In The Supreme Court of Nigeria
On Friday, the 31st day of January 2003
Before Their Lordships
Idris
Legbo Kutigi
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Justice, Supreme Court
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Uthman
Mohammed
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Justice, Supreme Court
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Umaru
Atu Kalgo
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Justice, Supreme Court
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Akintola
Olufemi
Ejiwunmi
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Justice, Supreme Court
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Niki
Tobi
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Justice, Supreme Court
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S.C. 361/2001
Between
Nigerian Air Force
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Appellants
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And
Ex-Squadron Leader A. Obiosa
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Respondent
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Judgement of the Court
Delivered by
Akintola
Olufemi Ejiwunmi.
J.S.C
This appeal is against the Judgment of the court below, (per
Oguntade, Galadima
and Aderemi, JJCA).
Before that court, the appellant had appealed against his
conviction by the General Court Martial. It is manifest from the records
that the appellant was convicted upon the following charges and sentenced
accordingly. They read thus. -
"(1)
Making of false negotiable instrument contrary to section 112 (a) of the
Armed Forces Decree.
1993 in that he at Lagos on or about 26 Mar; 96 forged
CBN Cheque No.00003.
(2)
Forgery contrary to section 112(a ) of the Aimed
Forces Decree, 1993 in that he at Lagos on or about 27 Mar., 96 forged
CBN Cheque No. 00004.
(3)
Forgery contrary to section 112 (a) of the Armed Forces Decree, 1993
in that he at Lagos on or about 28 Mar., 96 forged CBN
Cheque No. 00005.
(4)
Making of forged negotiable instrument contrary to section 112 (a) of
the Armed Forces Decree. 1993 in that he at Lagos on or
about 29 Mar., 96 forced CBN Cheque
No.00006.
(5)
Uttering a forced cheque contrary to section 112 (a) of 'he Armed
Forces Decree. 1993 in that he at Lagos on or about 28
Mar., 96 fraudulently or knowingly uttered a forced CBN
Cheque No.00003.
(6)
Uttering a forged cheque contrary to section 112 (a) of the Armed
Forces Decree, 1993 in that he at Lagos on or about 27 Mar. 96 fraudulently
or knowingly uttered forced CBN Cheque No.
00004.
(7)
Uttering a forged cheque contrary to section 112 (a) of Armed Forces
Decree, 1993 in that he at Lagos on or about 28 Mar., 96 fraudulently or
knowingly uttered forged CBN Cheque
No.00005.
(8)
Uttering a forge d cheque contrary to section 112(a) of Armed Forces
Decree, 1993 in that he at Lagos on or about 29 Mar., 96 fraudulently or
knowingly uttered forged CDN' Cheque No. 00006.
(9)
Stealing contrary to section 66 (a) of' the Armed Forces Decree, 1993
in that he at Lagos on or about 27 Mar., 96 stole the sum of'
Nl6m property of' the Nigerian Air Force.
(10) Stealing
con tiny' to section 66 (a) of the Armed Forces Decree, 1993 in that he at
Lagos on or about 27 Mar., 96 stole the sum of NI 7m
property of the Nigerian AirForce.
(11) Stealing
contrary to section 66 (a) of the Armed Forces Decree, 1993 in that he at
Lagos on or about 28 Mar., 96 stole the sum of N15m
property of' the Nigerian AirForce.
(12) Stealing
contrary to section 66 (a) Of the Armed Forces Decree, 1 993 in that he Lit
Lagos on or about 27 Mar., 96 stole the sum of N4,
300,000 property of the Nigerian Air Force.
(13) Receiving
stolen property contrary to Section 66 (a) of the Armed Forces Decree, 1993
in that he at Lagos on or about 3 April, 96 received part of the
N2.8m stolen by Wg.
Cdr. PE. lyen knowing
or having reason to believe same to have been stolen.
(14)
Disobedience to standing order contrary to Section 57 (l) of the Armed
Forces Decree, 1993 in that he at Lagos in April. 96, contravened
Administrative Instruction S/ No 3 dated Feb., 96 which Order was known to
him or which he might reasonably be expected to know by engaging in private
business."
Now, having set down as above the charges for which he was convicted, it is
necessary to refer to the charges for which he was first arraigned
before the General Court Martial, which from henceforth shall be referred to
simply as "GCM". This is because the amendment
of the charge from a five count one to a 14-count charge became an issue
before the court below. I think, it is therefore
convenient at this stage to give in brief background facts that led to this
appeal.
In April 1996, the Chief of' Air Staff, Air Vice
Marshall Femi John Femi was removed from that Office by the then Federal
Military Government and was replaced by AVM Nsikak
Eduok. At the time when to changes
occurred, one Wing Commander PE. Iyen was the
Director of Finance and Accounting, and would no\v be referred to simply as
(DFA). It would appear, following his assumption
of officer as the Chief of Air Staff.
AVMN.
Eduok raised the allegation that some Air Force
Officers shared between themselves the sum of
NI0
million, and that another sum of
N48
million was hastily withdrawn from OPS Harmony Account with Central Bank of
Nigeria. That sum was allegedly withdrawn for the renovation of the
guesthouse of the Chief of Air Staff and also the Air House.
The Chief of Air Staff therefore, then set up a
panel to investigate the allegation. As a result, the respondent and eight
others were jointly tried, though each accused had his own separate charges
levelled against him. At his initial arraignment, the respondent had against
him a six-count charge of stealing, receiving stolen property, aiding and
abetting service offence, scandalous conduct and disobedience to standing
order. In the meantime. the respondent bud on the
27th April, 1996 been discharged from the Air Force, see Ex.
66A to that effect, And on the 6th of August,
1996, the six-count charge was amended to a 14-count charge as stated above.
Though objection was raised to the new set of charges, it
as overruled and the respondent pleaded 'not
guilty to each of them. Also the objection raised to jurisdiction of the
GCM to try the respondent was raised and
overruled. The GCM, after all these
preliminaries, then went on to try the respondent upon the charges as laid.
The case for the prosecution is that the respondent forged and uttered tour
CBN cheques Nos. 00003, 00004, 00005 and 00006
that amounted to the sum of
N48 million and
that the proceeds of the said cheques were stolen thereafter by the
respondent. It was also part of the case for the prosecution that he also
stole the sum of
N4.3million in
similar circumstances, and that he also received part of another
N2.8
million that was also stolen, and that in the process disobeyed standing
orders. In support of its case, the prosecution called 14 witnesses in the
course of which 70 exhibits were admitted in evidence.
On the other hand, the case for the defence is that the Chief of Air Staff,
AVM Femi John Femi who keeps the cheque book, authorised the withdrawal of
the N48
million from the OPS Harmony Account with the Central Bank of Nigeria. That
the cheques were not forged as they were co-signed by the Chief of Air
Staff's nominee and he is known only to the former Chief of Air Staff, AVM
Femi John Femi. It is also part of his case that the Chief of Air Staff (to
be referred to from henceforth as CAS) instructed him to give the money to
one Mr. Timi Alaibe
at Societe General Bank for settlement of bills
who thereafter made returns to AVM Femi
John Femi. He also claimed that as per the instructions of AVM Them John
Femi, he duly sent the returns to HQ, NAF. The
respondent also denied that he received the sum of N2.8
million allegedly stolen from Wing Commander P. Iyen
and added also, that he had never engaged in any other profession or
business since he was in the Nigerian Air Force. He was not also aware of
the NAF Administrative Instruction 3/96.
At the conclusion of the hearing of' the evidence adduced by
the parties, GCM found the respondent
guilty as the GCM time to the conclusion that
all the charges against the respondent were proved beyond reasonable doubt.
The GCM thereafter pronounced sentence upon the
respondent as follows:
“Sqn
Ldr
Obiosa, from the
N10
million you got N2.8 million. You stole
N48
million. On the renovation of the Air House and the
CAS’s Guest House, you stole
N4.3
million. Sub-total,
N55,100,000.00
million. Interest is
N82,650,000.00
million. Your restitutions to the Air Force is
N137,750,000.00.”
He was also ordered to
serve prison sentences annotated thus:
"Charge I, making of false negotiable
instruments, 21years imprisonment.
Charge 2, Forgery 21 years imprisonment.
Armed Forces Decree 66.
Charge 3.
Forgery, 21 years imprisonment.
Charge 4, making of false negotiable instruments,
21years imprisonment.
Charge 5, Uttering, 21 years imprisonment.
Charge 6, Uttering, 21 years imprisonment.
Charge 7, Uttering, 21 years imprisonment.
Charge 8, Uttering, 21 years imprisonment.
Charge 9, Stealing, 2 years imprisonment.
Charge 10, Stealing, 2 years imprisonment.
Charge 11, Stealing, 2 years imprisonment.
Charge 12, Stealing, 2 years imprisonment.
Charge 13, Receiving, 2 years imprisonment and
Charge 14, Illegal business, 2 years imprisonment.
There is no recommendation for mercy. You will serve 69 years. Charges 1, 2,
3, 9, 13 and 14 will run consecutively, all other charges concurrently."
As the respondent was dissatisfied with the judgment and orders of the
GCM, he appealed to the Court of Appeal. Upon
the grounds of appeal so filed, the following issues were raised for the
determination of the appeal.
"(i)
Whether by virtue of section 131(2) (c) of the Armed Forces Decree
No.105 of 1993 (as Amended), the proceedings of
the General Court Martial is not a nullity in view of the convening order
signed by Air Commodore F.O
Ajobena purportedly acting on behalf of the Chief of Air Staff on
verbal instructions.
(ii)
Whether by the first arraignment on 26th July, 1996 of which the
whole charges were later withdrawn and struck out and another arraignment of
the appellant made on 6th August, 1 996 on new charges, the General Court
Martial did not lack jurisdiction to try the appellant in view of section
169(2) of Decree No 105 of 1993.
(iii)
Whether the former Chief of Air Staff, AVN
Femi John Femi mentioned by the appellant as one who gave him instructions
which he earned out and made returns to is not a vital material witness that
would ha\e affected the decision of the General Court Martial.
(iv)
Whether
the General Court Martial was right in the circumstances of this case to
have called a witness (CWI)
suo
motu at the close of the case for the
defence without allowing the appellant to call a witness referred to by the
CW 1 in rebuttal.
(v)
Whether the General Court Martial was ri2ht
to take judicial notice of Nigeria Air Force Administrative Instruction
3/96.
(vi)
Whether there was proper basis for the order of restitution for
N137,750,000.00
and auction of the appellant's properties.
(vii)
Whether in the whole circumstances of the case and the evidence adduced the
guilt of the appellant was proved beyond all reasonable doubts for the
various offences."
After due consideration of the issues raised on behalf of the appellant, the
court below upheld the appeal. This is because the court below formed the
view that only the holders of the offices listed under section 131 (2) of
the Armed Forces Decree (AFD) No 105 of
1993 could issue a convening order for a GCM,
and that the power granted by the said section cannot be delegated. The
court below therefore held that the GCM.
which flied and convicted the respondent was not
properly convened, and the GCM therefore lacked
the requisite jurisdiction to try the respondent.
Secondly, the court below held that the GCM,
having struck out the first charge levelled against the respondent following
its withdrawal by the prosecution, the GCM no
longer had jurisdiction to try the respondent, having regard to the
provisions of section 169 (2) of the Armed Forces Decree. Therefore it was
held that the trial and conviction of the respondent was a nullity.
Thirdly, the court below after the examination of the evidence led in
support of the charges laid against the
respondent, came to the conclusion that the prosecution failed to establish
each of the 14 charges beyond reasonable doubt. The court below therefore
said that it would have discharged and acquitted the appellant even if it
had found that the GCM had jurisdiction to try
the appellant.
In conclusion, the court below set aside the judgment of
GCM and also declared as nullities all the
orders made by the GCM, and accordingly
discharged and acquitted the respondent.
Now, the appellant being very dissatisfied with the judgment and orders of
the court below then appealed to this court. Following the grounds of appeal
filed, pursuant to the appeal to this court, briefs of argument were filed
and exchanged. For the appellant, the issues identified for the
determination of the appeal are: -
"1.
Whether the General Court Martial had been properly convened and had the
jurisdiction to try the respondent.
2.
Whether the responsibility of assisting the respondent's defence by calling
a witness rested on the prosecution or on the accused.
3.
Whether or not the prosecution had established a case of forgery and
stealing against the respondent.
4.
Whether or not the evidence led by the prosecution in respect of the 14th
count bad been sufficient to ground a conviction.
5.
Whether the Court of Appeal was right in setting aside the order requiring
the respondent for
N137.750, 000.00
as restitution."
The respondent in the brief filed on his behalf by his learned counsel also
set down issues for the determination of the appeal the issues are clearly
similar to those identified in the appellant’s brief, I do not consider it
necessary to set them down in this judgment. The merit of the appeal will be
considered in accordance will issues identified above.
The first issue raised by the appellant is concerned with, whether the
GCM had been properly convened and had the
jurisdiction to try the respondent. The submission made for the appellant in
its brief and by its learned counsel before us is based on the view that
the arguments and findings of the learned justices of the court below
with regard to the interpretations given to the provisions of 13 1 of the
Armed Forces Decree are basically erroneous. It is then argued for
the appellant that the provisions of section 131(3) of the Armed Forces
Decree, clearly invests the delegation of the power to convene a
GCM by a person in whom that power resides. And
it is therefore argued that as there is no doubt that the Chief of Air Staff
is an appropriate superior authority, and so also was there any doubt that
Air Commodore F. O. Ajobena was a Senior Officer
of a detached unit, establishment or squadron. Upon that premise and having
regard to the provisions of section 128(i)(b)
of the Armed Forces Decree, it is the submission of learned counsel for the
appellant that Air Commodore F. O. Ajobena being
a senior officer of a detachment unit, establishment or squadron,
i.e Director of Personnel Branch, one the 4
branches that constitute the headquarters of the Nigerian Air Force, could
properly convene a General Court Martial. In any event, argued learned
counsel for appellant, the Chief of Air Staff properly designated Air
Commodore F.O. Ajobena
to convene the GCM in compliance with section
131 (3) of the Armed Forces Decree. The special circumstances that existed
then were that, as the accused who was retired on
the 27th April. 1996 had to be tried within three months of his retirement
time then became of the essence. In such circumstances, learned counsel
contended, the GCM had to be convened within the
time frame of sections 168 and 169 of the Armed Forces Decree.
The second leg of the complaint of the appellant in respect of this
issue is against the holding of the Court of Appeal, that: - "On 6-8-96,
when new counts were brought against the appellant he had ceased to be
subject to service law under section 169 (2) above. The
GCM no longer had jurisdiction to try the
appellant as at 6-8-96. The trial and conviction of the appellant was
therefore a nullity on this score."
Against this finding of the court below it is the contention of the
appellant that the reasoning of that court was based on this erroneous
misconception. This is because the court wrongly held the view that the
substituted charges brought on the 6th of August, 1996 constituted a
fresh arraignment of the respondent. The case made for the appellant is that
the respondent was arraigned on the 26th of July, 1996 and his
plea was taken on that date. That date was when his trial commenced and
cited Efiom
v. The State
(1995) 1 NWLR (Pt. 373) 507 at 532 & 582
as support for that proposition. Appellant then
further argued that the amended charges brought against the respondent
pursuant to Section 162 of the Criminal Procedure Act did not mean
that the prosecution of the respondent was commenced when the amended
charges were brought against him. In support of
that contention, the case of
Attah
v.
The State (1993)
7NWLR (Pt. 305) 257, where the
provisions of sections 162 to 165 of the CPA were construed by this
count was cited. The respondent in his brief also formulated his
argument in respect of issue tin two parts.
The first part is with regard to whether the GCM
admitted as exhibit "At" was properly constituted having regard to
the fact that it was apparently convened by Air Commodore
F.O. Ajobena
who signed it. In the view of learned counsel for the respondent, the
GCM was not properly convened. He contended that
ex "Al", quite clearly shows that the GCM
was convened under by virtue of section l3l (2)(c)
of the Armed Forces Decree No. 105 of 1993 (as amended). And having
regard to its provisions, Air Commodore F.O.
Ajobena did not fall into the class of those
enumerated therein to convene a GCM. It
is therefore submitted for the respondent that having expressly
stipulated those to convene a General Court Martial, the Armed Forces
Decree has by implication excluded any other person. And
cited in support of that proposition of Gregory Obi
Ude v.
Clement Nwara and
Anor.
(1993) 2 NWLR
(Pt 278) 638
at 661.
It is also the contention of the respondent that as the convening
order was under s.13 1(2),
the order must be signed by the Chief of Air Staff himself. He cannot,
as the case in hand, delegate his powers in that regard, particularly
where the power is statutory in nature. See Chief L. H.
Oikherhe v.
Chief Joseph M.
Inwanfero (1997) 7
NWLR (Pt. 512) 226 at 247.
And for the proposition that where persons are charged
with statutory duty of depriving others of their liberty, such persons must
observe strictly and scrupulously to the forms and the rules of the
enabling statute. Reference was made to the following authorities
Saidu
Garba v. Federal Civil Service Commission
(1989) 1 NWLR (Pt. 71) 449 at 477;
Halsbury Laws of England Volume 10 at paragraph
720; Dr. Tunde
Bamgboye v. University of
llorin & Anor;
(1999) 10 N\YLR (Pt. 622) 290 at 329.
It was also argued for the respondent in his brief, that the
argument in the appellant's brief that section 131
(3) of the Armed Forces Decree was applicable in the circumstances of
this case be rejected. In the view of the respondent, the combined
provisions of sections 128 and 131 of the Armed Forces Decree cannot be
employed to the GCM as convened in this case.
With regard to the second part of the argument in respect of issue 1, it is
submitted that this court should hold that by the amended charges filed
against the respondent sequel to the withdrawal of first charges filed
against him, the tidal of the respondent corn when the amended charges were
flied against the respondent which he pleaded,
in support of his several submissions, his counsel in his brief, referred to
Godspower
Asakitikpi v. The
State (1993) 5
NWLR (Pt. 296) 641 at 652;
Blacks Law Dictionary
p.109 and at p.1423;
sections 75 and 180 of the
Criminal Procedure Act;
Madukolu & Ors.v.
Nkemdilim
(1962) All NLR
(Pt. 4) 2 SCNLR 341, 587 at 392;
Attah
v.
The State
(1993) 1 NWLR"305) 257;
Awobotu v. The State
(1976)5 SC 49 at p.70.
It is submitted for the respondent that if as it has been argued, the
commenced with the trial of the respondent on the 6th of 1996 by virtue of
the amended charge, then the GCM jurisdiction to
try the respondent. This is by virtue of (2) of the Armed Forces Decree,
1993, which stipulates of the respondent must commence within 3 months ft
discharge from the Armed Forces.
In view of the argument proffered by learned counsel for the parties in
respect of the first part of issue 1, it is manifest that to answer this
part of the argument, it is necessary to consider the meaning and effect of
the following sections of the Armed Forces Decree 1993. These are sections
128 and 131.
"Section 128
(1)
The following persons may act as appropriate superior officer
in relation to a person charged with an offence, that is: -
(a)
the commanding officer; and
(b)
any officer of the rank of Brigadier or above or officer of
corresponding rank or those directed to so act under whose command the
person is for the time.
(2)
the President may make rules rule for
purpose of this section and those rules may confer on the appropriate
superior authority power to delegate his functions in such cases and to such
extent as may he specified in the rules to officers of a class so specified.
Courts Martial: General Provisions
129. There
shall be, for the purposes carrying out the provisions of this Decree, two
types of Courts Martial, that is
(a)
a General Court of a president and not
less than four members, a waiting, member, a liaison officer and a Judge
Advocate.
(b)
a special Court Martial, consisting of a
president and not less than two members, a liaison officer and a Judge
Advocate.
130 (1)
A General Court Martial shall, subject to the provisions of this
Decree, try a person subject to service law under this Decree for an offence
which. under this Decree, is triable by a Court
Martial and award for the offence a punishment authorised by this Decree for
that offence except that where the Court Martial consists of less than seven
members it shall not impose a sentence of death.
(2)
A General Court Martial shall also have power to try a person subject
to service law under this Decree who by law of war is subject to trial by a
military tribunal and may adjudge a punishment authorised by law of war or
armed conflict.
(3)
A special Court Martial shall have the powers of General Court
Martial, except that where the Court Martial
consists of only two members it shall not impose a sentence that exceeds
imprisonment for a term of one year or of death.
131. (1)
Subject to the following provisions of this section, a Court Martial
may be convened by; -
(a)
the President; or
(b)
the Chief of Defence Staff; or
(c)
Service Chiefs; or
(d)
a General Officer Commanding, a Brigadier, Colonel or Lieutenant
Colonel or their corresponding ranks having command of a body of troops or
establishments; or
(e)
an officer for the time being acting in
place of those officers.
(2)
A General Court Martial may be convened
bv: -
(a)
the President; or
(b)
the Chief of Defence Staff; or
(c)
the Service Chiefs; or
(d)
a General Officer Commanding or
corresponding command; or
(e)
a Brigade Commander or corresponding
command.
(3)
a Special Court Martial may be convened
by; -
(a)
a person who may convene a General Court
Martial; or
(b)
the commanding officer of a battalion or
of a corresponding unit in the Armed Forces.
3.
The senior officer of a detached unit, establishment or squadron may be
authorised by the appropriate superior authority to order a Court Martial in
special circumstances.
It is clear from a careful reading of sections 129 and 130 of the Armed
Forces Decree that it is envisaged that erring serving officers of the armed
forces are subject to trial by either a General Court Martial or a Special
Court Martial. The General Court Martial, it is stipulated shall consist of
a president and not less than four members, awaiting member, a liaison
officer and a Judge Advocate. Whereas a Special Court
Martial, shall also be constituted by a president, and not less than two
members, a waiting member, a liaison officer and a Judge Advocate.
And by section 133 (3), a special court martial shall also have the power of
a general court martial, except that where the court martial consists of
only two members, it shall not impose a sentence that exceeds imprisonment
for a term of one year or of death. It is also manifest from the
provisions of section 131(2) of the Armed Forces Decree, that the following
namely, (a) the President or (b) the Chief of Defence Staff; or (c) Service
Chiefs or (d) a General Officer Commanding, a Brigadier, Colonel or
Lieutenant Colonel or their corresponding ranks having command of a body of
troops or establishment or (e) an officer for the time being acting in place
of these officers, may convene a Court Martial.
But, with regard to who may convene a General Court Martial, and with which
we are concerned principally in this appeal, the law provides by virtue of
section 131(2) that the following officers may convene it. These are
either (a) the President, (b) the Chief of
Defence Staff or (c) the Service Chiefs, or (d) a General Officer Commanding
or (e) a Brigade Commander or corresponding command. For completeness, I
need to add that the person who may convene a General Court Martial may also
convene a Special Court Martial and in addition, so also the commanding
officer of a battalion or of a corresponding unit in the Armed Forces.
it is also provided that by virtue of section
131(3) sic, the senior officer of a detached unit, establishment or squadron
may be authorised by the appropriated superior authority to order a Court
Martial in special circumstances.
Now, the question that has been agitated by learned counsel for the
respondent is that the General Court Martial lacked the jurisdiction to try
the respondent as the proper officer detailed under section 131(2) of the
Armed Forces Decree as annotated above. It is also argued for the respondent
that the law did not provide for the delegation of the power to convene the
General Court Martial. Though this argument found favour with the court
below, the appellant has argued to the contrary. As the arguments of both
parties have been set down in some detail already, I do not need to repeat
them here. But in order to appreciate the nature of their respective
contention, it is desirable to reproduce the convening order.
The convening order exh.
"Al" which was signed by Air Commodore
F.O. Ajobena
reads thus: -
"In pursuance of
the powers conferred on me as Chief of the Air Staff, Nigeria Air Force, by
section 131(2) (c) of the Armed Forces Decree No. 105 of 1993 (as amended),
I AVM NE Eduok (NAF/340),
hereby order that a General Court Martial as composed in paragraph 2 below,
Assemble at joint Officers Mess, Ikeja on 26th
July, 1996 to try the officers named in paragraph 6 below and any other
accused person brought before the court"
It is, as I have already stated above, the convening order
refered to above, was declared illegal by the
court below and the respondent is also of the view that that holding of the
court below be upheld. ( the other hand, is the
contention of the appellant that the convening order was validly made for
the following reasons viz, that F. O
Ajobena who signed the order was entitled so to
do because he was validly delegated by A.VM.
Eduok so to do, or that he was in his own right
able to sign the convening order in that the position occupied at the time
fell within the category of officers who could convene a Special Court
Martial. and was properly so commissioned to do
so. It was also contended for the appellant that the circumstances in this
case were the fact that time was of the essence for the valid trial of
the respondent by the General Court Martial, in view of the provisions
of sections 168 and 169 of the Armed F Decree.
I must point out that the case was concerned with whether General Court
Martial was properly convened. I do not therefore consider that it is
helpful to refer to how a Special Court Martial could be convened and by
whom. And on this point I need not say anymore. However, what is relevant
for consideration in this appeal is whether Air Commodore
F.O. Ajobena was
properly delegated to convene the General Court Martial that tried the
respondent. It is clear that following the convening of the General Court
Martial, and it had started sitting the Chief of
Air Staff AVM N.E. Eduok authorised the holding
of the General Court Martial with this letter admitted in evidence with
exhibit Al. It reads: -
"Authority to Sign The Convening Order For The
Trial Of
1.
I write to confirm that I had duly authorised Air Commodore
F.O. Ajobena
(Director of Personnel HQ. NAF) to sign the
Convening Order, Charge sheets and other Documents relating to the above
Court Martial.
2.
The directives are verbal and perfectly normal and I hereby confirm
that."
It is the argument of the respondent however, that this authority cannot,
given the circumstances give validity to the convening order that was
wrongly signed by Air Commodore F. O. Ajobena.
Two reasons were advanced for this contention. The first is that the
letter of authority written by AVMN.E.
Eduok and dated 6th August, 1996 was sent to the
General Court Martial two days after objection was raised to its
jurisdiction and 13 days after the General Court Martial was
convened. The second is that as there is no provision for the delegation of
the authority to convene a General Court Martial in the Armed Forces Decree,
the delegation to convene it given to Air Commodore P.O.
Ajobena was illegal in the circumstances.
The earlier reason would first be considered. It is clear that the letter of
authority was sent to the Genera Court Martial 13 days after' it started its
work. In the determination of the question raised as to the validity of the
General Court Martial, I have carefully considered the submission made on
behalf of the respondent by his learned counsel, and the authorities cited
in support thereof. It is however my view the submission so made is
of no assistance in the resolution of the question raised. Based on the
assumption that the General Court Martial was improperly constituted: in my
humble view, the determination of the question depends on whether the
sending of the letter of the authority to the General Court Martial 13 days
after commenced its sitting gave validity to it, and if it did give validity
to it, can it then be said that the respondent suffered a miscarriage
of justice in the circumstances.
The second reason will now be considered. This is, that there is no
to delegate the power to convene a General Court Martial. In
my view, this question has to be considered in the context of the
provisions of section 286 of the Armed Forces Decree which reads:
"S.286.
An order or a determination by an officer of the Armed Forces or
service authority may, unless otherwise prescribed by rules or regulations
made under this Decree, be signified under the hand of an officer
authorised that behalf, and an instrument signifying the order or
determination and purporting to be signed by an officer stated therein to be
so authorised shall, unless the contrary is proved, be accepted by all
courts and persons as sufficient evidence accordingly."
(Italicising mine)
A careful reading of the above provisions of 8.286 of Armed Decree appear to
have provisions for an officer of the Armed to delegate his
orders under the Decree, provided such orders are not prescribed by
rules or regulations made under the Decree. There are however two conditions
to be fulfilled. There are (1) that the order or a determination by an
officer of the Armed Forces or service authority must be signified
under the hand of an officer authorised in that behalf; (2) that an
instrument signifying the order or determination must be purportedly signed
by an officer stated therein. It would appear that with these conditions
satisfied, and there are no rules or regulations prescribing the issuance of
such orders, then the orders so made, unless the contrary is proved, become
acceptable by all courts and persons as sufficient evidence accordingly.
The letter of authority would now be considered in the light of the above
provisions of 5. 286 of the Armed Forces Decree.
From the evidence on record, it is manifest that AVMN
N. E. Eduok, the Chief of Air Staff instructed
Air Commodore F. O. Ajobena to convene the
General Court Martial, and it was convened accordingly. Then after the
General Court Martial had commenced sitting, the Chief of Air Staff issued
the Letter of Authority signed by him confirming his earlier instruction or
order he gave to Air Commodore F.O.
Ajobena. It is also clear that the contents of
the said Letter of Authority are in accordance with his earlier instruction
to Air Commodore F. O. Ajobena. In the absence
of any rules or regulations in the Decree that the Chief of Air Staff
AVMN. E. Eduok can
not signify this order to Air Commodore Ajobena
to convene the General Court Martial, any Court as provided
bys. 286 (supra), be taken as properly issued by
the said AVM Eduok moreso,
where in the instant case, there is no contrary evidence to challenge order
so made.
From all I have said above, it is my firm resolve that the Letter of
Authority was properly issued by the officer who had the right and authority
to order Air Commodore F.O.
Ajobena to convene the General Court Martial and which was duly
convened accordingly.' Furthermore, it has been for the respondent to show
that he suffered a miscarriage of justice on account of how the General
Court Martial was convened. This he has not done and I do not think that in
all the circumstances, it can be said that his trial was adversely affected
as a result. It is also my view that the trial and conviction of the
appellant cannot be declared as null and void as urged in the respondent's
brief. What now remains to be considered is whether the General Court
Martial lacked jurisdiction to try the respondent upon the new charge filed
against him.
The submission made for the respondent in this regard must he viewed against
the provisions of section 169(2) of the Aimed
Forces Decree which provides, thus: -
"A person shall not be triable by virtue of
sub-section (1) of section 168 of this Decree unless his trial is begun
within three months after he ceases to be subject to service law under this
'Decree or the trial is for civil offence committed outside Nigeria and the
Attorney-General of the Federation consent to the trial, but this
sub-section shall not apply to offences of muting, failure to suppress
muting and secession under this Decree."
The facts from the printed record disclose that the respondent was retired
with effect from 27th April, 1996, the respondent was first charged on the
26th July. 1996, but the charges were withdrawn following his arraignment.
They were struck out accordingly by the President of the General Court
Martial. After the charges were withdrawn, fresh charges were brought
the against the respondent. Upon the premise that
the original charges were so withdrawn by the appellant, it is argued for
the respondent that tile General Court Martial no longer had jurisdiction to
try the respondent for any offence having regard to the provisions of s. 169
(2) of the Armed Forces Decree No. 105 of 1993, and which reads:-
"A person shall not be triable by virtue of
subsection (1) of section 168 of this Decree unless this trial is begun
within three months after ceases to be subject to service law under this
Decree or the or trial is for civil
offence committed outside Nigeria and the Attorney General of the Federation
consent to the trial, but this subsection shall not apply to offences of
mutiny."
Thus by the underground portion of s. 169 (2) and of relevance to the case
in hand, a person shall not be tried unless his trial is begun within three
months after he ceases to be subject to service law. Hence it is argued for
the argued for the respondent that, as he was retired on the 27th of April,
1996, he must be tried within three months from that date. Therefore, when
he was charged on the 26th July, 1996 and his plea taken, his trial was
commenced properly within the provisions of s. 169(2) of Armed Forces
Decree. However when was withdrawn and struck out, the new charges in
respect of’ which the respondent was tried and convicted was not
proper. This is because, argued the respondent, the date of that new
charge, i.e. 6th August, 1996, fell outside the tree months within
which he could be properly charged for any offence by the appellant
viz. by virtue of s.169 (2) of the Armed Forces
Decree (supra). It is therefore submitted for the respondent that the
court blow was right to have declared' that the respondent was wrongly tried
and convicted by the General Court Martial. In support of the submission for
the respondent, reference was made to Godpower
Asakitikpi v. The State
(1993) 5 NWLR (Pt.296)
641 at 652. The appellant, both in the brief filed on its
behalf and in the course of the submission of its learned counsel invited
the court to hold that the court below was wrong in its approach and
conclusion reached with regard to the trial and conviction of the
respondent. The appellant's contention is that the respondent was properly
charged and convicted within the provisions of s.169
(2) of the Armed Forces Decree. In support of this contention, we were
referred to the following authorities; Effiom
v. The State (1995)
1 NWLR (Pt. 373) 507 at 532 & 582;
Attah v. The
State (1993) 7 NWLR (Pt. 305) 257 at
279. It is also manifest from the brief filed for the respondent that
it was sought to distinguish the Attah’s
case (supra) from the case in hand. Let me say immediately that in
Attah’s case (supra), one
of the questions raised in this court was whether in the case of an
amendment of new counts to a charge, it is mandatory, considering the
provisions of S. 164 (1) of the
Criminal Procedure Law
to take a fresh plea to all
the counts in the charge
including those which have not been amended. That question was answered in
the affirmative.
However, the question that has provoked controversy in this case is, whether
the prosecution of the respondent was commenced within the period of three
months set down in s.169 (1.) of the Armed
Forces Decree. The argument on this question as having been set down above
arose on account of the fact that a new charge was substituted for the
original charge following its withdrawal by the appellant. This step was
taken in the proceedings after the respondent had pleaded to the original
charge. It is common ground hat the respondent
duly pleaded to the amended charge after it was read out to him in full
compliance with the provisions of 5. 164(1) of the 40 Criminal Procedure
Act. It is also not in doubt that by virtue of s. 163 of the Criminal
Procedure Act, any court and which perforce includes a General Court Martial
may alter or add to any charge any time before
judgment is given or verdict returned. Hence the right of the
appellant to amend the original charge for which the respondent was
arraigned cannot be questioned. The critical question however is still,
whether by that amended charge, the prosecution of the respondent was
commenced within the period of the months following his retirement from the
Air Force. It is of course manifest that his prosecution was commenced
within the Lit period by virtue of the original charge. It is however argued
for him that the amended charge constituted a new trial when it commenced on
the 6th August, 1996. It is clear though from the Records, that after the
original charges were withdrawn, the charges were struck out. No further
orders were made. However, it is of interest to note that the appellant in
its concluding part of its brief submitted that by virtue of
ex.67 (seep. 510 of Vol.5
of the printed record) all the officers who were affected by this
prosecution were granted terminal leave from 30th April, 1996 to
31st May, 1996.
The copy of page 67 reads thus: -
“In lieu of
NAF
MSG form
From: HQ
NAF
Mojekwu
To:
Lists A, B, C, and D
AOP
Info:
PSO
to c-in-c
292240A
APR 96
DHQ
NAF/324/
MA-CAS
ADM/175
Text: Involuntary discharge offers PD further to HQ
NAF
rested SIG
ADM/143
DTG
291010 CM offers are granted terminal leave
WEF
30 APR 96 to 31 May 96 PD all unit are to note and effect NEC PUB/
Commanding Officer releasing OFFERS SIG
Reparations, benefits and service
Personnel Management Center
Nigerian Air Force
Rank AVM”
I have however sought in vain the reaction of the respondent to respondent's
brief. In the absence of anything contention of the appellant is that the
prosecution of the respondent was clearly within the 3 months period
provided by s. 169(2) of the Armed Forces Decree. It therefore follows that
the respondent was duly tried and convicted upon the amended charge. In any
event, it is also my view that the amended charge was properly before the
General Court Martial and I therefore resolve issue I against the
respondent.
Issue2
In respect of this issue, the question is whether the responsibility of
assisting the respondent's defence by calling a witness rested on the
prosecution or on the accused. It is clear horn the Printed Record that this
question was raised having regard to the view held by the court below on the
failure of the appellant to call the retired Chief of Air Staff AVM
femi John Femi as a witness for the prosecution
during the trial of the respondent. On this question, the Court of Appeal
had held, inter alia, that: -
"Without eliminating this story or showing it untrue, and the only
was to do this was to call the retired
C.A.S. to testify, I do not see how the
appellant could be found guilty of forger or stealing …..”
The court below upon the same premise that as the retired CAS AVM Femi John
Femi was not called by the prosecution to give evidence to deny that he had
authorised the respondent to withdraw the money from the bank, he cannot he
found guilty of making false negotiable instruments as laid under 1st - 4th
counts of the charge. On this issue, it is the contention of the appellant
that the court below had placed on the prosecution the burden of proving the
defence of the accused. It is therefore submitted for the appellant that the
position so taken is contrary to the rules of evidence. In support of that
contention, reference was made to the provisions of s. 135 (1): 141(1) and
s. 143 of the Evidence Act and also Nwaeze
v. The State
(1996) 2 NWLR (Pt. 428)1 at 15; and
Iziren v. The
State (1995) 9 NWLR
(Pt. 420) 385 at 387 and 390. It is therefore the
submission of the appellant that the appellant having called the witnesses
material to the proof of its case beyond reasonable doubt, it does not have
to call witnesses that the defence may consider necessary to make his case.
It is however the case of the respondent that as the appellant failed to
call the retired Chief of Air Staff to give evidence with regard to the
allegation made against him that he authorised the withdrawal of the sum of
N48 million from the OPS Harmony Account, the
view of the court below should be upheld.
According to the respondent, the prosecution had the burden of calling all
material witnesses and this was not done in the instant case. In support of
this contention, reference was made to the following cases; Alfred
Aigbadion v. The State (2000) 7
NWLR ( Pt. 666) 686
at 700; Onuoha & Ors. V.
Thee State (1989) 2
NWLR ( Pt.101)
23; Omogodo v. The
State (1981) 5 SC 5;
R.v.Dora Harris
(1927) 2 KBD 587 at 590; Michael Alake v. The State (1992)
9 NWLR (
Pt.265) 260 at 270;
Francise Odili v.
The State
(1977) 4 SC 1 and Mohammed v. The State (1991) 5
NWLR (
Pt.192) 438 at 456. in order to
resolve this question raised in this issue, it is clear that from the
arguments proffered, both parties recognised that the prosecution in a
criminal trial has the burden of proving its case beyond reasonable doubt.
This is a principle, which has also been recognised, in a long line of
cases. In
Ilori
v. The State (1980)
8-11 SC 81, this court set down the principle thus:
"The basic necessity before a verdict of guilt in a criminal charge can be
pronounced is that the jury are satisfied of the guilt of the accused beyond
all reasonable doubt. Proof beyond reasonable doubt as
Dennin, J (as he then was) stated inMiller
v. Minister of pensions (1947) 2 All ER 372, 373; does not mean proof beyond
the shadow of doubt. The law would fail to protect the community if it
admitted of fanciful possibilities to deflect the course of justice. If the
evidence is so strong against a man as to leave
only a remote possibility in his favour which can be dismissed with the
sentence "of course it is possible, but not in the least probable" the case
is proved beyond reasonable doubt but nothing short of that will suffice."
See also Ameh v. The State (1978) 6-7 SC 27
where it was stated inter alia, that "It is settled law that, in
a criminal case, the onus throughout the trial is on the prosecution to
prove its case beyond reasonable doubt..." In view of this settled
principle, it is left to the prosecution to call such witnesses as would
enable the proof of its case beyond reasonable doubt. It was however argued
that this was a case in which certain persons should have been called as
witnesses by the prosecution. One of such witnesses is the Retired Chief of
Air Staff, AVM Femi Femi John Femi, and who was
supposed to have authorised the issue and encashment of several cheques that
formed the basis of the offences of forgery and stealing for which the
respondent was charged. Another of such witnesses is
SQn. Leader P. Daniel, whose signature was forged on the cheques used
to withdraw the money stolen from the account of the appellant. It is
sufficient to say in this connection that the law imposes no obligation on
the prosecution to call a host of witnesses to prove its case. All that the
prosecution needs to do is to call enough material witnesses to prove its
case, and, and in so doing it has a discretion in the matter.
See Adaje v.
The State (1979) 6-9 SC 18 at p.28.
In this regard, it has been argued in the respondent’s brief that the above
mentioned witnesses if called by the prosecution would have helped to
exculpate the respondent in that their evidence would have revealed their
alleged roles in the commission of the offences for which the respondent was
found guilty by the General Court Martial. And in support of that
contention, reference was made to the case of Aigbadion
v. The State (supra). In that case, the
prosecution was rightly castigated for not investigating the case in such a
manner as to make available evidence that would assist the court in
determining the guilt of the accused. That case is distinguishable from the
instant case in that the thrust of the contention of the respondent is not
that the witnesses were not known or available but that the prosecution
should have called them as part of the case presented to the court.
In my view, if the evidence of a witness is very essential to the defence of
the accused, it is for the accused to call him. He should not expect the
prosecution to call the witness since the prosecution is not expected to
perform the function of the prosecution and that of the defence at the same
time. See
Asariyu
v. The
State (1987) 4 NWLR (Pt.67)
709 and Ogbodu v. The
State (1987) 2 NWLR (Pt.54)
20. I will therefore for
these reasons hold that this issue lacks merit. It is resolved against the
respondent.
Issue 3
"Whether or not the prosecution had established a case of forgery and
stealing against the respondent."
On this issue.
It is argued for the appellant that the court below full into error when it
concluded that the offences raised in the issue were not proved against the
respondent. In support of this contention, learned counsel for the appellant
argued that by virtue of s.112 of the Armed
Forces Decree, knowledge on the pail of the accused that the document was a
forged one sufficient to ground a conviction. The mere fact that the
respondent uttered the cheques knowing that Sqn.
Ldr. P. Daniel had not signed them was all that
was necessary to convict the respondent under counts 5-8 for the offence of
uttering of forged cheques. It is also submitted for the respondent
that the court below apparently misconstrued the provision of
S.465 of the Criminal Code in holding that the
person whose signature is endorsed on a document must exist to establish
that the document was forged. Hence it was further argued that if the court
below had properly considered the provision of s. 112 of the Armed Forces
Decree and s. 465 of the Criminal Code, the court below would have come to a
different conclusion. With regard to the offence of stealing the appellant
submitted in its brief that it was clearly established by the evidence
before the General Court Martial. For the respondent, his learned counsel
has argued in the respondent brief that the offences of forgery and stealing
were not proved against the respondent. In support of this submission, we
were referred to several cases including Eze
Ibeh v. The State (1997)1
NWLR ( Pt 484) 632
and Alake v. Thu State (1992)9 NWLR
(Pt. 265)260 at 270. He therefore urged that the issue be resolved in
favour of' the respondent. It seems to me that after a careful
reading of the record and the judgment or the Courts, the central question
is, whether facts proved that the respondent uttered forged cheques upon
which he was paid the sums which were stolen by him. Now in order determine
this question raised in this issue, it is
necessary to refer first to the charges upon which the respondent was
convicted. Upon reading of the charges.
it is clear that the respondent was charged
under. S. 112 of the Armed Forces Decree which roads:
"A person subjected service Law under this Decree who
(a)
Fraudulently utters, forges, procures,
alters. accepts or r present to another person any cheque, promissory note
or other negotiable instrument knowing it to be false, forged, stolen or
unlawfully procured; or
(b)
knowing and by means of a false representation or with intent to
defraud the Federal Government, the Government of any State or any Local
Government, causes the delivery or payment to himself or any other person of
any property or money by virtue of any forged or false cheque, promissory
note or other negotiable instrument whether in Nigeria or elsewhere or;
(c)
makes or utters any forged document, cheque promissory note or other
negotiate knowing it to be false or with intent that it may in any way be
used or acted upon as genuine, whether in Nigeria or elsewhere, to
the prejudice of any person or with intent that any person may, in
the belief that it is genuine, be induced to do refrain from doing any act
or thing, whether in Nigeria or elsewhere, is guilty of an
offence under this section and liable, by a Court Martial to imprisonment
for a term not exceeding twenty-one years.
After a careful perusal of the provisions of S.112
of the Armed Forces Decree, it is patent that its wordings and formulation
differ from the provisions of S.465 of the
Criminal Code. For that reason, the first duty of a court called upon to
determine the guilty of an accused charged with offences under the
provisions of the Armed Forces Decree is to do so within the meaning of the
said provisions. After reading critically the said provisions, it seems to
me that learned counsel for the appellant is right in the
submission made in the appellant's brief that by virtue of its provisions,
S. 112(a) thereof, knowledge on the part of the accused that the document
was forged one is enough to ground his conviction for forgery. With
regard to the charges for uttering, it is argued, that the fact that
he uttered the cheques to the endorser with which
N48 million was withdrawn, knowing that
Sqn. Ldr P. Daniel
had not signed them was all that was necessary for his convictions in
respect of the 5th to the 8th charge.
Now the facts disclose that there is evidence that the respondent
signed for himself and also signed as one Sqn.
Ldr. P.Daniel. This
evidence was given by P.W.9, a handwriting
analyst who compared the two signatures on the cheques before concluding
that they were both executed by the respondent. This witness at page
391 of volume 2 of the record of the General Court Martial unequivocally
that "my conclusion is that the encircle signatures on the 2
CBN cheques and the specimen signature card as
well as the handwriting on the 2 cheques were written and signed
by the maker of Annex B I -B-5" - the respondent. Now, it is
argued for the respondent that the General Court Martial wrongly placed
reliance on the evidence of this witness to convict the respondent.
Hence the Court of Appeal was right to have overturned the conviction
of the respondent for forgery and the uttering of forged
documents. In support of this argument, reference was made to Michael
Alake v. The Stare (1992) 9 NWLR (Pt.
265) 260 where at page 269, Kutigi
JSC, said thus: -
"Starting with the counts for forgery, I agree with Prof.
Kasunmu that there was no evidence on record
that any of the cheques exhibits F.G. & H was
forged by the appellant. In fact the evidence of Mr. Samuel
Akinyele Odubiyi who
testified as P.W.7 made it abundantly clear that
the signature of the appellant was neither on any of the cheques (exhibits
F, G & H) nor on any of the payment vouchers (exhibits E. J &
K ).
His Lordship then went on to say thus:
"It is implicit from the foregoing that there was no direct evidence that
the appellant forged any of the cheques. It is an essential ingredient to he
proved in a charge of forgery that the accused forged the document in
question."
In my respectful view the established facts in the instant appeal are
clearly different from those disclosed in the Alake case (supra).
In the appeal under consideration, there is the clear evidence that it
was the respondent who wrote the two signatures on the relevant cheques. He
admitted, though. that he wrote his own
signature, and it was established that he also forged the other signature
allegedly of one Sqn. Ldr.
P. Daniel. There is no doubt that even if it is now argued that he forgery
of this other name was not established, it is evident that the respondent
knew it was a forgery. His conduct in this regard cannot be explained away
on that ground. It was open to the respondent to call such evidence as would
have exculpated him from the evidence that he uttered the forged documents,
which he well knew to have been forged by him. l
must therefore hold that the court below was wrong to have overturned the
conviction of the respondent for the offences of forgery and uttering.
Having held that the respondent was the person who uttered the forged
cheques upon which he received the sums for which he was convicted for
stealing same, the theft of the said sums was proved beyond reasonable doubt
and the General Court Martial was right to have convicted him accordingly.
It follows that the decision of the court below setting aside the judgment
of the General Court Martial must also be set aside.
Issue 4
"Whether or not the evidence led by the prosecution in respect of the 14th
count had been sufficient to ground a conviction"
On this issue, the contention made for the appellant is basically that there
was sufficient evidence to convict the respondent for the offence charged in
the 14th count. That the court below was therefore wrong
to have set aside the said judgement of the General Court Martial. In
support reference was made to s 57 of the Armed Forces Decree, s 6 of the
Manual of Air Force Law, Chapter VI and paragraph 1369,Chapter
13 of Execution Regulation, the breach of which led to the trial and
conviction of the respondent on the 14th count. On the other
hand, it is argued and that very lucidly in the respondent’s brief, that the
court below was right to have set aside the conviction of the respondent on
this count. The premise for this contention is that an administrative
instruction cannot be judicially noticed. In support of this submission,
reference was made to
Gbaniyi
Osafile v Paul Odi
(1990) 3 N.W.L.R (pt137)
130 at Pp 159-166. It is also argued for the respondent that the mere
appearance of a person’s name if Form C07 which
is a document filed with the Corporate Affairs Commission, showing
particulars of Directors without more cant not be
conclusion that the person is participating in the management or running of
a business. For that contention, the case of Cecilia
Ihuoma Nwankwo v. Emmanuel
Chukwumobi Nwankwo
(1995) 5 NWLR (Pt.394)
153 was cited. Furthermore, it was also argued that as the knowledge of the
administrative instruction is in element of the offence, such knowledge
cannot be presumed, it has to be proved. Cites Cyril
Areh v. C.O.P
(1959) WRNLR 230 at 237.
For the better understanding of the rival contention of the parties
in respect of this issue.
it is desirable to set down the relevant law and
order deemed applicable. These are section 57 of the Armed Forces Decree and
Paragraph 6(a) of the Manual of Air Force Law. S. 57 of the Armed Forces
Decree, reads: -
"(1) A
person subject to service law under this Decree who contravenes or fails to
comply with a provision of an order to which this section applies, being a
provision known to him, or which he might reasonably be expected to know is
guilty of in offence under this section and liable to imprisonment for a
term not exceeding two years or any less punishment provided by the decree.
(2)
This section applies to standing order or other routine order of a
continuing nature made for any formation, unit or of troops for any area,
garrison or place, or for any ship, train or aircraft,"
Manual of air force law, chapter vi paragraph 6
(a) reads;
“court martial are specially authorized to take
notice of all matters within their general service knowledge. Evidence
therefore need not be given as to the relative rank of officers, as to the
general duties, obligations and authority of different members of the
service, or generally as to any matter which an officer as such might
reasonably be expected to know".
The Order alleged to have been disobeyed by the respondent is contained in
the executive regulation chapter 13, paragraph 1369, which reads:
"Except as authorised by HQ, NAF, an officer or
airman is not to.
(1)
Carry on any profession, engage in trade or accept any profitable
employment while still in the NAF service.
(2)
Be a member of the governing body of any corporation, company,
partnership, undertaking or individual which or who is carrying on any
trade, profession or is engaged in trade or is profitably employed"
There can be no doubt that the above provision enable
courts martial to take judicial notice of all matters within their general
service knowledge. Hence, evidence need not be given as to the relative
ranks of officers, as to the general duties, obligations and authority of
different members of the service, or generally as to any matter which an
officer as such might reasonably be expected to know. But the case in hand
has raised two questions can judicial notice be taken that an officer was
aware of the order for which the respondent was charged? If for present
purpose such knowledge could be presumed, the next question then is, whether
the court martial could properly without any evidence to the effect know
that an officer was carrying on any profession, etc while still in the
NAF service? I think not. It is my humble view
that in order to successfully establish that the respondent was engaged in
any other trade, profession or had accepted any profitable employment while
still in the NAF service, there must be credited
evidence other than what from C07 revealed that
affect. As no such evidence had been proved in respect of the 14th
count against the respondent, the appeal against the decision of the cunt
below must fail. It is therefore dismissed accordingly.
Issue5
"Whether the count appeal was right in setting aside the order requiring the
respondent to pay N137,750,000.00
as restitution"
It seems to me clear that the answer to that question is rooted in the
provisions of sub-sections (1)&(2) of section 174
of the Armed Force Decree, which reads:
(1)
The following provisions of the section shall have effect where a
person has been convicted by a count martial of
unlawfully obtaining a property, whether by stealing, receiving or retaining
it knowing or having reason to believe it to have been stolen, fraudulently
misapplied or otherwise.
(2)
If a property unlawfully obtained is found in the possession of the
offender, it may be ordered to be delivered or paid to the person appearing
to be owner of the property……….’
With the conclusion reached already in this judgment that the appeal has
succeeded in all the counts, apart from the 14th count, it must
follow that the order of restitution made against the respondent by the
General Court Martial must be upheld. It is therefore upheld accordingly and
the judgment of the court below is hereby set aside.
This appeal for all the reason succeeds in part. This is because the appeal
in respect of the 14th count – the fourth issue has failed while
it has succeeded in respect of the 1st, 2nd, 3rd
and 5th issues. The order of the restitution requiring the
respondent to pay the sum of
N137,750,000.00
is hereby affirmed.
Judgement delivered by
Idris
Legbo Kutigi.
JSC
I had a preview of the judgment just rendered by my learned brother,
Ejiwumi,
J.S.C.he has meticulously dealt with all issues
canvassed before us in the appeal. I agree with him to allow the appeal on
all counts of charge except the last count (14). The accused\ respondent is
discharged and acquitted of count (14) and the sentence of 2 years
imprisonment thereon is set aside. Convictions and sentence on all the
counts by the general court martial are hereby confirmed and restored. The
judgment of the court of appeal is accordingly to that extent set aside.
Judgement delivered by
Uthman
Mohammed. JSC
I have had a preview of the judgment of my learned brother
Ejiwumi, JSC and I
agree with him that the appeal has succeeded in all count 14. I set aside
the judgment of the court of appeal and affirm the decision of the General
Court Martial. I affirm the conviction, sentence and other orders made by
the General Court Martial against the respondent.
Judgement delivered by
Umaru
Atu Kalgo.
JSC
I have had the privilege of reading in draft the judgment of my learned
brother Ejiwumi, JSC
just delivered in this appeal. I entirely agree with his reasoning and
conclusions and have nothing useful to add. I am therefore in full agreement
with him that there is merit in the appeal in respect of the convictions and
sentences passed on the respondent by the General Court Martial on all the
counts the respondent was charged and tried except as to the 14th
count. Accordingly the judgment of the court of the of appeal delivered on
28th September, 2000 in respect of count 1-13 and the restitution
order, is hereby set aside. The convictions and sentences on the said 13
counts passed on the respondent and the restitution order made there under,
by the General Court Martial on 21st October, 1996 are hereby
restored.
Judgement delivered by
Niki
Tobi. JSC
I have read the judgment of my learned brother, Ejiwumi,
JSC and I entirely agree with him. I would like
to add this bit in respect of the issues of jurisdiction of the General
Court Martial (G.C.M) and the failure on the
part of the appellant to call the retired Chief of Air staff, AVM femi john
femi to testify before the AVM.
Learned counsel for the respondent, Mr.S.C.Obi
submitted that by section 131(2) of the Armed Force Decree No. 105 of 1993
as amended, the power to convene GCM cannot be
delegated. He argued that the GCM was
accordingly not properly convened and therefore had no jurisdiction to try
respondent. Counsel for the appellant, Miss O.M.Lewis,
took a different view.
She argued that by section 131(3) of the Decree the power to order a
GCM is one that can be delegated by a person in
whom that power resides.
Much as the arguments of learned counsel appear attractive they do not seem
to push away or push aside the clear statutory provision of section 131(3)
of the Decree. The subsection provides as follows:
"The senior officer of a detached unit, establishment or squadron may be
authorised by the appropriate authority to order a Court Martial in special
circumstances."
In my humble view, the above subsection empowers an appropriate superior
authority to authorise a senior officer to orders a Court Martial in special
circumstances . By section 128 (1) of the Decree,
an appropriate superior authority in relation to a person charged with an
offence includes: (a) a commanding officer, and (b) any officer of the rank
of Brigadier or above or officer of corresponding rank or those directed to
so act under whose command the person is for the lime
being. I am firmly of the view that the Chief of Air Staff qualifies as an
appropriate superior officer under the subsection.
The second issue I would like to take is in respect of calling of a
particular witness, AVM Femi John Femi. Learned counsel for the respondent
urged this court to invoke section 149(d) of the Evidence Act. The
subsection provides as follows:
"The court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural events,
human conduct and public and private business, in their relation to the
facts of the particular case, and in particular the court may presume that
evidence which could be and is not produced would, if produced, be
unfavourable to the person who withholds it."
Section 149(d) has been a subject of judicial interpretation, particularly
section 148(d), its equivalent provision in the abrogated Evidence Act, Cap.
62, Laws of the Federation of Nigeria and Lagos.
In Ogbodu v.
The State (1986) 5 NWLR (Pt.41)
294, the Court of Appeal held that section 148(d) of the Evidence Act, 1958
dealt with the withholding of evidence and not the failure to call a
particular witness to testify. The decision was confirmed by this court in
the same case on appeal. Karibi-Whyte,
JSC said at page 44 of the judgement in
Ogbodu v. The State (1987)2
NWLR (Pt.54) 20:
"I agree with the view of the Court of Appeal that section 148(d) of the
Evidence Act, Cap. 62 is not applicable to this
case. The subsection of section 148(d) of the Evidence Act is to presume
against the prosecution, of evidence withheld by them in that if such
evidence were produced it would have been unfavourable. Counsel to the
appellant is her not complaining about the withholding of evidence, but of
the fact that a particular witness was not called tom give evidence. The
subsection is concerned with the failure to call evidence, and not the
failure to call particular witness- Francis Odili
v. The State (1977) 4
sc 1 AT P.8. The presumption
only applies where the prosecution has withheld evidence. See
Tewgbede
v. Akande (1968) NMLR
404, 408. In this case defence was free to call
Sylvanus Egbede if they chose to do so.
In such circumstances section 148(d) has no application. There was no
withholding of evidence."
See also Asariyu v.
The State (1987) 4
NWLR (Pt.67) 709.
In Oguonzee v.
The State
(1998) 5 NWLR (Pt.551)
521, Iguh, JSC said
at page 553:
"The first point that needs be emphasised is that the presumption under
section 149(d) of the Evidence Act will only apply against whom it is sought
that it should operate where that party has in fact withheld the particular
piece of evidence in issued and if he did not call any evidence on the
point. It only applies when the arty does not call any evidence on issued in
controversy and not because he fails to call a particular witness..
The section deals with the failure to call evidence and
not the failure to call a particular witness as a party is not bound to call
a particular witness if he thinks he can prove his case otherwise…
Mere failure to produce the evidence in issued would not necessarily amount
to withholding such evidence”.
As it is, section 419(d) clearly provides for evidence, not witness. The
rational behind the provision is to ensure that
the prosecution has the liberty and right to pick witness and not be foisted
with any particular witness. The legal duty of the prosecution is it
prove the offence charged beyond reasonable doubt
and as long as that burden is discharged, it does not matter whether a
particular w3itness was not called to give
evidence.
In Ogbodu v.
The State ( supra), Karibi-Whyte,
JSC rightly said that the defence was free to
call Sylvanus Egbede
if they chose to do so. In the same way, I say that the respondent was free
to call AVM Femi John Femi if he felt that his evidence would exonerate or
exculpate him from criminal responsibility. He did not do that and he now
complains, hiding under section 149(d) of the Evidence Act. This court
cannot hear him. The issued therefore fails.
In sum, this appeal succeeds in part. It succeeds in respect of Issues 1, 2,
3, and 5. If fails in respect of Issue No 4.
The order of restitution made against the respondent by the General Court
Martial is upheld. The respondent shall therefore pay the sum of
N137,750,000.000
as directed by the General Court Martial. The order of the Court of Appeal
is accordingly set aside.
Counsel