LT. COL. K.S. IBERI (RTD.) V. ATTORNEY GENERAL OF THE FEDERATION
(2013)LCN/5959(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of February, 2013
CA/L/736M/2009
RATIO
WORDS AND MEANING: “IMPERSONATION”
“On the count of Impersonation Contrary to and Punishable under Section 97 (b) of the Armed Forces Decree 1993 No.105. Impersonation is defined as “A person subject to service law under this Act who, with intent to defraud any other person, falsely represents himself to be some other person, living or dead, is guilty of impersonation and liable, on conviction by a Court-Martial (b) in any other case, to imprisonment for a term not exceeding two years.” Per PEMU, J.C.A.
EVIDENCE: BURDEN OF PROOF: WHEN IS A BURDEN OF PROOF SAID TO BE DISCHARGED?
“It is trite, that the burden on the prosecution is only discharged, when the essential ingredients of the offences charged have been established, and the accused person is unable to bring himself, within the defence or exceptions allowed under the law generally, or the statute creating the offence. OTERI V. ATT-GENERAL BENDEL STATE (1986) 2 NWLR Pt. 24 at 648; OKORO V. STATE (1988) 5 NWLR (Pt.255) @ 257.” Per PEMU, J.C.A.
COURTS: COMPETENCY OF A COURT: WHEN A COURT CAN BE SAID TO BE COMPETENT
“It is clear that the inclusion of Major P.J.O Bojie (N/7928) and R.J. Diri (N/7963) in the panel was a travesty of the fundamental human right of the Appellant. It renders the entire proceedings a nullity as it was done contrary to the provisions of the law, regulating the proceedings in Section 133(3) (b) of the Armed Forces Act, as it affects trial by a Court Martial. I adopt the case cited by learned counsel for the Appellant i.e. SKEN CONSULT NIG. LTD. V. UKEY (1981) 1. S.C. Page 5, where the Apex Court citing with approval MADUKOLU & ORS. V. NKEMDILIM (1962) 1 ALL NLR pg. 387 at 594, held inter alia “…a Court can only be competent if among other things all the condition president for its having jurisdiction is fulfilled….” Per PEMU, J.C.A.
COURT MARTIAL: JURISDICTION: IMPLICATION OF A COURT MARTIAL NOT BEING PROPERLY CONSTITUTED
“In the instant case, a major PJO Bojie and a major R. J. Diri sat as substantive members of the Court Martial that tried the appellant. Their participation as substantive members of the Court Martial when they were at all material times junior in rank to the appellant rendered the trial a nullity- see The Nigerian Army v. Lt. Patrick Dodo (2012) 18 NWLR (pt. 1331) 151 at 177 per the judgment of Ariwoola, J.S.C., as follows:- “Where the Court Martial is composed of a disqualified member, the court’s jurisdiction would be affected adversely. The entire proceedings embarked upon thereafter will amount to nullity.” See also by analogy the case of Ibrahim v. Aliyu (2000) 12 NWLR (pt. 683) 38 at 51-52, where the participation of two unqualified king makers with other king makers in the selection of a chief was held by the Supreme Court to have nullified the selection exercise.” Per IKYEGH, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
LT. COL. K.S. IBERI (RTD.) Appellant(s)
AND
ATTORNEY GENERAL OF THE FEDERATION Respondent(s)
NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): The Appellant who was arraigned before a Court Marshal in company of two accused persons were tried, convicted and sentenced to two years imprisonment without option of fine in accordance with the provisions of the Armed Force Decree 1993. This was on the 26th of May 1998.
He served his term of imprisonment and upon completion of same, he filed an appeal against his conviction and sentence in the year 2000. Same was struck out on grounds of incompetency on the 31st of July 2008.
On the 31st of May 2011, he applied for extension of time within which to file Notice of Appeal. This Honourable Court granted the prayer and the Appellant was ordered to file his Notice of Appeal within 7 days from the 31st of May 2011.
On the 6th of June 2011, the Appellant filed its Notice of Appeal encapsulating 12 (twelve) grounds of appeal.
FACTUAL SITUATION
On the 27th of October 1997, a General Court Martial was composed by the orders of the Commandant, Lagos Garrison command, Major General P.N. Aziza, to try the Appellant and three others.
The Appellant was tried accordingly. At the completion the proceedings presided over by Col. Z.M. Yaduma of the General Court Marshal on the 26th of May 1998, the Appellant was convicted and sentenced.
At the commencement of the trial, the Appellant pled not guilty to the charges against him. The charges were for the offences of conspiracy, contrary to Section 114(1) of the Armed Forces Decree of 1993; cheating contrary to and punishable under Section 113(b)(ii) of the Armed Forces Decree; and impersonation, contrary to and punishable under Section 97 (b) of the AFN 1993 No. 105. Pages 25-27 of the Record of Appeal.
At the conclusion of evidence, adduced by the prosecution and the defence, including addresses taken from learned Counsel for the respective parties, the Appellant was found guilty of the charges proffered against him.
The Appellant is dissatisfied with the decision of the GCM, and has appealed the conviction and sentence.
The Appellant filed his Notice of Appeal on the 14th of April 2011, but same was deemed filed on the 16th of January 2003.
The Respondent filed his Brief of Argument on the 2nd of December 2011.
The Appellant filed his reply brief on the 20th of February 2012, but same was deemed filed on the 22nd of May 2012.
On the 16th of January 2012, learned counsel for the Respondent Ginika Uche Esq., holding P.C. Emesih’s brief was in Court, but learned counsel for the Appellant was absent, even though he was served with hearing notice on the 8/1/2013.
He however wrote to Court seeking adjournment. The Appeal was treated as having been argued on that date.
The Appellant has filed in his Notice of Appeal 12 (twelve) Grounds of Appeal.
A careful perusal of the Grounds of Appeal shows that Grounds 7, 9 and 12 are grossly incompetent.
The Rules of Court regarding framing of Grounds of Appeal are very clear. Those rules are inherent in the provisions of Order 6 of the Court of Appeal Rules 2011.
Specifically Order 6 Rule 2(2) has this to say, regarding the issue of alleging error in law and misdirection in law in a ground of appeal. It has this to say
Order 6(2)(2)
“Where a Ground of Appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”
In order 6 Rule 3, it says
“Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted save the general ground that the judgment is against the weight of evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.”
Ground No. 7 in the Ground of Appeal in this appeal has this to say
Ground 7 “The Appellant is alleged to have committed the alleged offence with a person who was not subject to Military Law, and therefore should have been charged with that person before a civil court and not a Court Marshal.”
There is no error in law or misdirection in law alleged in this ground. It is vague and general in terms, and of no consequence as it contravenes in no small measure, the principles as to legal drafting. Indeed that ground is novel to our rules. It is hereby struck out.
Ground No 9:
“The Appellant is alleged to have committed the alleged offence with a person who was not subject to Military Law, and therefore should have been charged with that person before a civil Court and not a Court Marshal.”
Again, this Ground is vague, as no error in law or misdirection in law was stated. The Ground is general in terms, and same is liable to be struck out, and same is hereby accordingly struck out.
Ground No 12:
“The decision of the Court Marshal occasioned a miscarriage of Justice as the decision was unreasonable and cannot be supported, having regard to the evidence in the case.”
This ground is vague and it is not clear whether it constitutes the omnibus ground that the judgment is against the weight of the evidence.
In the Appellant’s Brief of Argument deemed filed on the 16th of January 2013, he articulated and proffered four (4) issues for determination which are:
1. Having regard to the prosecution case inclusive of evidence led, could the prosecution be said to have proved its case beyond reasonable doubt?
2. Having regards to the purported trial-within-trial to determine the admissibility of the accused statement, can it be said that the Court Martial properly evaluated the legal implications of the evidence led by the persecution before proceeding to admit the accused person’s statement?
3. Did the accused have a fair hearing in this case particular with the endless intervention by the Court Martial during the proceedings?
4. Does the general Court Martial as was constituted have jurisdiction to try and convict the Appellant?
On his part, the Respondent articulated and proffered two (2) issues for determination. They are:
1. Whether a person that is convicted by a Court Martial can file a competent appeal without complying with the Provisions of Section 183 and 184 of the Armed Forces Act LFN.
2. Whether the Appellant’s appeal is valid in the absence of a competent Notice of Appeal.
To my mind, the issues formulated by the Respondent amount to preliminary issues which should have been a subject of a Preliminary Objection, but he filed none. A consideration of the Respondent’s issues is one which is capable, in limine of deciding the appeal one way or the other.
None of the Respondent’s issues relate to the Grounds of Appeal. But for the issue of jurisdiction which is inherent in it, which is fundamental threshold, these issues should have been discountenanced. Having been incorporated in the Respondent’s brief, I cannot shut my eyes to it.
Pursuant to Order 10 Rule 1 of the Court of Appeal Rules 2011, it says that
“A Respondent intending to rely upon a Preliminary Objection to the hearing of the appeal shall give the Appellant three clear days Notice thereof before the hearing, setting out the Grounds of Objection, and shall file such Notice together with twenty copies thereof with the registry within the same time.”
As observed, the Respondent had filed no Preliminary Objection, had not indicated whether his issues amount to Preliminary Objection or not, but the two issues in his Brief of Argument is tantamount to preliminary objection.
I shall take Issues No. I and II of the Appellant’s issues for determination together –
Issue I- “Having regard to the prosecution case inclusive of evidence led, could the prosecution be said to have proved its case beyond reasonable doubt?
Issue II – “Having regards to the purported trial-within-trial to determine the admissibility of the accused statement, can it be said that the Court Martial properly evaluated the legal implications of the evidence led by the persecution before proceeding to admit the accused person’s statement?
One of the counts for which the Appellant was charged are those of conspiracy contrary to Section 114(1) of the Armed Forces Decree 1993 and punishable under Section 516 of the Civil Code Cap.77 LFN 1990 – pages 25 of the Record of Appeal.
Now Section 114(1) of the Armed Forces Act has this to say
“A person subject to service 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.”
This section of the Armed Forces Act has nothing to do with conspiracy but Section 516 of the Criminal code punishes for the offence of conspiracy.
The second offence the Appellant was charged with had to do with the offence of cheating contrary to and punishable under Section 113(b) (2) of the Armed Forces Decree 1993 No. 105.
It has this to say
“A person subject to service under this Act who by means of a fraudulent trick or device
(b) induces another person
(II) to pay or deliver to any person any money or goods or any greater sum of money or greater quantity or goods than he would have paid or delivered but for trick or device.”
is guilty of an offence under this section and liable, on conviction by a Court Marshal to imprisonment for a term not exceeding five years.”
The third offence with which he was charged is Impersonation contrary to and punishable under Section 97(b) of the Armed Forces Decree 1993.
It is defined as
“A person subject to service law under this Act who, with intent to defraud any other person, falsely represents himself to be some other persons, living or dead is guilty of impersonation and liable, on conviction by a Court Martial-
(b) in any other case, to imprisonment for a term not exceeding two years.”
I shall now consider how much, and how well the prosecution has proved these sundry offences according to law. In other words, whether the prosecution has been able to establish these offences against the Appellant beyond reasonable doubt.
On the charge of conspiracy, the Appellant was alleged to have conspired with one Zamari Karfa; WO John Ngbako; Sgt. Jerry and Godwin Nnaizu to cheat one Mr. John Nwodo of the sum of Three Hundred and Seventy-seven Thousand Naira (N377,000.00) and one 1300 Mitsubishi Bus with Reg. No. BQ628 AAA on the pre of awarding a contract valued at Ten Million, Seven Hundred and Ten Thousand Naira (N10, 710,000.00) from the Army HQ Lagos, knowing it to be false.
The appellant is subject to service law, having answered his names, number and unit. The elements of conspiracy as envisaged by the Armed Forces Act are these:-
(1) That the accused is subject to service law
(2) That there was an agreement of a common design
(3) That the design was unlawful or lawful but executed by unlawful means.
A cursory look at the evidence adduced by the prosecution witnesses that is to say PW1, PW2, PW3, PW4 and PW5, shows no agreement of any kind between the Appellant and anybody, to prosecute any unlawful thing, or any lawful thing executed by unlawful means. Let me show you why.
PW1 – Rt. Ebulue N10144, officer is Sy Gp Apapa – a Det officer in Sy Gp, has duties to carry out investigation as ordered by the Commandment. He said he took statement from the Appellant under caution. He did say that the accused persons including the Appellant wrote their own statements, and were not tortured by anybody.
At page 42 of the Record of Appeal, the Appellant did say that he objected to the admissibility of his statement the first day it was to be tendered, because it was not voluntarily made.
There was a trial within trial as evidenced at pages 41-51 of the Record of Appeal, after which the Appellant’s statement was admitted as Exhibit “A1” page 58 of the Record of Appeal.
At pages 59-62 is the evidence of the alleged victim John Nwodo – PW2. He is a Building Material Merchant who runs a shop at Block 3, Shop 2 Agric near Odun-Ade. He knows and identified the Appellant, but under cross-examination did say that it was not the Appellant that took money from him. The Appellant was not present when he was given a form to sign – page 63 of the Record of Appeal. That the Appellant did not collect any money from him. He only took him to Yobe Guest House and introduced him to the Chairman of Armed Forces Tenders Board – page 68 of the Record of Appeal.
PW3 Sakiru Abudu is a driver to Zamari Karfa. He did say that he carried the Appellant and his boss in the car, and he heard them discuss about a man not dropping money. That the Appellant attended meeting at Yobe Guest House with WO John, WO Balogun, Sgt. Jerry and Lcpl. Saleh – page 78 of the Record of Appeal. At Page 75 of the Record of Appeal, under cross examination, he said that it was others and not the Appellant that discussed money in the car – page 79 of the Record of Appeal.
PW4 – Lanre Onakoye did say that the Appellant was not known to him until he visited his office. At Yobe Guest House, he did not see the Appellant.
PW5 is Zamari Karfa, who was one of the accused persons. He testified that the Appellant was not at the Yobe Guest House to extort money. He is a professional colleague.
At page 113 of the Record of Appeal, the Defence indicated that the panel, should have anticipated a no case submission suo motu, and made an order to that effect.
Above is the evidence of the Prosecution in respect of the three counts charge against him.
The Appellant at page 113 testified in his defence, denying the charges against him. He admitted having a transaction with PWs – Zamari Karfa as he introduced a friend who was in trouble to him to see if he could help. He denied cheating John Nwodo. He admitted going to Yobe Guest House at the invitation of PW3. He however does not know John Nwodo and did not know him before the incident leading to his arrest. He was forced to make statement.
DW2 is one Amachree, who said he never met the Appellant with Karfa.
DW3, John Mbaka does not know Nwodo. He denied making two statements.
DW4 – WO Saka Balogun testified that he knows Zamari Karfa and his officer. He did no business with him. He denied making his statement as it was taken under duress.
From the totality of the evidence, I find it puzzling how the Commandant could have found the Appellant guilty of the charges against him. There is simply no nexus, as there is nothing to show that the Appellant conspired with anybody to commit any crime of cheating John Nwodo, of the sum of N377,000.00 and one 1300 Mitsubishi Bus with Registration No. BQ 628 AAA on the pre of awarding a contract valued at Ten Million Seven Hundred and Ten Thousand Naira (N10, 710,000.00) from the Army HQ Lagos, knowing it to be false.
No evidence of an agreement of a common design or any agreement whatsoever was shown, as existing between the Appellant and the co-accused persons, or anybody whatsoever.
It is trite, that the burden on the prosecution is only discharged, when the essential ingredients of the offences charged have been established, and the accused person is unable to bring himself, within the defence or exceptions allowed under the law generally, or the statute creating the offence. OTERI V. ATT-GENERAL BENDEL STATE (1986) 2 NWLR Pt. 24 at 648; OKORO V. STATE (1988) 5 NWLR (Pt.255) @ 257.
Where, at the close of the case for the prosecution, the evidence led fails to meet the essential requirements stated in a particular offence, the prosecution has not discharged the constitutional burden to establish the guilt of the accused beyond reasonable doubt.
Zamari Karfa is a co-accused to the Appellant – pages 138-139 of the Record of Appeal.
He however testified as PW5- pages 96-120 of the Record of Appeal.
It is trite that a co-accused is a person who has his own purpose to serve, and his evidence must be suspect, and regarded with considerable caution, and the Court should be wary in convicting on the evidence of tainted witnesses without corroboration – ISHOLA V. STATE (1978) 9-10. SC. 81.
Where an Appellate Court observes that the prosecution has failed to prove the case alleged against the accused, the Court is entitled to take the point suo motu, even though counsel are not invited to argue the point before it. This is because it is a ground of law founded on Section 286 and 287 (1) of the Criminal Procedure Law and Section 33(5) of the 1999 Constitution.
BRONIK MOTORS V. WEMA BANK LTD. (1983) 7 SCNLR 296; ODIASE V. AGHO (1972) 1 ALL NLR Pt.1. 170; OLORIODE V. OYEBI (1954) 5 SC 1.
The Court is under a duty, by virtue of the provisions of Sections 286 and 287 (1) of the Criminal Procedure Law, to discharge an accused if the prosecution, at the close of its case, has not proved the essential ingredients of the offence – AJIDAGBA V. LG.P. 1958 3 F.S.C. 5.
In the present case, from the evidence at the bosom of the Court Martial, he should have, suo motu declared that the Appellant had no case to answer and this he did not do. There is no evidence latent or patent to establish a case of conspiracy against the Appellant as reflected in the charge against him and I so hold.
Regarding count no. 2 which is cheating contrary to and punishable under Section 113(b)(II) of the Armed Forces Decree 1993.
At the expense of repetition, I shall reproduce this provision of the law
“A person subject to service law under this Act who by means of a fraudulent trick or device
(a) …
(b) induces another person
(II) to pay or deliver to any person any money or goods or any greater sum of money or greater quantity of goods than he would have paid or delivered but for the trick or device.”
With respect, there is nothing, from the evidence before the Court Martial oral or documentary which suggests trick or device on the part of the Appellant. None of the witnesses suggested that, nor proved same. There is nothing to show that the Appellant induced anybody to pay, or deliver to any person, any money, or goods, nor any greater sum of money, or greater quantity of goods than he would have paid or delivered to anybody.
I hold that the prosecution has failed to also prove this charge against the Appellant.
On the count of Impersonation Contrary to and Punishable under Section 97 (b) of the Armed Forces Decree 1993 No.105.
Impersonation is defined as
“A person subject to service law under this Act who, with intent to defraud any other person, falsely represents himself to be some other person, living or dead, is guilty of impersonation and liable, on conviction by a Court-Martial
(b) in any other case, to imprisonment for a term not exceeding two years.”
Again, I dare say that there is nothing to suggest any intent to defraud any person on the part of the Appellant, from the evidence of the Prosecution witnesses.
The Prosecution has clearly failed to prove the charges against the Appellant beyond reasonable doubt, and his conviction and sentence was therefore without foundation, and justification.
TRIAL WITHIN TRIAL
When a accused person impugnes the confessional statement on the ground that it was not voluntarily made, a trial within trial will automatically arise.
A voluntary confessional statement precedes the trial of the case in respect of which it is made. It is therefore part of the case of the Prosecution. The mere fact that it is retracted at the trial, does not affect its admissibility, as the Court can act on it.
EGBOGHOWONE V. STATE 1993 13 CRLN Part A.
It is apparent on the proceedings, that the Appellant said he objected to the admissibility of his statement the first day it was to be tendered, because it was not voluntarily made – page 41 of the Record of Appeal.
At pages 44-45, the Appellant had this to say when he was called to tell the Court Martial, the circumstances under which his statement was made.
I shall reproduce the portion of the proceedings verbatim – LT-COL. KS IBERI (N/3159)
“Def: Lt. Col. Iberi, this is not the whole trial, limit yourself what is in issue is the circumstances under which you were invited to Sy Cp and how you made the statement?
Ans: First of all I was not invited, I was arrested midnight sometime June this year (97). Lt. Ebubie came within company of about five (5) soldiers knocked at the door. During the investigation, my hands were chained to my leg in this form and I was made to answer issues raised by the petition of Miss. Nneka Nberi. There were two soldiers standing behind me and during that process, I got a knock on my head and somebody hit me behind and the statement was taken under duress,
Ques: How?
Ans: I was made to answer yes to allegation made by Miss Nneka Nberi. I was put under pressure.
Ques: Who put you under pressure and how?
Ans: Co Gp, Lt Ebulue and there were those other soldiers and other officers who I don’t know. The Co. told me they were after Karfa, that I should say all that I know after Karfa thereafter they will let me go. I had to agree to make this statement. I would have died if I did not agree with them.
Ques: In other words, what you have to the statement to be tendered is not exactly what happened? If you have not been forced would you have made such statement?
Ans: I would not have made such a statement.
Ques: In other words, the statement you gave him is not correct?
Ans: It is not correct my lord.”
He was cross-examined by the Prosecution.
Part of the cross-examination and answers thereto is worthy of reproduction.
“Ques: Now sir, who wrote your statement for you?
Ans: The statements were dictated to me by Lt. Ebulue based on the allegation made by Miss. Nneka.
Ques: Did you sign the statement?
Ans: I was forced to sign ——–
Ques: Now si, when you said Lt. Ebulue dictated this statement to you, how many people were there?
Ans: It was me and him with soldiers of his unit.
Ques: Now sir, the act you wrote, you said you did not do them?
Ans: Yes”
At page 58 of the Record of Appeal is part of the proceedings that went on, after the Court Martial returned after a short adjournment.
“Gentlemen you are welcome back, The Court went in to deliberate on the issue of non-admissibility raised by the Defence. The Court has finished and the decision is that we will admit the evidence as exhibits in this Court, and the Court will continue with case.
J. Adr. The Statement of Lt. Col. K. Iberi is hereby admitted and marked as Exhibit A1, statement of Maj. 10 Amachree is hereby admitted and marked A2, statement of WO Saka Balogun admitted and marked Exhibit A3, statement of John Ngbako admitted and marked Exhibit A4.
Now, may I ask, can this procedure be said to be one in which the Court Martial properly evaluated the legal implications of the evidence led by the Prosecution before proceedings to admit Exhibit “A1”? It thinks not.
Section 143 (I) of the Armed Forces Act stipulates that
“Except as otherwise provided in this Act, the rules as to evidence to be observed in proceedings before a Court Martial shall be the same as those observed in Criminal Courts in Nigeria and no person shall be required in a proceeding before a Court Martial to answer a question or to produce a document which he could not be required to answer or produce in a similar proceeding before a civil matter in Nigeria.”
Now the Criminal Courts in Nigeria are guided, regarding procedure by the Provisions of the Criminal Procedure Law. I shall consider what the procedure is as it affects “Trial within Trial” in order to determine if the Court Martial in this case properly evaluated the legal implications of the evidence led by the Prosecution before proceeding to admit the accused person’s statement (i.e. the Appellant in this present Appeal).
At page 58 of the proceedings is where the purported trial within trial, took place.
Let me reproduce same verbatim
“Gentlemen you are welcome back. The Court went in to deliberate on the issue of non-admissibility raised by the Defence. The Court has finished and the decision is that we will admit the evidence as exhibits in this Court, and the Court will continue with case.
The statement of Lt. Col. Iberi is hereby admitted and marked as Exhibit A1…
Before this, at page 57, the Defendant had this to say
“My lord our case is simple, you have heard the accused officers and warrant officers testified before you. If they were out to tell lies as to have you reject the statements, they have the whole opportunity of saying they were all flogged. Apart from Lt. Col. Iberi whose head is swollen and WO John who had a mark on him, Maj. Amachree and WO Balogun were not beaten but were threatened, psychologically and mentally are all issues the law regard as inducement. My lord Section 25 is very clear.”
The Court Martial has this to say at page 58 of the Record of Appeal.
“Members have heard evidences adduced within the trial section 28 of the Evidence Act are very clear. That’s the law of the Federation that statement made by inducement or threat is not admissible in law. It is now left for the Court to decide whether these statements were made under duress, The Court should take into consideration…or let their knowledge generally on how statements are obtained by police or security Group (Sy Gp) is done. Some of us have served in the Army for years. We have had the opportunity of listening to person who obtained these statements from the accused persons admissibility whether they are to be exhibits in this Court is the Courts’ decision. So I will leave that to the Court. The Court may wish to adjourn for some minutes.”
Section 28 of the Evidence Act – now Section 29 of the Evidence Act 2011 has this to say
Section 29:
(1) “In any proceeding, a confession made by a Defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this section
(2) In any proceeding where the prosecutions propose to give in evidence a confession made by a Defendant, it is represented to the Court that the confession was or may have been obtained
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.”
At page 44 of the Record of Appeal, the Appellant was told to tell the Court the circumstances under which he was invited by Sy Cp and how he made his statement.
Hear him
“First of all, I was not invited, I was arrested midnight sometimes June this year (97) Lt. Ebulue came with a company of about five (5) soldiers knocked at the door. During the investigation, my hands were chained to my leg in this form and I was made to answer issue raised by the petition of Miss, Nneka Nberi. There were two soldiers standing behind me and during that process I got a knock on my head and somebody hit me behind and the statement was taken under duress.
Ques: How?
Ans: I was made to answer yes to allegation made by Miss. Nneka Nberi. I was put under pressure.
Ques: Who put you under pressure and how?
Ans: Co. Gp. Lt. Ebulue and there were three other soldiers and other officers who I don’t know. The Co told me they were after Karfa, that I should say all that I know after Karfa thereafter they will let me go. I had to agree to make this statement. I would have died if I did not agree with them.
Ques: In other words, what you have in the statement to be tendered is not exactly what happened? If you have not been forced would you have made such a statement?
Ans: I would not have made such a statement.
Ques: In other words, the statement you gave them is not correct?
Ans: It is not correct my lord.”
Answering questions put to him in cross-examination he said
“Ques: Now sir, who wrote your statement for you?
Ans: The statement was dictated to me by Lt. Ebulue based on the allegation made by Miss. Nneka.
Ques: Did you sign the statement?
Ans: I was forced to sign
Ques: Now sir, when you said Lt. Ebulue dictated this statement to you, how many people were there?
Ans: It was me and him with soldiers of his unit.
There is nothing on record to show that the Appellant was brought before a Superior Police Officer for attestation of his statement.
It is obvious that the Appellant made his statement under duress, from his narration.
There is nothing on record where the Court Martial evaluated the evidence before him of how the statement was made and indeed the evidence adduced by the Appellant.
The Court Martial obviously did not, and failed to evaluate the legal implications of the evidence led by the Prosecution, before proceeding to admit the accused person’s statement.
The admission of that statement was wrong in law and I so hold.
This Issue is resolved in favour of the Appellant and against the Respondent.
ISSUE NO 3: “Did the accused have a fair hearing in this case particularly with the endless intervention by the Court Martial during the proceedings?”
At page 84 of the Record of Appeal, the Court Martial asked questions ostensibly to classify issues. This was when PW3 – Sakiru Abudu testified.
At page 111 of the Record of Appeal, when PW5 testified, the Court asked questions spanning about one and half pages i.e. pages 111-113 of the Record of Appeal.
When the Appellant testified, the Court also asked question (about five questions.)
I am of the view that these questions did not amount to the Appellant’s denial of fair hearing.
The issue of fair hearing is not a matter of dogma. It must be according to the circumstances of the case.
The Rule of Audi alteram partem is one of the essential cornerstones of our judicial process. Lives in the procedure followed on the determination of the case, not in the correctness of the decision.
Decidedly, the violation of the rule of Audi alteram partem, per se lies in the breach of fundamental human right. Once ones right is violated, it is irrelevant whether a decision made subsequent thereto is correct – TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 9, SCNJ 1.
On a breach of the right of fair hearing, an Appellate Court does not go to the reasons for its breach, or the consequences of same. It has no alternative but to allow the appeal against the decision, and treat it as though there had been no hearing at all – ADIGUN & ORS V. A-G. OF OYO STATE & ORS (1987) 2 NWLR (Pt. 56) at page 192.
It is a fact that the Court Martial asked questions but in my view he did so to clarify issues before him in arriving at a just determination of the case. To connote that his questions amounted to him jumping into the arena of conflict, and constituting a breach of the right to fair hearing of the Appellant in misconceived.
This issue is answered in the affirmative and same is resolved in favour of the Respondent and against the Appellant.
ISSUE 4: “Does the general Court Martial, as was constituted, have jurisdiction to try and convict the Appellant?”
Section 133 of the Armed Forces Act stipulates the constitution of the Courts Martial.
Section 133:
(1) “Subject to the provisions of Section 128 and 129 of this Act, a Court Martial shall be duly constituted if it consists of President of the Court Martial, not less than two other officers and a waiting member.
(2) An officer shall not be appointed to be a member of a Court Martial unless he is subject to service law under this Act and has been an officer in any of the services of the Armed Forces for a period amounting in the aggregate to not less than five years.
By Section 133 (3)(b) of the Act, it says
“The President of a Court Martial shall be appointed by order of the convening officer and shall not be under the rank of major or corresponding rank, unless, in the opinions of the convening officer, a major or an officer of corresponding rank having suitable qualifications not, with due regard to the public service available, so however
(b) where an officer is to be tried the President shall be above or of the same or equivalent rank and seniority of the accused and the members thereof shall be of the same but not below the rank and seniority of the accused.”
The Court Martial, as constituted consists of:
(1) Col. Z.M. Yaduma (N/3333) President
(2) Col. Iko Ajibola (N/2959) Member
(3) Lt. Col. M. Aminu-Kano (N/0422) Member
(4) Lt. Col. G.E. Ngwaba (N/5896) Member
(5) Maj. P.J.O. Bojie (N/7928) Member
(6) Maj. R.J. Diri (N/7963) Member
(7) Maj. Sam Okeke (N/6661) Judge Advocate.
There were seven members here. That seems normal, subject to the rank.
It is alleged by the Appellant, that Maj. P.O.J. Bojie who is a Major, in rank and Maj. R.J. Diri who is a Major in rank should not have been members of the panel as constituted for they were clearly below the rank and seniority of the Appellant who was a Lt. Col.
Section 129 of the Armed Forces Act specifies two types of Court Martial. They are:
Section 129
(a) A general Court Martial consisting of a President and not less than four members, a waiting member, a liaison officer and a Judge Advocate.
(b) a special Court Martial consisting of a President and not less than two members, a waiting member, a liaison officer and a Judge Advocate.
It is apparent from the Records that the Appellant was a Lt. Col at the time of his trial.
If by the Provisions of Section 133(a) (b), where an officer is to be tried, the President shall be above or of the same or equivalent rank and seniority of the accused (which is the case here), the members shall be of the same but not below the rank and seniority of the accused.
It is clear that the inclusion of Major P.J.O Bojie (N/7928) and R.J. Diri (N/7963) in the panel was a travesty of the fundamental human right of the Appellant. It renders the entire proceedings a nullity as it was done contrary to the provisions of the law, regulating the proceedings in Section 133(3) (b) of the Armed Forces Act, as it affects trial by a Court Martial.
I adopt the case cited by learned counsel for the Appellant i.e. SKEN CONSULT NIG. LTD. V. UKEY (1981) 1. S.C. Page 5, where the Apex Court citing with approval MADUKOLU & ORS. V. NKEMDILIM (1962) 1 ALL NLR pg. 387 at 594, held inter alia
“…a Court can only be competent if among other things all the condition president for its having jurisdiction is fulfilled…”
The Court Martial lacked the relevant jurisdiction to try and convict the Appellant, ab initio, and I so hold. The answer to that issue is necessarily in the negative.
This issue is resolved in favour of the Appellant and against the Respondent.
Now to the Respondent’s issues, which I would safely term a Preliminary Objection.
I shall reproduce, at the expense of repetition the Respondent’s two issues for determination. They are
1. Whether a person that is convicted by a Court Martial can file a competent appeal without complying with the Provisions of Section 183 and 184 of the Armed Forces Act LFN.
2. Whether the Appellant’s appeal is valid in the absence of a competent Notice of Appeal.
Section 183 of the Armed Forces Act stipulates thus
“Subject to the following provisions of this part, on appeal shall lie from decisions of a Court Martial to the Court of Appeal with the leave of the Court of Appeal. Provided that, an appeal as aforesaid shall lie as of right without the leave of the Court of Appeal from any decision of a Court Martial involving a sentence of death.”
Section 184 of the Armed Forces Act stipulates that
(1) “Leave to appeal to the court of Appeal shall not be given except in pursuance of any application in that behalf made by, or on behalf of the Appellant and lodged, subject to subsection.
(2) of this Section, within forty days of the date of promulgation of the finding of the Court Martial in respect of which the Appeal is brought with the Registration of the Court of Appeal, being an application in the printed form and specifying the grounds on which leave to appeal is sought and such order particular, if any, as may be prescribed.”
It seems to me that the Respondent’s grouse is that the Appellant sought no leave of this Court to appeal the Judgment of the Court Martial, the offences with which he was charged being those that had to do with offences not punishable with death.
But, with respect from records, pursuant to motion filed on the 25th of September 2009, the Appellant had sought, inter alia, leave to appeal against the Judgment of the Court Martial delivered on the 15th day of January 1998, which leave was granted on the 31st of May 2011.
The Notice of Appeal was however filed on the 6th of June 2011.
The Appellant has in my view complied with the provisions of Section 183 and 184 of the Armed Forces Act L.F.N.
The Notice of Appeal filed on the 6th of June 2011 is therefore competent and I so hold.
The Appellant filed his reply brief on the 20th of February 2012 in which his line of reasoning is adopted by this Court, on the issue of the filing of Notice of Appeal.
He also postulates that since the Respondent took part in all the proceedings and raised no objection to the filing of grounds of appeal, it was too late for him to complain about the competency of the Notice of Appeal or any irregular procedure. It is apparent that the Respondent took part in the proceeding of 31st May 2011 (wherein extension of time to file the Appellant’s Notice of Appeal was granted (same being unapproved by the Respondent). He cannot now raise the issue that the Appellant did not comply with the provisions of the Armed Forces Act, in asking for extension of time to bring this appeal.
In all, this appeal is meritorious for reasons adumbrated earlier on in this Judgment, and same is hereby allowed.
The judgment of the Court Martial delivered on the 26th of May 1998, being perverse, is hereby set aside and the conviction and sentence of the Appellant to a term of imprisonment for two (2) years without option of fine is hereby quashed. The Appellant is discharged and acquitted. The proceedings were never alive and same is declared null and void for want of jurisdiction.
Consequently, it is hereby further ordered that the Appellant, Lt. Col. K.S. Iberi (Rtd.) be reinstated into the Nigerian Army with immediate effect.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I had read, before now, the draft of the judgment just delivered by my learned brother, the Hon. Justice R. N. Pemu, JCA. Having equally perused the briefs of argument of the learned counsel to the respective parties vis-‘a-vis the record of appeal, I hereby concur with the reasoning and conclusion reached in the judgment, to the effect that the present appeal is meritorious.
Hence, it’s my privilege to adopt the reasoning and conclusion reached in the lead judgment as mine. Consequently, the appeal is hereby allowed by me. The judgment of the court martial, delivered on May 26, 1998 is hereby set aside for being perverse. The conviction and sentence passed upon the Appellant stand quashed. The Appellant is accordingly discharged and acquitted.
I abide by the consequential order reinstating the Appellant into the Nigerian Army with immediate effect.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the benefit of a preview of the judgment just pronounced by my learned brother, Rita Nosakhare Pemu, J.C.A., with which I agree with these few comments.
The appellant was at all material times a Lt. Colonel in the Nigerian Army. The army officers that constituted the court martial that tried him for some criminal offences included two majors. It is common knowledge that the rank of major in the army is below or next to the rank of Lt. Colonel.
By section 133 (3) (b) of the Armed Forces Act, 1993, (now cap. A.20 Laws of the Federation of Nigeria, 2004) an army officer below the rank and seniority of the appellant was not competent to be a substantive member (not waiting member) of the panel of the Court Martial that tried the appellant for the offences that brought about the present appeal.
In the instant case, a major PJO Bojie and a major R. J. Diri sat as substantive members of the Court Martial that tried the appellant. Their participation as substantive members of the Court Martial when they were at all material times junior in rank to the appellant rendered the trial a nullity- see The Nigerian Army v. Lt. Patrick Dodo (2012) 18 NWLR (pt. 1331) 151 at 177 per the judgment of Ariwoola, J.S.C., as follows:-
“Where the Court Martial is composed of a disqualified member, the court’s jurisdiction would be affected adversely. The entire proceedings embarked upon thereafter will amount to nullity.”
See also by analogy the case of Ibrahim v. Aliyu (2000) 12 NWLR (pt. 683) 38 at 51-52, where the participation of two unqualified king makers with other king makers in the selection of a chief was held by the Supreme Court to have nullified the selection exercise.
Generally, where a trial is a nullity, a retrial is normally ordered. However, as thoroughly analysed in the lead judgment of my learned brother, Pemu, J.C.A., there was no iota of evidence at the close of the respondent’s case linking the appellant with the offences charged. In such circumstance, the appellant was entitled as of right to automatic discharge at the close of the prosecution’s case- see Okoro v. The State (1988) 12 S.C.N.J. (pt.11) 191 at 209-210 as follows:-
“I have already pointed out and set out in this judgment the provision of section 33 (5) (of the Constitution) which provides for the presumption of innocence. Under our law, it is not for the accused to prove his innocence. The burden is on the prosecution to establish the case against the accused beyond reasonable doubt. These propositions establish that where no case has been made out against the accused at the end of the case of the prosecution, asking him to answer the charge against him is a reversal of the constitutional provision by asking him to establish his innocence…. Thus at the end of the case for the prosecution none of the accused persons was identified as one of the assailants of the deceased. The trial judge was at this stage under a constitutional duty to discharge all the accused persons. But he did not do that. Rather what he did was to call upon them to make their defence; this was an invitation to them to establish their innocence. The evidence of the 6th and 7th accused which purported to identify the appellant was given in violation of the constitutional provision of the presumption of innocence and accordingly void. It is therefore not evidence in the case.”
See also Daboh v. The State (1977) 5 S.C. 197, In re Maiduguri (1961) 1 All N.L.673, Mumuni V. The State (1975) 6 S.C. 79.
I too see merit in the appeal and hereby allow it. The conviction and sentence of the appellant by the Court Martial is accordingly set aside. An order of acquittal is entered for the appellant in consequence.
Appearances
FRED AGBAJE ESQ. WITH ADENIYI POKANU ESQ.For Appellant
AND
GINIKA UCHE ESQ.For Respondent
