YAKUBU v. NIGERIAN ARMY (2022)

YAKUBU v. NIGERIAN ARMY

(2022)LCN/16632(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, September 02, 2022

CA/K/254/2021

Before Our Lordships:

Amina Audi Wambai Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

SGT. BAWASA YAKUBU APPELANT(S)

And

NIGERIAN ARMY RESPONDENT(S)

RATIO

THE WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON

THE STANDARD OF PROOF IN CRIMINAL TRIALS

The standard of proof in criminal trials is proof beyond reasonable doubt. The proof required is not to push a Court of trial into looking for proof beyond the shadow of doubt but rather proof beyond reasonable doubt. The Respondent should be allowed to prove the charge against the Appellant.
It is trite that in criminal proceedings, the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt and the prosecution should readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. See the cases of YONGO VS. COP (1992) 4 SCNJ 113 and UCHE WILLIAMS VS. THE STATE (1992) 10 SCNJ 74. PER IDRIS, J.C.A.

INGREDIENTS TO ESTABLISH THE GUILT OF AN ACCUSED PERSON

The Appellant, in this case, was tried and convicted of prohibited dealings in ammunition and disobedience to standing orders. The Prosecution must prove the following ingredients in order to establish the guilt of the Appellant beyond reasonable doubt:
(1) The accused is subject to service law and the jurisdiction of the General Court Martial.
(2) That the accused was in possession of firearms illegally.
(3) That the accused sold firearms.
(4) That the accused person is not a registered firearms dealer.
In respect of counts two and three, the Prosecution must prove that:
(a) That the accused is subject to service law and the jurisdiction of this General Court Martial.
(b) That there is a standing order.
(c) That the standing order is known to the accused or he is reasonably to know.
(d) That the accused breached such standing order. PER IDRIS, J.C.A.

WAYS TO TEST THE VERACITY OF A CONFESSIONAL STATEMENT

In the case of MUSA VS. STATE (2018) 13 NWLR (PT. 1636) PAGE 316 PARAS D – F, 318 PARAS F – G, it was held per Eko, JSC that:
“Courts in Nigeria apply the rule in R v Sykes 8 CAR 233 at 236 to test the veracity of the making of the confession as well as the correctness of the contents of the confessional statement. The six way test is run on the following pertinent questions. That is:
(a) Is there anything outside the confession to show that it is true?
(b) Is it corroborated?
(c) Are the relevant statements of fact made in it true as far as can be tested?
(d) Is the confession possible?
(e) Is it consistent with other facts which have been proved?”

In the case of ONYENEYE VS. THE STATE (2012) 15 NWLR (PT. 1324) PAGE 586 AT 619 PARAS A – C, the Apex Court set out the circumstances and effect of confessional statements obtained by duress or threat and those merely retracted as follows:
(1) “Where the accused has clearly expressed his ordeal in the process of obtaining the statement accredited to him in effect that it was obtained by force, tricks and undue influence or any non-recognizable legal ways, there would be need for a trial within trial.
(2) Where the accused retracted his confessional statement on the ground that it was not read to him before he signed it or that he never made it at all, the requirement of a trial within trial is not applicable.” PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant herein, was arraigned on a three count charge bordering on prohibited dealings in ammunition and disobedience to standing orders. The Charge reads thus:
COUNT ONE
(1) STATEMENT OF OFFENCE
Prohibited dealings in Ammunition punishable under Section 27(1)(b)(iii) of Firearms Act Cap F28 Laws of the Federation of Nigeria 2004 and triable pursuant Section 114 of the Armed Forces Act Cap A20 Laws of the Federation of Nigeria 2004.
PARTICULARS OF OFFENCE
In that you Sgt. Bawasa Yakubu at Kaduna sometime in October 2017 engaged in prohibited sale of quantity 30 rounds of 7.62mm (Special) ammunition to Mr. Ibrahim at the sum of Seventy-Five Thousand Naira (N75,000) only.
COUNT TWO
STATEMENT OF OFFENCE
Disobedience to standing orders punishable under Section 57(1) of the Armed Forces Act Cap A20 LFN 2004.
PARTICULARS OF OFFENCE
In that you Sgt. Bawasa Yakubu at Kaduna sometime in October 2017 departed from OP LAFIYA DOLE theatre to Kaduna with quantity 30 rounds of 7.62mm (Special) ammunition, an act which violates paragraph 2 (cc) of Code of Conduct for Troops of OP LAFIYA DOLE.
COUNT 3
STATEMENT OF OFFENCE
Disobedience to standing orders punishable under Section 57(1) of the Armed Forces Act Cap A20 LFN 2004.
PARTICULARS OF OFFENCE
In that you Sgt. Bawasa Yakubu at Kaduna sometime in October 2017 departed from OP LAFIYA DOLE theatre to Kaduna with 2 empty AK47 rifle magazines, an act which violates paragraph 2 (cc) of Code of Conduct for Troops of OP LAFIYA DOLE.

The Appellant pleaded not guilty to the three count charge. The Prosecution opened their case and called the Investigating Police officer, CPL Amadi Michael as PW1 who testified that the Appellant was brought to his office on an allegation of illegal possession and sales of ammunition. The witness said he interrogated the Appellant and took down his statement after he cautioned him since the Appellant could not write. The Appellant signed the statement and the OIC also signed to testify that there was no duress. PW1 went ahead to testify that the Appellant sold some ammunitions to one Mr. Ibrahim who is now at large for the sum of N75,000 and the confessional statement was tendered through him and it was admitted in evidence and marked as Exhibit A1.

PW2 who was the officer in charge of Military Police Investigation also testified that he was told by the Appellant that one Mr. Ibrahim asked for his help to help him get live rounds and empty magazine of AK47 rifle. PW2 then called one of his investigators to write for the Appellant since the Appellant could not write. He sought to tender the Code of Conduct for Troops in Op Lafiya Dole guiding military operations and it was admitted in evidence and marked as Exhibit A2. The witness further testified that paragraph cc of the said Exhibit A2 stated that the troops of Op Lafiya Dole must not for any reason depart the theatre of operation with any firearm ammunition or any other controlled items without depositing such with the quarter/store. PW2 had testified that he never met the Appellant and that he carried out the investigation based on the confessional statement the Appellant gave.

PW3 also testified that he was told to monitor the Appellant and that he then instructed his source to monitor the Appellant and he was informed that someone saw someone going to the Appellant’s house and bought some ammunition. They went to the house of the person and saw the ammunitions but the person escaped immediately he sighted them. They then went to the house of the Appellant and arrested him and he confessed that he sold it to Mr. Ibrahim. The witness said his own work was over immediately he handed the Appellant over to their office. The Respondent then closed their case.

The defence opened their case and called the Appellant who testified as DW1. The witness said he was at home and that he was arrested by PW3 and two others. That no weapon was found in his house but he was told that they found empty cases and ammunitions at one Mr. Ibrahim’s house who he claimed was his in-law. DW1 said he was threatened and that he did not voluntarily make the confessional statement.

DW2 who is the first wife of the Appellant testified that one Mr. Ibrahim and one Adamu came to their house and had an issue with her husband over the fact that he did not give his second wife money to go to the hospital when she fell ill. She said the argument escalated and they raised voices at each other and then the Mr. Ibrahim and Adamu left. DW2 testified that she had been married to the Appellant for 15 years and that she knows he cannot be guilty of the crimes he was accused of committing.

The learned trial judge however convicted the Appellant after evaluating the exhibits before him and the testimonies of the Prosecution witnesses. The Appellant was sentenced to 4 (Four) years imprisonment on count one, 2 (two) years imprisonment on count two and 1 (one) year imprisonment on count 3 (three). The sentences were to run concurrently.

Dissatisfied with the judgment of the Court Martial, the Appellant filed a Notice of Appeal dated the 27th day of September, 2021, raising 4 (four) grounds of appeal.

The Appellant also, filed his brief of argument which was deemed properly filed and served on the 9th day of May, 2022, and settled by his counsel Nnaemeka Otagburuagu Esq. In the said Appellant Brief of Argument, 2 (two) issues for determination were distilled as follows:
(1) Whether the General Court martial had the requisite jurisdiction to try and convict the Appellant in respect of the charges before it? (Distilled from Grounds 1, 2, 3 and 4 of the Notice of Appeal)
(2) Whether the General Court Martial did not err in law and reached a perverse decision when it convicted the Appellant notwithstanding the paucity of evidence and failure of the Prosecution to proof the ingredients of the offences against the Appellant beyond reasonable doubt as required by law? (Distilled from Grounds 1, 2, 3 and 4 of the Notice of Appeal)

On issue one, the Appellant’s counsel submitted that the trial Court, the Court Martial had no jurisdiction to try the Appellant at all on the grounds that the charge was defective and therefore incompetent having not been signed by the Commanding Officer as provided for by the Armed Forces Act. Reliance was placed on the case of MADUKOLU & ORS VS. NKEMDILIM (1962) 1 ALL NLR PAGE 587 2 SCNLR 341 AT 348 PARAS E – G. It was argued that when a Court goes ahead without jurisdiction and adjudicates on a case, the entire proceedings is void ab initio.

It was further submitted that it is the law that for a charge to be valid in a Court Martial trial, the Commanding Officer of the Unit of the accused must sign it, and that this power cannot be delegated or assigned to another officer. Reference was made to the provision of Chapter Two, paragraph 43 of the Manual Military Law, Section 291(1) of the Armed Forces Act as well as the case of NIGERIAN ARMY VS. MAUDE AMINUN-KANO (2010) 5 NWLR (PT. 1188) PAGE 429 AT 460.

This Court was urged to grant the appeal and discharge and acquit the Appellant.

On issue two, the Appellant’s counsel submitted that the Prosecution failed to prove the guilt of the Appellant beyond reasonable doubt as the prosecution failed to prove the ingredients of the offences for which the Appellant was charged for.

Also, the Appellant’s counsel submitted that the Appellant never made the confessional statement voluntarily because he was threatened and that Exhibit A1 was wrongly admitted in evidence by the trial Court as the procedure of obtaining the said confessional statement offends the provisions of Section 29(2) of Evidence Act 2011 and the Court ought to have ordered a trial within trial. Reliance was placed on the case of ALARAPE VS. STATE (2001) ALL FWLR (PT. 41) PAGE 1872 AT 1872.

It was submitted that there was no superior officer present when the confessional statement was taken, thus, contravening the provision of Section 15 (4) and 17(2) of ACJA 2015.

It was also submitted that the confessional statement was not corroborated at all with any other evidence on record. Reference was made to the case of NSOFOR & ANOR VS. THE STATE (2004) LPELR – 2068 (SC).

Furthermore, the Appellant’s counsel argued that the Respondent did not prove the guilt of the Appellant beyond reasonable doubt as the burden of proof is on the prosecution and never on the Appellant. It was argued that Exhibits A3 and A4 were not found in the house of the Appellant or with him and that the evidence adduced at the trial were hearsay evidence and thus, not admissible.

The Appellant’s counsel argued further that the failure to call Mr. Ibrahim to Court was fatal to the case of the Respondent as he was a vital witness. Reliance was placed on the case of OCHIBA VS. STATE (2011) 17 NWLR (PT. 1277) PAGE 663 AT 239 and Section 167(d) of the Evidence Act 2011.

It was then submitted that the trial Court relied on the speculative and contradictory evidence of PW1, PW2 and PW3, and a lot of excerpts from the records were quoted to show same.
In conclusion, it was submitted that the Appellant clearly identified and specified the evidence on which the complaint of improper evaluation of evidence is based to enable this Court consider that there was improper evaluation of evidence in support of the findings. It was also submitted that the trial Court failed in evaluating the pieces of evidence to prevent injustice donates concurrent jurisdiction to this Court and the lower Court on evaluation of documentary evidence. The cases of EZEUKO VS. STATE (2016) 6 NWLR (PT. 1509) PAGE 529 and FRN VS. SANNI (2014) 16 NWLR (PT. 1433) PAGE 299 were cited in support.

This Court was then urged to allow the appeal and set aside the judgment of the lower Court, discharge and acquit the Appellant and finally, make an order reinstating him to the service of the Nigerian Army.

The Respondent on its own part, filed its Brief of Argument dated the 6th day of June, 2022 and settled by A. I. Omachi Esq. In the said Respondent brief, a sole issue for determination was distilled as follows:
“Whether the three counts in the charge were proved beyond a reasonable doubt to warrant the conviction of the Appellant for the said offences?”

The Respondent’s counsel first addressed the issue one of the Appellant’s brief of argument, relating to the competence of the charge. It was submitted that the four grounds of appeal and particulars raised no issue as to the competence of the charge and the jurisdiction of the General Court Martial to try same.

It was submitted that issues for determination in an appeal must be distilled from, related to and founded on the grounds of appeal and must deal with matters which are a direct challenge to the judgment being appealed against, and that if any issue is formulated outside the grounds of appeal, it is deemed irrelevant and liable to be struck out. Reference was made to the case of ROSE STAR ENTERPRISES LTD & ANOR VS. INDO (NIG) BANK LTD. It was submitted further that the whole issue one was not distilled from any ground of appeal and is liable to be struck out.

While arguing their sole issue, the Respondent’s counsel submitted that the three count charge offences against the Appellant were proved beyond reasonable doubt as the confessional statement was free and voluntarily made. It was argued that an accused can be convicted solely on his confessional statement as was held in the case of ALABI TOPE VS. THE STATE (2019) LPELR – 47837 (SC).

It was submitted that the objection of the Appellant to the admissibility of the confessional statement was not raised timeously and that where an accused retracts his written confessional statement in his oral evidence in Court, he is bound to give cogent reasons for the inconsistencies between the former and the latter and the case of ADAMU VS. STATE (2016) LPELR – 41174 PAGE 32 – 33 PARAS D was cited in support. It was submitted that the cautionary statement in Exhibit A1 had an illiterate jurat duly signed by the Appellant.

It was further submitted that the collaborative evidence in Exhibits A3 and A4 are relevant evidence outside the confession in Exhibit A1 which makes the said confession believable. It was argued that the provisions of the Administration of Criminal Justice Act 2015 are not applicable to Court Martial proceedings as provided for in Section 2(2) of the Administration of Criminal Justice Act 2015.

The learned Respondent’s counsel also argued that the evidence they adduced at the trial Court cannot be regarded as hearsay, and that PW1, PW2 and PW3 each gave evidence relating to what they knew or did personally in the process of the arrest of the Appellant. That Exhibit A1 was tendered by PW1 who recorded same, Exhibit A2 tendered through PW2 who had led the investigation of the Appellant, and Exhibits A3 and A4 were tendered through the witnesses who had direct link with them which was PW3.

Also, the Respondent’s counsel also argued that there was no refusal or failure to produce the said Mr. Ibrahim as it was clearly stated that he was at large and thus, the fact that he was not called as a vital witness for the Respondent was not fatal to their case in anyway.

It was also submitted that the Appellant did not point out any contradiction, material or otherwise in the evidence of any of the prosecution witnesses to warrant setting aside the judgment of the trial Court. That the trial Court evaluated all the evidence adduced before it and that the counts were proved against the Appellant beyond reasonable doubt.

This Court was then urged to resolve this issue in favour of the Respondent and to dismiss the appeal for lacking in merit and affirm the conviction and sentence of the Appellant by the General Court Martial in its judgment.

RESOLUTION OF ISSUES
I have read and totally digested the respective briefs of argument filed by the parties herein. I shall proceed to determine the appeal and in doing so, I shall be adopting the issues for determination formulated by the Appellant as those that have arisen for the determination of the instant appeal. The issues are again reproduced hereunder as follows:
(1) Whether the General Court Martial did not err in law and reached a perverse decision when it convicted the Appellant notwithstanding the paucity of evidence and failure of the Prosecution to proof the ingredients of the offences against the Appellant beyond reasonable doubt as required by law?
(2) Whether the General Court martial had the requisite jurisdiction to try and convict the Appellant in respect of the charges before it?

ISSUE ONE
Whether the General Court Martial did not err in law and reached a perverse decision when it convicted the Appellant notwithstanding the paucity of evidence and failure of the Prosecution to proof the ingredients of the offences against the Appellant beyond reasonable doubt as required by law?

In any criminal proceeding, the prosecution has the burden of establishing the guilt of the accused person beyond reasonable doubt. See Section 135 of the Evidence Act 2011. The burden remains on the prosecution and does not shift. Thus, proof beyond reasonable doubt means establishing the guilt of an accused person with compelling and conclusive evidence. Proof beyond reasonable does not mean proof beyond all doubt or all shadow of doubt or proof to the hilt. If the evidence is strong against a person as to leave only a remote probability in the mind of a reasonable man, the case is proved beyond reasonable doubt.

The principle of natural justice, equity and good conscience, nemo judex in causa sua, restrains the Court from usurping the function of the prosecution under the Nigerian adversarial jurisprudence. That is to say, the Court must be an unbiased umpire and must not descend into the arena of conflict.

In the case of OJO VS. STATE (2018) 15 NWLR (PT. 1643) PAGE 527 AT 546 PARAS A – D, the Supreme Court held that the three ways of proving the guilt of an accused are:
“(a) through a voluntary confessional statement of the accused person; and/or
(b) through direct credible and reliable eyewitnesses or victims of the offence account depending on the circumstance of the offence or offences; and/or
(c) through circumstantial evidence pointing or focusing on the guilt of the accused person that he was the one or one of the persons who committed the offence or offences charged and by no other person(s) but him.”
Under our criminal jurisprudence, the Prosecution can prove the guilt of the accused through three major ways as decided in Supreme Court case of DANJUMA VS. STATE (2019) LPELR – 47037 (SC), where it was held per Bage, JSC that:
“The penal code in our land gives the prosecution the choice or options for proving its case beyond reasonable doubt. A prosecutor may deploy all three options or a combination of options. The guilt of an accused maybe proved by – (i) Confessional statement of the accused; (ii) evidence of an eye witness and; (3) circumstantial evidence.”
See also, the cases of UMARU VS. STATE (2014) 13 NWLR (PT. 1425) AT 497 and IBRAHIM VS. STATE (2014) 3 NWLR (PT. 1394) PAGE 305.

The rights of the accused are protected under Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria which provides that:
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proven guilty.”

The standard of proof in criminal trials is proof beyond reasonable doubt. The proof required is not to push a Court of trial into looking for proof beyond the shadow of doubt but rather proof beyond reasonable doubt. The Respondent should be allowed to prove the charge against the Appellant.
It is trite that in criminal proceedings, the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt and the prosecution should readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. See the cases of YONGO VS. COP (1992) 4 SCNJ 113 and UCHE WILLIAMS VS. THE STATE (1992) 10 SCNJ 74.

The Appellant, in this case, was tried and convicted of prohibited dealings in ammunition and disobedience to standing orders. The Prosecution must prove the following ingredients in order to establish the guilt of the Appellant beyond reasonable doubt:
(1) The accused is subject to service law and the jurisdiction of the General Court Martial.
(2) That the accused was in possession of firearms illegally.
(3) That the accused sold firearms.
(4) That the accused person is not a registered firearms dealer.
In respect of counts two and three, the Prosecution must prove that:
(a) That the accused is subject to service law and the jurisdiction of this General Court Martial.
(b) That there is a standing order.
(c) That the standing order is known to the accused or he is reasonably to know.
(d) That the accused breached such standing order.

It is clear that the Appellant is subject to service law. There is no contention about that. In fact, the Appellant is a Sergeant in the Army. Secondly, the Appellant was convicted based on the confessional statement and testimonies of the witnesses. From the judgment of the trial Court, it is clear that the Appellant was convicted solely on the contents of the Exhibit A1, his confessional statement. In the case of SULE VS. STATE (2018) 10 NWLR (PT. 1628) PAGE 564 PARAS D – G, it was held that:
“Section 28 of the Evidence Act 2011 provides that a confession is an admission made at anytime by a person, charged with a crime tending to show or suggest the inference that he committed the crime. Confessional statement is tenable and admissible. Confessional statement is the best evidence to ground conviction and it can be relied upon solely where voluntary. The criminal guilt of an accused person can be established by confessional statement, circumstantial evidence and evidence of an eyewitness. A confessional statement of the accused person that is free and voluntary regardless of the fact that he subsequently resiled from his voluntary confession at trial is good evidence to ground conviction. A confessional statement does not become inadmissible simply because the accused person denied having made it.”
When a sane right-thinking person freely and voluntarily confesses that indeed he was the one responsible for the crime for which he is being accused of, it is a gold mine for the prosecution as the accused has willing offered himself to be slaughtered. A direct, voluntary and unequivocal confessional statement is a solid evidence that can be used to convict an accused person.
In the instant case, the Appellant was convicted solely and only on the strength of his confessional statement. The question that must be answered now is: was the confessional statement strong, direct, positive, unequivocal and free from doubt and capable of securing a conviction against the Appellant?
In the case of SULE VS. STATE (SUPRA), it was held that:
“The confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for conviction of the accused person. An accused person can be convicted on his confessional statement alone, where the confession is consistent with other ascertained facts, which have been proved. Confession in criminal procedure is the strongest evidence of guilt on the act of an accused person. It is stronger than evidence of an eyewitness because the evidence comes from the accused person. There is no better evidence and there is no further proof. Therefore, where an accused person confesses to a crime in the absence of an eyewitness to the crime, he can be convicted on his confession alone once the confession is positive, direct and properly proved. In otherwords, a free and voluntary confession of guilt, direct and positive and if duly made and satisfactorily proved is sufficient without corroborative evidence so long as the Court is satisfied as to the truth of the confession.”

Can an accused be convicted solely on his confessional statement?

I have read the confessional statement which is Exhibit A1. In the said confessional statement, PW1 who is the Investigating Police Officer merely testified that the Appellant was brought to their office for an alleged case of illegal possession of ammunition and sale. PW1 did not arrest the Appellant. PW1 said he wrote the confessional statement because the Appellant claimed to be unable to write. PW1 testified that the Appellant confessed to him that he sold some ammunition to one Mr. Ibrahim.

PW2 also testified that a case was transferred to his office involving sales of ammunition. The witness said that the Appellant confessed to him, admitting he (Appellant) sold them to one Mr. Ibrahim. PW2 also testified as to the content of the Code of Conduct guiding all military operations including those in Op Lafiya Dole. The witness read through the contents of the said Code of Conduct and tried to establish the fact that the Appellant breached some provisions therein, thus, amounting to disobedience to standing orders.

PW3 testified that he was one of the people that arrested the Appellant. The witness also testified that through his source, he went to arrest an “unknown” person as contained on page 91 of the Record of Appeal based on intel from his “source.” Some ammunition were recovered from the house of the “unknown” person. However, according to PW3, the “unknown” person escaped immediately he saw them. PW3 testified that he took the ammunition recovered from the “unknown” person’s house and took it to his office. That he later went to the house of the Appellant and arrested him after searching his house and finding nothing there. When asked how he linked the recovered 7.62mm (Special) ammunition with 2 AK47 empty magazines to the Appellant, PW3 stated on page 97 of the Record of Appeal that:
“I have said it earlier; we recovered it from the other man’s house that I do not know his name, but through my source and the information given to me through my Commander and when we arrested Sgt Bawasa, we confirmed from him… From Sgt. Bawasa when we asked him who did he sold (sic) the ammunition and magazines to. He said Mr. Ibrahim. Who is that Ibrahim? He said Ibrahim is his in-law. Where does he stay? He said with his friend.”

The Appellant has thus argued that the testimonies of PW1, PW2 and PW3 were hearsay evidence and, should be deemed inadmissible.

What is hearsay evidence? In the case of OBOT VS. STATE (2014) LPELR – 23130 (CA), it was held that hearsay evidence is evidence that does not derive its value solely from the credit given to the witness himself but which rests also, in part, on the veracity and competence of some other person.

The question that must be answered now is: does the testimony of the three prosecution witnesses amount to hearsay evidence?

The testimony of PW1 cannot be deemed to be hearsay evidence because he is the Investigating Police Officer. Any statement from him is a collation of information he gathered while handling the case. In the case of OBOT VS. STATE (2014) LPELR – 23130 (CA), it was held per Ndukwe-Anyanwu, JCA that:
“… it appears the learned Appellant’s counsel does not appreciate fully the job description of an investigating Police officer. He just investigates crimes. Invariably an Investigating police officer is hardly ever at the crime scene. His investigation comes after the crime had been committed. An Investigating Police Officer obtains statements from accused persons and witnesses alike. He thereafter testifies in Court giving a synopsis of what he did during the investigation. He tenders the statements of both accused and in some cases that of witnesses. He also tenders some documents and exhibits obtained during investigation. The Investigating Police Officer therefore gives direct evidence as to what he has done during the investigation of the crime. The evidence of the Investigating Police officer is not by any standard hearsay. He gives an account of what he has done in the process of his investigations.”
The testimony of PW1 cannot be said to be hearsay evidence since his job as the Investigating Police Officer is to give direct evidence of his findings even if he garnered such information from another person.

The evidence of PW2 is very similar to that of PW1 but he tried to establish the content of the Code of Conduct which the Appellant was said to have breached by dealing illegally and selling ammunitions. The witness also testified that the Appellant had confessed directly to him. I will not regard same as hearsay evidence.

PW3 however garnered information from a source he chose not to disclose that told him that the Appellant sold some ammunition to an “unknown” person. The witness went to arrest the “unknown” person, failed in the attempt, recovered some ammunitions from the house of the “unknown” person then went to arrest the Appellant on the belief that it must have been the Appellant that sold the ammunition to the “unknown” person. Does this look believable, tidy and accurate to any reasonable man? I do not think so.

Did the Respondent try to establish the link, a direct link, a clear link, an undisputable link connecting the Appellant to the said Mr. Ibrahim/“unknown” person according to PW3? Did the Respondent establish that the weapons recovered from the said Mr. Ibrahim/“unknown” person were indeed gotten and sold by the Appellant?

I do not think so. None of the Prosecution witnesses established this link at all. To me, the Appellant was convicted solely and only on his confessional statement which he claimed was made involuntarily after he was threatened. Is there anything outside the confessional statement that can corroborate the contents of the confessional statement? I cannot see any before me. Did the trial Court order a trial within trial? No, it did not.

In the case of MUSA VS. STATE (2018) 13 NWLR (PT. 1636) PAGE 316 PARAS D – F, 318 PARAS F – G, it was held per Eko, JSC that:
“Courts in Nigeria apply the rule in R v Sykes 8 CAR 233 at 236 to test the veracity of the making of the confession as well as the correctness of the contents of the confessional statement. The six way test is run on the following pertinent questions. That is:
(a) Is there anything outside the confession to show that it is true?
(b) Is it corroborated?
(c) Are the relevant statements of fact made in it true as far as can be tested?
(d) Is the confession possible?
(e) Is it consistent with other facts which have been proved?”

In the case of ONYENEYE VS. THE STATE (2012) 15 NWLR (PT. 1324) PAGE 586 AT 619 PARAS A – C, the Apex Court set out the circumstances and effect of confessional statements obtained by duress or threat and those merely retracted as follows:
(1) “Where the accused has clearly expressed his ordeal in the process of obtaining the statement accredited to him in effect that it was obtained by force, tricks and undue influence or any non-recognizable legal ways, there would be need for a trial within trial.
(2) Where the accused retracted his confessional statement on the ground that it was not read to him before he signed it or that he never made it at all, the requirement of a trial within trial is not applicable.”

Reading through page 107 of the Record of Appeal where the defence of the Appellant is contained, and reproduced as follows:
“I told him that I am not an armourer why would I sell ammunition. I did not sell 30 rounds of ammunition and 2 empty magazines and he now threatened to deal with me, he insisted that I was the person that sold 30 rounds of ammunition and 2 empty magazines to one Mr. Ibrahim, he further said do I know that this offence I committed he can hang me for it. He said they will go and hang me and kill me if I did not tell him the truth that am the one who sold these ammunitions to Ibrahim, I said no. He now carried rope and tied me, he now said if I tell him the truth that t sold the ammunition and 2 empty magazines to Ibrahim he will release me and I know I have children. He asked me how many years I have served in the Army, I told him I am 24 years in service, he now promised that I would be allowed to go back to see my family if I agreed that I sold the ammunition and two empty magazines to Ibrahim…”

From the above statement made by the Appellant, it is clear that he did not retract the confessional statement by merely denying ever making same rather, he stated that he did not voluntarily make the said confessional statement because he was threatened.
How then, did the trial Court reach such a decision without conducting the trial within trial which is a duty and obligation placed on him by the law when the issue of involuntariness in making a confessional statement is raised?
In the case of OFORDIKE VS. STATE (2019) 5 NWLR (PT. 1666) PAGE 395 @ PAGE 424 PARAS H – C, it was held per Nweze, JSC that:
“in this sort of situation, the trial Court is under obligation to conduct a trial within trial (also known as voire diew or mini trial) to determine the veracity or otherwise of the claim… the raison d’etre of the evolution of the mini trial or voire dire procedure is to arm the trial Court with a procedural mechanism for sifting the chaff of involuntary, and, hence, inadmissible evidence from the wheat of admissible evidence whose cogency and probative value are indubitable. The cases on this point are legion; they are countless. OGUDO V THE STATE (2011) 12 SC PART 1 PAGE 71, THE STATE V RABIU (2013) 8 NWLR PART 1357 PAGE 585.”
The law has placed a duty on the trial Court to conduct a trial within trial when the issue of involuntariness is raised with regard to confessional statements. In this case, this is not a matter of resiling, denying or retracting the confession statement. I therefore hold that the trial judge failed to discharge the responsibility and obligation placed on him by the law to order a trial within trial to eliminate the issue of involuntariness. I also hold that the trial judge failed to test the veracity of the confessional statement as stated in the case of MUSA VS. STATE (SUPRA). There is nothing outside the confessional statement to corroborate and to establish without any doubt that it was the Appellant that sold the ammunition recovered from the person who the Respondent did not satisfactorily establish his identity.

The witnesses kept going back and forth and they testified with a lot of uncertainties. The entire case as far as I am concerned is based on speculations. The Appellant never denied knowing the said Mr. Ibrahim who he even confirmed was his in-law. If the undisclosed source of PW3 had been monitoring them, what overt act did he observe that made him conclude that there was an illegal sale transaction of ammunition between them? All the testimonies were tainted with doubts and speculations both during examination in chief and cross-examination.

In the case of ORHUE VS. NEPA (1998) 7 NWLR (PT. 557) PAGE 187, it was held that “it is not part of the assignment of any Court to speculate. It must avoid it.”
In the recent case of IKEMEFUNA & ORS VS. ILONDIOR & ORS (2018) LPELR – 44840, it was held that:
“The law is settled that a Court of law, including this Court, should not indulge in speculating on anything. Put simply, the Court has a duty not to speculate.”
See also, the cases of IKENTA BEST (NIG.) LTD VS. A.G. RIVERS STATE (2008) 8 NWLR (PT. 1084) 612 and ANIMASHAUN VS. UCH (1996) 10 NWLR (PT. 476) PAGE 65.

I do not agree with the Appellant’s assertion that the said Mr. Ibrahim ought to have been called by the Respondent as a vital witness. The Respondent is at liberty to call whoever they so desire to prove the guilt of the accused in every case. However, I believe PW3’s testimony should not have been so vague, doubtful, unclear and ambiguous as it was. Who instructed PW3 to monitor the Appellant? Why was PW3 instructed to monitor the Appellant? Where there reports and rumours about the illegal acts of the Appellant flying around? Why did PW3 delegate this instruction to his “source” to do the monitoring? What exactly did the source observe that made him conclude that indeed there was an illegal act going on between the Appellant and the said Mr. Ibrahim?

I understand the way military people deal with undisclosed sources who help with their investigations and those sources cannot be called as witnesses for the purpose of keeping them anonymous or “undercover”. However, this is a Court of justice and fairness, a Court of evidence and of law. If you will not disclose your source, at least bring before the Court solid and direct evidence that can establish the guilt of the Appellant. I cannot condemn a man to conviction and imprisonment based on an unverified story full of undisclosed facts. I will not do that.

Thus, the Respondent failed to prove the guilt of the Appellant beyond reasonable doubt in respect of count one. Since the Appellant is not found guilty of count one, then counts two and three automatically fails.
This issue is therefore resolved in favour of the Appellant against the Respondent.

ISSUE TWO
Whether the General Court Martial had the requisite jurisdiction to try and convict the Appellant in respect of the charges before it?

In the case of SHITTA-BEY VS. ATTORNEY-GENERAL, FEDERATION (1998) 10 NWLR (PT. 570) PAGE 392, jurisdiction was defined as follows:
“it is the authority a Court of law has to entertain and decide a matter brought before it by litigants. It embraces every kind of judicial action be it criminal, civil and what nots. It is the power of Court to decide a matter in controversy and it presupposes the existence of a duly constituted Court with control over the subject matter and the parties.”
While the ingredients of jurisdiction exist where:
(a) The subject matter of the case is within the jurisdiction of the Court and there is no feature in the case which prevents the Court from exercising its jurisdiction.
(b) The Court is properly constituted as regards members and their requisite qualification and no member is disqualified for one reason or the other; and
(c) The case comes before the Court initiated by the due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See generally, the cases of MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341, SKENCONSULT (NIG) LTD VS. UKEY (1981) 1 SC 6, ISHOLA VS. AJIBOYE (1994) 6 NWLR (PT. 352) PAGE 506, WESTERN STEEL WORKS LTD VS. IRON AND STEEL WORKERS UNION (1986) 3 NWLR (PT. 30) PAGE 617 and ODOFIN VS. AGU (1992) 3 NWLR (PT. 229) PAGE 350.
In the Supreme Court case of PDP VS. OKOROCHA & ORS (2012) 15 NWLR (PT. 1323) PAGE 205, it was held that:
“jurisdiction is visualized as the very basis on which any Court or tribunal tries a case. It is the lifeline of all trials. Any trial without jurisdiction is a nullity. The question of jurisdiction being radically fundamental, it can be raised at any stage of a proceeding.”
There are different kinds of jurisdiction. There is the original jurisdiction of Court, appellate jurisdiction, concurrent jurisdiction, exclusive jurisdiction, limited jurisdiction, unlimited jurisdiction, subject matter jurisdiction, territorial jurisdiction amongst others. Jurisdiction of every Court is statutory. It is conferred by the statute which creates it, and may be expanded or extended by specific legislation. Neither the Court nor any of the parties can confer jurisdiction on the Court by conduct, consent or inference and cannot be enlarged by estoppel or waiver. Jurisdiction is the forerunner of the judicial process, and cannot by acquiescence, collusion, compromise or waiver confer jurisdiction on a Court that lacks it. Parties do not have the legal right to donate jurisdiction on a Court that lacks it.
The Supreme Court reiterated the fundamental nature of the issue of jurisdiction, stressing that it is the duty of every Court, the Supreme Court inclusive, to carefully examine the issues in the Statement of Claim, to determine whether the issues sought to be ventilated before the Court are within its jurisdictional competence. The issue of jurisdiction is radical and at the foundation of adjudication, and if a Court acts without jurisdiction, the entire process is a nullity. A Court cannot, under any disguise, decline to deal with an issue of jurisdiction raised for the first time on appeal without leave. See the case of CGG (NIG) LTD VS. AMINU (2015) LPELR – 24463 (SC). Also, by virtue of Section 233(2)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), no leave of Court is required to raise an issue of jurisdiction as a fresh issue on appeal.

The Appellant in this case has raised the issue of jurisdiction based on the incompetence of the charge sheet upon which the Appellant was charged, tried and convicted. Basically, a defective charge cannot vitiate the entire proceedings and render it a nullity.
An accused person must raise any objection to any formal defect to a charge before he takes his plea. It must be raised timeously. See generally, the cases of OGUNYE VS. THE STATE (1999) 5 ALL FWLR (PT. 604) 545, ADENIJI VS. THE STATE (2001) 13 NWLR (PT. 730) 375, OKEKE VS. THE STATE (2003) 5 SCM 131, 185-186, SOLOLA & ANOR VS. THE STATE (2005) 6 SCM 137, 147 and OKEWU VS. FRN (2012) 1 NWLR (PT. 1305) 327, 369. Where he fails to do so and his plea is taken, the accused is presumed to have understood the charge preferred against him and must not be heard complaining about it.
However, the defect complained about in the instant case is one that affects the jurisdiction of the Court and if found to be true, it can vitiate the entire proceedings. Now, let us critically analyze same.

The Appellant’s counsel has argued that the charge was not signed by the Commanding Officer of his unit. It was argued that the position of the law is that for a charge to be valid in a Court Martial trial, the Commanding Officer of the unit of the accused must sign the charge sheet.

In the Supreme Court case of ALIOKE VS. OYE (2018) 18 NWLR (PT. 1651) PAGE 247 AT PAGE 260 PARAS B, jurisdiction was defined per Bage, JSC when he held:
“The law is settled that jurisdiction is a threshold or fundamental issue that can be raised anytime during the trial of a suit up to finality.”

The Appellant’s counsel never raised this objection as to whether it was the appropriate authority that signed the charge sheet at the trial Court. As a matter of practice, objection to a charge should be raised at the time of arraignment. See the case of MAGAJI VS. NIGERIAN ARMY (2008) 8 NWLR (PT. 1089) PAGE 338.

However, would it be right to turn a blind eye if such error to the charge sheet renders it a nullity and is not a mere defect? A plethora of authorities have shown that the charge sheet of an accused brought before a Court martial must be signed by the Commanding Officer of the accused. It is mandatory and must be strictly complied with.

I have read the Record of Appeal, particularly page 1, and I can see that it is a record of proceedings of the Court Martial in the case of NA V 95NA/40/5039 SGT BAWASA YAKUBU. It further reads:
“Proceedings of a General Court Martial held at ‘Division officers’ mess Kaduna by the order of Maj. Gen F Yahaya (N/9048) DSS psc (+) ndc (Chile) CM FCM BA (Hons) MAID General Officer Commanding 1 Division Nigerian Army Kaduna dated 12 April 2019.”

One thing is clear, and that is the Commanding Officer of Appellant is clearly Maj. Gen. F. Yahaya and it is only him that can sign the charge sheet upon which the Appellant was being tried for.

I have read through the record of appeal before me thoroughly and if I am not mistaken, the charge sheet is contained on page 6 of the record. I cannot see any signature at all at the bottom or anywhere on the said charge sheet. I will be right to say that the charge sheet was unsigned.

The Respondent’s counsel in his brief of argument made no comments about this but instead, focused on the fact that the issue one which borders on jurisdiction did not arise from any ground of appeal. It is elementary law that the issue of jurisdiction can be raised at any time, even by the Court suo motu at the Supreme Court. It is my believe that the Respondent’s counsel should have tried to salvage the case of the Respondent by either bringing the attention of this Court to a duly signed charge sheet or by proffering some kind of logical explanation for the absence of same.

In the case of FRIDAY VS. NIGERIAN ARMY (2016) LPELR – 41604 (CA), on whether the trial General Court Martial correctly exercised jurisdiction in the trial of the Appellant on the charge upon which he was arraigned before the Court, it was held that:
“… it is without dispute that the charge sheet was signed by one “COC EKULIDE Col for the General Officer Commanding”. To sign “for” is to sign on behalf and for the benefit of someone. It means procuration. This is the evidence we have on the record that the charge sheet was signed by a different person other than the Appellant’s Commanding Officer. If Col COC Ekulide is/was the General Officer Commanding, would he have signed “for”? It is commonsensical, logical and deducible that he was not the General Officer Commanding because “for” betrays his authority to sign. Moreover, the Respondent’s Counsel has not shown or led otherwise that Col Ekulide is the Appellant’s Commanding Officer.”
Also, even though it has been decided in a lot of cases that the right to sign a charge sheet cannot be delegated, this Court would have considered the position of the Respondent if there was a written letter of authorization, signed by the General Commanding Officer, directing someone to sign the charge sheet on his behalf. There is nothing of such before this Court.
Simply put, this Court cannot overlook this illegality as you cannot put something on nothing and expect it to stand. See the case of MACFOY VS. UAC (1962) A. C. 150 AT PAGE 160. The issue of signing a charge sheet to Court-martial a soldier is a jurisdictional issue and it must be strictly obeyed.
It is inconsequential that the Appellant did not object to the charge with which he was tried and he was not in any way affected by the error. We all know that rights of individuals can be waived, personal rights, even fundamental right can be waived but a party cannot waive a directive, obligatory or mandatory or a constitutional provision of the law on him. The law must be obeyed.
In the case of ZAKARI VS. NIGERIAN ARMY (2015) 17 NWLR (PT. 1481) 77 AT 81; LPELR-24721(SC), the Supreme Court while relying on the case of MOBIL PRODUCING NIGERIA UNLIMITED VS. MONOKPO (2003) 18 NWLR (PT. 852) 346, a judgment of this Court, per Niki Tobi, JSC held:
“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 non-compliance affects the substance of 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 waiver by the party can be of assistance to the adverse party. The defence of waiver lacks merit and I so hold.”
The issue of signing a charge sheet is a jurisdictional and fundamental one that the laws have expressly forbidden the Commanding Officer to delegate whatsoever. A charge sheet is the originating process of every criminal trial, the very foundation of a criminal proceeding and failure to sign or properly sign a charge sheet or such other defect on the charge sheet is fundamental and touches on the jurisdiction of the Court Martial to try the Appellant. Paragraph 43 of the Manual of Military Law provides as follows:
“A C.O. having remanded the accused in accordance with R.P.13 will sign the charge-sheet. Care must be taken to ensure that a person who signs the charge-sheet is the C.O. of the accused at the date of signing; it must not be signed by another officer on his behalf.” (The underlined for emphasis)
While paragraph 39 of the Manual of Military Law also provides that:
“The charge-sheet contains the whole of the issues to be tried at one time and consists of:
(a) The commencement of the charge-sheet
(b) The charges, each being divided into
(i) The statement of offence, and
(ii) The particulars of the act, neglect or commission constituting the offence;
(c) The signature of the commanding officer; and
(d) The order of trial.”
The law remains the law and must be obeyed and it does not matter whether the Appellant was adversely affected by the signing of the charge sheet by another officer unauthorized to so sign or not.
In the case of AGBITI VS. NIGERIAN NAVY (2011) 13 WRN 1 AT 49, the apex Court per Rhodes-Vivour, JSC held that:
“If the law states what is required for the Court martial to be properly constituted as regards its members and there is an infraction, no matter how negligible, so long as it is an infraction of the Act the trial ought to be nullified.” In the instant case, there is an infraction of the law which requires the appropriate superior authority to determine the charge to be tried by a Court martial. In which case, the trial based on the charge altered and signed by an officer who is not the appropriate superior authority render it a nullity.” (The underlined for emphasis)
It was also held in KUDAMBO VS. NIGERIAN NAVY (2014) LPELR – 22624 (CA) per Oseji, JCA that:
“This is indeed trite and incontestable even in a trial before a Court martial as in this case, but it must be done in accordance with the relevant statutory provision as presented by Section 126 of the Armed Forces Act which requires that where an appropriate superior authority in the military determines that it is desirable that a charge shall be tried by a Court Martial, the prescribed steps shall be taken with a view to its being so tried. Hence the convening officer signs the charge for which an officer is to be tried. There is a contrast here with what obtains in the regular Courts where there is a standing and implied mandate enabling any legal officer to sign a charge sheet as well as amend it when necessary.” (The underlined for emphasis)
The law is clear and unambiguous in this regard and devoid of any grey areas. It states that the power cannot be exercised by any other person apart from the General Commanding Officer of the Accused. It is expressly provided that this power of signing the charge sheet has been delegated only to the Commanding Officer, hence power delegated cannot be sub delegated (delegatus non potest delegare). See IBADAN CITY COUNCIL VS. J. O. ODUKALE (1972) ALL N.L.R. 755.
By the rule of interpretation, the express mention of one thing is the exclusion of another (expressio unis est exclusio atterius). See A. G. BENDEL VS. AIDEYAN (1989) 4 NWLR (PT. 188) 646 AT 672 and INEC VS. PDP (1999) 11 NWLR (PT. 626) 174 AT 191. Because the Commanding Officer has been expressly mentioned, it therefore excludes any other officer from signing a charge-sheet on his behalf. The signature of another soldier on behalf of the Commanding Officer of the Appellant or no signature at all is incompetent and renders the charge sheet null and void and is without remedy.
In ORIZU VS. UZOEGWU (1999) 6 NWLR (PT. 605) 32, it was held thus:
“I need to emphasis here that a signature by an unknown person on behalf of another is an incompetent signature.”
To be emphatic, the Respondent lacked the jurisdiction to try the Appellant on a charge-sheet not signed by his Commanding Officer. It can be painful sometimes to see the Prosecution in a criminal proceeding do a fantastic job by doing their homework beautifully, calling witnesses, cross-examining the Defendant and making powerful final submissions only for a little avoidable mistake to ruin their almost achieved victory. The law is clear. The charge sheet shall and must be signed by the General Commanding Officer of the Accused. Why did the Prosecution choose to disobey this mandatory rule of law? I would not know. However, this is a Court of law and laws are there to guide and guard us.
In the circumstances, this appeal has merit and it succeeds. The entire proceedings, conviction and sentencing of the Appellant is hereby declared a nullity. Bearing in mind that the Appellant has been in detention since 2018 and the Prosecution failed woefully in proving his guilt beyond reasonable doubt, the Appellant is hereby found innocent of the three count charge filed against him.

The Appellant’s conviction is hereby quashed and I order that he should be released from prison custody forthwith.

AMINA AUDI WAMBAI, J.C.A.: I agree.

BITRUS GYARAZAMA SANGA, J.C.A.: I agree.