CAPT. B.O. AKANNI
1. THE NIGERIAN ARMY
2. ATTORNEY GENERAL FEDERATION
(DELIVERED BY YARGATA BYENCHIT NIMPAR)
This is an appeal against the conviction and sentence handed down to the Appellant by the General Court Martial sitting in Ibadan and convened to try the Appellant on a two count charge thus:
a. COUNT ONE:
Conspiracy to steal contrary to S. 518(b) of the Criminal code and punishable under s. 114(1) AFD1993.
Particulars of the offence:
In that you at Ibadan on or about 312100 A Oct 97 at COD MT & TECH conspired with your subordinate soldiers to steal quantity 264 metal panels and quantity 12 wires from shed 6.
b. COUNT TWO:
Offence in relation to service property punishable under S. 66(a) AFD 1993.
Particulars of the Offence:
In that you at Ibadan on or about 312100A Oct 97 at COD MT & TECH connived with your subordinates soldiers to steal quantity 264 metal panels and quantity 12 wires from shed 6.
The brief facts are that the Appellant a commissioned officer of the Nigerian Army with the rank of Captain was the Administrative officer at the 2 Mech Div. Ibadan when an incident of theft was carried out. Particularly, the theft of metal panels and wire rolls which were removed from the stores on the 31st October, 1997 by some soldiers and civilians. The Appellant being the officer in charge was indicted and tried by the General Court Martial. Three witnesses testified on each side after which the General Court Martial found him guilty of the first count while discharging him on the second count. The Appellant dissatisfied with the sentence filed a Notice of appeal on the 27/03/15 setting out 8 grounds of appeal.
The Appellant filed his Appellants Brief on the 12/5/15 settled by Akin Kejawa and a reply to the Respondents brief on 18/5/16. The Respondents Brief settled by Toyin Bashorun dated 6th May, 2016 was filed on the 6/5/16.
The Appellant distilled 5 issues for determination as follows:
1. Whether in trying the Appellant the court Martial lacked jurisdiction to do in addition to breaching his right to fair hearing.
2. Whether having regard to the oral and documentary evidence before the court, the prosecution proved its case against the Appellant as required by law.
3. Whether the Court Martial was correct in law to convict the appellant on the offence of conspiracy when he was discharged and acquitted on the substantive offence.
4. Whether the judgment of the court Martial is valid and competent when it failed, refused/ or neglected to evaluate the evidence before it.
5. Whether the sentence of reduction in rank from Captain to 2/Lt. imposed on the appellant upon conviction on one offence, is not excessive and oppressive in violation of s. 118(4) of the Armed Forces Decree 105 of 1993 (as amended) under which the Appellant was tried.
The Respondents in their brief adopted the issues formulated issues distilled by the Appellant for determination. The court shall also adopt the said issues and they shall be taken together.
The Appellant began its arguments under issue 1 by stating the importance and principles of jurisdiction. The Appellant went further to state that there is no evidence in the record of appeal to show that the allegation against the Appellant was investigated by his commanding officer in the manner as prescribed under the Armed Forces Decree and this failure deprived the court martial jurisdiction to hear the matter, relying on MADUKOLU & ORS V NKEMDILIM (1962) 1 ALL NLR (REPRINT) 581. He submitted that the Appellant was denied a right to fair hearing by reason of the fact that the members of the court martial that tried him had foreknowledge of the facts constituting the offence against him, being that the witnesses who testified against the Appellant had been previously tried by the same court martial on the same offences and facts on which the Appellant was tried and convicted, referred to the case of S/SGT GODWIN IMHANRIA V NIGERIAN ARMY (2007) 14 NWLR (PT 1053) 76. That irrespective of the fact that the court martial is an executive court, it is bound not to go against the principle of independence and impartiality and that a party complaining of a breach of his right to fair hearing need not prove a particular injury as the breach itself is the injury. He relied on the cases of OSAWEN V ASUEN (1992) 4 NWLR (PT 235) 291, WAEC V AKINKUNMI (2002) 7 NWLR (PT 776) 327, UMAR V ONWUDINE (2002) 10 NWLR (PT 774) 129 in proof of his submissions.
The Appellant also submitted that the prosecution failed to prove its case against the Appellant as required by law, that the extra judicial statement and evidence in chief by PW2 are replete with contradictions and that the evidence of PW1 PW3 who gave evidence at the trial against the Appellant is evidence of accomplices on which no conviction can be based without corroboration, relied on AKOGWU V STATE (2000) 12 NWLR (PT 681) 245; AKALONU V STATE (2000) 2 NWLR (PT 643) 165; THE STATE V SON LDR ONYEUKWU (2004) 14 NWLR (PT 893) 340; WING COMD TLA SHEKETE V THE NIGERIAN AIR FORCE (2007) 14 NWLR (PT 1053) 159. Furthermore, the Appellant was of the opinion that the court erred in law to convict the Appellant on a purported charge of conspiracy to steal when the same court discharged and acquitted him on the substantive offence of stealing. Besides, the Appellant was of the view that since he was charged alone, there was no evidence of the co-accused to the contrary and that there was no evidence to support the conspiracy, referring to AMADI V STATE (1993) 8 NWLR (PT 314) 644, ADEBAYO V STATE (1987) 2 NWLR (PT 57) 469. Lastly, the Appellant submitted that the judgment of the court martial is a nullity because it lacked the essential features of a valid judgment such as evaluation of evidence and attribution of reasons and that the punishment awarded was excessive and oppressive in violation of S. 118 (4) of the Decree, NIGERIAN ARMY V BRIG GENERAL AMINU KANU (2010) 1 SC (PT 1) 223.
In response to the arguments of the Appellant under issue 1, the Respondents contended that where non-compliance does not affect the competence of the court, it could be treated as an irregularity. That since the conditions which vest a court with jurisdiction as stipulated in the case of AMADI V FRN (2008) 12 SC (PT 111) 55, have been fulfilled, the jurisdiction of the court martial has been assured, OBAKPOLOR V STATE (1991) 22 NSCC (PT 1) 25, MADUKOLU V NKEMDILIM (1962) 2 SCLR 341, SKENCONSULT NIG LTD V SECONDY UKEY (1981) 1 SC 6. The Respondents also submitted that contrary to the assertions of the Appellant with respect to fair hearing, the other accused persons though charged with the Appellant were never tried either jointly with the Appellant or separately as the charges against them were dropped.
Arguing issues 2 and 4 together, the Respondents submitted that the prosecution had proven its case beyond reasonable doubt, that the evidence points to the inference that the Appellant did conspire with his subordinates and that the credible testimony of the Plaintiff witnesses are credible and can be relied upon. Further submitted that proof beyond reasonable doubt is not proof beyond every shadow of doubt, cited DIBIE V STATE (2007) 9 NWLR (PT 1038) 26. With respect to the argument that evidence of accomplices cannot be based upon for a conviction without corroboration, the Respondent argued that PW1 and PW3 cannot be regarded as accomplice because they were not aware of the criminal design. That the Judge Advocate evaluated and summarized the evidence as adduced by the parties and subsequently advised the General Court Martial before the court martial passed its verdict and consequently, there was no need for a re-evaluation by the Court martial. Also submitted that there is no clear cut rules of writing judgment in proceeding at the court martial and so long as there was no miscarriage of justice, the judgment of the lower court should not be tampered with, referred to DODO V NIGERIAN ARMY (2007) VOL 43 WRN 123, MAGAJI V NIGERIAN ARMY (2008) 8 NWLR (PT 1089) 388, OBISI V CHIEF OF NAVAL STAFF (2004) 11 NWLR (PT 885) 36.
Furthermore, the Respondents submitted that the offence of conspiracy is a separate and distinct offence and is independent of the actual commission of the substantive offence and that once there is an agreement to commit offence, there can be conviction even though the accused is acquitted of the substantive offence, relied on NWESI V STATE (2011) 30 WRN 150, SULE V STATE (2009) 6 MJSC (PT II) 70. Finally, the Respondents in their arguments under issue 5 submitted that from the provisions of S. 118 of the Armed Forces Decree, the award of punishment as to how the rank is to be reduced is entirely within the discretion of the court and that his compulsory retirement was based his conditions of his employment under the military service.
In response to the Respondents arguments, the Appellant in his reply brief reiterated certain submissions in his Appellants brief while also stating the fact that the Respondents did not deny foreknowledge by the members of the Court martial, that the evidence before the court shows the culpability of the three witnesses thereby rendering their evidence inadmissible and that the only duty of a court martial is to advise the court on points of law and not to evaluate evidence.
The Appellant challenged the jurisdiction of the General court martial on the ground that the offence was not investigated as required by Rules 9 and 10 of the Rules of Procedure (Army) 1972 which demands a summary of the proof of evidence or abstract of evidence. The Appellant contends that failure erodes the jurisdiction of the Court Martial. Jurisdiction has received judicial attention and understandably so, being that it is a threshold issue which gives competence to the court. The apex court in the case of EGHAREVA V ERIBO (2010) 9 NWLR (Pt. 1199) 411 S.C said thus:
Jurisdiction is a term of comprehensive import embracing every kind of judicial action. It is the power of a court to decide a matter in controversy and presupposes the existence of a duly constituted court, with control over the subject matter and parties. Jurisdiction also defines the power of the court to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which judges exercise their authority. Jurisdiction is equally to court what a door is to a house. That is why the question of courts jurisdiction is called a threshold issue, because it is at the threshold of the temple of justice. Jurisdiction is a radical and fundamental question of competence, for if the court has no jurisdiction to hear the case, the proceedings are and remains a nullity however well-conducted and brilliantly decided they might have been. A defect in competence is not intrinsic but extrinsic to adjudication.
Therefore, a court must have jurisdiction to try a matter or else any step taken amounts to waste of time. Jurisdiction has several features to it which have been crystallized into the following 3 namely:
a. when it is properly constituted as regards number and qualification of members of the bench, and no member is disqualified for one reason or another, and
b. the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction, and
c. the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See MAGAJI V MATARI (2000) 8 NWLR (PT. 670) 722 and MADUKOLU V NKEMDILIM (1962) 1 ALL NLR 587.
The Appellant situated his complaint on a condition precedent in that the 1st Respondent through its Commanding officer failed to investigate the offence as required by the rules. To put it in other words, that the elements must all be present to vest a court or tribunal with jurisdiction, i.e. they are conjunctive. The Appellant contended that the Decree under which proceedings for the trial of the Appellant was conducted is the Armed Forces Decree No. 105 of 1993 (as amended) and that by the provisions of Section 123 of the said Decree, a commanding officer is required to investigate the allegation in a prescribed manner specified in the Rules of Procedure (Army) 1972 particularly Rules 9 and 10. The rules require that a summary of the evidence be made. This is taken along the requirement affording an accused adequate opportunity to prepare for his defence including access to his counsel and witnesses. It is pertinent to note that these rules have basis or roots from Constitutional provisions and failure to observe them would ordinarily impeach a trial. I have gone through the record of appeal and I do not see where and how the Appellant herein was denied an opportunity to fully prepare for his defence. He was defended by a counsel who represented him throughout the trial. Yes, there might not have been a summary of evidence served on the Appellant before the trial but that alone cannot be a breach that can defeat the trial. Placing the complaint against the 3 basic criteria for jurisdiction to be invoked as stated earlier, I see no missing element. More so, I do not see how the complaint can be situated under any of the features of the elements of jurisdiction. A faulty investigation can affect the trial and lead to a discharge of an accused but this cannot have effect on jurisdiction. Once the basic elements are present, the court would be seised with jurisdiction to hear the matter. What is important in a criminal trial and any trial howsoever, is the opportunity to be allowed to test the veracity of the witnesses and to be heard in defence. I agree that the allegation against the Appellant ought to have been investigated by the commanding officer in the manner as prescribed under the Armed Forces Decree but what happened in this case is an irregularity that cannot affect jurisdiction, see CLEMENT V IWUANYANWU (1989) (PT. 107) SC 6 where the court held thus:
I think it is trite law that Rules of Court are Rules of Procedure. They do not by themselves and of themselves alone confer jurisdiction. They merely regulate the exercise of a jurisdiction conferred aliunde.
This issue is closely related to the second leg contending breach of fair hearing and the Appellants contention that the members of Court martial had fore knowledge of the particulars of the case before the trial therefore denying the Appellant of fair hearing. The foreknowledge is from the alleged trial of the other rank officials who were tried differently even though on the same offences. Trial was not joint trial but separate. There is no record of that trial herein. Can that amount to foreknowledge as to affect the fairness of trial? From the record of appeal the Appellant was arraigned alone but it is also clear that there were others tried separately who testified against the Appellant. The beauty about criminal trials is that the prosecution must prove all the ingredients of the offence before any conviction can stand. The argument of the Appellant if upheld would mean that a court cannot try accused persons differently when the charges arise from the same transaction. This is not the law. I do not find any such rule saying such actions offends fair hearing. This alleged fore knowledge of facts is arising from another trial and not private foreknowledge that could raise likelihood of bias. How then can that be a breach fair hearing which fundamentally is a trial issue? It is trite that there are certain basic attributes of fair hearing and mostly they are trial issues, some are:
i. That the court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the proceedings.
ii. That the court shall give equal treatment, opportunity and consideration to all concerned
iii. That the proceedings shall be held in public and all concerned shall have access to and be informed of such place of public hearing; and
iv. That having regard to all the circumstances, in every material decision in the case, Justice must not only be done but must manifestly and undoubtedly be seen to have been done.
See BABA V N.C.A.T. C (1991) LPELR 692 (SC).
Fair hearing is simply represented by the twin pillars commonly known as:-
i. Audi alteram patem hear the otherside.
ii. Nemo judex in causa sua no one should be a judge in his own cause this is the rule against bias.
See the case of BAMBOYE V UNIVERSITY OF ILORIN (1999) 10 NWLR (PT. 622) 290.
The Appellants right to fair hearing cannot be overstretched beyond universally and accepted boundaries. The Supreme Court in the case of MAGIT V UNI AGRIC MAKURDI (2005) LPELR 1816 (SC) had this to say:
Fair hearing and what it is all about has been flogged
It has become a fashion for litigants to resort to their right to fair hearing on appeal as if the it is a magic wand to cure all their inadequacies at the trial court But it is not so and it cannot be so the courts must not give a burden to the provision which it cannot carry or shoulder. Fair hearing is not a cut and dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based on the facts of the case before the court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle is helpless or completely dead outside the facts of the case.
The Supreme court also in the case of FRN V AKUBUEZE (2010) LPELR 1272 (SC) held as follows:
Fair hearing incorporates a trial done in accordance with the rules of natural justice which in the broad sense, is that which is done in the circumstances which are fair, just, equitable and impartial.
It is now firmly settled that the rule of audi alteram partem postulates that the court or other tribunal, must hear both sides at every material stage of the proceedings before handing down a decision at that stage.
The Appellant was given a hearing in terms being given an opportunity to defend himself, he was represented by a counsel of his choice and allowed to cross examine witnesses of the prosecution as required by law. Hence, so long as the twin pillars of natural justice are observed in a trial, there cannot be breach of fair hearing. The failure to give a summary of the evidence to be relied upon at the trial in advance to the Appellant cannot be a breach of fair hearing in so far as he was aware of the case against him, see MAJOR DENNIS TONIPRE DES DOKUBO V THE NIGERIAN ARMY (2015) LPELR 25969(CA).
Indeed fair hearing has become a magic wand that parties employ in an effort to strike down a trial, it was Tobi, J.S.C. (now of blessed memory) who held as follows:
It has become a fashion for litigants to retort to their right to fair hearing on appeal as if it is a magic wand to cure their inadequacies at the trial court. But it is not so and cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation, in the interest of fair play and justice. The courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.
There is no evidence in the record that the case against the other went to trial and it cannot be speculated at this stage. The allegation must be proved beyond reasonable doubt to warrant a conviction. The standard of proof in a criminal trial is not watered down when trials are conducted by the General Court Martial. This issue is resolved against the Appellant.
The Appellant also contended that having been discharged from the count alleging stealing he cannot be convicted for conspiracy in respect of the same charge. Conspiracy is simply an agreement of two or more persons to do an act by illegal means or an illegal act which is an offence. The courts have pronounced on the constituents of the offence of conspiracy as follows:
for the offence of conspiracy to be established there must exist a common criminal design or agreement by two or more persons to do or not to do an act criminally. Since the gist of the offence of conspiracy i.e. embedded in the agreement or plot between the parties it is rarely capable of direct proof; it is invariable an offence that is inherently deduced from the acts of the parties thereto which are focused towards the realization of their common or mutual criminal purpose.
See ODUNEYE V THE STATE (2001) LPELR 2245(SC).
The Appellant was discharged and acquitted of the offence of stealing which is the principal offence. I will come to that later. The question to ask at this stage is whether the offence of conspiracy for which he was convicted was proved? In conspiracy, the agreement alone constitutes the offence and it is not necessary to prove that the act has been done. It is rarely proved by direct evidence but usually circumstantial evidence and inference from certain proved acts. Circumstantial evidence must lead to one sure conclusion i.e. the guilt of the accused. The facts must be consistent, cogent and irresistible, proving the allegation with the accuracy of mathematics. To prove conspiracy therefore means the prosecution must prove the following:
i. That two or more persons have entered into an agreement freely to do or commit an illegal act, or
ii. The two or more persons have agreed to cause to do, an illegal act, or
iii. The two or more persons have agreed freely to do, or cause to be done an act which is not illegal but by illegal means.
See OSHO V THE STATE (2011) LPELR 4804(CA).
This further buttresses the fact that it is the agreement itself that is the basis of the offence of conspiracy. The charge herein does not say who were the subordinate soldiers of the Appellant whom he entered into the agreement with. He was tried alone. The basic and inescapable question to ask is whether the Appellant can be convicted of conspiracy when he was discharged on the allegation of stealing? The position of the law is that where an accused has been discharged of the count of stealing he cannot be found guilty of conspiracy to steal subject however to certain exceptions. See the holding of this court in the case of IDOWU V THE STATE (2011) LPELR 3597(CA) which states thus:
The general principle of law is that an accused person cannot be convicted of conspiracy where he has been acquitted of the substantive offence for which he has been accused of conspiring to commit. The only exception is where the accused has admitted or confessed the conspiracy and there is other evidence to sustain conspiracy charge. Where the accused is charged with committing conspiracy simpliciter along with the other substantive offences, he may still be convicted even where the substantive offence is not proved. However, where he is charged for conspiracy to commit the substantive offence and for committing the substantive offence, he cannot be convicted of the conspiracy to commit the substantive offence, if he is acquitted of the substantive offence.
See also ABIOYE V THE STATE (1987) 7NWLR (PT. 58) 645; AMADI V THE STATE (1993) 8 NWLR (PT.313) 664 and OLADEJO V THE STATE (1994) 6 NWLR (PT. 348) 101. The conviction of the appellant is wrong.
The Appellant was charged for conspiracy to steal and for stealing but convicted only on the charge of conspiracy to steal and not the stealing. The conviction for conspiracy whilst appellant was discharged of the offence of stealing is wrong and it must be set aside. Looking at the evidence before the court, can it be said that there was an inference that could sufficiently sustain a conspiracy charge? The evidence of Pw2 is contradictory and inconsistent. He also collapsed under cross examination with regards to the allegation of an agreement. Being the evidence of a witness and not a co-accused, it cannot stand as held in the case of UMANI V THE STATE (1988) LPELR 3357 (SC) thus:
The law is that where a witness makes a statement which is inconsistent with his testimony is to be treated as unreliable while the statement is disregarded as evidence upon which court can act.
See also OLADEJO V THE STATE (1987) 3 NWLR (PT. 610) 364; NIGERIAN BREWERIES V AUDU (2009) LPELR 8863 (CA); ONUBOGU V STATE (1974) ANLR 5 and AMUSA V STATE (2002) LPELR 6953(CA).
Furthermore, the evidence of PW1 and PW3 has not shown the meeting of the minds at all. They merely narrated what transpired on the day of the incident. There is nothing to further support an agreement. In any case, PW1 3 are soldiers under the Appellants control and what is alleged cannot be an agreement but at best it could be alleged that the Appellant gave directives to his subordinates, assuming it was proved. I am intrigued by the allegation of agreement in a purely regimented institution like the military where a subordinate is bound to take instructions and to first obey before any compliant. Can the subordinate in such situation be said to have gone into an agreement if he obeys superior orders?
It is obvious that the allegation against the Appellant was not proved as required by law. Proof in criminal trials is beyond reasonable doubt and that was not done in this case and consequently, the conviction and sentence cannot stand and must be set aside. I agree with the Appellant on the aspects in issues 2 and 3 herein.
On the 4th issue which is on evaluation of evidence, I agree with the position taken by the Respondents that the General court martial is like the jury while the Judge advocate deals with the issues of law. In MAGAJI V NIGERIAN ARMY (2008) 8 NWLR (PT 1089) 338, the Supreme Court observed:
"It must be borne in mind that the General Court Martial cannot be equated to the regular courts, where strict procedures are required. It is no more than a tribunal and at best, it can be equated with a jury trial."
See also the case of DODO V NIGERIAN ARMY (2OO7) VOL. 43 WRN 123, where the court described a judge advocate as follows:
By the operation of law, a judge advocate is a member of a court martial. He is a member of such importance that he is required to be present at all sittings of the court. He must be a legal practitioner of at least 3years post call experience and his functions in a court martial includes giving rulings and directions on questions of law including practice and procedure. His role in a court martial is of utmost importance as the other members act more in the capacity of a jury. The want of rating right does not in any way undermine the very pivotal role of the Judge Advocate in a court martial.
The requirement of a judge advocate is a legal requirement and this was clearly stated in the case of MAJOR DENNIS TONIPRE DES DOKUBO V THE NIGERIAN ARMY (SUPRA) where I stated thus:
The requirement of a judge advocate to sit in a court martial is a requirement of the Armed Forces Act, particularly section 133 (5) and (6). The most important duty is to advise a court martial on matters relating to law which may arise in the course of a court of a martial trial.
In such a trial, it is the judge advocate who summaries the facts and does the evaluation of the evidence before the finding of guilt or not guilty. The Jury only decides the guilt of an accused and not the law upon which the accused is charged. Herein the Judge Advocate did his duty before the court martial pronounced the Appellant guilty. In any case, having found that the conviction is wrong in law, the issue of evaluation of evidence can no longer be alive in this appeal.
In the same vein, the reduction in rank as punishment must of necessity be reversed as the conviction is set aside. Though generally, the Court martial can as one of the ways of imposing sentence on an accused member of the force reduce a rank and the kind of sentence is purely at the discretion of the Court martial and Army council which could also substitute a sentence passed by the court martial. In this case, however, the conviction is set aside and the question whether the sentence is harsh can no longer arise.
Finally, this appeal succeeds; the judgement of the general Court martial on the 18th of November, 1998 confirmed by the Army Council is hereby set aside. Consequently, the conviction and sentence of the Appellant is also set aside, the reduction in rank reversed and the said rank of the Appellant is restored. He should not also suffer any disadvantage in his seniority in the said rank as a result of the trial.
No order as to costs.
HON. JUSTICE UZO I. NDUKWE-ANYANWU, JCA
I had the privilege of reading in draft form, the Judgment just delivered by my learned brother Yargata Byenchit Nimpar JCA.
The thrust of this appeal is whether the Court Martial had jurisdiction in this case. Also, whether the Appellant was given a fair trial.
Jurisdiction ad fair hearing are two very important issues in any matter. My learned brother in the lead judgment has dealt with these issues admirably. I have nothing more to add.
I also hold that the appeal succeeds. I abide by all he consequential orders contained in the lead judgment.
TIJJANI ABUBAKAR, JCA
My lord and learned brother Nimpar JCA, granted me the privilege to read in draft the lead Judgment just rendered.
I am in full agreement with the reasoning and conclusion and adopt the Judgment as mine with nothing extra to add.
FRANCA OKAFOR (MRS)
MALLAM J. A. ADAMU AD (FMJ)
M. U. IBRAHIM