IN THE COURT OF APPEAL HOLDEN AT LAGOS
CORAM
MUSA DATTIJO MUHAMMAD JUSTICE, COURT OF APPEAL
MOHAMMED LAWAL GARBA JUSTICE, COURT OF APPEAL
CLARA BATA OGUNBIYI JUSTICE, COURT OF APPEAL
BETWEEN
LT. COMMANDER S. A. IBE LAMBERT (NN/0840) APPELLANT
AND
1. NIGERIAN NAVY RESPONDENTS
2. CHIEF OF NAVY STAFF
3. ATTORNEY GENERAL OF THE FEDERATION
JUDGMENT
(DELIVERED BY MUSA DATTIJO MUHAMMAD, JCA)
The Appellant was a Naval Officer, a Lieutenant Commander, with the Nigerian Navy. She was arraigned before a General Court Martial on 9th July 1997 on a five count charge thus:- (a) Count 1: Disobedience of standing orders contrary to S. 57 (1) Armed Forces Decree 105 of 1993 (as amended)
(b) Count 2: Conduct to the prejudicial of good order and service discipline contrary to S. 103 (1) of AFD 105 of 1993 (as amended)
(c) Count 3; Disobedience to standing orders contrary to S. 57(1) of the Armed Forces Decree 105 of 1993(as amended)
(d) Count 4: Conduct to the prejudice of good order and service discipline contrary to S. 103(1) of the Armed Forces Decree 105 (as amended).
(e) Count 5: Destroying evidence contrary to S. 123 of Criminal Code, Laws of the Federation 1990. UnderS.114 of the Armed Forces Decree 105 of 1993 (as amended).
At the conclusion of the trial, the Appellant who was discharged and acquitted on counts 1, 2, 4 and 5 was however convicted on the 3rd count of the charge. Being dissatisfied with her conviction and sentence, Appellant has filed the instant Appeal on an amended Notice of Appeal containing five grounds. From these grounds, Appellant has distilled four issues for the determination of the Appeal. The issues read:-
(i) whether the general court-martial was validly constituted as to vest it with jurisdiction to try the appellant (Ground 1)
(ii) whether the right of the appellant to fair hearing was not breached having regard to the procedure and the conduct of the trial. (Ground 2)
(iii) whether the general court-martial was correct in law in admitting Exhibits 5, 6, 7 and 8 and in particular Exhibit 6 upon which the conviction of the appellant was anchored and if the answer is in the negative wither it could be said that the prosecution proved its case beyond reasonable doubt against the appellant as required by law.(Grounds 3 and 4)
(iv) (a) whether Retirement for services No Longer Required is a valid sentence which a general Court-martial can award under S. 118(a)-(k) of the Armed Forces Decree 105 of 1993
(b) if the answer to (a) above is in the negative whether the Navy Board was correct in law while exercising its powers as a confirming authority to substitute the sentence of loss of two years seniority passed on the appellant by the general court-martial with the sentence of Services No Longer Required.
(c) Further still and in the alternative whether the Navy Board can in law retire and/or discharge the ` appellant in the circumstance of this case having regard to S. 43(a) of the Armed Forces Decree 105 of 1993. (Ground 5).
The Respondent has also formulated four issues considered relevant in resolving the appeal:-
(i) Whether the General Court Martial was validly constituted as to vest it with jurisdiction to try the Appellant. (Ground 1)
(ii) Whether the right of the Appellant to fair hearing was not breached having regard to the procedure and the conduct of the trial (Ground2)
(iii) Whether the General Court Martial was correct in law in admitting Exhibits 5, 6, 7 and 8 and in particular Exhibit 6 upon which the conviction of the Appellant was anchored and if the answer is in the Negative whether it would be said that the prosecution Proved its case beyond reasonable doubt against the Appellant as required by law (Grounds 3 and 4)(iv) Whether Retirement for Service No Longer Required is a valid sentence which a General Court Martial can award under S. 118 (a)-(k) of the Armed Forces Decree 105 of 1993. (Ground 5).
Parties have adopted and relied on their respective briefs.
An outright treatment of an undisputed fact pertaining this appeal needs to be undertaken. It is an elementary rule of practice that grounds of appeal must arise from the Judgment appealed against. Where a ground of appeal is not borne out by the decision it purports to have evolved from, the ground being incompetent would be unavailing to the Appellant. It would have to be discountenanced by the Appellate Court. See Obatoyinbo v Oshatoba (1996)5 NWLR (Pt 450)531 SC and Idakula v Adamu (2001)1 NWLR (Pt 694) 322 CA.
Secondly, issues formulated for the determination of an Appeal must be distilled from competent grounds of Appeal. Where the issues are formulated from incompetent grounds of Appeal, because the grounds are complaints on matters not canvassed at the trial Court, such issues would by extension be incompetent and equally unavailing to the Appellant.
See: V.S. steel (Nig) Ltd v Government of Anambra State (2001)8 NWLR (Pt 715)454 CA, Gaji v Paye (20038 NWLR (Pt 823)583 SC and Okonkwo v Ogbogu (1996)5 NWLR (Pt 449)420 SC.
In the instant case, Appellant following leave granted to her, by the Court has filed an amended notice of Appeal containing five grounds of Appeal. Grounds 1 and 2 of Appellants notice of appeal are hereunder reproduced:-
1. The general court-martial erred in law in trying and convicting the appellant when it had no jurisdiction to do so, by reason that it was composed of member(s) disqualified under s.133 (3) (b) of the Armed Forces Decree 105 of 1993 (as amended)
PARTICULARS OF ERROR
a. Lt. Cdr. A. A. Oraka who sat as a member of the general court-martial was junior in seniority to the appellant.
b. By the provisions of S.133 (3) (b) of Decree 105 of1993 (as amended), it is mandatory that members of a court-martial may be of the same rank with the accused but must not be junior to him in seniority
c. By reasons of paragraphs (a) (b) above the general court-martial that tried and convicted the appellant lacked the jurisdiction to do so for fundamentally andincurably defective composition, on the following authorities:-
(i) Madukolu & ors v. Nkedilim & ors (1962),All NLR (Reprint) 589.
(ii) Lt. Col. E. O. Anene v. The State CA/L/144/97 (Unreported).
(iii) Lt. Col. Ahmed Dayo Karim v. The NigerianArmy (2002) 4 NWLR (part 758) 716.
(iv) Akono v. The Nigerian Army, (2000) 14NWLR (pt 697)318.
(2). The General court-martial erred in law in convicting the appellant when the procedure adopted at the trial was in clear breach of its role as an impartial and independent arbiter and in violation of the appellants right to fair hearing under S.33 (1) of the 1979 constitution and Article 7 © of the AFRICAN CHARTER ON HUMANAND PEOPLES RIGHTS, CAP 10 LAWS OF THEFEDERATION (LFN) 1990.
PARTICULARS OF ERROR
a. The sitting of the Court-martial continuously for three (3) consecutive days running into late nights and early morning hours without due regard do physical and mental exhaustion of both the members of the court and the appellant is a denial of the appellants right to fair hearing.
b. The long and exhaustive examination of both the prosecution and defence witness by the court- martial at every stage of the proceedings smacks of inquisitorial flavour than adjudicatory thereby derogated from its position and sacred duty as an impartial arbiter.
c. By reason of paragraph (b) above the court-martial descended into the arena of contest and is guilty of intermedlesomeness.
d. By reason of paragraphs (a)-(c) above the appellant was grossly prejudiced and her right to fair hearing grossly breached.
An examination of the record of Appeal reveals that Appellant had neither challenged the jurisdiction of the General Court-Martial as sought to be raised in her first ground of appeal nor objected to the procedure adopted by the trial Court as articulated in Appellants 2nd ground of appeal. In essence, these two grounds of appeal neither relate to nor arise from the Judgment being appealed against. The questions being raised in the two grounds are fresh issues that had not been raised at and determined by the trial General Court martial. Where, as in the instant case, the Appellants ground of Appeal touches on a fresh issue that had not been canvassed and determined at the trial Court, leave must be obtained to enable the Appellant raise that fresh issue that had not been canvassed at the trial Court for same to be determined on Appeal. Failure to obtain this necessary leave is fatal and the grounds as filed would be incompetent and unavailing to the Appellant. Appellants 1st and 2nd grounds of appeal as well as issues I and II that are purportedly distilled from the grounds are all incompetent. It does not matter that Appellant was granted leave to amend her Notice of Appeal by this Court. Appellants amended Notice of Appeal must contain only additional competent grounds of appeal. Where the grounds themselves and by extention the issues drawn from them are incompetent, the leave granted the Appellant to amend the Notice would not cure the intrinsic defect. See: Yusuf vs. U. B. N. Ltd (1996) 6 NWLR (pt 457) 632 SC.
Because the complaints being made in Appellants two incompetent grounds and the issues purportedly distilled from them pertain to jurisdiction of the General Court Marital and the denial of fair hearing, there seem to be the veiled plea that, notwithstanding their incompetence, the complaints should be considered because of their importance. We must not readily proceed in that regard for two reasons.
Firstly, although the Court on its own or at the instance of any counsel can raise a matter of law and the constitution at any time, it is no passport to raise these issues anyhow simply because of their importance. It has been held by the Supreme Court in Jov v. Dom (1999) 7 SC (pt 111) 1 that raising the issue of law or the constitution in partys argument is a disrupting ambush for the opponent and thus the insistence that a proper notice be served the other side to enable it know what it has to meet as to the fresh issue. The provision in the rules of Court requiring a party to obtain leave before raising a fresh issue is aimed at ensuring that the surprise to be otherwise thrust on the opponent is obviated.
Secondly, whether or not an issue is allowed to be raised for the first time on appeal and determined depends on whether all the materials necessary for the determination of the very issue is already before the Court and nothing more need to be done in the acquisition of those materials. See: Bankole v. Pelu (1991) 8 NWLR (pt 211) 523 SC and Koya v. U. B. A. Ltd (1997) 1 NWLR (pt 481) 251.
In the instant case, the pressure to consider Appellants two incompetent issues appears unrelenting in view of the fact that both sides have already argued the two issues in their briefs. In spite of that reason justice demands that we relent only in respect of the 2nd issue for which determination adequate materials are readily available in the record of appeal.
For the 1st issue however, because the facts to establish whether or not one of the members of the General Court Martial was junior to the Appellant thereby making the Court martial as constituted incompetent are not readily available, the resolution of such incompetent issue being impossible should not be embarked upon. In the result the issue must and is hereby struck out.
Now this leaves us with Appellants 2nd, 3rd and 4th issues for the determination of the appeal.
In arguing Appellants 2nd issue learned Appellants counsel referred to pages 1-2 of the record of appeal containing the convening order that established the general Court-martial which tried and convicted the Appellant. The order dated 9th July 1997, mandated that Appellants trial must be completed and the record of the trial submitted to the convening authority on the 11th of July 1997. The General Court-Martial had to sit round the clock for three consecutive days and nights to conclude its task. Learned counsel further referred to pages 124 and 192 of the record respectively where the President of the Court commented that they were under detention and the limitations they were facing. Counsel argued that the Court Martial, with physical exhaustion of the members, never had the necessary time and phrame of mind to properly appraise the case before it. Appellant, too, never was in the phrame of mind to present her case. Most importantly, the imposition of the time frame on the Court Martial to conclude its task was an undue and unjustifiable interference with the judicial discretion of the Court. Counsel cited and relied on Unongo vs. Aku (1983) 2 SCNLR 332; AG. ABIA State vs. A.G. Federation (2002) 6 NWLR (pt 763) 264 and A.G. Ondo State vs.
A.G. Federation (2002) 9 NWLR (pt.772) 222 and asked that a decision so reached be set aside. Counsel also argued that the limitation of time imposed on the Court Martial was an unlawful command influence the effect of which was catastrophic on the entire trial. Delayed justice is denied justice. Counsel concluded that rushed justice is equally no justice. Any reasonable person who observed the limitation the Court martial and the parties in the trial had to contend with would leave with the impression that Appellant, had been denied justice. Counsel buttressed his arguments by relying on: United State vs. Shultz 23 CMR 853 (CMR 1957); Oshoboja vs. Amuda (1992) 6 NWLR (pt 250) 690 at 695; Mohammed vs. Kano NA (1968) ALL NLR 411 at 413; KLM vs. The state (1992) 4 NWLR (pt 223) 17 and submitted that Appellants right to fair hearing had been violated and the entire proceedings be set-aside.
Under the 3rd issue, Appellants learned counsel contended that in proving the 3rd count of charge for which Appellant was convicted and sentenced, the prosecution relied on exhibits 4, 6, 7 and 8. These, counsel argued, are inadmissible for two reasons. Firstly, they are photocopies of their original and required certification, being public documents, under S.113 (g) and 117 of the Evidence Act CAP 112 Laws of the Federation 1990. It was not open for the Court Martial to particularly admit Ex. 6 in evidence by virtue of S.143 (1) of the Armed Forces Decree 105 of 1993 as amended. The Court Martial could only admit the document after the prosecution had satisfied it of the efforts it had made and in spite of which the originals were not obtained. Secondly, the documents were tendered and admitted through DW 1 who was not a competent witness. The entire exhibits admitted through such a witness being inadmissible must be expunged. In the absence of any admissible evidence, it was not opened for the General Court Martial to have found that the prosecution had established its case. Reliance was placed on Akono vs. The Nigerian Army (2000) FWLR (pt 28) 2212 at 2214 2217 and Famakinwa vs. Unibadan (1992) 7 NWLR (pt 255) 608. Counsel urged that this issue be resolved in their favour and the appeal allowed. The complaint made on behalf of the Appellant under the 4th ground of appeal and the 4th issue for the determination of the appeal is as to the sentence the Navy Board substituted to the one the General Court Martial decreed. It is argued that given the powers of the Navy Board as the confirming authority under S.152 (1)-(4) of the Armed Forces Decree 1993, it could only confirm such sentence the General Court Martial had powers to impose under S.118 (1) (a)-(k). It is the further contention of the learned Appellants counsel that in the light of S.43 (a) of the enabling Decree, the sentence of discharging/retirement from the Navy the Appellant received was manifestly illegal. The sentence is not within the scale of punishments known under the Law and should accordingly be set aside.
On the whole, learned counsel urged that the appeal be allowed.
Having struck out Appellants first ground of appeal and discountenanced the issue formulated and arguments advanced thereunder, Respondents arguments regarding the ground and issue in respect of the very ground would similarly be discountenanced.
Accordingly only Respondents arguments in respect of their issues 2, 3 and 4 would be considered.
Under the Respondents 2nd issue, learned Respondents counsel conceded that the time for Appellants trial had by the convening order reflected at page 2 of the Record of Proceedings been curtailed. The time frame as indicated at p. 7 of the record, it was argued, was subject to the approval of both sides. Appellant, it was further contended, did not prove to this Court where, when and how either the General Court Martial or the prosecution disallowed the Appellants counsel from conducting the Appellants case. The prosecution suffered from the same procedure the Appellant is complaining about.
Secondly, the questions the Court Marital asked witnesses in the course of trial were legitimate questions it could, by virtue of S. 223 of the Evidence Act, S.200 of the Criminal Procedure Act and the Nigerian Navy Rules of Procedure (1972), raise. By the decision of the Court of Appeal, in CPL. Ameachi Gbasanzor vs. Nigerian Army CA/L/324/98 unreported, the General Court Martial had been held to be empowered to ask questions from or even call witnesses to clear ambiguities and doubts as in the instant case. In any event, since Appellant had not shown the injustice he suffered from the irregular procedure, the decision of the Court Martial based on the evidence before it must persist. Counsel relied on Alao vs. ACB (2000) 79 LRCN 1899 at 1981 and Oparaji vs. Ogidereji (1999) 70 LRCN 1822 and Ahmed vs. State (1999) 69 LRCN 1403. Counsel urged that this issue be resolved against the Appellant.
Under Respondents 3rd issue, it was submitted that assuming without conceding that Exhibits 5, 6, 7 and 8 were wrongly admitted being inadmissible, the Court Martial was still justified in convicting Appellant. The conviction would be sustained on the basis of Ex. 1 which is the confessional statement of the Appellant and Ex. 4. Counsel referred this Court to: R v. Erumebi 1959 WRNLR 258; Queen v. Obiosa (1962) 1 ALL NLR 651; Paul Ameh v.
The State (1978) 6-7 SC 27 at 35 and Jimoh Yusuf v. State (1976) 6 SC 167 in asserting that Courts can rely on confessional statements of accused person to convict him or her.
In further argument, learned counsel contended that Appellants counsel cannot be right as to his submission that Exhibits 5, 6, 7 and 8 were inadmissible. They are relevant to the facts in issue in the case and by S.36 of the Evidence Act, therefore, admissible. Because the documents were photocopies, they are admissible secondary evidence as to the existence, contents or condition of the document. The circumstances that led to the admission of the documents are as stated by the President of the Court Martial at page 81 of the record which is justified by the Nigerian Navy rules of procedure. Counsel supported his submission by reference to the decisions in Torti vs. Ukpabi (1984) 7-12 SC 46 Agunbiade vs. Sasegbon (1968) NWLR 233. Also, Ex. I being statement recorded from the Appellant, was admissible through PW I. In any event, Appellant did not protest the admission of the various exhibits. Their wrongful admission could, therefore, not serve as a basis for allowing the appeal. Counsel relied on the case of Abadon v. The State (1997) 1 NWLR 1 at 7 and Ajiboye v. The State (1994) 8 NWLR 587.
As for the Respondents 4th issue, counsel conceded that S.118 (1) of Decree 105 of 1993 as amended did not provide for dispensing with the service of the Appellant as being no longer required and that the limit of the punishment the General Court Martial could impose had thus been fully spelt out. The General Court Martial awarded a sentence of 2 years forfeiture of seniority in rank which could be imposed under S. 181 (1) (f) of the Decree. The Decree in S.151 (1) (b) in dealing with sentences imposed by the Court Martial, allowed the Navy Board to retire the Appellant and the retirement had nothing to do with the sentence the Court Martial imposed. The retirement as conveyed by the letter of retirement was done after the Navy Board had confirmed the sentence imposed by the Court Martial. An employer, which the Navy Board is, can terminate the employment of its employee, the Appellant, at any time and for whatever reason. Counsel buttressed this submission by citing and relying on Fakuade vs. OAUTH (1993) 5 NWLR (pt 291) 47 SC; Shitta Bay vs. Capital (1981) 1 SC 40 and Ekpeogu vs. Ashaka Cement Co. Plc (1997) 6 NWLR (pt 508) 280. and urged that the powers of the Navy Board under S.43 be particularly construed. The result, counsel submitted, would be the resolution of this issue against the Appellant.
On being served with the Respondents brief, the Appellant filed and served a reply brief on the former. Arguments raised in paragraphs 2.00 to 2.05 must, being in respect of Appellants first issue from the ground of appeal that had been struck out, be discountenanced as well.
In reply, on question of Law on 2nd -3rd issues, Appellants counsel insisted that the Appellant had objected to the time frame given the General Court Marital by the convening authority to conclude Appellants trial. Learned counsel referred to pages 124 of the record, lines 10-19 and page 192 lines 14-15, and submitted that in situations where the question of waiver or objection relates to a right in control of the state or the Court the parties have nothing to waive or object to.
Finally, learned counsel contended that Appellants appointment has statutory flavour having been made pursuant to both constitutional and statutory provisions. Respondent must satisfy these requirements before effectively terminating Appellants appointment. Where this is not done, Appellants counsel reiterated, Appellant is entitled to be reinstated. Counsel relied on: Odiase vs. Auchi Polytechnic (1998) NWLR (pt 546) 477 at 482 and Idoniboye Obu vs. NNPC (2003) 2 NWLR (pt 805) 589. Again counsel urged that this appeal be allowed.
The determination of this appeal will be restricted to the consideration of the three live issues formulated in the Appellants brief. Firstly, it shall be asked and determined if indeed the General Court Martial had been ordered to conclude the trial of the Appellant within a specific time frame and if so what effect the procedure adopted by the Court Martial pursuant to the time restriction as imposed has on the decision arrived at. Secondly, it will also be determined whether indeed the conviction of the Appellant was done solely on the basis of Exhibits 4, 6, 7 and 8, the probative quality of the exhbits and if given this value they can sustain the conviction. Lastly, perhaps, on answering the foregoing question, if the sentence affirmed by the convening authority is the very sentence imposed by the Court Martial and if not whether the convening authority is, under the law, empowered to affirm what had not been imposed by the Court Martial.
Pages 1-2 of the print record of appeal contain the content of the convening order in respect of the trial of the Appellant. The order was issued by commodore F. I. Biambo the flag Officer commanding Western Naval Command. The order is dated 9th July 1997. It specified the composition of the Court Martial in paragraphs 2 and 3 thereof. Paragraphs 4 and 5 of the convening order are quite revealing.
The paragraphs read:-
ADMINISTRATIVE INSTRUCTION
4. The Court is to commence sitting immediately at the HWNC Conference Room. SUBMISSION OF PROCEEDINGS
5. This Court is to submit the reports of proceedings to the Convening Authority on or before 11th July 97.
From the foregoing it is beyond doubt that the convening authority had imposed a time restriction on the Court Martial such that Appellants trial must and was began and concluded between the 9th and 11th July, 1997. It is in the light of this fact of limiting the time within which the General Court Martial was to try and determine the charges against the Appellant that counsel relied on, amongst others, Unongo vs. Aku & ors. (1983) WSCC 563, and submitted that the proceedings of the Court Martial were a nullity.
Learned Respondents counsel contended that Appellants failure to complain timely and to show what injustice the wrong procedure had caused him is fatal to the relief Appellant now canvasses.
In the case of State of Indiana Ex. Rel. Kostas vs. E. W. Johnson cited with approval by the Supreme Court in Unongo vs. Aku & ors Supra, the Supreme Court of the State of Indiana drawing from an earlier case observed as follows:-
A Court of general jurisdiction whether named in the constitution or established in pursuance of the provisions of the constitution, cannot be directed, controlled, or impeded in its functions by any of the other departments of government.
This must be so because in view of the doctrine of separation of powers that exist between the various organs of government and the specific right of litigants to fair hearing as provided in S.33 (1) of the 1979 Constitution vis-à-vis the time allowed every Court established under the Constitution by virtue S.258 of the Constitution to deliver its decision after the conclusion of evidence and find address. In particular, S. 33 (1) of the constitution provides:-
33 (1). In the determination of the Civil rights and obligations including any question or determination by or against any government it authority a person shall been titled to a fair hearing within a reasonable time by a court or tribunal established by law and constituted in such manner as to secure its independence and impartiality.
It is the contention of the Appellant that if the test of fair hearing as provided in Mohammed v. Kano N. A. (1968) 1 ALL NLR a decision the Supreme Court restated and applied in Unongo vs. Aku & ord Supra, is applied to the facts of the instant case, Appellant would be seen to have suffered denial of fair hearing. In applying the test to the particular facts in the Unongo case the Supreme Court per Uwais JSC (as he then was) concluded as follows:-
I do not see how a reasonable person will have the impression that a party has a fair hearing where his petition which has been instituted within the time limit stipulated by the Electoral Act cannot be concluded because the time available to the Court for the petition to be heard will not be sufficient for either or both parties to the petition to present their cases or will not allow the Court at the close of the parties cases sufficient time to deliver its Judgment.
There can be no doubt that the provisions of S.129Subsection (3) and 140 Subsection (2) of the Electoral Act 1982 neither allow a Petitioner or Respondent reasonable time to have fair hearing, nor give the Court the maximum period of 3 months to deliver its Judgment after hearing a petition as envisaged by S.33 subsection (1) and 258 Subsection (1) of the Constitution respectively.
Accordingly the provisions of S.129 (3) and 140 (2)of the Electoral act 1982, which limit the time for disposing of Election Petitions by the Courts are in my view ultra vires the National Assembly and therefore null and void. (Underlining supplied for emphasis)
The question to answer now is whether the facts in the instant case are on all fours with the facts in the Unongo case to make the foregoing decision binding on us in the resolution of Appellants 2nd issue in this appeal. See: Nwangwu vs. Ukachukwu (2000) 6 NWLR (Pt 662) 674 CA and Adisa vs. Oyinwola (2000) 10 NWLR (674) 116 SC. In the instant case even though the time of the General Court Mential had been restricted, the Court Martial not only heard all the witnesses of both sides but considered and determined the case against the Appellant in spite of the time restriction. Because of this, the submission of Respondents Counsel that it is Appellants burden to show that she had suffered such injustice as to warrant setting aside of the decision of the Court Martial and Counsels reliance on the Supreme Courts decision in that regard in Alao v ACB (supra) cannot be lightly ignored.
The facts in the Unongo case appear different from the facts of the instant case. While it was glaring in the Unongo case that it was impossible for the Court to hear the parties and fully determine the petition before it, the contrary is the case here. Improper as the procedure adopted by the Court Martial was, the decision arrived at through such an improper procedure would endure as neither injustice was caused to either party to the matter nor was the Court Martial shown to have been unable because of the time restriction to determine the matter before it. It is not every ship in a trial Courts Judgment that leads to reversal of the Judgment. Only such ships that had occasioned injustice do. See: Adams v L.S.D.P.C (2000)5 NWLR (Pt 656)291. In the result, this issue is resolved against to Appellant.
Appellants 3rd issue is as to the effect of the wrongful admission of Ex. 4, 6, 7 and 8 on the conviction of the Appellant under the 3rd count in the charge. The 3rd charge reads:- Disobedience of standing orders contrary to S 57(1) of the Armed Forces Decree 105 of 1993.
IN THAT You a Staff Officer II (Accounts) as fleet maintenance corps, 23 Marina between August 1996 and March 1997 made contact with Embassy/High Commission without going through Naval Headquarters contrary to the provision of NHQ 015/65/93/PL/Vol.1/44 which are known to you.
Ex. 4 is a copy of the standing order No NHQ/015/65/93/PL/Vol.1/44. The body of the letter reads:-
VISIT TO FOREIGN MISSION
Reference:-
A. DHQ/401/13/ADM/dated 03 July 95
1. Ref A observed that Military Officerusually pay unauthorised visits to foreignmissions. This is unethical and embarrassing.
2. I am therefore directed to state that henceforthcontract with Embassies /High Commissions by NNPersonnel are to be made through NHQ for necessaryaction.
3. Please disseminate. Signed
I. Ogohi Cdre
For Chief of the Naval Staff
The distribution list of Ex. 4 included Fleet maintenance Corps, 23 Marina Appellants place of work.
In proving the 3rd head of charge against the Appellant, the prosecution apart from Ex.4 also relied on Exhibit 6, 7 & 8. Exhibit 7 is the purported Appellants application to the French Embassy for a visa. Exhibit 6 is the Embassys response to Appellants Application.
It must be noted that while Ex. 9 is one Motaku Arinola Adunnis application to the French Embassy for a visa, Ex. 6 the purported response to Ex. 7 is a letter addressed to a Lieutenant Commander (Mrs) Bola Lambert of No. 14 Dan Fodio, Liverpool Road Apapa Lagos by one Gerard Boivineau, a Minister-Counsellor of the French Embassy. Ex. 8 is a letter dated 15th August 1996 and signed by the Chairman of International Commercial Co. (Nig) Ltd introducing the companys legal and economic adviser, Mrs. Motaku Arinola Adunni, to the French Embassy. The company by Ex. 8 was requesting the Embassy to grant Mrs. Motaku a multiple entry visa. It is to be added that prosecution also relied on Ex. 2 a petition, by one I. Philips, against the Appellant which triggered the investigation that culminated in the prosecution and conviction of the Appellant. All these exhibits were tendered and admitted through PW I and PW2 who investigated the petition against the Appellant. Ex. 3 and 4 were admitted through the latter and all other exhibits through the former.
Under Appellants third issue the gist of her complaint is that exhibits 3, 4, 5, 7, and 8 were neither tendered and admitted through their makers nor were the documents, being copies of public documents, certified before being admitted in evidence. Non certification of the documents rendered them inadmissible and if they are expunged no conviction would endure since the prosecution would not have proved their case.
I agree entirely with learned Appellants counsel that all the exhibits in the instant case, by the provision of S.109 of the Evidence Act, are public documents. The section provides:- 109. The following documents are public documents.
(a) documents forming acts or records of the acts:
(i) of the sovereign authority;
(ii) of official bodies and tribunals and
(iii) of public officers, legislative, judicial and executive, whether or Nigeria or elsewhere.
(b) Public records kept in Nigeria of private documents.
The Strouds Judicial Dictionary as well as Halsburys Laws of England, 3rd Edition vol.12, have adopted the definition given to public document under the Common Law by Lord Blackburn in Sturia v. Preccia (1880) 5 AC 623 thus:-
A document that is made by a public officer for the purpose of the public making use of it and being able to refer to it especially where there is judicial or quasi judicial duty to inquire.
A public document as provided for under S.109 of the Evidence Act encompasses much more than what it denotes under the Common Law. It includes such records of private documents kept by a public officer for public use.
By the combined effect of S.96 and S.97 of the Evidence Act, Exhibits 1, 2, 4, 6 7 and 8 relied upon by the Court in convicting Appellant need not necessarily be primary evidence.
Indeed they were all photocopies of their original. S.96 (1) of the Evidence Act allows secondary evidence of such documents which Exhibits 1, 2, 4, 6, 7, 8 are to prove the existence, condition, or content of the documents provided S.112 of the same Act has been complied with. The section provides:-
112. Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies. (Underlining supplied for emphasis)
Exhibits 1, 2, 4, 6, 7, 8, indeed all the exhibits tendered and admitted in evidence in proof of the fact of their existence and content have not been certified. They must as required by S. 112 of the Evidence Act being public documents!
Appellants counsel has argued that because these public documents have not been certified as required by the law and had not been tendered through their makers they were inadmissible and should be expunged from the record. Once they are expunged, the conviction of the Appellant would not survive in the absence of those facts that otherwise sustained the charge. In this regard I shall restate my pronouncement in Roderick Oreh & ors vs. Veronica Obi & ors (1999) 7 NWLR (pt 611) 487 at 499 thus:-
Where a document is rendered admissible on the fulfilment of certain conditions, it is admissible on the fulfilment of those conditions or if admitted without objection by the other party. See: A. A. Chachangi Sons Ltd vs. NRC Ltd (1996) 5 NWLR (pt 446) 46; Okeke vs. Obidife (1965) NWLR 113 and Alade vs. Olukade (1976) 2 SC 183.
From the record of this appeal, it is evident that Appellant did not raise the same objection being raised in respect of those documents which, being photocopies of public documents, needed certification to render them admissible. Learned Appellant counsels misapprehension must be out rightly addressed.
It is not the law that the exhibits admitted which Appellant is now complaining of are inadmissible in any and all circumstances. No. The exhibits are relevant and therefore admissible, but needed to satisfy certain condition, certification, before they are admitted. In this situation unlike where the exhibits are completely inadmissible, the Court of Appeal is not in the position to entertain Appellants complaints by ensuring that the exhibits are not acted upon. Appellant is right however to question the value which the lower Court attached to the exhibits having been tendered and admitted through witnesses who could not have been helpful under cross examination. See: Owonyin vs. Omotosho (1961) 1 ALL NLR 304 at 308; Chukwurah Ekunne vs. Mathias Ekwunno & ors 14 WACA 59 and yassin vs. Barclays Bank DCO (1968) 1 ALL NLR 171 at 179.
In Gilbert vs. Endean (1878) 9 Ch D 259 Cotton L J made the following succinct observations:-
But I must add this: where in the Court below the evidence not being that on which the Court can properly act, if the person against whom it is read does not object, but treats it as admissible, then before the Court of Appeal, in my Judgment, he is not at liberty to complain of the order on the ground that the evidence was not admissible.
The foregoing passage was cited with approval by Idigbe JSC of blessed memory in Alade vs. Olukade (1976) ALL NLR 56 at 61-62.
Appellant counsels further argument under this 2nd issue is that the prosecutions burden it was under S.137 of the Evidence Act to prove the guilt of the Appellant beyond reasonable doubt and that burden, in the absence of credible evidence, had not been shouldered. The two witnesses through whom the various exhibits were tendered did not make the documents and to that extent the exhibits would be unavailing in sustaining the 3rd head of charge for which the Court Martial convicted the Appellant.
There is substance, a great deal of it, in learned Appellant counsels submission here. It is certainly the law that the proper person through whom a document is tendered is the maker of such document. In the instant case neither PW1 the person detailed to investigate the petition against the Appellant, nor PW2 who simply called himself writer in the course of his testimony, authored any of the documents apart from Ex. I the cautionary statement of the Appellant. And it is the law, that if as in the instant case, a person who was not the maker of the document tendered the document, the trial Judge should not attach any probative value to the document. This is so because the person tendering the document not being the maker of the document cannot answer questions arising from any cross examination. The crucial evidence to sustain Appellants conviction under the 3rd head of charge are Ex. 2, the petition against the Appellant, Ex.6 a letter purportedly addressed to the Appellant from the French Embassy and authored by one Gerard Bvivieneu, the Minister Counsellor. These exhibits cannot by themselves establish any fact beyond their being made. If the intention of the prosecution in tendering the two through PW1 and PW2 was to establish the truth contained in the two documents, they have failed and woefully too. See: Awuse Odili (2005) 16 NWLR (Pt 952) 416 at 509 and UBN Plc vs. Ishola (2001) 15 NWLR (Pt 735) 47. In effect, the two documents cannot establish the fact of contact with the French Embassy by the Appellant which Ex. 4, the standing order, prohibited the Appellant to make. Respondents argument also it was that Ex.1, the Appellants confessional statement could sustain the conviction. What was it that appellant confessed to in Ex.1? Appellant stated in Ex. 1 that she travelled to Paris with her children and husband; that it was her husband who acquired her entry visa through his business partners and that she travelled under her husbands family name: Mrs. Arinola Adunni Motaku. It is no wonder that even the Court Martial called this much statement as being equivocal. This statement does not supply the ingredients under the head of charge Appellant was convicted. It does not show that the Appellant in person had had a contact with a foreign embassy, a conduct Ex. 4 the standing order had prohibited.
The General Court Martial having received all the documents in evidence was by virtue of S.91 (1) of the Evidence Act under duty to evaluate them and ascribe probative value to them. Had that duty been discharged the Court Martial would have found that the exhbits were of limited probative value. The documents only value was that they were indeed made and not as the Court martial decided that the documents constituted proof of what they contained. See: Flash fixed Odds Ltd vs. Akatugba (2001) 9 NWLR (pt 717) 46 and Emetuma vs. Ngwu Mohaike (1993) 3 NWLR (pt 283) 63.
In sum, there was no credible evidence to sustain the conviction of the Appellant. Appellants 3rd issue is accordingly resolved in her favour and her conviction for the 3rd head of charge as returned by the General Court Martial accordingly set-aside. See : Udeh vs. State (1999) 7 NWLR (Pt 609) 1 SC.
Appellants 4th issue relates to the sentence her conviction in respect of the 3rd head of charge attracted and whether the confirming authority could lawfully affirm a sentence outside what the law permitted for the offence. It is, in the absence of lawful conviction under the particular count, academic to consider the issue. Academic questions being speculative, functionless, and indolent are never worthy of a Courts consideration. See: Okulate vs. Awosanya (2000) 2 NWLR (Pt 646) 530. Sc.
On the whole, this appeal has merit and it is allowed. The Judgment of the General Court Martial convicting and sentencing the Appellant is hereby set aside. Appellant is discharged and acquitted.
MUSA DATTIJO MUHAMMAD, JUSTICE, COURT OF APPEAL COUNSEL
1. Akin Kejawa with G. O. C. Ndaguba and A. I. Ofordum for the Appellant.
2. Mallam J. A. Adamu with B. H. Oniyangi (Mrs.) for the Respondents
COURT OF APPEAL NIGERIA