STAFF SERGEANT BAMIJI ADEROJU v. THE NIGERIAN ARMY
(2013)LCN/6020(CA)
(2013) LPELR-20360(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2013
CA/L/403/2005
RATIO
WITNESSES: TAINTED WITNESSES: WHO IS A TAINTED WITNESS
“It is proper to confine this category of witness (i.e ‘tainted’) to one who is either an ‘accomplice’ or, by the evidence he gives, (whether as witness for the prosecution or defence) may and could be regarded as “having some purpose of his own to serve.”
In Moses v. State [2006] Ogbuagu J.S.C. observed:
“A tainted witness, may be defined as a witness who may not in the strict sense, be an accomplice, but who in giving his evidence, is established to have some purpose of his own to serve and in respect of whom it is desirable that the warning as to corroboration of his evidence may appropriately be given.”PER CHINWE EUGENIA IYIZOBA, J.C.A.
CONFESSIONAL STATEMENTS: EFFECT OF NOT RAISING OBJECTION TO A CONFESSIONAL STATEMENT
I have no doubt that no objection was raised when the confessional statement was being tendered; the reasonable conclusion is that it was made voluntarily. See SHURUMO V. THE STATE (2010) LPELR-3069 (SC). Furthermore, the truth really is that a careful reading of the confessional statements will leave no one in doubt as to its voluntary nature. So even if there was such a challenge and a trial within a trial was conducted, from the facts of the case any reasonable tribunal would rule that the confession was voluntarily made. The appellant wrote the statements himself and the facts contained therein and the language used show no evidence that the maker was under any kind of duress. The facts in the confessional statements were further corroborated by the exhibits found in the house of the Appellant and the evidence of PW3 and CW1. In MAGAJI VS NIGERIAN ARMY (2008) 8 NWLR (Pt 1089) 338 at P 394 Paragraphs G-H, the Supreme Court observed:
“It must be borne in mind that the General Court Martial cannot be equated to the regular courts, where strict procedures are required. It is no more than a tribunal and at best, it can be equated with a jury trial.”PER CHINWE EUGENIA IYIZOBA, J.C.A.
Before Their Lordships
CHIMA CENTUS NWEZEJustice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMUJustice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBAJustice of The Court of Appeal of Nigeria
Between
STAFF SERGEANT BAMIJI ADEROJU – Appellant(s)
AND
THE NIGERIAN ARMY – Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): The Appellant Staff Sergeant Bamiji Aderoju was a soldier in the service of the Respondent, the Nigerian Army. In July 1995, while serving in the 2nd Mechanized Division Ibadan, the appellant was moved to Liberia as part of the Nigerian military contingent in the ECOWAS Monitoring Group (ECOMOG). While in Liberia, he was deployed as a clerk in charge of distribution of petroleum products. Sometime in 1996, the Appellant and others were alleged to be involved in illegal sale of petroleum Oil and lubricants (POL) products that was placed in their charge. The then Commander of the Nigerian Contingent of ECOMOG Brigadier General A. O. Mohammed convened a General Court Martial (GCM) to try the appellant and others allegedly involved in the illegal sale of POL products vide a convening order with Reference number NIGCON/ECOMOG/68/A of 4/11/96.
The Appellant was tried on a two count charge as follows:
(a) “CHARGE 1
(1) STATEMENT OF OFFENCE:Â Â Offence in Relation to Service Property, punishable under Section 66 (a) of the Armed Forces Decree 1993.
(2) PARTICULARS OF OFFENCE:Â Â In that he at Monrovia Liberia on or about July 1996 involved himself in the illegal sale of POL products
(b) CHARGE 2
(1) STATEMENT OF OFFENCE:Â Â Conduct to Prejudice of Service Discipline punishable under Section 103 (1) of the Armed Forces Decree 1993.
(2) PARTICULARS OF OFFENCE:Â Â In that he at Monrovia Liberia on or about July 1996 prejudiced military disciplinary by abusing his position of holding the keys to the POL point to tamper with POL products left in his charge.”
The prosecution called 3 witnesses while the Appellant testified on his own behalf and called no other witness. At the close of the defence case, one other witness was called at the instance of the GCM. Eight Exhibits were tendered by the Prosecution and admitted as Exhibits A1 to Exhibit A8. The General Court martial (GCM) found the Appellant guilty as charged on count 1 and sentenced him to two years imprisonment. He was found not guilty on court 2 and was discharged and acquitted on that count. The Appellant dissatisfied with the conviction but after serving his sentence, with the leave of the Court filed a notice of appeal on 28/12/06 with six grounds of appeal, out of which four issues were distilled for determination. The issues are as follows:
1. Whether the joint trial of the accused persons that were separately charged before the General Court Martial in this case occasioned a miscarriage of justice against the Appellant.
2. Whether a sentence can be passed on an accused person without conviction ground on a judgment properly written before such conviction.
3. Whether Exhibit A7 (the confessional statement of the Appellant) was properly received in evidence. If the answer is in the negative, did the wrongful admission of Exhibit A7 lead to a miscarriage of justice?
4. Whether in the circumstances of this case, the guilt of the Appellant in respect of the first count charge was proved beyond reasonable doubt.
The Respondent in his brief of argument adopted the issues formulated by the Appellant. The appeal came up for hearing on 21/01/13 during which the parties adopted and relied on their respective briefs of argument.
On issue No 1, learned counsel for the Appellant, Olusina Osunlakin Esq., submitted that the Appellant and three other accused persons who were separately charged were jointly tried by the General Court Martial and that the joint trial occasioned a miscarriage of justice. Counsel further submitted that two out of the four witnesses who testified at the trial were accused persons listed as such in the convening order and that they are tainted witnesses with their own purposes to serve. Counsel contended that their evidence required corroboration or at least ought to have been treated with caution. Counsel further contended that since the evidence of each witness required corroboration they could not corroborate each other. Counsel cited and relied on the following cases: STATE VS. ONYEUKWU (2004) All Federation Weekly Law Reports Part 221 Page 1288; MBENU VS. THE STATE (1988) 3 NWLR Pt. 84 615 at Page 626 Paragraph H ; EMORDI VS. THE STATE (2000) 8 NWLR Part 670 Page 604; OJO & ANOTHER VS. ANIBIRE & OTHERS (2004) All F.W.L.R. Part 214 Page 176 paragraphs F – G; THE STATE VS. AJIE (2000) F.W.L.R. Part 16 Page 2831.
On issue No. 2, whether a sentence can be passed on an accused person without conviction grounded on a judgment properly written before such conviction, counsel submitted that the judgment/findings of the General Court Martial at pages 169 – 172 of the record is dated 12/12/96 while the sentence on the accused at page 175 of the record is dated 21/11/96. Counsel submitted that it is improper for sentence to precede judgment and that such an approach is illegal, unlawful and unjustifiable in law. Counsel relying on Timothy Fadina v. The Queen (1958) 1 NSCC 52 submitted that such sentence is liable to be set aside and the conviction quashed.
On issue No 3, whether Exhibit A7 (the confessional statement of the Appellant) was properly received in evidence, counsel submitted that the confessional statement of the Appellant (Exhibit A7) was not shown in the record to have been tendered and admitted in evidence. Counsel submitted that it is not known from the records, whether and when the Appellant’s statement was tendered in evidence. Further, that it is not known whether the defence counsel raised objection to the tendering of the Appellant’s statement and that it is also not known when the Appellant’s statement was admitted and marked Exhibit A7. Counsel contended that the record having failed to disclose the tendering and admission of Exhibit A7, it is not known whether the Appellant had the opportunity of raising the issue of voluntariness of the confessional statement in order to enable the court conduct a trial within trial to determine its voluntariness. Counsel submitted that there is however evidence of involuntariness of the Appellant’s statement at Pages 109 – 110, 122 – 124 of the record. Counsel cited the case of RE: OSAKWE (1994) 2 NWLR Pt. 326 Page 273 at Page 287 paragraph D and submitted that submitted that since the court cannot and should not speculate on what transpired at the trial court, Exhibit A7 must be deemed to have been improperly admitted and should therefore be expunged from the records. Â
On issue No. 4, whether in the circumstances of this case, the guilt of the Appellant in respect of the first count charge was proved beyond reasonable doubt, Learned counsel relying on section 138 (1) of the Evidence Act, the cases of Stephen Oteki V. Attorney-General Bendel State (1986) 2 NWLR (Pt. 24) 648 @ 657 and Woolmington V. DPP (1935) AC 462 submitted that the burden is on the prosecution to prove the guilt of the accused beyond reasonable doubt and that the burden does not shift. Counsel examined the evidence led by the witnesses called by the prosecution and submitted that the prosecution failed to discharge the burden on it. Counsel contended that the evidence of PW1, Corporal Suley Nwewi who investigated the case was derived from the alleged confessional statement of the Appellant which was never tendered nor admitted in evidence; that PW3 and CW1 were tainted witnesses who had ulterior motives, or their own hidden agenda to pursue; that the calling of CW1 by the General Courts Martial after the close of the case of the Defence was wrong in law; that the large sum of money found on the Appellant and the fact that he had the opportunity to commit the offence by being in possession of the key to the POL point without more is inadequate to prove the guilt of the appellant. Counsel relying on the cases of CHIANUGO AND OTHERS VS THE STATE (2001) F.W.L.R. Part 74 Page 424, OHUKA VS. THE STATE (NO.2) (1988) 4 N.W.L.R. Part 86 Page 36 urged the court to hold that the prosecution failed to discharge the burden resting on it to prove the guilt of the appellant beyond reasonable doubt.
Learned Counsel for the Respondent, Mallam J.A. Adamu on issue No. 1 confirmed that the 4 accused persons were separately charged but were jointly tried by the General Court Martial. Counsel submitted that Section 155 of the Criminal Procedures Act CAP 80 Laws of the Federation of Nigeria 1990 and Rule 16 (1) of the Rules of Procedures (Army) 1972 provide for occasions when persons may be charged jointly. Counsel also cited and relied on THE STATE VS. ONYEUKWU (2004) All Federation Weekly Law Report part 221 Page 1288. Learned counsel after examining the sequence of events and the evidence led at the trial of the Appellant submitted that two out of the four witnesses who testified at the trial – Lance Corporal Ibrahim Shehu called as Court Witness One (CW1) and PW3 were listed in the Convening Order as accused persons. Counsel submitted that it was not clear from the record of proceeding whether or not their trial had been concluded before they were called upon to testify at the trial of the Appellant. Counsel argued that assuming but without conceding that PW3 and CW1 were still accused persons at the time of their testimony in the Appellant’s trial, they were in law tainted witnesses.  As a result, it was only desirable and not statutory that their evidence should be corroborated. MBENU VS. STATE (1983) 3 NWLR 615 at 625. Counsel submitted that the evidence of PW1 implicated the Appellant and supported the particulars of Count 1 of the charge and that without further corroboration the evidence was enough to convict the Appellant once the General Court Martial believed what PW1 said. Relying on ONAFOWOKAN VS THE STATE (1987) 2 NSCC 1099. Counsel submitted that one solitary credible witness can establish a case beyond reasonable doubt and that this principle is recognized in Section 179 (1) of the Evidence Act. Counsel finally submitted that the joint trial of the Appellant and other accused persons by the General Court Martial did not occasion a miscarriage of justice.
On issue No. 2, learned counsel submitted that the Appellant’s contention that the sentence of the General Court-martial was passed before the Appellant was found guilty is completely misconceived. Counsel submitted that the records show that the proper procedure as laid down by the Rules of Procedure Army (RPA) (1972) which obtained the force of law by virtue of Section 181 of the Armed Forces Act Cap A20 Laws of the Federation of Nigeria 2004 were duly followed. The Appellant’s contention that the sentence arose from the wrong date of 12th December 1996 inscribed in page 173 of the record of proceedings which date tended to show that the sentence came before the findings is erroneous as it did not represent the chronology of events at the trial.
On Issue No. 3, the purported non tendering of the confessional statement Exhibit A7, Learned counsel submitted that in an attempt to escape from the consequences of his own confessional statement the Appellant alleged that Exhibit A7 was never tendered in Court and same was not admitted. Counsel submitted that the said confessional statement (Exhibit A7) was tendered and admitted, but the process was inadvertently omitted in the record.  Counsel relying on the case of MAGAJI VS NIGERIAN ARMY (2008) 8 NWLR (Pt 1089) 338 at P 394 Paragraphs G-H submitted that  proceedings before the General Court Martial are akin to a trial before a jury, all that is required is to show that the document (Exhibit A7) was actually tendered and admitted. Counsel submitted that the various use and references to Exhibit A7 by the prosecution, defence counsel and the General Court Martial attest to the fact that the document was tendered and admitted.
On issue No. 4, learned counsel restated the submission of the Appellant’s counsel that in every criminal trial the burden of proving the guilt of the accused beyond reasonable doubt lies on the prosecution. This burden does not shift and the standard of proof is beyond reasonable doubt.  See Section 138 (1) of the Evidence Act and WOOLMINGTON VS DPP (1955) AC 462; ADEYEMI VS STATE (1991) 6 NWLR 80; See MILLER VS MINISTER OF PENSIONS (1974) 2 AER 372. Learned counsel examined the evidence led in the case and submitted that the General Court Martial rightly utilized the credible and consistent testimonies of PW1 and PW3 the 2 star witnesses in the trial who revealed the initiation, modus operandi and the extent of theft on the Nigerian Army by the Appellant. Counsel contended that assuming but without conceding that PW3 was a tainted witness whose evidence required corroboration, that PW3’s testimony was corroborated by PW1 whose evidence did not require corroboration. Counsel further submitted that in the trial there existed abundant credible evidence oral and documentary, lending corroboration to the testimonies of PW3 and CW1 and that all the independent and direct pieces of evidence, and other evidence on record more than met the acid test of what constitutes evidence of corroboration as defined by the Supreme Court in the QUEEN VS OMISADE & 17 ORS (1964) NMLR 67 PARTICULAR at P. 77. Counsel submitted that since the evidence of PW1 remained unchallenged throughout, the Appellant could be convicted on it alone without further evidence. Counsel urged the court to resolve all the issues in favour of the Respondent, dismiss the appeal and uphold the judgment of the General Court Martial.
I have considered carefully the arguments of counsel. On issue 1, two points were raised. The first is whether the joint trial led to a miscarriage of justice. The second is the status of the evidence of the witnesses who were also listed as accused persons in the convening order of Brigadier A.O. Mohammed. A perusal of the record of appeal shows that out of the 12 persons listed as accused persons in paragraph 3 of page 22, four of them – Lt. J.Y. Dangwaram, WO Ayinde Odukale, Ssgt Aderoju Bamiji (the appellant herein), and Sgt Adeyanju Abel were tried together as shown in the records even though they were charged separately and pleas were taken separately. What then is the position of the law with regard to joint trial of accused persons charged separately? Section 155 of the Criminal Procedure Act Cap 80 Laws of the Federation 1990 and Rule 16(1) of the Rules of Procedure (Army) 1972 provides for occasions when accused persons may be charged and tried together or separately. Section 155 of the Criminal Procedure Act provides:
“155. When more persons than one are accused of the same offence or different offences committed in the same transaction or when a person is accused of committing an offence and another of abetting or being accessory to or attempting to commit such offence or when a person is accused of an offence of theft, criminal misappropriation, criminal breach of trust and another of receiving or retaining or assisting in the disposal or concealment of the subject matter of such offence, they may be charged and tried together or separately as the court thinks fit.”
Rule 16(1) of the Rules of Procedure (Army) 1972 provides as follows:
“16(1) Any number of accused may be charged in the same charge sheet with offences alleged to have been committed by them separately if the acts on which the charges are founded are so connected that it is in the interest of justice that they be tried together.”
It is clear from these provisions that several accused may be charged in one indictment and tried together as long as the offences alleged to have been committed arise from the same transaction or in the other instances disclosed in Section 155 CPA. What is not clear from these provisions is whether it permits joint trial of separate indictments. As submitted by both counsel in their briefs, the issue was exhaustively dealt with by the Supreme Court in the case of State V. Onyeukwu [2004] 14 NWLR (Pt893) 340. The Supreme Court conceded that section 155 did not specifically and unambiguously state that joint trials of separate indictments are prohibited. It consequently came up with the following propositions:
1. In terms of procedural convenience, it is better to charge all accused persons as regards all counts against them in circumstances envisaged under Section 155 of the CPA in one indictment and have a single trial rather than separate indictments for a joint trial.
2. Where the offences of several accused persons are reasonably of the same genus or somehow related and there is a connection as to time and circumstances of the commission of the offences as envisaged under section 155 CPA, several indictments may be consolidated for a joint trial unless it is apparent that a miscarriage of justice has been or will be occasioned by such consolidation. It is a matter within the discretion of the trial court.
3. When there has been a joint trial of separate indictments without objection, prima facie it is an irregularity, not a nullity as it is a mere technicality that does not touch on jurisdiction, such joint trials being permissible under Section 155 CPA.
4. By virtue of section 168 (C) of the CPA no judgment shall be stayed or reversed on the ground of any objection which if it had been stated at the time the charge was read to the accused or during trial might have been amended by the court. This means in effect that the section could save a judgment arrived at in such a trial from being reversed if no objection to joint trial was raised at the beginning of the trial.
With these clear guidelines laid down by the apex court, I shall now examine the circumstances of the joint trial in this case. An examination of the charge sheets at pages 26 – 29 of the record in respect of the four accused persons tried jointly show that the offences arose mainly from the same transaction – illegal sale of petroleum products between July and August 1996. None of the accused persons including the appellant raised any objection to the joint trial. Indeed at page 9 of the record, after plea had been taken in respect of each of the four accused and it was apparent that there will be a joint trial, the question was put to each of the four accused including the appellant whether he wished to apply for adjournment on the grounds that any of the Rules relating to procedure before trial have not been complied with and he had been prejudiced thereby. Each, including the appellant answered in the negative. Further, the witnesses at the joint trial gave evidence separately for each accused and were cross-examined and re-examined separately with respect to each accused including the appellant. In my humble view as far as the joint trial is concerned I see no miscarriage of justice. The appellant did not object to the joint trial and by the provision of Section 168 of the CPA the judgment cannot be reversed on that ground alone.
I come now to the matter of witnesses who were listed as accused in the Convening Order. Two witnesses PW3 CPL Johnson Onwa and a witness called by the General Court Marshall referred to as Court witness one (CW1) LCPL Shehu Ibrahim were listed at page 22 No 3(h) and 3 (i) of the record as accused persons. They were however not tried along with the appellant and the three others. It was also not clear from the records whether they were eventually tried or not. In his brief of argument, learned counsel for the Appellant was at pains to determine how to classify the evidence of these two witnesses. He wondered whether they can be described as co-accused or accomplices. At the end he concluded they were mere tainted witnesses. The witnesses were clearly not co-accused within the meaning of Section 159 of the Evidence Act as they were not charged and tried together with the Appellant. I am of the humble view that they can be described as accomplices. The Supreme Court in the case of Ezechi v. The Queen (1962) 1 All NLR 113 defined the term ‘accomplice’ as including (1) Participes criminis. i.e. participants in the actual crime charged; (2) Receivers of the property which the accused is charged with stealing; and (3) participants in other crimes alleged to have been committed by the accused where evidence of such other crimes is admissible to prove system or intent or to negative accident. See also Ishola V. The State (1978) 9-10 SC (REPRINT) 59. By Section 7 of the Criminal Code, parties to an offence include every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence. PW3 CPL Johnson Onwa was working with the Appellant at the ECOMOG POL Point where the petroleum products were allegedly sold illegally. They were all arrested. He was listed as an accused person. His cross-examination by the defence at page 69 of the record is as follows:
“Def: They ask you something about fuel now and you say na him make all of you come court martial, he sell fuel wey you see.
PW3: Sir, only one day, when we help am push fuel for motor………”
The examination – in – chief of CW1 LCPL Shehu Ibrahim at page 137 of the record ran thus:
“Pros: Look at the three accused persons here, which one do you know very well.
CW1: I know Ssgt Bamiji Aderoju.
Pros: Tell us what you know relating to him and the case before this court?
CW1 In March this year I went to collect fuel so as I tender my work ticket then Ssgt Bamiji said he wanted to talk to me and he called me aside and said I should help him drop fuel which he loan at Point 4. I say are we going together and he said yes so he put two drums inside the motor and myself and Ssgt Bamiji went there and I brought him back.
Pros: So you drop fuel for Ssgt Bamiji?
CW1: yes Sir.
Pros: Did this happen any other time and if it happen tell us.
CW1: It is almost three occasions.
By section 7 of the Criminal Code, the two witnesses can be described as parties since they each did an act which enabled the Appellant commit the offence in question. They are consequently accomplices. It is also not out of place to regard the two witnesses as ‘tainted witnesses’. In Ishola v. State (Supra) Idigbe JSC observed:
“It is proper to confine this category of witness (i.e ‘tainted’) to one who is either an ‘accomplice’ or, by the evidence he gives, (whether as witness for the prosecution or defence) may and could be regarded as “having some purpose of his own to serve.”
In Moses v. State [2006] Ogbuagu J.S.C. observed:
“A tainted witness, may be defined as a witness who may not in the strict sense, be an accomplice, but who in giving his evidence, is established to have some purpose of his own to serve and in respect of whom it is desirable that the warning as to corroboration of his evidence may appropriately be given.”
Since these two witnesses were listed as accused persons, it is safe to assume that their evidence could have been coloured by hope of gaining some advantage with respect to the charges they were facing. They could be seen as having some purposes of their own to serve and are therefore tainted witnesses. Whether as accomplices or tainted witnesses, learned counsel for the Respondent is right that it is only desirable and not statutory that their evidence should be corroborated. Mbenu v. State (Supra). I am however of the view that there was ample corroborative evidence. Details will be discussed under issue No. 4. The calling of these two witnesses did not in my view lead to any miscarriage of justice. Issue 1 is resolved in favour of the Respondent and against the Appellant.
On issue No. 2, I agree with learned counsel for the respondent that the Appellant’s contention that the sentence of the General Court-martial was passed before the Appellant was found guilty is completely misconceived. Accepting such argument will certainly mean paying undue regard to technicality at the absolute expense of substance. It is downright impossible for sentence to be passed on the Appellant before he was pronounced guilty. The record of appeal contains detailed particulars as to the sequence of events which were methodically set out by learned counsel in his brief thus:
“It needs to be noted that a court-martial is guided by the Rules of Procedure Army (RPA) (1972) which obtained the force of law by virtue of Section 181 of the Armed Forces Act Cap A20 Laws of the Federation of Nigeria 2004.  Rule 64 of the 1972 Act provides thus:
“After closing addresses, if there is a judge advocate, he shall sum up the evidence and advice the court on the law relating to the case in open court.
In compliance with Rule 64 the Judge Advocate delivered his summing up.  See page 13 of the record.
Rule 65 provides that:
“After the closing addresses or if there is a judge advocate after his summing up, the court shall close to deliberate on their findings on the charge.”
The findings of the General Court Martial can be found on pages 13 and 170-173 of the record. Schedule 4 form 6 of the Rules of Procedure (Army) 1972 prescribes the form by which the record of proceedings of a court is kept. See page 785 to 793 of the manual of military Law. The General Court martial adhered to the laid down form for records of proceedings. See pages 3 to 20 of the record. The said record also gives the sequence followed by the General Court Martial in carrying out the trial of the accused persons including the Appellant. The findings of the General Court Martial came immediately after the summing up by the Judge Advocate. After the summing up, the General Court Martial announced that it closed to deliberate on their findings and came up with the findings. This position is further buttressed in the last paragraph of page 169 of the record when after the Judge Advocate’s summing up, the President of the General Court Martial announced thus:
“President: Thank you Honourable Judge Advocate with that sum up. The court will rise and reconvene by 1400 hours for the court’s findings.”
On resumption of sitting the President read the court’s findings. The said findings convicted the Appellant on the first count charge. See page 13 and 170-173 of the record. After the announcement of the findings, the Defence Counsel made an address in mitigation of punishment on behalf of all accused persons including the Appellant. The text of the plea in mitigation of sentence is found in pages 174-175 of the record. After the plea in mitigation of punishment by the counsel to the four (4) accused persons including the Appellant, the General Court Martial announced that the court will rise to deliberate on the sentence.  The text reads thus:
“President: Thank you for the plea in mitigation, the Court will rise for 10 minutes for deliberation on the sentence.
See paragraph 4 of page 175 of the record.
Rule 79 RPA 1972 provides thus:
(1). The sentence and any recommendation to mercy together with the reasons for making it, shall be announced in open court. The sentence shall also be announced as being subject to confirmation.
(2). When paragraph (1) of these Rules is/has been complied with the President shall announce in open court that the trial is concluded.”
In compliance with Rule 76 the President of the General Court Martial commenced reading the Court’s sentence with the following words:
“Gentlemen, I having deliberated on the plea in mitigation, starting with that of the officer…………
See pages 11 and 10C of the record. It can be seen on page 15 that the General Court Martial announced in open Court that with the sentence, it has come to the end of the trial.
The said sentences were dated 21st November 1996 and signed by the Judge Advocate and the President of the General Court Martial.
The above represented the chronology and sequence of events that occurred in the General Court Martial as evidenced in the records. The Appellant contention is that the sentence arose from the wrong date of 12th December 1996 inscribed in page 172 of the record of proceedings which date tended to show that the sentence came before the findings.  This contention is erroneous as it did not represent the chronology of events at the trial.”
The facts and sequence are clear from the records. The judgment of a General Court Marshall cannot be reversed on the basis of argument such as the one put forward on issue 2. It is not in doubt that there was a mix-up in the dates. Issue 2 is resolved against the Appellant.
On issue No. 3, the appellant contends that the confessional statement of the Appellant (Exhibit A7) was not shown in the record to have been tendered and admitted in evidence. I am in agreement with the Respondent that from the record of proceedings, that the confessional statement of the appellant was tendered and admitted in evidence in the normal way but the process was inadvertently omitted in the record. The procedure for the tendering of the confessional statement was commenced at page 48 of the record but the concluding part was omitted. The examination in chief of CPL Suley, the IPO who testified as PW1 went thus beginning from page 47:
“Pros: In the course of the investigation what did you do? Â
PW1: A search was conducted at the house of Ssgt Aderoju and a lot of items were discovered which include pumping machine, money counting machine, video deck and an amount of money of about fifty-seven thousand Liberian Dollars.
Pros: When you recovered all these items from his house, did you confirm from him who the owner is?
PW1: Yes Sir, he admitted that he bought them with money from the sales of fuel.
Pros: What did he tell you about the money found in his house?
PW1: He said the money belonged to him.
Pros: How much?
PW1: About fifty-seven thousand Liberian Dollars.
Pros: All these seized items did you bring them with you?
PW1: I brought some here. These are the items Sir.
Pros: My Lord, we want to tender the money as an exhibit before the Court.
President:Â Â We shall admit this money in evidence as exhibit A6 and this money shall be submitted to NIGCON Finance for safe keeping.
Pros: What else did you discover at the SSgt’s house apart from the money?
PW1: Video deck, pumping machine and lots of other items.
Pros: What, what, what. There is something else?
PW1: The SSgt also owns a car.
Pros: In the mission area here?
PW1: Yes Sir.
Pros: Did you find out how much he bought the vehicle?
PW1: He said six hundred US Dollars.
Pros: Where did he tell you he got the money from?
PW1: He sold fuel Sir.
Pros: He confessed to you?
PW1: He confessed in writing Sir.
Pros: Did he make a statement to you?
PW1: Yes Sir.
Pros: If you see those statements would you recognize them?
PW1: Yes Sir.
Pros: Have a look at these statements, are they the statements?
PW1: Yes Sir these are the statements.
The above was the last sentence on page 48. Page 49 started with examination of PW1 CPL Sule Nnewi in the case of another accused in the joint trial, SGT Adeyanju. This covered pages 49, 50 and 51. Then at page 52, it appears the examination in chief of PW1 in the case of the Appellant continued from where it stopped at page 48. The only sentence which appears to be missing is where the confessional statement was actually admitted in evidence and marked exhibit A7. The examination-in-chief continued thus from page 52:
President: Okay go ahead JA read exhibit A7 to the Court’s hearing.
Pros: You mean he volunteered to write the whole three statements?
PW1: He wrote them in his own hand writing.
Pros: He wrote them down without any force, am I correct?
PW1: Yes Sir.
Pros: My Lord, that will be all for this witness for now.
Cross-examination of PW1 by the Defence is as follows:
Def: Let me have Exhibit A7 Cpl Suley, you said you took these statements from the accused person?
PW1: He wrote them himself Sir.
Def: You told this court that you obtained statement from the accused person,
Did you apply any incentive before you obtained these statements?
PW1: None Sir.
Def: Negative or positive incentive?
PW1: I said none Sir.
Def You are very sure?
PW1: I am very sure Sir.
In the light of the above examination-in-chief and cross-examination of PW1 in respect of the confessional statement of the Appellant, it is obvious that the contention of the appellant that the confessional statement was not admitted in evidence is misconceived. The statement must have been admitted and duly marked Exhibit A7 before its subsequent use. A document cannot be marked and given a number unless it has been tendered and admitted in evidence. Even the defence Counsel throughout the proceedings referred to the confessional statement as Exhibit A7 and listed it in his written address as one of the exhibits tendered by the prosecution. The failure to show in the record the precise point in time in the proceedings where the confessional statement was admitted and marked an exhibit is again from what is contained in the record an error which cannot by itself alone vitiate the trial in this case. The Defence Counsel had ample time to object to the admissibility of the confession on the ground that it was involuntary but he did not do so. He merely questioned PW1 as to whether he applied any incentive negative or positive before he obtained the statement without alleging any specific facts amounting to duress. There was no evidence of any serious inclination to challenge the voluntariness of the confessional statement. The issue of the voluntariness of the confession was not raised in the lower court, not even in the final written address of Defence counsel. If indeed the issue was that it wasn’t raised because it could only have been raised at the point of seeking to tender the statements as exhibits; the desire to raise the issue would have manifested in the subsequent statements of the defence counsel. The nature of the questions put to PW1 by the defence counsel showed that there was no intention to challenge the voluntariness of the confession. I have no doubt that no objection was raised when the confessional statement was being tendered; the reasonable conclusion is that it was made voluntarily. See SHURUMO V. THE STATE (2010) LPELR-3069 (SC). Furthermore, the truth really is that a careful reading of the confessional statements will leave no one in doubt as to its voluntary nature. So even if there was such a challenge and a trial within a trial was conducted, from the facts of the case any reasonable tribunal would rule that the confession was voluntarily made. The appellant wrote the statements himself and the facts contained therein and the language used show no evidence that the maker was under any kind of duress. The facts in the confessional statements were further corroborated by the exhibits found in the house of the Appellant and the evidence of PW3 and CW1. In MAGAJI VS NIGERIAN ARMY (2008) 8 NWLR (Pt 1089) 338 at P 394 Paragraphs G-H, the Supreme Court observed:
“It must be borne in mind that the General Court Martial cannot be equated to the regular courts, where strict procedures are required.  It is no more than a tribunal and at best, it can be equated with a jury trial.”
In conclusion therefore, proceedings before the General Court Martial are similar to a trial before a jury, all that is required is to show that the document Exhibit A7 was actually tendered and admitted.  The various use and references to Exhibit A7 by the prosecution, defence counsel and the General Court Martial attest to the fact that the document was tendered and admitted. All the facts contained in the statements refer to matters peculiarly within the knowledge of the Appellant and confirm the voluntary nature of the confessional statements. Issue 3 is resolved against the appellant and in favour of the respondent.
The contention of the appellant’s counsel on issue No.4 is that the Appellant’s guilt was not proved beyond reasonable doubt. Counsel hinged most of his arguments on his conclusion that the confessional statements were inadmissible. I have already decided under issue No. 3 that the confessional statements were voluntary and properly admitted in evidence as Exhibit A7. In the case of Bature v. The State (1994) 1 NWLR (Pt. 320) 267, the Supreme Court held that for a confession to be upheld, it should be tested as to its truth by examining it along other evidence to determine whether:-
(a) There is anything outside it to show that it is true
(b) It is corroborated.
(c) The facts stated in it are true in so far as can be tested.
(d) The accused’s confession is possible
(e) The confession is consistent with other facts which have been ascertained and proved.
All the above conditions were fully satisfied. There were other pieces of evidence outside the confession which confirmed the truthfulness of the confession. The appellant confessed that one LCpl Tanko a former driver at ECOMOG POL Point who had been rotated (transferred back to Nigeria) introduced him to this illegal sale of fuel; he confessed that the car, money and other items found in his house were obtained through illegal sale of fuel, he confessed that he sells two drums a week and that he gave the drums to one driver by name L/CPL Shehu to take out for him. LCPL Shehu is CW1, and corroborated the evidence that he took out drums of fuel for the Appellant three times.
The law is that if a confessional statement is satisfactorily proved, a conviction founded on it without more will be sustained by an appellate court. See Queen v. Obasa (1962) 1 All NLR 645; Paul Onochie & 7 Ors v. The Republic (1966) NMLR 307; Obue v. The State (1976) 2 SC 141; Yesufu v. The State (1976) 6 SC 167; Shurumo v. The state (2010) 19 NWLR (Pt. 1226) 73 or LPELR-3069 (SC).
Even on the basis of the confessional statement alone, the prosecution discharged the burden of proving the guilt of the appellant beyond reasonable doubt. The fact that the appellant subsequently retracted his confession does not mean that the court cannot act on it. See Edamine v. The State (1996) 3 NWLR (Pt.438) 530; Gira v. The State (1996) 4 NWLR (Pt.443) 375 @ 388. In Nwachukwu V. The State (2002) 12 NWLR (Pt.782) 543, the Supreme Court held that in such circumstances, it is desirable that there should be some corroboration, no matter how slight, but that a conviction will not be quashed merely because it was based entirely upon evidence of a confession by the appellant. The corroborative evidence in this case is not merely slight but quite ample. When the truth of the confession is weighed against the ample pieces of corroborative evidence, it leaves no doubt that the appellant was rightly convicted on the first count by the General Court Marshall. Apart from the written confessional statements, PW1 in his evidence in chief testified about oral confessions made to him by the appellant; how the appellant told him that he was introduced to the business of sale of POL products by LCpl Tanko; how the appellant used the key to the POL point which was in his exclusive possession for selling fuel instead of issuing fuel to military personnel for official use. PW1 stated emphatically that the appellant was selling fuel illegally from the ECOMOG POL point. Surprisingly no single question was put to PW1 in cross-examination on these points, thereby leaving his evidence unchallenged. The appellant made heavy weather of the fact that CW1 was called to testify after the close of the case for the defence. I do not see how this led to any miscarriage of justice as the appellant was given the opportunity to cross-examine and re-examine the witness. Further, the Appellant in his confessional statement mentioned CW1 as someone who helped him carry fuel. Besides, a General Court Martial is not strictly a court of law where all the detailed procedural rules of the CPL must be obeyed to the letter. See once more the case of MAGAJI VS NIGERIAN ARMY(2004) 14 NWLR (PT 899) 222 where it was held that “A military court martial, unlike a typical trial court manned by qualified professional lawyers, is a tribunal manned by laymen with only one attribute in common with jury trial system.  High standard of adjudication in matters is not expected of them.  This court cannot be unduly strict or rigid with regard to matters of procedure.” The Supreme Court affirmed the above dicta in MAGAJI VS NIGERIAN ARMY (2008) 8 NWLR (Pt 1089) 338 at P 394 Paragraphs G-H in the following words: “It must be borne in mind that the General Court Martial cannot be equated to the regular courts, where strict procedures are required.  It is no more than a tribunal and at best, it can be equated with a jury trial.” The Appellant tried to distinguish Magaji’s case and preferred the case of Nigerian Army v. Mohammed (2003) 40 WRN 59 where Belgore JSC (as he then was) observed:
“It is true court-martial is a military court, it is however always bound by rules of evidence and manifestation of fair trial. The Respondent was virtually not allowed a fair trial…..”
Magaji’s case is more recent. Besides, the two cases are not in conflict but compliment each other. Whenever the issue of fair hearing is involved, the courts apply very stringent standards in judging the conduct of the court or tribunal in order to protect the fundamental rights of the accused person. Such is not the case here. The Appellant was afforded fair hearing in every sense of the word. A General Court Martial which is conducted by laymen ought not to be hampered by strict adherence to procedural rules especially when they are merely technical and do not give rise to any miscarriage of justice.
I am satisfied that the General Court Martial was right in convicting the appellant on the first count charge of illegal sale of POL products as the charge was proved by the prosecution beyond reasonable doubt based on the appellant’s confessional statement which was very detailed and gave a graphic picture of how the appellant from day one of his posting to Liberia got involved in the sale of POL products which he was supposed to safe guard for the use of the military. The Appellant complained that the General Court Martial convicted him on the basis of the confessional statement which he alleged to be involuntary when they declined to use it in the case of Lt Dangwaram (his boss) whom he implicated in the confessional statement. The law is that a confessional statement if voluntary is admissible only against the maker of the statement and not against another. See Ikemson v. The State (1989) 3 NWLR (Pt. 110) 455; Durugo V. State (1992) 7 NWLR (Pt. 255) 525; Solola v. State (2005) 2 NWLR (Pt. 937) 460; Grange v. Federal Republic of Nigeria & Ors (2009) LPELR – 8853 (CA). Apart from the confessional statement, the evidence of PW1, PW3 and CW1 further strengthened the case of the prosecution. The Evidence of PW3 and CW1 were amply corroborated by the discoveries in the appellant’s house and the evidence of PW1 which needed no corroboration. Issue 4 is resolved in favour of the respondent against the appellant.
In the finally result, I hold that this appeal lacks merit. I dismiss it and affirm the conviction and sentence of the General Court Martial.
CHIMA CENTUS NWEZE J.C.A.: My noble Lord, Iyizoba JCA, obliged me with a draft of the leading judgment just delivered now. I agree with the reasoning and conclusion.
Our procedural jurisprudence has never equated a General Court Martial [GCM] with a court of law. Even the adjectival Evidence Act exempts that body from its application. That explains why our appellate courts have neither been finicky with their proceedings nor have subjected their standard of justice to scrutiny with the finery of a tooth comb, Magaji v. Nigerian Army (2008) 8 NWLR (Pt.1089) 338, 394.
One judicially-recognised exception relates to its composition. Thus, any GCM which is not constituted as required by law is just like a court or tribunal which is not properly constituted. As has been long established, if a court or tribunal is not, properly, constituted, any process which is issues or any trial which it conducts is a complete nullity, ab initio, State v. Squadron Leader S. I. Oltunji (2003) LPELR-SC.206/2001; [2003] 14 NWLR (Pt.839) 138; Agbiti v. The Nigerian Navy (2011) LPELR – SC.275/2008; Olowu v. Nigeria Navy (2007) All FWLR (Pt.350) 1278, 1304.
For the above reasons, and the more detailed reasons contained in the leading judgment, I, too, shall dismiss this appeal for being unmeritorious. I, too, affirm the conviction and sentence which the GCM imposed on the appellant.
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RITA NOSAKHARE PEMU, J.C.A.: I have read before now in draft the judgment just delivered by my brother, CHINWE EUGENIA IYIZOBA, J.C.A.
I agree with the reasoning and conclusion arrived at in the judgment that the appeal lacks merit and same is hereby dismissed.
The law is trite that it is the duty of the prosecution, to prove its case beyond reasonable doubt. Once the burden of proof is discharged, then the prosecution succeeds and the accused person faces the consequences.
There is no doubt that the Appellant confessed to committing the offence he was charged with. The confessional statement was corroborated. This suffices.
I subscribe to the consequential order made, that the appeal lacks merit. I affirm the conviction and sentence of the General Court Martial.
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Appearances
Olusina Osunlakin Esq.For Appellant
AND
Mallam J. A. Adamu Assistant Director Federal Ministry of JusticeFor Respondent
