Act integrates the Court Martial Procedure for Royal Navy (BR11) into the Armed Forces Act. Subsection 2 of Section 181, only makes this rule of procedure to cease where the President makes the rules of procedure. In the instant case, since no rule was made by the President at the time of the proceedings at the Special Court Martial, the BR 11 applies. The BR 11 takes effect as a rule of Court as it is the procedural instrument guiding the activities of the Court martial.
Counsel further argued that the Appellant was arraigned before the Court Martial on the basis of an amended charge sheet dated 26/1/16, amended and signed by the prosecution. In fact the jurisdiction is dependent on the validity of the charge sheet. By the provision of Article 1602 of BR 11 a condition precedent for the commencement of a Court martial is that the charge sheet shall be counter signed by the convening authority.
Learned Appellant’s counsel further argued that the initial charge sheet which was amended was never countersigned by the convening authority in fulfillment of the mandatory requirement of Article 1602 of BR 11. The convening authority alone signed the charge sheet which is not in tandem with the requirement for countersigning.
Counsel argued that it is a fundamental breach for the convening officer alone to have signed the charge sheet.
Learned Appellant’s counsel submitted that in the instant case, it was therefore surprising that the prosecution took it upon itself to amend and sign the charge sheet against the rule of procedure of the Special Court Martial, which is the Court Martial Procedure for Royal Navy BR11, thereby further making the charge sheet useless which robs the Special Court Martial of its jurisdiction. The signing of the charge sheet is a condition precedent for the convening of a Court Martial, it is central and it must be proper before the Court Martial can be convened, assembled and for the Court Martial to assume jurisdiction. The condition precedent for convening the Special Court Martial, having not been met, the Court martial lacked jurisdiction in its totality to assemble, talk more of convicting the Appellant.
Counsel also argued that for the convening authority to assemble a Court martial, there must be the existence of valid and sufficient charges against an accused person and the evidence gathered should be uncontradicted and one which can be unexplained. Article 1602 (1) BR11and Article 1519 of the BR 11 further states that the circumstantial letter should be accompanied by the charge sheet, list of witnesses for the prosecution, statement of evidence and list of exhibits. In the instant case, the circumstantial letter which was read by the judge advocate dated 20/1/16, page 3 paragraph 6 stated that the charge sheet, list of prosecution?s witnesses and list of exhibits were enclosed, but there was no statement of evidence, which implies that the convening authority did not satisfy himself in holding that the evidence was uncontradicted and unexplained and same would consequently secure conviction in accordance with Article 1602(1) of the BR 11. Counsel cited Adamu v. Nigerian Navy (2016) LPELR -41484 CA, Zakari v. Nigerian Army (2015) 17 NWLR Pt. 1487 Pg. 77 at 81; 2015 LPELR -24721.
In reply, learned Respondent’s counsel argued that the Special Court Martial as constituted is seized with the jurisdiction to hear and determine the charges before it. Section 130 (1),(2) and 131(1)(e) of the Armed Forces Act, Cap A20 LFN 2004 is very instructive and gives wide power to the convening authority or persons acting on his behalf. In the instant case, the signature of RAdm O.A Suleiman is sufficient recourse to the convening authority by the respondent as required by law. The word ‘warrant’ (in the absence of an interpretation of same in the BR11) is same as ‘Convening Order’ which has become the normal way of convening a Court in the Nigerian Navy.
Counsel insisted that it is not in any dispute that the Special Court Martial, which tried, convicted and sentenced the Appellant, derived its jurisdiction from the provisions of the Armed Forces Act, which empowers the Governing Authority to convene Special Court Martial for the purposes of trying persons who are subject to Military Law, as officers and men of the Nigerian Military.
Counsel submitted that it is not in doubt that the provisions of Armed Forces Act, Cap A20, 2004 was religiously observed in the composition and constitution of the Special Court Martial that tried, convicted and sentenced the Appellant.
OPINION
The narrow issue raised by the Appellant regarding the proper arraignment of the Appellant with regard to whether a proper charge was laid against him according to the extant laws was not specifically answered by the Respondent’s counsel. Be that as it may, it is apt to consider certain provisions of the law in arriving at the decision whether the Appellant was tried on a competent charge. As both counsel rightly agree, jurisdiction is the bedrock of any adjudication. The locus classicus on this point is Madukolu v. Nkemdilim (1962) All NLR 587 at 595 where the Supreme Court stated inter alia that for a Court to be properly constituted, certain conditions precedent must exist to wit:
a. It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or another.
b. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction.
c. The case comes before the Court initiated by due process of law upon fulfillment of any condition precedent to the exercise of jurisdiction.
The laws guiding the procedure for Court Martial is founded on Section 181(1) of the Armed Forces Act which integrates the procedure outlined for Royal Navy (BR 11). These procedure are applicable to the Court Martial procedure under review before this Court.
I have to agree that the adjectival jurisdiction of the Court Martial is derived from the Court Martial procedure for Royal Navy (BR 11). Article 1602 (1) of BR 11 provides as follows:
‘When it is proposed to try a person on any charge, the convening authority shall not order a Court-martial to assemble until he has satisfied himself that the charges are correct and sufficient, and that they are properly framed and carefully drawn up, and until he has also satisfied himself that the evidence, if uncontradicted or unexplained will probably suffice to ensure a conviction. He shall then countersign the charge sheet to indicate his approval of the form in which the charges are to be brought and shall transmit it to the officer who is appointed to prosecute.’
Article 1602 (2) of the BR 11 provides as follows:
‘The convening authority may amend, add to or delete from the charges submitted with the circumstantial letter, but he should normally consult with the person whom he intends to appoint as prosecutor at the trial before so doing. It is undesirable that a prosecutor should present to the Court a charge for the correctness of which he is unwilling himself to take responsibility. Reluctance by a prosecutor to present such a charge is perfectly proper and in such circumstances the convening authority should consider whether to appoint some other person to undertake the duties of prosecution.”
The grouse of the Appellant is that the amended charge laid against the Appellant dated 26/1/16 was amended and signed by the prosecution alone. This matter had been raised by the Appellant during the Court martial. The fact of the matter is that Section 126(4) of the Armed Forces Act replicates Article 1602 (1), (2) and 1603(1) of the BR11 Manual of Naval Law.
The issue here is the correct interpretation of the procedural law as it relates to the responsibilities of the convening authority with respect to laying a charge against the defendant at the proceedings.
This provision was the crux of the appeal in Rear Admiral Francis Agbiti v The Nigerian Navy (supra) and Cdr Yakubu Kudambo v. The Nigerian Navy (2014) LPELR – 22624 CA. The case of Cdr Kudambo is on all fours with the instant case and the Court of Appeal summarized the issues as bordering on the amendment of the charge sheet by the prosecutor without any proof of delegation of such powers to him by the convening authority. The Court of
Appeal stated that:
‘therefore the error committed by the Court Martial in replacing the original charge sheet submitted to it by the convening order with a new charge sheet without recourse to the convening authority.’
This Court declared the charge sheet a nullity because recourse was not had to the convening authority. The situation inKudambo can be distinguished from the case of the charge sheets before this Court in this appeal under review because the amended charge sheet was signed by the prosecution and countersigned by the convening authority Rear Admiral A.O. Suleiman, Flag Officer Commanding Central Naval Command.
I cannot buy the argument that the initial charge sheet was incompetent and that the amended charge was consequently incompetent. In this case, as required by law, the convening authority signed the charge sheet. The fact that the convening authority did not countersign the original charge sheet in my view is of no moment.
The fact remains that the most relevant authority signed the charge whether as initiating authority or countersigning authority. Also the amended charge was signed by the Prosecution and the Convening Authority. A good technical case could have been made by the Appellant if the amended charge had been signed by the Prosecutor alone which would have meant that the amended charge on which the trial was based was incompetent. As I said earlier on, I cannot find any merit in this complaint. In the circumstance, this issue is resolved against the Appellant.
ISSUE TWO
Whether the Special Court Martial rightly convicted and sentenced the Appellant on all the counts contained in the charge sheet.
On this issue, learned Appellant’s counsel argued that in deciding whether or not the prosecution has proved its case beyond reasonable doubt, the Court has to consider the totality of evidence adduced for and against the defendant. He cited Abidoye v. FRN (2014) 5 NWLR Pt. 1399 Pg. 30 at 63 Par. C.
Counsel submitted that in criminal jurisprudence, the prosecution must prove its case beyond reasonable doubt. Counsel cited Friday Aiguoreghian & Anor v. The State (2004) 3 NWLR Pt. 860 Pg. 396.
Counsel submitted that most of the evidence of PW1 was hearsay which was admitted contrary to S. 38 of the Evidence Act. Counsel urged this Court to discountenance the evidence of PW1 regarding what his informants told him. With regard to PW2, counsel urged that his evidence is completely unreliable since it was laden with contradictions regarding the actual events. He cited Ezemba v. Ibeneme (2000) 10 NWLR Pt. 674 Pg 61. The hearsay evidence given by PW1 unfortunately does not fall within the contemplation of the exceptions to hearsay evidence and as such, it is inadmissible. Notwithstanding the above, the Special Court Martial albeit admitted and relied extensively on the inadmissible testimony of PW1 in convicting the Appellant.
The main thrust of the prosecution’s case is that instead of apprehending oil bunkers and burning their boats as instructed by the commanding officer, the Appellant collected bribe and burnt an empty boat to deceive his commanding officer that he had obeyed orders. Counsel argued that there were marked contradictions in the evidence of PW2, PW3 and PW4 which could only lead to doubts which must be resolved in favour of Appellant. Counsel cited Agbo v. State (2006) NWLR Pt. 977 Pg. 545.
Counsel insisted that the evidence of PW5 is completely inadmissible as PW5 was unable or unwilling to investigate the crime. PW5 had admitted that he did not record the finding of his investigation, he was not in Nigeria when the incident took place, the evidence showed he never went to the scene at all but the Court Martial relied heavily on his evidence to convict the Appellant. Learned Appellant?s counsel argued that the prosecution never led any evidence to show that there was an agreement among the members of the team at any point, to release suspected oil bunkerers and their boats, it is therefore strange that the Special Court Martial held that the prosecution had proved its case.
Counsel further submitted that in this case, in the judgment of the Special Court Martial, there was a brief statement of the facts of the case, it set out the offences placed before it, it reviewed only the case of the prosecution and evaluated same, made findings of facts based on the case of the prosecution and from there, drew a conclusion, without consideration of the issues or arguments raised.
The Appellant’s counsel also argued that the Special Court Martial did not evaluate the evidence presented by the witnesses and only selected which one to believe.
Counsel insisted that only the evidence of the prosecution was considered at all by the Court. The Court merely said it did not believe the Appellant and gave no reason why it did not. Counsel cited Oladehin v. Continental ile Mills Ltd. (1978) 1 LRN 60 at 64; Bozin v. The State (1986) 2 QLRN 69 at 75; Uchendu v. Ogboni (1999) 5 NWLR Pt. 603 Pg. 346; Mogaji v. Odofin & Ors. (1978) 3 SC 91 at 95; Ayanru v. Mandilas Ltd. (2007) 10 NWLR Pt. 1043 Pg. 462; Songo v. Akure (2015) 1 NWLR Pt. 1441 Pg. 535 at 568.
Counsel for the Appellant also submitted that a person cannot be charged under one law, and punished under another, this is a fundamental anomaly, and as such the punishment given by the Court Martial, wherein it dismissed the Appellant from service is void, for not being in compliance with the express provision of Section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria (As amended).
Counsel cited Tafida v. FRN (2013) LPELR-21859 and urged this Court to interfere with the sentence on counts 3 and 4 and to rely on Omokuwajo v. FRN (2013) LPELR 20184 in doing so.
In reply, learned Respondent?s counsel argued that the Appellant?s conviction by Special Court Martial is in accord with evidence before the Court, the Respondent having clearly established these facts before the trial Court. Counsel cited Aramude Ohunyon v. The State (1996) LPELR-2363 (SC); Aweto v. FRN. (2015) LPELR 41725.
Counsel for the Respondent argued that the evidence of PW2, 3, 4 are clear to the effect that the Appellant committed all the offences charged. The Prosecution in the instant appeal was able to establish the guilt of the Appellant whose own witnesses were so contradicted through cross examination and that the trial Special Court Martial rightly convicted Appellant upon evaluation of evidence before the Court.
Learned Respondent’s counsel conceded that if the Prosecution fails to prove one element of a count, the whole count collapses and the Defendant must be discharged for that offence. Counsel commended to this Court Olabode v. State (2007) ALL FWLR PT. 389 Pg. 1301 at 1323 Par. F-G (CA) where this Court held that where any of the elements or ingredients of an offence is not proved beyond reasonable doubt, the prosecution’s case must fail.
Counsel argued that the evidence against the Appellant proved guilt in respect of Section 56 of the Armed Forces Act, and all the other offences proved against the Appellant. Counsel cited Njovens v. The State (1973) 5 SC 12; (1973) LPELR 2042 (SC); Galadima v. The State (2013) LPELR 20402 (CA)
OPINION
This issue and all the complaints against the judgment of the Special Court Martial in respect thereof, is a plea to this Court to review the findings of fact by the Special Court Martial on which it based its conviction and sentence of the Appellant.
In this case, the Prosecution called five witnesses and tendered 7 exhibits in support of their case, while the Defence called two witnesses including the Appellant and tendered five exhibits. In Lt. Yahayah T. Yakubu v. Chief of Naval Staff & 3 Ors (2004) 1 NWLR Pt. 853 Pg. 94 the Supreme Court held:-
‘The guilt of an accused person standing trial before a Court Martial must be proved beyond reasonable doubt before a conviction based on any offence under the Armed Forces Act No. 105 of 1993.”
The first leg of this issue is a consideration of the charges against the Appellant and whether they were proved beyond reasonable doubt. I have read the evidence on oath of PW1, the complainant in the charges against the Appellant who was also his Commanding Officer. Apart from confirming that he gave the orders to the Appellant, there was no other admissible evidence in his testimony which could support the charges against the Appellant since he as Commanding Officer was not present at the scene when any of the offences could have been committed by the Appellant. PW1 told the Court what was reported to him by his informants before and after the event which was what he told the Court. The evidence is thus inadmissible as hearsay pursuant to S. 38 of the Evidence Act. Other eyewitnesses’ testimony cannot corroborate it as it stands alone. I am bound to reject the hearsay evidence of PW1 in this case. See Mamman & Ors. v. Kofar-Bai (2015) LPELR- 25966 (CA).
Let me now consider if there was any conflict in the evidence of the remaining prosecution witnesses, particularly those who were eye witnesses viz PW2, PW3, and PW4. I have read the copious evidence of these three eyewitnesses. I cannot find any material contradiction in the evidence of these witnesses. It is not enough for counsel to point out in the brief phrases out of con in the hope that the Court will not read the record.
For contradictions in the evidence of the Prosecution to result in the setting aside of the decision of the trial Court, they must be material and fundamental enough to show the trial Court that no reasonable Court can rely on the evidence of any of the witnesses since the Court cannot pick and choose who to believe and the Court must perforce reject all the evidence of such witnesses and this vitiates the Prosecution’s case. See Agbo v. The State (2006) 1 SC Pt. 4 Pg. 73.
I cannot find any material contradiction to create the doubt of whether there was really an arrest or not. From the evidences of PW2, 3 and 4 on Pages 119, 177 and 232 of the Records respectively, the fact that some people were arrested or apprehended by the team led by the Appellant is manifest.
PW4 only went further to state on page 232 of the Record that those people apprehended do not want to be taken to the base and they started negotiating their release at that point where they were apprehended. This does not in any way contradict the evidence of PW2 and PW3 which clearly revealed that arrest was certainly made.
Suffice to say that, all the contradictions highlighted by counsel during address at trial and in the brief in this Court when read within con are immaterial or at best inconsequential.
The second complaint of the Appellant is that the Special Court Martial did not consider the defence of the Appellant in its judgment.
I have read the judgment of the Special Court Martial which is enclosure 9 and headed ‘Findings and judgment of the Court in the case of Lt. S.W. Oshinowo NN/3321 and 5 others’ on page 693-699 of the Record.
In the findings of the Court, while the Court gave a clear consideration of the specifics in relation to the evidence led by the Prosecution, the complaint is that the Court only made a perfunctory allusion to the specific defence of the Appellant.
At Pg. 698 of the Record, the Court Martial considered the defence of the Appellant as follows:
‘The defence in respect of the first accused officer consists of evidence DW1, DW2, Exhibits 2, 8, 10, 11 and 12. The Court in its deliberations disbelieved the written statements of the first accused officer and Mr. Ebis Olokpa and did not rely on their contents as the truth. The Court considers DW2 as a witness who has a purpose to serve and also the discrepancies in his written and oral statements as material and hence considered that his evidence lacked merit and is unbelievable. The Court also attached no weight on Exhibits 2, 11 and 12 which were considered irrelevant to the case for determination.’
There is no doubt that whatever method a judge adopts in writing, what is important is the clarity of the language in which the judgment is written and delivered and that justice is seen to have been done. See Grand Systems Petroleum Ltd. v. Access Bank Plc (2015) 3 NWLR Pt. 1446 Pg 317 at 324; Brigadier General Maude Aminu Kano v. Nigerian Army & Anor (2008) LPELR-3889 (CA).
It is the primary function of a trial Court or Tribunal to evaluate evidence of both sides placed before it before arriving at a conclusion and give reasons for reaching that particular finding. See EX-Wo Aloysius Idakwo v Nigerian Army (2004) 2 NWLR Pt. 857 Pg. 249 at 267-268.
The Appellant gave evidence on his own behalf and called a witness. Also the Appellant tendered several exhibits in defence of his case. It was the duty of the Court to consider on record the defence of the Appellant no matter how incredible or stupid it may be. That is how justice can be said to have been done.
Also, it is not enough for a Court to say that it believes or does not believe the case of a party, the Court must proceed to state reasons why it does not believe a particular evidence by evaluating the evidence placed before the Court. See Oladehin v. Continental ile Mills Ltd. (1978) 1 LRN 60 at 64; Bozin v. The State (1986) 2 QLRN 69 at 75.
In Nigerian Army v. Aminun Kano (2010) All FWLR Pt. 523 Pg 1805, the Supreme Court emphasized that every Court whether civil or military must show basis of judgment especially a verdict of guilty. The Court held among other things:
‘I only need to say that whilst it is not to be expected that Military Court Martial President would write their judgment in the conventional manner used by the Civil Courts, it is still compulsory that their judgment should show the reasoning behind the conclusions arrived. The judgment should discuss the nature of the evidence called, which evidence is rejected or accepted and why. It is only in this way that the 1999 Constitution of Nigeria could be complied with. A judgment, whether in the Military or Civil Courts which does not; ex-facie show the basis of a pronouncement of a guilty verdict on a citizen of Nigeria is in my view an infraction of the citizen?s right to Fair Hearing.’ Per Oguntade JSC. at Pg 1838 -1839.
Generally when evaluation of evidence does not involve the credibility of witnesses but the complaint is against the non-evaluation or improper evaluation of the evidence by the trial Court, the appellate Court is in good position to do its own evaluation. Where however the evaluation of evidence involves the credibility of witnesses, the appellate Court cannot re-evaluate or give a contrary opinion from that of the lower Court. See Abubakar v. Anobih & Anor (2013) LPELR-20856 (CA); Fashanu v. Adekoya (1974) 6 SC 83; Sagay v. Sajere (2000) 6 NWLR Pt. 661 Pg. 360; Nnorodim v. Ezeani (2001) 5 NWLR Pt. 706 Pg. 203.
The complaint is actually calling on this Court to arrive at a different conclusion by believing the Appellant and his witnesses as against the Prosecution and their witnesses. The law does not allow an appellate Court who did not actually see the demeanour and hear the testimony of the witnesses when they were subject to the fire of cross-examination, to lend credibility to witnesses that were adjudged incredible by the trial Court.
The other aspect of this issue is the complaint that the punishment provided for the offence of official corruption in S. 98(1) of the Criminal Code Cap C38 LFN 2004 is not dismissal from service. Also the sanction for perverting justice contrary to S. 126 (1) of the Criminal Code pursuant to S. 114(1) of the Armed Forces Act is not dismissal from service. There is no doubt that in Tafida v FRN (2013) LPELR 21859 the Supreme Court held that:-
“Any conduct which carries a sanction of imprisonment must be expressly stated in a written law and not left to the conjecture or inference by the Court.”
The charges in count 3 and 4 complained against are as follows:-
COUNT 3. Official corruption contrary to Section 98(1) of the CCA Cap C38 LFN 2004. Charge pursuant to Section 114 (1) of the AFA CAP A20 LFN 2004.
COUNT 4. Perverting justice contrary to Section 126 (1) of the Criminal Code Act CAP C38 LFN 2004. Charge in pursuant to Section 114 (1) of the AFA CAP A20 LFN 2004.’
The sentences in respect of the two counts are dismissal from service. While the Criminal Code Act in S. 98 makes the offence of official corruption of a public official punishable with seven (7) years imprisonment, S. 114 (1), (2) and (3) of the Armed Forces Act provides as follows:-
114. (1) A person subject to service law under this Act who commits any other civil offence, whether or not listed under this Act or committed in Nigeria or elsewhere, is guilty of an offence under this section.
(2) For the purposes of Subsection (1) of this section, “civil offence” means an act or omission punishable as an offence under the penal provisions of any law enacted in or applicable to Nigeria, and in this Act “corresponding civil offence” means the civil offence the commission of which constitutes the offence under this section.
(3) A person convicted by a Court-martial for an offence under this section is liable-
(a) if the corresponding civil offence is treason or murder, to suffer death; and
(b) in any other case, to suffer any punishment or punishments which a civil Court could award for the corresponding civil offence, if committed in Nigeria being a punishment or punishments, less than the maximum punishment, which a civil Court could so award, as is so provided, so however that where a civil Court may not so award imprisonment, a person so convicted shall be liable to suffer such punishment, less than cashiering in the case of an officer or discharge with ignominy in the case of a soldier, rating or aircraftman, as is provided.”
The import of S. 114(3) in my humble view is that the alternative punishments provided in the Armed Forces Act under S. 114 (3) are only applicable where the civil Court would not have awarded imprisonment. In this case, the civil Court would have awarded up to seven (7) years in prison.
S. 118 of the Armed Forces Act provides for the punishment of officers. S. 118 (1) (d) provides for dismissal from service. I cannot agree that the punishment of dismissal from service is not provided for by any existing law as argued by Appellant’s counsel.
In the circumstances, I am of the view that the appeal has no merit and it should be dismissed. The judgment and orders of the Special Court Martial delivered on 31/3/2016 are hereby affirmed. Appeal Dismissed.
CHIOMA EGONDU NWOSU-IHEME,J.C.A.: I agree.
PHILOMENA MBUA EKPE, J.C.A.: My learned brother, HELEN MORONKEJI OGUNWUMIJU, J.C.A. has afforded me an opportunity to read before now the lead Judgment just delivered. I agree entirely with the reasoning and conclusion arrived that this appeal is unmeritorious. I am also of the view that the punishment of dismissal from service is provided by existing law. This appeal has no merit, it fails and is hereby dismissed. Accordingly, the Judgment of the Special Court Martial delivered on 31/3/2016 is affirmed. Appeal dismissed.
Appearances:
Kester Oyibo For Appellant(s)
P.M. Okongwu (PSC)For Respondent(s)
