NGBEDE v. NIGERIA ARMY (2020)

NGBEDE v. NIGERIA ARMY

(2020)LCN/14121(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, April 30, 2020

CA/A/839C/2017

RATIO

JURISDICTION OF THE COURT

I shall now consider the main complaint regarding the jurisdiction of the trial Court to entertain the matter. For a Court to be competent to adjudicate in a cause or matter, the following conditions must be satisfied:
a. It must be properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason the other;
b. The subject matter of the case must be within its jurisdiction, and there must be no feature in the case which prevents the Court from exercising its jurisdiction; and
c. The case must come before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”.
See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) All NLR 587 at 594; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC. 6 at 62; Inakoju v. Adeleke (2007) NWLR (Pt. 1025) 423 at 588 F. It is equally trite that where the Court lacks jurisdiction to entertain a cause or matter; the entire process, no matter how well conducted, is an exercise in futility. The proceedings would amount to a nullity ab initio and liable to be set aside.”
I must add also that in Criminal trials, the Court or Tribunal will also look at the charge determine jurisdiction of the Court. See MATTARADONA V. AHU (1995) 8 NWLR (PART 412) 225 at 235 H to 236A where this Court per OPENE JCA held:
“In AKINFOLARIN V. AKINOLA (1992) 4 SCNJ 30 p. 43 Iguh J.S.C. observed:
“.. it is a fundamental principle of law that it is the claim of the plaintiff which determines the jurisdiction of a Court entertaining same.
See: Ajaka Izenkwe & Ors. V. Nnadozie (1953) 14 WACA 361 at 363: Adeyemi v. Opeyori (1976) 9 -10 SC. 31
In the instant case which is a criminal matter it is the charge before the Court that determines the jurisdiction of the Court to entertain the matter and the charge.”
The issue of jurisdiction cannot be brushed aside as it is always a live issue that cannot be ignored under any guise.
See:
1. CAPITAL Y. U. ZAKARI V. NIGERIAN ARMY & ANOR (2015) 17 NWLR (PART 1487) 77 at 97 A- H TO 98 A – E per PETER ODILI JSC, who said:
At the root of this appeal is the jurisdiction of the trial Court martial which the appellant contends was ousted with the disqualification of one of the members of the panel, a point disagreed with by the respondents. On this point therefore, a journey in time into the case of Madukolu & Ors. v. Nkemdilim (1962) 1 All NLR 587, (1962) 2 SCNLR 341 @ page 348, paras. E-G would be helpful where Bairamian, FJ stated what has become the guiding light in matters of jurisdiction or competence of a Court to adjudicate. The Court held thus:
That a Court can only be competent when:
1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
2. 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; and
3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction, any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.
From the guide proffered by Madukolu (supra), the question that crops up is if the special Court martial with the requirement of competence or jurisdiction in view of the first condition which if the Court was properly constituted and no member is disqualified for one reason or the other.
In seeking to provide an answer, the respondents are of the view that the case of Agbiti v. Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175 would not be available to the appellant in a way to get a favourable answer on his behalf as the facts herein are distinguishable. PER IGE, J.C.A

WHAT CONSTITUTES A VALID ARRAIGNMENT

I think it is necessary to first state what is the position of the law concerning what a valid arraignment or plea connotes. The apex Court in the land has made pronouncement on this aspect of Criminal law in numerous case viz:
1. AUDU YUSUF VS. THE STATE (2011) 18 NWLR (PART 1279) 853 at 879 H to 880 A – D per RHODES – VIVOUR JSC who said:
2. OKO OGAR ADAMA V THE STATE (2017) 12 (PT. 2) SCM 29 AT 47 G – 1 TO 49A – B per BAGE, JSC who said:-
“The object of arraignment in terms of Section 215 of the Criminal Procedure Law is to ensure that justice is done to the accused by ensuring that he understands the charge against him and so as to enable him to make his defence.
In CHIKAODI MADU V. THE STATE (2012) NCC at 553 this Court on the essential requirement of valid arraignment enumerated conditions for valid arraignment:
“(a). The accused must be placed before the Court unfettered unless the Court shall see cause otherwise to order.
(b). The charge or information shall be read over and explained to the accused to the satisfaction of the Court by the registrar or other officer of the Court; and
(c). The accused shall then be called upon to plead instantly thereto unless of course, there exist any valid reason to do otherwise such as objection to want of service where the accused is entitled by law to service of a copy of the information and the Court is satisfied that he has in fact not been duly served therewith.”
See also OLABODE V. STATE (2009) 4 NCC 199, OGUNYE V STATE (1999) 5 NWLR (Pt.604) 518; MONSURU SOLOLA & ORS V. STATE, 22 NSCQR 254 at pp. 289-290. PER IGE, J.C.A.

DUTY OF AN ACCUSED OR HIS COUNSEL TO BRING TO THE NOTICE OF THE COURT THAT HE DOES NOT UNDERSTAND THE LANGUAGE THE TRIAL IS CONDUCTED

“In the realm of criminal justice, it is the cardinal principle of our criminal jurisprudence that it is the duty of the accused or his counsel acting on his behalf to bring to the notice of the Court the fact that he does not understand the language in which the trial is conducted, otherwise it will be assumed that he has no cause of complaint.”
See; also Adeniji v. State (2001) FWLR (Pt. 57) 809 at 817.
Earlier, this Court, per Adio, JSC in Mallam Madu v. The State (1997) 1 NWLR (Pt. 482) 306 at 402, had stated thus:
“The fact that the accused does not understand the language which the trial Court is being conducted is a fact well known to the accused and it is for him or his counsel to take the initiative of bringing it to the notice of the Court at the earliest opportunity or as soon as the situation has arisen. If he does not claim the right at the proper time he may not be able to have valid complaint afterwards, for example on appeal.” PER IGE, J.C.A.

WHAT IS A VALID AND PROPER WAY OF ARRAIGNMENT OF AN ACCUSED PERSON

On what is the proper and valid way of an arraignment of an accused – The question is said to be “Was there a proper or valid arraignment on which the trial was based?” The answer is said to lie in the entire circumstance of the case. Each case must be dealt with on its own peculiarity. The accused must be placed before the Court unfettered, the charge must be read to him in the language the accused person understands, and if he is represented by counsel, there is no objection to the charge and a plea is taken from the accused person. The charge must be read and explained to the accused, and if there is no objection by counsel or the accused person, then there is clear presumption of regularity that all that must be done to let the accused know the charge against him has been done. In that situation, the accused is presumed to have understood the charge which has been read and explained to him and the Court was equally satisfied that the charge was understood by the accused. See; Gozie Okeke v. The State (2003) 15 NWLR (Pt. 842) 25; (2003) 2 SC 63; (2003) LPELR 2436 (SC).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>In Okeke v. State (supra) this Court, per Ogundare, JSC observed as follows:
“There appears to be fairly rigid and flexible approach to the question of non-compliance with the enabling provisions for arraignment. It is conceded that the conditions have been designed and formulated for the protection of the accused and preservation of the constitutional rights of citizen. Equally, the Court should not ignore the nature of the rights protected and the preservation of the Courts in the discharge of their sacred and solemn duty to do justice. There is clearly observable, the distinction between a matter of procedure that affects substantial justice in the trial of case and a matter of procedure which in no way affect the justice of the trial, in the latter case, it will not affect the trial. It would seem to me that the mandatory provision of Section 215 of the Criminal Procedure Law which requires that the charge be read and explained to the accused is complied with, if there is evidence on record to show that the accused understood the charge and was in no way misled by the absence of explanation ex facie. It is conceded that subsequent validity of the procedure rests on the validity of the plea on arraignment. However, where there is counsel in the case defending the accused person, the taking of the plea by the Court, it ought to be presumed in favour of regularity, namely, that even if it was not stated on the record, the charge had been read and explained to the accused on arraignment before the plea was taken.”

WHETHER OR NOT AN OBJECTION TO A DEFECT IN A CHARGE SHOULD BE TAKEN IMMEDIATELY AFTER THE CHARGE HAS BEEN READ TO THE ACCUSED PERSON

It is settled that any objection to a charge for any formal defect on the face thereof or for any perceived irregularity relating say to procedure, shall be taken immediately after the charge has been read over to the accused and not later. See Section 167 of the Criminal Procedure Act and cases of Okaroh v. The State (1990) 1 NWLR (Pt. 125) 128 at 136-137; (1990) 1 SCNJ 124 and John Agbo v. The State (2006) 6 NWLR (Pt.977) 545 at 577-578; (2006) 1 SCNJ 332 at 356; (2006) 1 S.C. (Pt.73); (2006) 2 SCM 81; (2006) 135 LRCN 808; (2006) All FWLR (Pt. 309) 1380; (2006) 4 NSCJ (Pt.13) 253; (2006) vol 6 QCLR 48 and (2007) 10 WRN 95. The word is “shall” and this means that it is mandatory.
Secondly, there are the statutory provisions in Sections 123, 124 (also reproduced in the appellant’s brief at page 3), 128 and 131(1) of the Armed Forces Decree/Act, 1993 (as amended) hereinafter called “the Act”) which read as follows:
“123. Before an allegation against a person subject to service law under this Decree (in this section referred to as the “accused”, that he has committed an offence under a provision of this Decree 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 of this Decree to deal with it summarily, be so dealt with by that authority (in this Decree referred to as “the appropriate superior authority”) in accordance with those provisions.” (the italics mine)
It is stated in the appellant’s brief that the appellant does not deny that the charge against him was investigated before the Court martial was convened. That the contention is that the investigation was not in the manner prescribed under the provisions of the said two sections, that this is because of the intendment of the said sections. That what is envisaged where there is an allegation of an offence against a person subject to the act, are (not is) as follows:
(i) The allegation shall be reported, in the form of a charge to the commanding officer of the accused officer;
(ii) The commanding officer shall investigate the charge in the prescribed manner;
(iii) After the investigation, the commanding officer may further proceed with the allegation against the accused officer by convening a Court Martial.”
It is not in dispute that Brigadier-General P. N. Aziza, was the commander of the Lagos Garrison Command. Section 128(1) of the Act, provides that the following persons may act as appropriate superior authority to a person charged with an offence.
“(a) The Commander Officer; and
(b) Any officer of the rank of Brigadier or above or officer of responding rank or those directed to so act under whose command the person is for the time being.”
The above provision is clear and unambiguous. P. N. Aziza was a Brigadier-General and the appellant was under his Garrison Command and by virtue of the provision of Section 131(1) (d) of the Act, he was qualified and competent to convene the GCM.” PER IGE, J.C.A.

THE DEFENCE OF ALIBI

It is trite law that an Accused person who sets up defence of Alibi, meaning that he was not at the scene of the offence for which he was charged or that he was somewhere else when the alleged crime was committed must prove the alibi by strong and convincing evidence. See SANI LAWAL (DAGTINA) vs. THE STATE (2019) 2 SCM 46 at 63 H – 1 to 64 A – B per PETER- ODILI JSC who said:
“The appellant in defence had made much of the alibi raised and in this Court, the claim that it was not investigated. That is not correct as alibi simply put means accused was elsewhere which is a radical exculpating defence but where as in this case the accused appellant is pinned to the scene of incident then the alibi is demolished. PER IGE, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

09NA/64/4214/PTE ANDREW NGBEDE APPELANT(S)

And

NIGERIA ARMY RESPONDENT(S)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the General Court Martial sitting at the Nigerian Army Headquarters Garrison Cantonment Abuja, which convicted the Appellant along with some other soldiers charged along with Appellant for various offences bordering on insubordinate behavior and mutiny. The Appellant was sentenced to two years imprisonment and on the other offence to death by firing squad.

The charge against the Appellant and his co accused cre as follows:
“1. CHARGE ONE:
Criminal conspiracy to commit mutiny.
STATEMENT OF OFFENCE
Criminal conspiracy to commit mutiny, triable by court martial by of virtue of Section 114 AFA and punishable under Section 97(1) of the Penal Code CAP B59 LFN 2004, in that you on or about 14th May 14 at Maimalari cantonment Maiduguri conspired to incite other Personnel of 101 BN to commit mutiny
2. CHARGE TWO.
Mutiny punishable under Section 53 (1 b) AFA CAP A20 LFN 2004.
STATEMENT OF OFFENCE.
That on or about 13 & 14 May 14 at Maimalari cantonment Maiduguri fired sporadically with intent to incite

other persons of 101bn against the authority of 7 Div.
3. CHARGE THREE.
Attempt to commit offence (Murder) contrary to Section 95 and punishable under Section 106 AFA CAP A20 LFN 2004.
STATEMENT OF OFFENCE.
That you on or about 14 May 14 at 7Div Medical Hospital Maimalari cantonment Maiduguri without justification attempted to unlawfully kill Maj Gen A Mohammed (N/7195) GOC 7Div as he was by firing shots by his official vehicle (command Jeep) which hit the right rear door where he sat.
4. CHARGE FOUR
Disobedience to particular order punishable under Section 56(1) of The AFA Act LFN 2004.
STATEMENT OF OFFENCE
i. In that you on or about 14 May 14 at Maimalari cantonment Maiduguri willfully disobeyed an order by It Col E Azenda (N/10517) 2ic 101bn to allow the corpse of 101 BN persons KIA on 13 may 14 to be moved to Unimaid Teaching hospital Mortuary by preventing the movement until the arrival of the GOC before such movement could take place.
5. CHARGE FIVE.
Insubordinate behavior contrary to and Punishable under Section 54 (1 b) AFA CAP A20 LFN 2004
STATEMENT OF OFFENCE.
In that you on or about 13 & 14

May 14 at 7 DIV medical Hospital Maimalari cantonment Maiduguri altered abusive language, that officers are Cowards with threat to shoot the officers if he did not leave the premises.
6. CHARGE SIX.
False accusation contrary to and punishable under Section 94 (a) AFA cap A20 LFN 2004.
STATEMENT OF OFFENCE.
In That you on or about 13 & 14th May 2014 at Maimalari cantonment accused LT Col E Azenda (N/ 10517) 2ic of 101bn of conspiring with other officers to kill 101Bn soldiers which you know to be false.”

According to the Appellant’s Learned Counsel the sentences have while this appeal was pending in this Court commuted to a ten years imprisonment. The Appellant and the co accused were convicted and sentenced on 15th July, 2014.

The Appellant was dissatisfied with the conviction and sentence passed on him and has by his Amended Notice of Appellant filed on 17th day of January, 2018 but deemed filed by this Court on 12th March, 2019 to this Court on eight (8) grounds which with their particulars are as follows:
“GROUND 1
The General Court Martial erred in law and occasioned a miscarriage of justice when it proceeded to

exercise Jurisdiction over the Appellant on a defective charge, and convicted the Appellant in respect of the charge before it.
PARTICULARS OF ERROR.
Section 181 (1)(2) of the Armed Forces Act A20 LFN 2004 states that the rules of procedure of the Court martial shall be the Rules of Procedure (Army) 1972.
ii. The president has not made any other rules of procedure that the Court martial shall follow.
iii. Rule 14 (3) of the Rules of Procedure (Army) 1972 provides that every charge sheet shall in its layout follow the Appropriate illustration given in Schedule 2 to the rules.
iv. Schedule 2 of the Rules of Procedure (Army) 1972 provides that every charge sheet shall state the number, rank, name and unit of the accused and show by description of the accused or directly by an express averment that he is subject to military law or otherwise triable by Court martial.
v. The charge against the Appellant at the Court Martial did not state the Name, Rank, Number and unit of the Appellant.
The charge against the Appellant did not comply with the provision of Schedule 2 of the Rules of Procedure (Army) 1972.
vii. The counts in the

charge did not sufficiently identify the Appellant by his known and acknowledged names, description and designation, as it kept referring to the Appellant by the word “YOU”
viii. The word “You” is not specific and can refer to anybody among those charged.
ix. The Charge did not create any nexus between the Appellant and the crime he was convicted of.
x. The Appellant was prejudiced in the conduct of his defense because of the defective charge.
xi. The defective charge misled the Appellant and occasioned a grave miscarriage of justice.
xii. The trial of an accused person on a defective charge lacks proper foundation and remains irregular.
GROUND 2
The General Court Martial erred in law and occasioned a miscarriage of justice when it failed to arraign and take the plea of the Appellant properly thereby violating the Appellant’s right to fair hearing as guaranteed under Sec. 36 (6)of the 1999 Constitution (as amended).
PARTICULARS OF ERROR.
i. It is the law that when in a criminal trial the charge contains more than one count, each count must be read separately to the accused person and he must plead separately to them

and the record of proceedings must show that the counts were read separately to the accused and that he pleaded separately to them. Sharfal V The State (1992) 7 NWLR PART 255 pg 510 pp 519-520 para. H-A.
ii. If it is a joint charge containing more than one count, each count must be read out and explained to each accused person separately and each must plead separately to each count and these must be so stated in the record of the Court, Sharfal V. The State (SUPRA).
iii. The plea of the Appellant must be separately recorded from the plea of the other accused persons. See the case of Musa V The State (2017) 4 NWLR pt 1555 pg 187 SC, Nwankwo V The State (1990) 2 NWLR pt 134 pg 627 at 638; Duval V COP (1962) 2 ALL NLR (PTII) 115 at 117; Sharfal V The State (SUPRA).
iv. The record shows what purports to be a collective plea by the Appellant and the other accused persons in the General Court Martial, this constitutes an affront to the constitutional provision of fair hearing as embedded in Section 36 (6) of the 1999 Constitution as Amended.
v. In the instant case the record of proceedings before the General Court Martial shows that there was no

compliance with the law.
vi. The absence of a proper plea taking by the General Court Martial is fatal and rendered the whole proceedings a nullity.
vii. The collective taking of the Appellant’s plea with the other accused persons amounts to not taking his plea at all.
viii. There is nothing known to our criminal jurisprudence as collective plea taking. See Kajubo V State (1988)19 NSCC pt 1 at 475.
ix. The so called collective plea taking is prejudicial to the Appellant’s fundamental right to fair hearing.
x. If an accused person’s plea is either defective or completely absent as in the instant case, then there is no trial. Sharfal V The State (SUPRA) pp 522-523 para G- E; Kajubo V The State (1988) 1 NWLR (pt.73) 721 at 732; Ewe v The State (1992) 6 NWLR (pt 246) 147.
xi. The General Court Martial has no jurisdiction to try and make any finding without the Appellant’s plea separately first had and obtained.
xii. The plea of the Appellant was not taken in the course of the proceedings.
Ground 3
The General Court Martial erred in law when it assumed jurisdiction, tried and convicted the Appellant on the counts in the

charge sheet which was not signed by the Appellants commanding officer as mandatorily required by Rule 14 of the Rules of Procedure (Army) 1972 and paragraphs 38, 39 and 43 in Chapter II of the Manual of Military law (MML) applicable to the General Court Martial.
PARTICULARS.
i. The commanding officer of the Appellant for the purpose of this trial before the trial Court Martial was the General Officer Commanding of 9BDE Garrison INT Group. Page 474 of the Record of Appeal.
ii. At the time of the trial the Appellant was a member of 9BDE Garrison Lagos INT Group, but was only nominated temporarily to 101 Bn Maiduguri for Special buty in “Operation Zaman Lafiya”.
iii. Paragraph 38, 39(c) and 43 of the Manual of military Law and Rules of Procedure (Army) 1972 provides that the charge sheet must be signed by the Appellant’s Commanding Officer and that this cannot be delegated.
iv. The charge sheet upon which the Appellant was tried and convicted and sentenced was not signed by the Appellant’s commanding officer as mandatorily required by Rules of procedure (Army) 1972 and the Manual on Military law.
v. The charge sheet against the

Appellant at the Court Martial was signed by Brig Gen BT Ndiomu (N7620), the convener of the General Court Martial.
GROUND 4.
The General Court Martial erred in law and came to a perverse decision when it convicted the Appellant for the offence of conspiracy to commit mutiny under Section 114 AFA Cap A20 LFN 2004 in spite of paucity of evidence and failure of the prosecution to discharge the evidential burden of proving the ingredients of the offence of conspiracy to commit mutiny.
PARTICULARS OF ERROR.
i. The prosecution charged the Appellant with offence of conspiracy to commit mutiny under a wrong law that is Section 114 of the AFA Cap A20 2004.
ii. The element of the offence of conspiracy to commit mutiny under the AFA Act are these:
a. That the accused is subject to service law.
b. That there was an agreement of a common design.
c. That the design was unlawful and lawful but executed by unlawful means.
See Saheed Arowolo V The State (2009) LPELR -4913
iii. There was no evidence led which showed that there was an agreement of any kind between the Appellant and anybody to commit mutiny.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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GROUND 5.
The General Court Martial erred in law and came to a perverse decision by recording a finding of guilt and awarding a punishment of death after convicting the Appellant for the offence of mutiny punishable under Section 52 AFA CAP A20 LFN in spite of the paucity of evidence and failure of the prosecution to discharge the evidential burden of proving the ingredients of the offence of mutiny as contained in Section 52 Armed Forces Act CAP A20 LFN 2004.
PARTICULARS OF ERROR.
l. The ingredients of the offence of mutiny as contained in Section 52 of the Armed Forces Act are that:-
a. The accused persons are subject to service law.
b. That the accused persons were given an order to carry out a military act.
c. That the accused persons deliberately and by collusion disobeyed the order.
d. That the disobedience and the acts strike at the foundation of discipline in the Army.
e. That the accused persons used violence or threat of violence.
f. That such act or acts were deliberately designed to put the Nigerian Army in imminent danger.
ii. Evidence before the Court Martial shows that the Appellant and other soldiers were

protesting over the issuance to them of inferior firearms to confront Boko Haram who had Superior firearms.
iii. Evidence before the Court Martial shows that Appellant and the other soldiers were Protesting the killing of their colleagues who were sent out to confront Boko Haram contrary to security reports which suggest the killed colleagues should not have been sent out to confront Boko Haram on the said day.
iv. Evidence before the Court Martial shows that the soldiers were protesting the non-payment of their Estacode due to them.
v. The prosecution clearly failed to discharge the evidential burden placed on it by Section 138 of the Evidence Act 2011.
vi. The prosecution failed to prove that the Appellant was one of the perpetrators of the offence charged.
vii. Section 179 of the Armed Forces Act, Cap A20, LFN, 2004 preserves the right of a soldier to make a complaint to his commanding officer and he shall not be penalized for having made a complaint.
viii. The demand for weapons to engage in the operations against the enemy cannot be said to constitute mutiny. See Section 217 (2) of the 1999 Constitution as amended.

GROUND 6.
The General Court Martial erred in law and occasioned a miscarriage of justice when it convicted the Appellant of the offence of attempted murder in spite of paucity of evidence and failure of the prosecution to discharge the evidential burden of proof of the ingredients of the offence of attempted murder.
PARTICULARS OF ERROR.
i. Evidence before the Court Martial shows that the command jeep of Maj Gen A Mohammed (N/7915), the Goc of 7 biv (as he then was), was not tendered as an Exhibit before the General Court Martial to enable it examine same.
ii. No evidence was led showing that it was the Appellant who shot at the right rear door of the command jeep of Maj Gen A Mohammed (N7915) the GOC of 7Div (as he then was).
iii. The Appellant in examination in chief accounted for all the ammunitions given to him during the period in question which was neither discredited nor rebutted by the prosecution.
iv. No evidence was led as to the specific weapon which shot at the vehicle of Maj Gen A Mohammed (N/7915) The GOC of 7 Div (As he then was) neither was there any evidential nexus between the weapon that fired the shot (if Any) and the

Appellant.
v. There was no evidence led to show whether the bullet which punctured the command jeep of Maj Gen A. Mohammed (N/7915) emanated from within or outside the command jeep.
vi. The General Court Martial thus relied merely on suspicion which did not lead conclusively and indisputably to the fact that the Appellant actually shot at the right rear door of the command jeep of Maj Gen A Mohammed (N/7915), the GOC of 7Div (as he then was).
GROUND 7.
The General Court Martial erred in law when it failed to evaluate the evidence placed before the said court martial by all the parties before it.
PARTICULARS OF ERROR.
i. The judgment of the court martial did not show a dispassionate consideration of the issues and the evidence before it.
ii. The General Court Martial did not give reasons as to how it arrived at its conviction.
iii. The General Court Martial did not give a summary of the cases and evidence presented by the parties.
iv. In the case of Oladele V Nigerian Army (2004) NWLR pt 868 at pg 166 pp 182 PARA A-E the Court of Appeal held thus;-
“The members of the Armed Forces are not excluded from the

application of the provisions of fundamental rights the like of right to life, right to personal liberty, right to fair hearing, right to freedom from discrimination etc., have looked carefully at the records of proceedings nowhere was it shown that the Court martial evaluated the evidence led before it nor had a dispassionate consideration of the issues in controversy, the judgment is bare. In Anyankpele v Nigerian Army (2000) 13 NWLR (pt 684)209, it was observed at page 214
“the judgment of any Court or tribunal must be based in criminal matters on the evidence adduced in Court and the findings of the judge which are based on the issues raised…
No Court or tribunal can negotiate a noncompliance with the above requirements. In the instant case no reasons were given as to how the conviction of the Appellant was arrived at. The Court just simply pronounced him guilty on the Two Charges” Per Aderemi JCA.
v. The General Court Martial did not discharge its judicial functions properly.
vi. All the ingredients of the offences for which the appellant was convicted were not established by the prosecution.
vii. There was absence of direct,

unequivocal or any scintilla of evidence connecting the appellant with the offences.
viii. The prosecution failed to prove the commission of the offences beyond reasonable doubt, that the Offences were committed and that no other person than the appellant committed the offences.
ix. The charge and the evidence led in support thereof are at variance with and inconsistent with the uncontradicted unrebutted evidence led in defense and thus renders the finding and sentence perverse.
x. The prosecution evidence did not tie or connect the appellant to the time and venue of the commission of the offence.
xi. None of the prosecution witness positively identified the Appellant as one of those present or who participated in the commission of the offence for which he was being tried and convicted.
GROUND 8.
The Judgment of the General Court Martial is unreasonable and cannot be supported having regards to the evidence adduced at the General Court Martial.
4. RELIEFS SOUGHT FROM THE COURT OF APPEAL.
i. To Allow this Appeal.
ii. To set aside the Decision of the General Court Martial dated 15th September 2014.
iii. To set

aside the confirmation of finding of the General Court Martial by the confirming authority made on the 12th November 2015.
iv. That the Appellant be discharged and acquitted.
v. To order payment of due and outstanding pecuniary benefits or otherwise accruing to the Appellant.
vi. To Order reinstatement of the Appellant into the Nigerian Army.”

The Learned Counsel to the Respondent incorporated into the Respondent’s Brief of Argument NOTICE OF PRELIMINARY OBJECTION which reads:
“The Respondent hereby raises a preliminary objection to the jurisdiction of this honourable Court to hear and determine this suit on the following grounds:
a. There was no valid judgment of the Court Martial to be appealed against at the time the original Notice of Appeal and Leave to Appeal were filed.
b. There is no valid application for leave to appeal and no valid Notice of Appeal; hence, the Notice of Appeal is incompetent.
c. The purported amendment of the Notice of Appeal cannot cure the incurable Notice of Appeal.
d. This appeal is an abuse of Court process.
The questions that the honourable Court is called upon to answer in

determining this objection one way or the other are:
1. Whether there is a valid judgment of the Court martial to be appealed against at the time of filing this appeal.
2. Whether the appellant’s application for leave to appeal and the appellant’s notice of appeal are valid in law.
3. Whether the purported amendment has cured the appellant’s incompetent notice of appeal so as to ground a valid appeal warranting the exercise of the jurisdiction of this Court.
4. Whether this present appeal does not amount to abuse of Court process.”

The said Notice of Preliminary Objection was objection was not moved by the Respondent’s Learned Counsel. The Notice of OBJECTION is therefore deemed abandoned and it is hereby struck out.
In any event even if the objection had been moved I would still have dismissed it.

The contention of the Respondent’s Learned Counsel had being that the Appellant appealed the judgment of the Court Martial delivered on 15th day of September, 2014 without waiting for a promulgation or confirmation of the judgment before the said Notice of Appeal was filed. He further argued that the Amended Notice of Appeal later

filed pursuant to the leave of this Court on 12th March, 2019 will still be incompetent since the earlier Notice of Appeal filed before 12th November, 2015 when the decision of the Court Martial was confirmed and promulgated by Chief of Army Staff by commuting the Appellant’s death sentence to 10 years imprisonment on the said 12th November, 2015, was incompetent.
The position of Respondent on the said Objection was predicated on Sections 141, 150 and 184 of the Armed Forces Act, Cap C20 LFN 2004.
The Appellant contended the contrary. He relied on Section 240 of the Constitution of the Federal Republic of Nigeria 1999 as amended and the case of ERIZEA V. NIGERIAN ARMY (2016) 10 NWLR (PART 1519) 52 at 84 C -G per ABAJI JCA now JSC who said:
“A judgment generally must contain amongst others the decision of the Court on the points for determination and the reasons for the Court’s decision by virtue of the combined reading of Sections 245 CPA and 268 & 269 CPC. This invariably implies a fact, data and evidence-based determination of the issues as personally observed and carried out by the trial judge. In other words, a judgment must be

written by a Judge who has handled the matter and not by any other person on his behalf who did not have the opportunity of observation, analysis and evaluation of the evidence. I personally do not subscribe to the argument of the respondent at page 16 of his brief that until confirmation by the Army Council, the pronouncement of the GCM is not a judgment of the GCM. This cannot definitely be the intent of the drafters and must go contrary to other enabling laws and authorities in this country. Simply, can the Army Council or the confirming authority of the pronouncement of the GCM which did not try the accused write or confirm a judgment it did not sit over? Is the confirming authority doing that confirmation with an appellate power and jurisdiction or what unless the confirmation is done (no matter how protracted), does that pronouncement of the GCM remain an exercise in futility? What is then the function and duty of the GCM if it cannot after trying an accused person pronounce judgment and sentence the accused? I can go on and on to ask many worrying questions. I think that the caveat “subject to confirmation” is for administrative decorum. Besides, what

about the 90 days period within which a judgment must be read and pronounced as statutorily provided, does what the respondent ask not contrary to it? Moreover, Sections 141 and 148 of the AFA stipulate that the confirmation be done within 60 days.” (Underlined mine)
Where an Accused or Defendant who is charged, tried and convicted by General Court Martial is sentenced to death, such an Accused/Defendant is endowed with right of appeal from the very date the judgment is pronounced to appeal to the Court of Appeal vide Section 240 of the Constitution of the Federal Republic of Nigeria 1999 as amended and pursuant to Section 183 of the ARMED FORCED ACT Cap C20 LFN 2004 which provides:
“183. Right of appeal
Subject to the following provisions of this Part, an 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.”
I therefore hold that the Appellant’s appeal is competent.

MERIT OF THE APPEAL
The Appellant Brief of Argument was dated 19th March, 2019 and filed on 21st March, 2019. The Respondent’s Brief of Argument dated 30th May, 2019 was filed on 10th June, 2019 and deemed properly filed on 6th February, 2020. The Appellant filed Appellant’s Reply Brief on 28th January, 2020. It was dated 27th January, 2020. The appeal was heard on 6th February, 2020 when the parties to this appeal through their Learned Counsel adopted their Briefs of Argument.

The Appellant’s Learned Counsel distilled two issues for determination as follows:
2.01.Issue One:
Whether the GCM had the requisite jurisdiction to try and convict the Appellant in respect of the charges before it. (Grounds 1,2,3 of the amended Notice of Appeal).
2.02 Issue Two:
Whether the general Court martial erred in law and came to a perverse decision when it recorded a finding of guilty and convicted the appellant for the offences before it inspite of the paucity of evidence and failure of the prosecution to prove the ingredients of the offences against the Appellant. (Ground 3, 4 & 5 of the Amended Notice of Appeal).”

The Learned Counsel to the Respondent adopted the

two issues formulated by the Appellant.
The two issues will be taken together.

On issue 1, the Learned Counsel to the Appellant Edward Okpe Esq., who settled the Brief of Argument strongly submitted that the Appellant was not properly arraigned and as such the General Court Martial that tried him had no jurisdiction to try the Appellant. That failure to strictly comply with the procedure and process of arraignment by the Respondent rendered the trial and conviction of Appellant a nullity. He relied on the following case:
1. ANDREW IDEMUDIA VS THE STATE (1999) 7 NWLR (PART 610) 202 at 214.
2. AMALA V. THE STATE (2004) 12 NWLR (PT 888) 520 at 559
3. EYOROKORO VS. THE STATE (1979) 6 9 SC 3.

He relied also on pages 24 – 30 of the Record of Appeal showing the method and manner by which Appellant and his Co-Accused were arraigned and their plea taken. Learned Counsel submitted that the plea of the Appellant and other Co-accused were not taken at the Court martial. That their plea were taken together on all counts as against the separate taking of the plea of each accused persons and the Appellant as the Court Martial was enjoined to do

the case of HASSAN VS. FRN (2017) 6 NWLR (PT. 1560) 64, was cited.

He submitted that collective plea taking is unknown to the Nigerian Criminal Law jurisprudence. He referred to pages 12 and 13 of the record as to the manner in which Appellant and his co-accused’s plea were taken to submit that the method breached the Appellant’s right to fair hearing as enshrined in Section 36(6) of the 1999 Constitution. That the entire procedure is a nullity. He relied on KAJUBO V. FRN (PT 1344) 213 at 235 236 FC and JOSIAH VS. THE STATE (1985) 1 NWLR (PT 1) 125.

The appellant Learned Counsel stated that the charge against the Appellant was defective. That the law provides that a charge must contain all the statutory requirements for it to be valid and it permits no exception. That a charge must be explicit so as to afford the Defendant adequate notice of the nature of the offence brought against him and ensure that no uncertainty or ambiguities in the drafting of charges. He relied on the case of DES-DOKUBO V. THE NIGERIAN ARMY (2015) LPELR 25969 (CA). That a perusal of the charge against the Appellant on pages 24 – 30 of the record revealed that there is no

nexus between the Appellant and any of the Counts in the charge. That the charge did not identify the Appellant as Respondent kept using the word “You” in all the Counts. That the defect in the charge robbed the General Court Martial the requisite jurisdiction to try the Appellant and other Accused persons. He rely on the case of ABACHA V. THE STATE (2002) FWLR (PT. 118) 1224 per GUMEL JCA. He also relied on the Armed Force Act A20 LFN 2004 and the following Rules of Procedure (Army) 1972 viz:
1. RULE 14 (3) of the Rules of Procedure Army 1972.
2. Schedule 2 Section 205 (1a-h) of Rules of Procedure Army 1972.
3. Schedule 2 Rules of Procedure Army 1972.

That Appellant was not shown to be subject to service law and that the charge does not contain their names or service number and their unit as required by the Rules of Military Procedure (Army) 1972. He again relied on pages 24 – 30 and 1218 – 1220 of the record of appeal. That these are fundamental elements that must be contained in the charge before the Court martial. He relied on IBERI V. AG FED supra.

That paragraphs 38 – 39 (c) and 43 of the Manual of Military law and Rules of

Procedure (Army) 1972 provides that a charge sheet must be signed by the appellant’s commanding officer and that the duty cannot be delegated. That the counts contained in the charge upon which the Appellant was convicted and sentenced was not signed by the Appellant’s Commanding Officer as mandatorily required by Rules of Procedure Army (1972) and the manual of Military law but was signed by BRIG GENERAL BT. NDIOMU (N7620) the convener of the General Court Martial relying on page 1390 1398 of the record of appeal and the case of JIDE ALADEJOBI V. NBA (2013) 2 LPELR 20940 SC.
He submitted that the entire trial at the General Court Martial was a nullity.

On issue 2 as to whether the decision of lower Court is not perverse on the ground that there was no sufficient evidence to support the Counts in the charge and that ingredient of the offences were not proved.

He stated that prosecution committed fatal error by charging the Appellant under the wrong law that is Section 114 of the Armed Forces Act which has nothing to do with conspiracy. He relied on the case of IBERI V. AG FED (2014) 5 NWLR (PT. 1401) 610 at 632 F H.

That the lower Court relied on the evidence of PW4 and PW10 on pages 210 and 398 of the record and pages 1241 – 1242 for the finding of the lower Court.

That the evidence of PW4 and PW10 did not link the Appellant with offence. That the Court Martial speculated in its reliance on evidence of PW4 and PW10. That are fatal discrepancies in the evidence of the said witnesses. That it was unsafe to convict the Appellant on the evidence of prosecution’s witness that were fully of contradictions and discrepancies relying on ADOBA V. STATE (2018) LPELR 44065 (SC).

That the defence of Appellant of alibi was not debunked. That the defence could not be debunked by evidence of PW10 and DW14 as their evidence were inconsistent with their earlier statements Exhibit p 28 made by PW10 on pages 1290 1291 of the Record of Appeal and that the law did not place onus of proof beyond reasonable doubt on Appellant to establish his alibi. He relied WISDOM V. THE STATE (2017) 5-6 SC (PT. 1) 116 at 131 and Exhibit P6, the Appellant’s Statement. He also relied on the statements of some of his colleagues and their statements Exhibits P1, P6 and P10. That evidence led through PW1 – PW10

shows no agreement of any type to prosecute unlawful purpose.

On Court 2 relating to MUTINY, Learned Counsel to the Appellant stated that Appellant was charged under Section 52 of the Armed Forces Act Mutiny and he went on to state what should be the elements of the offence. He submitted that the prosecution did not prove beyond reasonable doubt that Appellant created any violence or disturbance or acted in concert with any person to usurp or override lawful Military authority in the instant case.

On the charge of attempted murder, he set out what he believed to be the elements. He referred to page 28 of the record in respect of the charge of attempted murder and submitted that the ingredients of the offence were not proved by the 10 witnesses called by the prosecution and 28 Exhibits tendered. He referred to pages 1223 – 1226 of the record and testimony of the witnesses. That PW1’s evidence is hearsay and cannot be relied on. The case of IJIOFFOR V. THE STATE (2001) NWLR (PT. 718) 311 at 382 was cited.

That PW2 did not identify the Appellant as among the Soldiers who accosted him or part of soldiers who started shooting into the air and that

more so since PW2 turned his back he could not have seen those shooting into the air. He went into extensive review of evidence of PW2 in Examination in chief and under cross examination and urged the Court to discountenance his evidence. He also drew attention to PW’s evidence and stated that throughout his evidence in chief, PW3 did not identify any of the Accused persons including the Appellant. That he admitted under cross examination that he could not identify anyone. That his evidence is of no value relying on IKARIA V. THE STATE (2012) LPELR -115533 SC.

That procedure by which some of the witnesses identified the Accused persons are not acceptable in law. He also did x-ray of the evidence of the PW4 10 and submitted that in law, the conviction for any offence can only be secured based on proof of sufficient credible and cogent evidence in satisfaction of all essential elements of the offence charged falling in which the Accused will be discharged and acquitted.

He relied on the cases of SADU V. THE STATE (1982) 1 NLR 49 at 67 and AFOLALU V. STATE (2010) 16 NWLR (PART 2010) 16 NWLR 1220 page 584 – 609.

He submitted that the charge against

the Appellant and counts in it were not proved or established. He urged the Court to allow the appeal and restore the Appellant to his rank in the Nigerian Army.

In response to the Appellant’s submissions under issue 1, the Learned Counsel to the Respondent HEZEKIAH IVOKE Esq. contended that many of the cases relied upon are not on all fours with the facts of this case. That in the case of AMALA V. STATE supra, the Supreme Court considered the manner in which the plea of the Accused was taken sufficient and in compliance with Section 215 of the Criminal Procedure Act.

That the Learned Counsel to the Appellant just made merely a blanket allegation that the charge was not read over to the Accused without any proof.

That there is no requirement under Section 215 of the CPA that the Court must make a note expressly in the record of Court as to how the charge was read to the satisfaction of the Court before Accused plea could be taken. That the only requirement is for trial Court to be sure that the Accused understand the nature of the charge before he pleads to it. That in this case there is nothing on the face of the record to suggest that Appellant

did not understands the charges brought against him.

That Accused persons were represented and none of them raised any objection on the manner the plea of the Appellant was taken or read to him. That no miscarriage of justice was occasioned.

That it is evidence from pages 23 & 24 that the accused persons names and ranks were stated. That the pages also show that the Accused persons elected to be tried with the available Charge. That in order to comply with the Army Act, the Judge Advocate first ensured that the Accused persons clearly understood the charges. That page 26 also shows that each of the Accused was given microphone to personally take pleas. That even if which was not conceded, that the plea of the Accused was not taken individually, Respondent’s Learned Counsel submitted that will not be enough to vitiate the charge and the trial.

The case of IDEMUDIA V. STATE supra was cited and relied upon to submit that the fact in IDEMUDIA V. THE STATE supra are on all fours with this case. That the Appellant is educated and must be taken to understand the charges against him. That the case of HASSAN VS. FRN are not the same with this case.

That the Accused persons and the Appellants were represented by Legal Practitioners and yet they did not raise any objections.

That any objection to defect in a charge must be raised by an Accused immediately the charge is read over to him and not afterwards especially where the Accused is represented by Counsel. He relied on the case of OBAKPOLOR V. THE STATE (1991) NWLR (PT 1651) 1 at 124 and the case of IKPA V. STATE 2018 4 NWLR (PART 1609) 175 at 237 A – B.

That the Appellant was tried under Criminal Procedure Act and not under the Administration of Criminal Justice Act 2015 which was not in force as at 2014 when the trial held.

He concluded his submissions by submitting that the Court martial has jurisdiction to entertain the charge, try and convict the Appellant. That Appellant’s contention also tantamount to academic exercise and should be discountenanced.

Under issue 2 as to whether the decision of Court martial was perverse or that there was insufficient evidence to support the charge, the Learned Counsel to the Respondent stated that the six counts charge of conspiracy, mutiny, attempted murder, disobedience to particular order,

insubordinate behavior and false accusation, the Appellant and others were convicted by General Court Martial GCM and sentenced to death which was later reduced/commuted to ten years imprisonment. He too acknowledged that prosecution called 10 witnesses and tendered 28 (Twenty eight) exhibit.

That the case of IBERI V. AG FED. (2014) 5 NWLR (PT. 1401) 441 at 601 relied upon by the Appellant to contend that because Appellant was charged under a wrong law he should be discharged is not relevant in this case. That the appeal in the case not about the ground of bringing charge under the wrong law but because the prosecution failed to prove elements of conspiracy.

That in this case the Appellant was charged under Section 114(1) of the Armed Forces for conspiracy punishable under Section 97(1) the Penal Code. That there is no doubt that the Appellant is subject to the service law having answered his names and number rank and unit. He relied on the evidence of PW1, PW2 and P8 to the effect that on 14-52014 the Appellant and his colleagues agreed to flout the orders and directives of their superiors, COL. AZENDER AND COL. KEHINDE when they mutually

decided to prevent and held the corpses of their dead colleagues from being deposited in the hospital morgue until the arrival of the GOC, 7 Division. He submitted that what the Appellant and his colleagues did is contrary to superior orders. He relied on page 35 – 38, 88, 91 – 92, 319 – 325 of the Record of Appeal. That the case of conspiracy was made out relying on the case ofSHURUMO V. STATE (2010) 19 NWLR (PT. 1226) 73 at 106 A – B. That it was not an error to charge Appellant under Section 114 of the Armed Forces Act and that even if it was, the error is saved under Section 97 of the Penal Code.

That the act of the Appellant and his colleagues in firing shots at the GOC 7 Division, sporadically raining bullets at the cantonment and within Maiduguri Teaching Hospital premises constitute mutiny. That uncontroverted evidence of PW2, PW3 and PW4 as well as Exhibits P22, P23, P24 which were bullets fired at GOC and Exhibit P25 which is the empty cases fired and expended by the Accused persons according to Respondent’s Learned Counsel established offence of conspiracy. He relied on summary of evidence on pages 1070 1256 of the record of appeal.

That PW4 stated on page 1241 of the record that he saw the Appellant firing bullets on an up subsequently in lying position in company of the AMADI CHUKWUDI who was also firing.

That the purported Plea of alibi by Appellant that he was away for rescue operation at the time of the alleged offences failed as the unchallenged evidence of Capt Iliya who was the leader of operations team showed according to Learned Counsel that the rescue operations took place from 0600 hours to 0800 hours. That evidence of Capt. Iliya was corroborated by DW12 who himself was rescued and who testified that he was at the Battalion premises at 0800 hours. That the evidence of P4 and DW12 also destroyed plea of alibi put forth by the Appellant. That PW4 and DW12 fixed the Appellant at the scene of the commission of the offence, relying on THE STATE V. USENI OKON EKANEM (2016) LPELR SC. 712 2013 of 16/12/13. That Appellant was rightly charged with the counts in the charge containing Six Counts. He relied on the STATE & ORS v. ADEBAYO ADEYIGA & ORS (2012) per ADEKEYE, JSC.

On the offence of attempted murder, Learned Counsel to the Respondent relied on the case of SHURUMO VS. STATE

supra to submit that there is overwhelming evidence in this case to prove the offence. He relied on evidence of PW1 and PW2.

On whether the evidence of PW1 was hearsay, Learned Respondent’s Counsel submitted that evidence of an investigator who testifies concerning his investigation cannot be hearsay. That circumstantial evidence is also allowed to prove guilt of the Accused where direct evidence is lacking. He relied on MAIGARI VS. STATE (2010) 26 NWLR (PT. 1220) 419 at 468 C. That PW1 stated that Accused persons were afforded opportunity to present their own witnesses for interrogation but they failed. He relied on the case of IJIOFFOR V. STATE (2001) 9 NWLR (PART 718) 252 at page 387 A- B. That PW1’s evidence was not hearsay.
That PW4 identified Appellant as one of the persons shooting and this to Learned Counsel shows premeditation.

On whether evidence of PW2 is inconsistent with Exhibits 12 and 14 statements made by PW2 and should be treated as unreliable, the Respondent Counsel urged the Court to treat PW2 evidence as reliable. That credibility of witness is not a matter of course, it must follow due-process. He relied on

Section 232 of Evidence Act and the case of NWUBA v. OGBUCHI (2008) 2 NWLR (Pt. 1072) 441 at 481.

That it was not true that the attention of PW2 was drawn to any inconsistency in PW2’s evidence and that of PW3 and Exhibit P15 made by him. That the Appellant was among the soldiers who actively participated in the sporadic shooting as disclosed in the evidence of PW4.

On issue of identification, Learned Counsel to the Respondent stated that issue of identification is not an issue for this Court to determine so that Court will not be interfering with a finding fact made by the trial Court.
That this Court cannot do so. He relied on OLALEKAN vs. STATE (2001) 18 NWLR (Pt. 746) 524 at 807 – 808.

That the evidence of the 10 prosecutions witnesses establish the counts in the charge. That is not every contradiction that will vitiate a case as the nature of contradiction that would make a Court disbelieve a witness has to be on material point in the case.

That this Court has no jurisdiction to assess the evidence led by witnesses except where the trial Court failed to properly evaluate evidence before it. He relied on KAYDEE VENTURES LIMITED V. MINISTER FCT (2010) 7 NWLR

(PART 1192) 1 at 208 – 209 and OLUDAMILOLA V. STATE (2010) 8 NWLR (PART 9197) 421 at 585 C – D.

He concluded by stating that the Appeal is incompetent. He also stated that the overwhelming evidence fixed the accused/Appellant at the scene of the commission of the crimes he was charged.
That no valid defence was put up by the Appellant. He urged the Court to resolve all issues against the Appellant.

In response, the Appellant filed Brief wherein he argued that the Appellant’s position is that the charge and the trial offend the Rules of Procedure (Army) 1972. That the charge remains incompetent and that Appellant is not estopped from raising the defect affecting the charge and jurisdiction of the Court. He relied on ABIDOYE V. FRN (2014) 5 NWLR (PART 139) 301 at 57 and ERIZEA V. NIGERIAN ARMY(2016) 10 NWLR (PT 1579) 52
He urged the Court to allow the Appeal.

The submissions of the Appellant’s Learned Counsel borders on the jurisdiction of the Court Martial to try the Appellant. He contended also the conditions precedent were not fulfilled or complied with in the trial and conviction of the Appellant.

The power or authority of a

Court or Tribunal including a Court Martial to embark upon trial or determination of a civil or criminal matter is as donated by the constitution or the statute creating the Court or the Tribunal. Jurisdiction is very pivotal to adjudication be it Civil or Criminal. No matter how well or brilliantly conducted, the proceedings of a Court or Tribunal or Court Martial will be a nullity where there is no jurisdiction.
1. CHIEF DANIEL OLOBA VS. OLUBODUN AKEREJA (1988) NWLR (PT. 84) 508 at 520 where OBASEKI JSC said:
“The issue of jurisdiction is very fundamental as it goes to the competence of the Court or tribunal. If a Court or tribunal is not competent to entertain a matter or claim or suit, it is a waste of valuable time for the Court to embark on the hearing and determination of the suit, matter or claim. It is therefore an exhibition of wisdom to have the issue of jurisdiction or competence determined before embarking on the hearing and determination of the substantive matter. The issue of jurisdiction being a fundamental issue, it can be raised at any stage of the proceedings in the Court of first instance or in the Appeal Courts. This issue can be

raised by any of the parties or by the Court itself suo motu. When there are sufficient facts ex facie on the record establishing a want of competence or jurisdiction in the Court, it is the duty of the Judge or Justices to raise the issue suo motu if the parties fail to draw the Court’s attention to it, see Odiase v. Agho (supra).
2. ATTORNEY-GENERAL OF LAGOS STATE VS. EKO HOTELS LIMITED & ANOR (2018) 7 NWLR (PART 1619) 518 at 552 F – H per KEKERE-EKUN, JSC who said:
I shall now consider the main complaint regarding the jurisdiction of the trial Court to entertain the matter. For a Court to be competent to adjudicate in a cause or matter, the following conditions must be satisfied:
a. It must be properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason the other;
b. The subject matter of the case must be within its jurisdiction, and there must be no feature in the case which prevents the Court from exercising its jurisdiction; and
c. The case must come before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the

exercise of jurisdiction”.
See: Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) All NLR 587 at 594; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC. 6 at 62; Inakoju v. Adeleke (2007) NWLR (Pt. 1025) 423 at 588 F. It is equally trite that where the Court lacks jurisdiction to entertain a cause or matter; the entire process, no matter how well conducted, is an exercise in futility. The proceedings would amount to a nullity ab initio and liable to be set aside.”
I must add also that in Criminal trials, the Court or Tribunal will also look at the charge determine jurisdiction of the Court. See MATTARADONA V. AHU (1995) 8 NWLR (PART 412) 225 at 235 H to 236A where this Court per OPENE JCA held:
“In AKINFOLARIN V. AKINOLA (1992) 4 SCNJ 30 p. 43 Iguh J.S.C. observed:
“.. it is a fundamental principle of law that it is the claim of the plaintiff which determines the jurisdiction of a Court entertaining same.
See: Ajaka Izenkwe & Ors. V. Nnadozie (1953) 14 WACA 361 at 363: Adeyemi v. Opeyori (1976) 9 -10 SC. 31
In the instant case which is a criminal matter it is the charge before the Court that determines the jurisdiction of the

Court to entertain the matter and the charge.”
The issue of jurisdiction cannot be brushed aside as it is always a live issue that cannot be ignored under any guise.
See:
1. CAPITAL Y. U. ZAKARI V. NIGERIAN ARMY & ANOR (2015) 17 NWLR (PART 1487) 77 at 97 A- H TO 98 A – E per PETER ODILI JSC, who said:
At the root of this appeal is the jurisdiction of the trial Court martial which the appellant contends was ousted with the disqualification of one of the members of the panel, a point disagreed with by the respondents. On this point therefore, a journey in time into the case of Madukolu & Ors. v. Nkemdilim (1962) 1 All NLR 587, (1962) 2 SCNLR 341 @ page 348, paras. E-G would be helpful where Bairamian, FJ stated what has become the guiding light in matters of jurisdiction or competence of a Court to adjudicate. The Court held thus:
That a Court can only be competent when:
1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
2. 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; and
3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction, any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.
From the guide proffered by Madukolu (supra), the question that crops up is if the special Court martial with the requirement of competence or jurisdiction in view of the first condition which if the Court was properly constituted and no member is disqualified for one reason or the other.
In seeking to provide an answer, the respondents are of the view that the case of Agbiti v. Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175 would not be available to the appellant in a way to get a favourable answer on his behalf as the facts herein are distinguishable.
A reference to Section 133(3)(b) of the Armed Forces Act is hereby made which provides as follows:
Section 133(3)(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.”
Also of note is the argument of the respondents that the appellant had opportunity in keeping with Section 137 of the Armed Forces Act to raise an objection before the commencement of the trial and he had none and the trial was started and completed and so cannot now want to harp on the constitution of the panel of judges at the trial Court to have the judgment set aside. To this argument, I shall refer to the stand of this Court on such a proposed estoppel or waiver to a discourse on jurisdiction at the appellate Court even at the Supreme Court in such circumstances. The case of Mobil Producing Nigeria Unlimited v. Monokpo (2003) 18 NWLR (Pt. 852) 346 @ pages 434-435, paras. H-B a judgment of this Court per Niki Tobi, JSC as he stated:
“Jurisdiction being a forerunner of judicial process cannot be acquiescence, collusion, compromise, or as in this case, waiver, confer jurisdiction on a Court that lacks it. Parties do not have legal right to donate jurisdiction on a Court that lacks it. Non-compliance with the rules which affect

the very foundation, or props of the case, cannot be treated by the Court as an irregularity but as nullifying the entire proceedings. Once the matter to the extent that the merits of the case are ruined, then, it is impossible to salvage the proceedings in favour of the party in blunder who in this appeal are the respondents, no amount of waive by the party can be of assistance to the adverse pay.
The defence of waiver lacks merit and I so hold.”

The first complaint is that the Appellant was not properly arraigned. The complaints of the Appellant can be found on pages 4 – 8 of his brief which in the interest of … are reproduced as follows:
“JA: Now listen to the charge, being person (Sic) subject to military law are charged with:
a. Statement of offence: Criminal Conspiracy to commit mutiny, triable by Court martial by virtue of Section 114 AFA and punishable under Section 97 (1) of the Penal Code CAP B59 LFN 2004.
b. Particulars of the offence: In that you on or about 14th May 14 at Maimalari cantonment Maiduguri conspired to incite other personnel of 101 BN to commit mutiny. CPL Jasper, Sir. Are you Guilty or not?
After asking

all the other accused persons whether or not they were guilty or not to which they all responded that they were not guilty. See page 24- 26 of the record of appeal. Specifically at pages 26-28 of record of appeal concerning the appellant herein the record of appeal reveal thus:
JA: Give it to PTE Andrew Ngbede
A CC: PTE Andrew – Sir.
JA;’ How do you plead?
A CC : PTE Andrew -I am not Guilty Sir.
JA : Thank you very much. PTE Nurudeen Ahmed.
JA: My Lord all the accused persons pleaded not guilty to count 1.
On count 2 the record of appeal at page 28 of the record of appeal reveals the plea of the appellant and other accused persons as follows:
Now Count two. You listen to count 2.
Statement of offence. Mutiny punishable under Section 53(2)(a-b) of AFA CAP A20 LFN 2004.
Particular of offence: In that you on or about 11 May 14 at Maimalari cantonment Maiduguri fired sporadically with intent to incite other persons of 101 BN against the authority of 7 Div. So do you understand the charge?
JA: How do you People Plead?
ACC: All not guilty Sir.
JA : My Lord, All the 11 accused persons pleaded not

guilty to count 2. Now listen to the charge. I assume your names have been read?
ACC: All – yes Sir
On count 3 the record of appeal reveals the plea of the appellant and other accused persons thus:
JA: Now listen to charge.
Statement of offence: Attempt to commit offence (Murder) contrary to Section 95 and punishable under Section 106 AFA CAP A20 LFN 2004.
Particulars of offence. In that you on or About 14 May 14 at 7DIV Medical Hospital Maimalari cantonment without justification attempted to unlawfully kill Maj Gen, Molzalmed by firing at his official vehicle. Do you understand?
ACC: All- Yes Sir
JA: So how do you plead?
ACC: All- Not Guilty Sir.
JA: Yes thank you my lord, the whole 11 accused persons pleaded not guilty to count 3.
The plea of the appellant and other accused persons with respect to counts pages 29-30 of the record of appeal states :
…Now listen to count 4, it is still against 11 of you.
Statement of Offence: Disobedience to particular order punishable under Section 56 (1) of the AFA CAP A20 LFN 2004.
Particulars of Offence. In that you on or about14 May 14 at Maimalari cantonment

Maiduguri willfully disobeyed an order by LT Col E Azenda (N110517) 2ic 101 Bn to allow the corpse of 101 Bn persons KIA on 13 May 14 to be moved to Unimaid Teaching Hospital mortuary by preventing the movement until the arrival of the GOC before such movement could take place. Do you understand the charge?
ACC: ALL – yes Sir
JA : How do you plead?
ACC: All – Not Guilty Sir.
JA: My lord the whole 11 accused persons pleaded not guilty to count 4
count 5 it is still made against 11 of you.
Statement of offence: Insubordinate Behavior contrary to and punishable under Section 54 (1)(b).
Particulars of offence: in that you on or about 13 & 14th May 14 at 7 Div medical hospital Maimalari cantonment Maiduguri altered abusive language that officers are cowards with threat to shoot the officers if he did not leave the premises. Do you understand the charge?
ACC: All – yes Sir
JA: How do you plead?
ACC: All – not guilty Sir
JA: My Lord all the 11 accused persons pleaded not guilty to 5
Count 6.
Statement of offence. False Accusation contrary to and punishable under Section 94 (a) AFA CAP A20 LFN 2004.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Particulars of Offence. In that you on or about 13 and 14 of May 14 at MCM accused Lt Col E Azenda (N/10517) 2ic of 101BN of conspiring with other officers to kill 101 BN Soldiers which you know to be false. Do you understand the charge?
ACC: No Sir.
JA: you want me to explain? That you accused your officer, your 2ic that he conspired with other officers to kill soldiers of your unit. Do you understand now?
ACC: All – yes Sir
JA: So how do you plead?
ACC: All – not guilty sir.
JA: thank you, my lord the 11 Accused persons pleaded not guilty to the 6 count charges. With this arraignment my lord we call for the appearances and then from the prosecution how he wants to proceed with the charges…”

I have looked and read the pages of the record referred to by the Appellant’s Learned Counsel. Can it be said that the manner in which the plea of the Accused persons including the appellant were taken tantamount to composite plea or limped up plea instead of separate or individual taken of the plea of the Accused persons to each of the counts contained in the charge?
I think it is necessary to first state what is the position of

the law concerning what a valid arraignment or plea connotes. The apex Court in the land has made pronouncement on this aspect of Criminal law in numerous case viz:
1. AUDU YUSUF VS. THE STATE (2011) 18 NWLR (PART 1279) 853 at 879 H to 880 A – D per RHODES – VIVOUR JSC who said:
2. OKO OGAR ADAMA V THE STATE (2017) 12 (PT. 2) SCM 29 AT 47 G – 1 TO 49A – B per BAGE, JSC who said:-
“The object of arraignment in terms of Section 215 of the Criminal Procedure Law is to ensure that justice is done to the accused by ensuring that he understands the charge against him and so as to enable him to make his defence.
In CHIKAODI MADU V. THE STATE (2012) NCC at 553 this Court on the essential requirement of valid arraignment enumerated conditions for valid arraignment:
“(a). The accused must be placed before the Court unfettered unless the Court shall see cause otherwise to order.
(b). The charge or information shall be read over and explained to the accused to the satisfaction of the Court by the registrar or other officer of the Court; and
(c). The accused shall then be called upon to plead instantly thereto unless of course, there exist

any valid reason to do otherwise such as objection to want of service where the accused is entitled by law to service of a copy of the information and the Court is satisfied that he has in fact not been duly served therewith.”
See also OLABODE V. STATE (2009) 4 NCC 199, OGUNYE V STATE (1999) 5 NWLR (Pt.604) 518; MONSURU SOLOLA & ORS V. STATE, 22 NSCQR 254 at pp. 289-290.
Looking at pages 62- 63 of the record, this is what transpired in the trial Court when the appellant was arraigned.
J-I Ushie for the State
J-I Ofen Odey for the accused plea
Count 1 read to accused persons in English Language. Each of the 14 accused persons says he/she understands the charge and pleads not guilty.
Count 2 Read to the accused persons in English Language.
Each of the 14 accused persons says he/she understands the charge and pleads not guilty.
Count 3 read to accused persons in English Language. Each of the 14 accused persons says he/she understands the charge all pleads not guilty.
Count 4 read to accused persons in English Language.
Each of the 14 accused persons says he/she understands the charge and pleads not

guilty.”
From the foregoing, this Court is satisfied that what transpired at page 62 of the record in this case is in conformity with the provision of the law above.
The appellant has not furnished this Court with any evidence or fact to prove his claim.
The charge having been read over and explained to both accused persons in English language and each of them pleaded not guilty thereto, I find it difficult to conceive how the arraignment of the accused persons can be faulted. Without doubt, it would have been preferable for the learned trial judge to have recorded the plea of each of the accused persons separately in the direct speech. However, failure to do this cannot be fatal to their plea so long as the charge was read over and over and explained to them, whether jointly or separately, and they both understood the same and each of them individually entered his plea thereto. It would not matter, whether the Court’s record which described the event was written in direct or reported speech. See UDEH V. STATE (1999) 7 NWLR (Pt 609), Anthony Okoro v. The State (Supra), National Revenue Mobilization Allocation and Fiscal Commission v. Johnson

(Supra).
The authorities do not say that it must be recorded that the charge was read and explained to the accused to the satisfaction of the Court (as claim by the Appellant) before proceeding to record his plea thereto. Without doubt it is good practice for the trial Court to record that “the charge was read and fully explained to the accused to the satisfaction of the Court” but I do not think the failure to record will render the trial a nullity. See EYISI VS STATE (2000) 15 NWLR (Pt. 691) 555.”
3. OMOTOLA AKINLOLU VS THE STATE (2017) 12 (PT. 2) SCM 150 AT 182 D – 1 TO 184 A – F per ARIWOOLA, JSC who said:-
“In Okoro v. State (1998) 14 NWLR (Pt. 584) 1 81, this Court went further on the Court’s recording of the facts of arraignment of an accused to state that the provision of Section 215 of the Criminal Procedure Law should not be stretched to a point of absurdity by reading into it that the Judge must record that the charge was explained to the accused to his satisfaction before taking his plea. It will be impeaching the integrity of the Judge to do that, as no Judge will take the plea of an accused if he is not satisfied that the

charge was read and explained to his satisfaction.
On whether, or not the accused understands the language in which the trial is being conducted, it has been held not to be the duty of the Court to seek to know. In Durwode v. The State (2000) 82 LRCN 3038 at 3065; (2001) FWLR (Pt. 36) 950 at 971-2; this Court inter alia opined as follows:
“In the realm of criminal justice, it is the cardinal principle of our criminal jurisprudence that it is the duty of the accused or his counsel acting on his behalf to bring to the notice of the Court the fact that he does not understand the language in which the trial is conducted, otherwise it will be assumed that he has no cause of complaint.”
See; also Adeniji v. State (2001) FWLR (Pt. 57) 809 at 817.
Earlier, this Court, per Adio, JSC in Mallam Madu v. The State (1997) 1 NWLR (Pt. 482) 306 at 402, had stated thus:
“The fact that the accused does not understand the language which the trial Court is being conducted is a fact well known to the accused and it is for him or his counsel to take the initiative of bringing it to the notice of the Court at the earliest opportunity or as soon as the situation

has arisen. If he does not claim the right at the proper time he may not be able to have valid complaint afterwards, for example on appeal.”
In this case, the appellant had argued that there was nowhere on the record where the charge was read and explained to the appellant before his plea was taken, meaning that he pleaded to a charge that was never read and explained to him. This, to say the least, is a misconception.
There is indication on the record of appeal that the arraignment of the appellant and the other two accused took place on Monday the 26th day of February, 2007. Page 45 reflects the proceedings of that day, before the Honourable Justice F. O. Aguda- Taiwo. There is indication that when the matter was first called counsel for the State, prosecuting was in Court but the accused were not represented. Their counsel was said to be in another Court and the case was stood down for him. By 10.55a.m, when the Court resumed sitting, one Kunle Adetowubo appeared with A. B. Ibitoye for the accused persons. The record shows that the appellant pleaded “not guilty” to each of the two counts. There is nothing on record to show that there was any

objection by either the appellant or his learned counsel, to his arraignment.
On what is the proper and valid way of an arraignment of an accused – The question is said to be “Was there a proper or valid arraignment on which the trial was based?” The answer is said to lie in the entire circumstance of the case. Each case must be dealt with on its own peculiarity. The accused must be placed before the Court unfettered, the charge must be read to him in the language the accused person understands, and if he is represented by counsel, there is no objection to the charge and a plea is taken from the accused person. The charge must be read and explained to the accused, and if there is no objection by counsel or the accused person, then there is clear presumption of regularity that all that must be done to let the accused know the charge against him has been done. In that situation, the accused is presumed to have understood the charge which has been read and explained to him and the Court was equally satisfied that the charge was understood by the accused. See; Gozie Okeke v. The State (2003) 15 NWLR (Pt. 842) 25; (2003) 2 SC 63; (2003) LPELR 2436 (SC).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In Okeke v. State (supra) this Court, per Ogundare, JSC observed as follows:
“There appears to be fairly rigid and flexible approach to the question of non-compliance with the enabling provisions for arraignment. It is conceded that the conditions have been designed and formulated for the protection of the accused and preservation of the constitutional rights of citizen. Equally, the Court should not ignore the nature of the rights protected and the preservation of the Courts in the discharge of their sacred and solemn duty to do justice. There is clearly observable, the distinction between a matter of procedure that affects substantial justice in the trial of case and a matter of procedure which in no way affect the justice of the trial, in the latter case, it will not affect the trial. It would seem to me that the mandatory provision of Section 215 of the Criminal Procedure Law which requires that the charge be read and explained to the accused is complied with, if there is evidence on record to show that the accused understood the charge and was in no way misled by the absence of explanation ex facie. It is conceded that subsequent validity of the

procedure rests on the validity of the plea on arraignment. However, where there is counsel in the case defending the accused person, the taking of the plea by the Court, it ought to be presumed in favour of regularity, namely, that even if it was not stated on the record, the charge had been read and explained to the accused on arraignment before the plea was taken.”
In the instant case, there is no doubt that it was not recorded by the trial Judge that the charge was read and explained to the appellant. But it is also not being suggested that an objection was raised at the trial by either the appellant or his counsel who was made sure was in Court when the appellant’s plea was taken. I am of the firm view that the presumption of regularity should avail the respondent in this case. In other words, it is to be safely presumed that the appellant was fairly treated in his arraignment and subsequent trial. In the circumstance and without any further ado on this point, issue 3 is resolved against the appellant. ”
(Underline mine)
All the submissions and complaints of Appellant on the allegation of improper or illegal taking of the Appellant’s plea on the

Counts against him are grossly misplaced and unfounded.
The Appellant and his Learned Counsel at the Court martial did not at any time complain about the manner in which the plea was taken.
It is not the case of the Appellant that he did not understand English Language by which the plea at the trial was conducted. The plea of the Appellant was properly taken as it substantially complied with the law.

The Appellant also complained of what he considered to be the defect in the charge. That the word “You” in the charge is not in tandem with the law instead of the charge specifically mentioning Appellant by name. That the Charge run counter to Rules of Procedure (Army) 972 in that it fails to state the name of the Appellant, his rank and that it failed to describe Appellant as subject to service law and service number.
I have read page 23 – 30 of the record and the charge actually described the Appellant and his co-accused by their names and ranks on page 26 of the record and each of them was individually asked if they understood the charge to which they answered in the affirmative.
I am of the view that all the allegations of defect in

the charge are not strong enough to vitiate the charge against the Appellant and his co-accused as the Appellant was validly tried on the charge before the Court Martial more so that he was represented by Counsel/Legal Practitioners who saw nothing wrong with charge. The Court Martial has jurisdiction to try the Appellant on the charge laid against the Appellant and the counts against the Appellant as contained in the charge before the Court martial.
An Accused or a Defendant to a Criminal charge or information who complains that the charge is defective must show that the defect deprives the Court or Tribunal or as in this case the Court Martial of jurisdiction to try the offences contained in the charge or information levied against him. He must also show that he was misled by the defect or that the trial on the defective charge had occasioned a miscarriage of justice all bordering on the infringement of his right to fair hearing under the constitution of Federal Republic of Nigeria. See:
1. MUSA IBRAHIM VS THE STATE (2018) 1 NWLR (PT. 1600) 279 AT 319 G – H TO 320 A per BAGE, JSC who said:
2. MAJOR BELLO M. MAGAJI V THE NIGERIAN ARMY (2008) 8

NWLR (PART 1089) 338 AT 384 per OGBUAGU, JSC who said:-
“I say surprised because, firstly, there is no evidence in the records that the appellant or his counsel ever raised any objection either before or after the charge was read to the appellant and he pleaded to it as to the competence of the GCM and the jurisdiction in respect of the charge. It is settled that any objection to a charge for any formal defect on the face thereof or for any perceived irregularity relating say to procedure, shall be taken immediately after the charge has been read over to the accused and not later. See Section 167 of the Criminal Procedure Act and cases of Okaroh v. The State (1990) 1 NWLR (Pt. 125) 128 at 136-137; (1990) 1 SCNJ 124 and John Agbo v. The State (2006) 6 NWLR (Pt.977) 545 at 577-578; (2006) 1 SCNJ 332 at 356; (2006) 1 S.C. (Pt.73); (2006) 2 SCM 81; (2006) 135 LRCN 808; (2006) All FWLR (Pt. 309) 1380; (2006) 4 NSCJ (Pt.13) 253; (2006) vol 6 QCLR 48 and (2007) 10 WRN 95. The word is “shall” and this means that it is mandatory.
Secondly, there are the statutory provisions in Sections 123, 124 (also reproduced in the appellant’s brief at page 3), 128 and

131(1) of the Armed Forces Decree/Act, 1993 (as amended) hereinafter called “the Act”) which read as follows:
“123. Before an allegation against a person subject to service law under this Decree (in this section referred to as the “accused”, that he has committed an offence under a provision of this Decree 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 of this Decree to deal with it summarily, be so dealt with by that authority (in this Decree referred to as “the appropriate superior authority”) in accordance with those provisions.” (the italics mine)
It is stated in the appellant’s brief that the appellant does not deny that the charge against him was investigated before the Court martial was convened. That the contention is that the investigation was not in the

manner prescribed under the provisions of the said two sections, that this is because of the intendment of the said sections. That what is envisaged where there is an allegation of an offence against a person subject to the act, are (not is) as follows:
(i) The allegation shall be reported, in the form of a charge to the commanding officer of the accused officer;
(ii) The commanding officer shall investigate the charge in the prescribed manner;
(iii) After the investigation, the commanding officer may further proceed with the allegation against the accused officer by convening a Court Martial.”
It is not in dispute that Brigadier-General P. N. Aziza, was the commander of the Lagos Garrison Command. Section 128(1) of the Act, provides that the following persons may act as appropriate superior authority to a person charged with an offence.
“(a) The Commander Officer; and
(b) Any officer of the rank of Brigadier or above or officer of responding rank or those directed to so act under whose command the person is for the time being.”
The above provision is clear and unambiguous. P. N. Aziza was a Brigadier-General and the appellant was

under his Garrison Command and by virtue of the provision of Section 131(1) (d) of the Act, he was qualified and competent to convene the GCM.”
Issue 1 is hereby resolved against the Appellant

Under issue 2, the Appellant complained that the judgment of the lower Court, the Court Martial is perverse and not supported by evidence.

The first complaint is that the Appellant was charged for conspiracy under the wrong section of Army Act. Section 114 thereof which provides:-
“114. Other civil offences
(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-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(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.
(4) Without prejudice to the provisions of this Act, person shall not be charged with an offence under this section committed in Nigeria if the corresponding civil offence is treason, murder, manslaughter, or treasonable felony.
(5) Where the corresponding civil offence is murder or manslaughter, an offence under this section shall be deemed, for the purposes of subsection (4) of this section, to have been committed at the place of the commission of the act or occurrence of the neglect which caused the death, irrespective of

the place of the death. ”

The learned Counsel to the Appellant contended that the evidence of PW4 and PW10 did not establish any ingredients of offence of conspiracy while learned Counsel to the Respondent submitted that the evidence of PW2, PW3 and PW4 established case of conspiracy against the Appellant as he was seen among his colleagues who were firing shots at GOC 7 Division at the Military Cantonment in Maiduguri.

It is most of the times not possible to have direct evidence of conspiracy by criminals who engage in criminal enterprise to commit a particular offence. The Courts have over the years evolved facts and circumstances from which inferences could be drawn by the trial Court to unearth criminal conspiracy. The evidence and surrounding circumstances from which a Court will infer conspiracy must however be plausible and irresistible: I call in aid:-
1. IBRAHIM ADEYEMI VS THE STATE (2018) 5 NWLR (PART 1613) 482 AT 491D-H per PETER-ODILI, JSC who said:-
“In the matter of the offence of criminal conspiracy leveled against the appellant, it is to be reiterated that to sustain the charge which is pursuant to

Section 6(b) of the Robbery and Firearms Act, Cap. R 11 , Laws of the Federation of Nigeria, 2004 the prosecution has the bounden duty to establish the following essential elements which are thus:
(i) An agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal by illegal means.
(ii) Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in furtherance of the argument.
(iii) Specifically that each of the accused individually participated in the conspiracy. See State v. Salawu (2011) All FWLR (Pt. 614); 1 at pg. 29; (2011) 18 NWLR (Pt. 1279) 580; Adekunle v. The State (1989) 12 SCNJ 184; 19895 NWLR (Pt. 123) 505; Nwosu v. The State (2004) All FWLR (Pt. 218) 916; (2004) 15 NWLR (Pt. 897) 466 at 486.
Of note in the duty to establish the offence of conspiracy is the fact that the prosecution is not expected to prove that the conspirators met before carrying out their activities which are seen as criminal rather, the offence of conspiracy is sustained by the prosecution leading evidence from which the Court can discern or infer the

criminal acts of the accused person done in pursuance of the apparent criminal purpose common between or among the conspirators. Again, to be said is that to establish conspiracy all that is expected of the prosecution is to prove the inchoate or rudimentary nature of the offence and the inference from which the meeting of the minds of the accused persons nor is it necessary to establish that the conspirators had been in any direct communication one with the other or others as the case may be. There is no hard and fast rule as to how to infer conspiracy as even the mere evidence of complicity is sufficient to place reliance on Ikwunne v. The State (2000) 5 NWLR (Pt. 658) 550 at 560 561; Osondu v. FRN (2000) 12 NWLR (Pt. 682) 483 at 501 -502.”
2. OLABISI OLAKUNLE VS THE STATE (2018) 6 NWLR (PART 1614) 91 AT 109 B – D per OKORO, JSC who said-
“The lower Court, relying on this Court’s decision in Onyenye v. The State (2012) Vol.5 MJSC (Pt. ii) 121; (2012) 15 NWLR (Pt.1324) 586 at 617; (2013) All FWLR (Pt.643) 1810 at 1832; held correctly in my view, that in law, conspiracy can be inferred from the acts of the accused where there is no direct evidence of

an agreement between the accused. The law, from a long line of cases, is settled that from the acts of the accused where there is no direct evidence of an agreement between the accused and another criminal conspiracy can be inferred. It is the law, from a number of cases; that from the acts or manner the accused persons were doing things towards actualizing a common end it can be inferred or deduced that they did so in furtherance of their conspiratorial agreement to commit the alleged offence.”

I agree with the learned Counsel to the Respondent that charging the Appellant under wrong law will not lead to his acquittal. The law is settled that where an Accused is charged under the wrong law he could properly be convicted of the offence charged once there is a statute prohibiting the commission of such an offence. See JOHN TIMOTHY VS THE FEDERAL REPUBLIC OF NIGERIA (2013) 4 NWLR (PART 1344) 213 AT 266 H TO 247 A – D per PETER-ODILI, JSC who said:-
“The learned counsel for the appellant had made a lot of fuss on the absence or omission of the word “Act” when the charge was crafted and that the omission should vitiate the charge: The learned counsel

for the respondent disagrees with that on the ground that it is not such an-omission that would vitiate the charge, the conviction and of course the sentence. That view of the respondent I agree with as it is not every slight defect or omission in the charge that is fatal especially in this instance where the appellant had not established how the omission misled him in knowing what offence he was alleged to have committed and which accusation he was defending. Appellant was represented by Counsel throughout who had the opportunity to raise the issue that the appellant was facing a charge that was not being understood by them or that the charge as couched had given them an impression of something other than what they understood appellant” was being charged with and to set out his exculpating explanation. That omission of the word “Act” cannot be taken that accused was charged under a non-existing law. This is so even if in drafting the charge a section of the law not proper for the facts are used, the Court is still at liberty if he found the accused/appellant on those facts as falling within a legislation in our law books to utilize that law that is in

existence but not in the charge. Taking the argument as learned counsel for the appellant did into the realm of a denial of fair hearing pursuant to Section 36(8) of the Constitution is farfetched as this case is not such as would fall into the purview of that constitutional provision.”

I have read the pieces of evidence given by the PW2, PW3, PW4 and PW10 in the printed record and I agree with the learned Counsel to the Respondent that there is evidence on record from PW2, PW3, PW4 and PW10 showing that the Appellant was involved in the offence of conspiracy for which he was charged along with his co-accused. What is paramount is evidence proving that the Appellant participated in the crime. It does not matter who did what among the participants to consummate the crime committed. See OMOJOLA AKINLOLU VS THE STATE (2017) 12 (PT. 2) SCM 150 AT 176 TO 177 per ARIWOOLA, JSC who said:-
“Generally, conspiracy is said to be an agreement between two or more persons to do or carry out an unlawful act. It is a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between

them and which hardly are ever confined to one place. However, being in itself a separate and distinct offence which is independent of the actual offence conspired to commit, failure to prove a substantive offence does not make conviction for conspiracy inappropriate. See; Balogun v. A.G. Ogun State (2002) 4 SCM 23, (2002) SC (Pt. 11) 89; (2002) 2 SCNJ 196.Folorunsho Alufohai v. The State (2014) 12 SCM (Pt. 2) 122; (2015) 3 NWLR (Pt. 1445) 172; (2015) All FWLR (Pt. 765) 198.
On criminal liability, when commission of a crime is imputed, this Court has held that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purpose an offence is committed of such a nature, that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. See; The State v. Moshood Oladimeji (2003) 14 NWLR (Pt. 839) 57 (2003) 7 SC 108.
Conspiracy is ordinarily not defined under either the Criminal or Penal Code. But a successful conviction for conspiracy is one of those offences predicated on circumstantial evidence

which is evidence not of the fact in issue, but rather of other facts from which the fact in issue can be inferred. See; Dr. Segun Oduneye v. The State (2001) 2 NWLR (Pt. 697) 311; (2001) 2 SCM 81; (2001) 1 SC (Pt.1) 1.
In the instant case, from the available bundle of evidence adduced by the prosecution, there was indeed an agreement between the appellant and the 1st and 3rd accused persons to lure the deceased to the farm for the purpose of raping her. The learned appellant’s counsel has however argued that, if at all, the offence that the appellant could be connected with was rape but not murder. One wonders whether forcefully having carnal knowledge of a woman by several persons known to the victim is a mere tea party or play of game of ludo or draft. It should be borne in mind that both the deceased and all her rapists live in the same community. It cannot be imagined that after the gang rape by the trio, including the appellant, the deceased would be left to return home clean. Therefore, the act of the 1st accused in stabbing the deceased on the neck, jaw and throat before the others took their turn in having carnal knowledge of the deceased, in order

to prevent her from returning home to narrate the story, was the act of only the 1st accused. It is a necessary foreseeable act of the three accused as none would have expected to allow her safely return home without telling the story of her ordeal.
In DSP God’s Power Nwankwoala & Anor. v. The State (2006) 12 SCM (Pt. 2) 267 this Court opined as follows:
“Where more than one person are accused of joint commission of a crime, it is enough to prove that they all participated in the crime. What each did in furtherance of the commission of the crime is immaterial. The mere fact of the common intention manifesting in the execution of the common object is enough to render each of the accused person in the group guilty of the offence. See; Patrick Ikemson & Ors v. The State (1989) 3 NWLR (Pt. 110) 455 at 466; Where common intention is established, a fatal blow or gunshot though given by one of the party, is deemed in the eyes of the law to have been given by all those present and participating.”
The offence of conspiracy was proved against the Appellant.

The Appellant complained that he raised alibi in that it could not be demolished by

evidence of PW10 and DW14 before the Court martial because according to him the evidence of DW14 and PW10 are inconsistent. He relied on Evidence of Amadi Chukwudi, David Musa who he said went with Appellant to rescue their colleagues at the same time the offences for which Appellant was charged were committed.

The Respondent relied on evidence of PW4 and D12 who Respondent said gave evidence showing that rescue operation took place between 0600 hours and 0800 hours and not from 0920 – 1500 hours claimed by the Appellant, on 14/05/2014.

in this case the accused appellant is pinned to the scene of incident then the alibi is demolished. In this instance, the appellant merely stated he was at the CID without any details with which a thorough investigation by the prosecution would have been carried out. The burden of producing those details on the alibi rests squarely on the appellant and it is only after that the duty of the prosecution to investigate would follow and not before. Therefore in this instance where appellant gave no details and the prosecution through evidence was able to situate him at the scene of crime at all times material then the alibi raised suffers a still birth. See Eke v The State (2011) 3 NWLR (Pt.1235) 589 at 606, (2011) 1 SCM, 155; Ozaki v The State (1990) 1 NWLR (Pt.124) 92; Nwabueze v The State (1988) 4 NWLR (Pt.86) 16; Eyisi v The State (2000) 15 NWLR (Pt.691) 555; Adedeji v The State (1971) 1 All NLR 75; Okosun v A. G Bendel State (1985) 3 NWLR (Pt.12) 283; Ebri v State (2004) 11 NWLR (Pt.885) 589, (2004) 5 SCM, 48.”

The findings of the Court Martial to the effect that the Appellant was among the persons that committed the offences for which they

were charged cannot be faulted.

I have carefully read the evidence of the prosecution witnesses, the Addresses of Learned Counsel at the Court Martial, the Amended Notice of Appeal, the Appellant’s Briefs of Argument and the Appellant’s Reply Brief of Argument. I am of the firm view that there is enough evidence on record to support the findings of the Court Martial.
Issue 2 is also resolved against the Appellant.

The Appellants appeal lacks merit and the Appellant’s appeal is hereby dismissed in its entirety.
The judgment/decision of the General Court Martial sitting at the Army Headquarters Garrison Magadishu Abuja delivered on 15th day of September, 2014 and confirmed on 12th November, 2015 is hereby affirmed.

STEPHEN JONAH ADAH, J.C.A.: I was availed a draft copy of the judgment just delivered by my learned brother, Peter Olabisi lge, JCA
I am in full agreement with the reasoning and the conclusion which I adopt as mine that this appeal lacks merit.
I therefore, dismiss this appeal and I abide by the consequential order as made in the lead judgment.

MOHAMMED BABA IDRIS, J.C.A.: I agree

Appearances:

DESMOND ORBIH, ESQ For Appellant(s)

HEZEKIAH IVOKE with E. O. UGWIYA and M. O. OLU AGUNLOYE For Respondent(s)