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In The Supreme Court of
On
Friday, the 21st
day of September 2007
Before Their Lordships
S.C.
139/2006
Between
And
Judgment of Court
Delivered by
George
Adesola Oguntade.
J.S.C.
The respondent, Lt. Commander
S. A. Ibe-Lambert was an officer in the Nigerian
Navy. She was arraigned before a General Court Martial (hereinafter referred
to as 'the trial tribunal) on 09-07-97 on a five count charge. At the
conclusion of trial, she was discharged and acquitted on four of the five
counts but found guilty on the 3rd count which reads:
"Disobedience to correct
standing orders contrary to Section
57(1) of the Armed Forces Decree No 103 of 1993 as amended."
Dissatisfied with her
conviction, she appealed before the Court of Appeal,
"1.
Was the Court of Appeal right to find that there was no credible
evidence upon which the conviction was based.
2.
Whether the court below was right in law in holding that exhibit 4
tendered by the appellants is a public document that needs to be certified."
The respondent formulated two
alternative issues. The said issues would appear ex facie to be
similar to the appellants' issues. A close scrutiny of
them however appears to project the standpoint of the respondent on the
issues whilst at the same time encompassing the appellant's issues. I
shall be guided in this judgment by the respondent's issues which read:
"(1)
Whether Exhibit 1, that is to say, the extra-judicial statement made
by the respondent is a confessional statement; and if not so, whether the
Court of Appeal was not correct in law to hold that in the absence of any
credible evidence, count 3 as charged was not proved against the respondent.
(2)
Whether the statement by the Court of Appeal that Exhibit 4 among
others tendered by the appellants is a public document that needed
certification weighed in the mind of the court and/or affected its
judgment."
Now,
Section 57(1) and (2) of the Armed
Forces Decree No. 105 of 1993 as amended under which the respondent was
charged provides:
"(1)
A person subject to service law under this Act 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 an offence under this section and liable, on conviction
for a term not exceeding two years or any less punishment provided by this
Act.
(2)
This section applies to standing orders and other routine orders of a
continuing nature made for any formation, unit or body of troops or for any
area, garrison or place or for any ship, train or aircraft."
The standing order which the
respondent was alleged to have contravened or failed to comply with was
tendered in evidence before the trial tribunal as exhibit 4. The said
exhibit reads:
"Standing
Order No.
NHQ/015/93/Ph/Vol.l/44 'VISIT TO FOREIGN MISSION Reference
A.
DHQ/401/13/ADM/dated 03 July, 95
1.
Ref. I observed that military officer usually pay unauthorized visit
to Foreign Missions. This is unethical and embarrassing.
2.
I am therefore directed to state that henceforth
contact with Embassies/High Commission by NN Personnel are to be made
through NHQ for necessary action.
3.
Please disseminate (emphasis added)
Signed
I. Ogohi
CDRE
(For Chief of Naval Staff)"
When exhibit 4 above is
related to Section 57(1) of Decree No. 105 of 1993 as amended which is
reproduced above, it is seen that the naval authorities by Exhibit 4 were
trying to prevent military personnel from paying unauthorized visits to
Foreign Missions. It was to criminalize such visits or practice that the
standing order which was tendered in evidence as exhibit 4 was made. At the
respondent's trial, no person who had seen the respondent pay a visit to any
foreign mission was called as a witness. The only evidence available was the
respondent's statement in the course of investigation which the appellants'
relied upon as confessional. The said statement Exhibit 1 reads:
"Sometime in August, 1996
about the 22nd of August, I travelled with my son
Tobi to
I made arrangement to travel
through my husband who was able to develop a passport for me in his name. He
was able to secure a visa for us, through his business partners in VI. We
left for
The children and
myself stayed for one week at the
Chinoy's Hotel and were visiting Euro Disney
everyday till we came back through
I travelled under the name of
Mrs. Arinola Adunni
Motaku which is a family name of
Gbenga.
I did travel with the children
on holidays and will provide to the NN the copies of the ticket and package
of the tours."
In convicting the respondent
on the basis of the above statement, the trial tribunal observed:
"8.
The prosecution was to prove the
following:
a.
That the accused was Staff Officer II (Accts).
b.
That the accused made contact with the Embassy.
c.
That it is an offence to do so.
d.
That she knew or reasonably expected to know that it is an offence to
have contact with the foreign embassies.
e.
That the accused made contact without NHQ approval.
9.
It was established that the accused received a letter from the French
Embassy which she tore. She later received Exhibit 6, another letter from
the French Embassy which she turned into the DNI during interrogations.
Exhibit 6 is equivocal evidence of response to an earlier supposed Request.
This incontrovertibly establishes contact between the Embassy and the
accused.
FINDINGS
10.
The accused is thus found guilty on count three."
The court below on the other
hand was of the view that the evidence available against the respondent did
not establish her guilt. It said:
"The crucial evidence to
sustain Appellant's conviction under the 3rd head of charge are
Ex. 2, the petition against the Appellant, Ex.6 a letter purportedly
addressed to the Appellant from the French Embassy and authored by one
Gerard Bvivieneu, the Minister Counsellor. These
exhibits cannot by themselves establish any fact beyond their being made. If
the intention of the prosecution in tendering the two through PW1 and PW2
was to establish the truth contained in the two documents, they have failed
and woefully too. See Awuse
Odili (2005) 1.6 NWLR [Pt.952] 416 at 509
and UBN Plc. v. Ishola (2001) 15 NWLR [Pt.
735] 47. In effect, the two documents cannot establish the fact of
contact with the French Embassy by the Appellant which Ex.4, the standing
order, prohibited the Appellant to make.
Respondent's argument also it
was that Ex.1, the Appellant's confessional
statement could sustain the conviction. What was it that appellant confessed
to in Ex.1? Appellant stated in Ex.1 that she travelled to
The important question to
answer is whether the court below was wrong to have come to the conclusion
that the guilt of the respondent was not established. It would seem that the
trial tribunal accepted the respondent's statement Exhibit 1 as an admission
of the requisite ingredients of the offence brought against her. The court
below thought that the respondent did not make any admission in the said
statement.
Appellants' counsel in his
brief has argued that an accused may be convicted on her confession alone
provided the said confession is voluntary.
Okeke v.
State [2003] 15 NWLR (Part 842) 112.
It was further argued that the contents of exhibit 1 showed that
the respondent had made a contact with a Foreign Mission, an act which
exhibit 4 prohibited. He relies on Kitchen v.
Respondent's counsel submitted
that the respondent in her statement had not admitted the essential
ingredients of the offence brought against her. He relied on Daniels v.
State [1991] 8 NWLR (Pt.212) 715 at 730 and
Akpan v. State [1992] 6 NWLR (Pt.248) 439 at 467.
I stated earlier in this
judgment that the clear intendment of Exhibit 4 was to prohibit personal
visits by military personnel to foreign missions. It is such visits that
Exhibit 4 expressed to be "unethical and embarrassing." The respondent did
not admit in Exhibit 1 that she made personal visits to any foreign mission.
She said:
"I made arrangement to travel
through my husband who was able to develop a passport for me in his name. He
was able to secure a visa for us through his business partners in VI."
The respondent did not even
admit that her husband visited any foreign mission much less herself. In
order to amount to a confession, the statement of an accused must be direct,
positive and not equivocal. See Raimi
Afolabi v. Commissioner of Police [1961] AH NLR
654. Nor can a statement amounting to only an implication in a crime be
regarded as a confession. See R v. Phillip Jonah & Ors.
[1934] 2 W.A.C.A. 120
and R. v. Akpan Udo
Essien [1939] 5 W.A.C.A.
In the instant case, an
essential element in the case against the respondent was that she personally
visited foreign missions. The statement by her that her husband obtained the
visas with which she travelled could not be relied upon by the appellants as
evidence that she had herself visited any foreign mission: See
Edet Obosi
v. State [1965] N.M.L.R. 119.
The court below was therefore
correct in its view that the offence against the respondent was not
established.
With respect to appellants'
issue No 2, it is my view that as the Court of Appeal did not decide
against the appellants on the admissibility of Exhibit 4, it could not be an
issue for decision in this appeal as to whether or not the said exhibit was
properly rejected in evidence. At page 451 of the record of proceedings, the
court below said:
"It is not the law that the
Exhibits admitted which Appellant is now complaining of are inadmissible in
any and all circumstances. No. The exhibits are relevant and therefore
admissible, but needed to satisfy certain condition, certification, before
they are admitted. In this situation unlike where the exhibits are
completely inadmissible, the Court of Appeal is not in the position to
entertain Appellant's complaints by ensuring that the exhibits are not acted
upon. Appellant is right however to question the value which the lower Court
attached to the exhibits having been tendered and admitted through witnesses
who could not have been helpful under cross examination. See
Owonin v.
Omotosho (1961) 1 All NLR 304 at 308; Chukwurah
Ekunne v. Mathias Ekwunno
& Ors. 14 WACA 59 and Yassin v.
Barclays Bank DCO (1968) 1 A11 NLR 171 at 179"
What the court below concluded
in the above passage was not that Exhibits 1, 2, 4,5,6,7 and 8 were
inadmissible but that they could not be relied upon to sustain the
conclusion which the trial tribunal arrived at. That being the position,
appellants' issue 2 does not arise in this appeal.
In the final conclusion, I
would dismiss this appeal as unmeritorious.
Judgment delivered by
Aloysius
Iyorgyer Katsina-Alu.
J.S.C.
I have had the advantage of
reading in draft the judgment delivered by my learned brother
Oguntade, J.S.C. in this appeal. I agree with it
and, for the reasons given by him I also dismiss the appeal as lacking in
merit.
Judgment delivered by
Mahmud Mohammed.
J.S.C.
This appeal is from the
judgment of the Court of Appeal (Lagos Division) delivered on 6th
December, 2006 allowing the Respondent's appeal against her conviction and
sentence by the General Court Martial for the offence of Disobedience to
correct standing orders contrary to action 57(1) of the Armed Forces Decree
No. 105 of 1993 as amended. In that judgment, the Court of Appeal set aside
the conviction and sentence of the Respondent and discharged and acquitted
her.
The two issues raised from the
grounds of appeal filed by the Appellants in their brief of argument are –
"1.
Was the Court of Appeal right to find that there was no credible
evidence upon which the conviction was based.
2.
Whether the Court below was right in law in holding that exhibit 4,
tendered by the Appellants, is a public document that needs to be
certified."
It was submitted for the
Appellants that the Court below was in error in setting aside the conviction
of the Respondent which was fully supported by evidence, particularly the
confessional statement of the Respondent. Although indeed there is evidence
that the Respondent travelled to
Although the learned counsel
to the Appellant in the Appellants' brief of argument has described the
statement of the Respondent given in the course of the investigation of the
offences against her as 'confessional statement', was that statement really
a confessional statement under the law? Section 27(1) and (2) can answer the
question. The Section reads –
"27(1)
Confession is an admission
made at any time by a person charged with a crime stating or suggesting the
inference that he committed the crime.
(2)
Confessions, if voluntary are deemed to be relevant facts as against
the persons who make them only."
The law is well settled that
the guilt of an accused person may be proved by a confessional statement,
circumstantial evidence or direct evidence from eye witnesses to the
commission of the offence. See
Emeka
v. State (2001) 14 N.W.L.R.
(PT. 734) 666 at 683
and
Lori & Anor. v. State
(1980)
8-11 S.C. 81.
What calls for determination in this appeal under the first issue for
determination is whether the statement of the Respondent relied upon by the
trial General Court Martial in convicting her on the third count was really
an admission by her stating or suggesting even by inference that she
committed the offence with which she was charged. The answer is clearly in
the negative as rightly analysed and found by the Court below in its
judgment.
With the foregoing comments
and the full reasons given by my learned brother
Oguntade, J.S.C. in his leading judgment just delivered dismissing
this appeal, I also dismiss the appeal.
Judgment delivered by
Francis
Fedode Tabai. J.S.C.
The respondent was, at the
time of her trial at a General Court-Martial in 1997, a Lieutenant Commander
in the Nigerian Navy. She was tried in a five count charge. At the end of
the trial, she was discharged and acquitted in counts 1, 2, 4 and 5 but was
found guilty, and convicted in count 3. The decision of the General Court
Martial was on the 12/7/1997.
It was alleged in the said
count 3 that, between August 1996 and March 1997 she, as Staff Officer II
(Accounts) at Fleet Maintenance Corps, 23 Marina Lagos made contact with
Embassy/High Commission without going through Naval Headquarters Lagos
contrary to the provision of NHQ 015/85/93/PL/VOL.1/44 which were known to
her or she was reasonably expected to know.
Dissatisfied, she appealed to
the court below against her conviction and sentence in the said third count.
By its judgment on the 6th of December 2005, the appeal was
allowed and a verdict of discharge and acquittal also entered for her in the
3rd count.
Aggrieved by the said decision
the Appellants have come on appeal to this Court. The issues and arguments
of the parties are comprehensibly set out in the lead judgment of my learned
brother Oguntade, J.S.C. and I need not repeat
them.
This appeal turns mainly on
the interpretation of section 57 of
the Armed Forces Decree No. 105 of 1993 and Exhibit 4, the standing
Order No. NHQ/015/93/PL/Vol.I/44 made pursuant thereto. Section 57(1) of the
Armed Forces Decree No. 105 of 1993 as amended provides as follows:
"A person subject to service law under this Act who contravenes of 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 an offence under this section and liable on conviction by a
court-martial, to imprisonment for a term not exceeding two years or any
less punishment provided by this Act."
(2)
"This section applies to
standing orders or other routine orders of continuing nature made for any
formation, unit or body of troops or for any area, garrison or place or for
any ship train or aircraft."
And
the standing
order (Exhibit
4) which
she was
alleged to have
contravened states thus:
"STANDING ORDER NO.NHQ/015/93/PL/VOL.1/44 VISIT TO FOREIGN MISSION
Reference
A.
DHQ/401/13/ADM/dated 03 July '95
1.
Ref. A observed that Military Officers
usually pay unauthorised visit to foreign mission.
This is unethical and embarrassing.
2.
I am therefore directed to state that henceforth
contact with Embassies/High Commission by
N.N. Personnel are
to be made through NHQ for necessary action.
3.
Please disseminate.
Signed
I. Ogohi
Cdre
(For Chief of the Naval Staff) "
Learned counsel for the
Appellants Mr. Chiesonu I.
Okpoko referred to Exhibit 1 the statement of the Respondent and the
provisions of the Standing Order No. NHQ/015/93/PL/Vol.l/44 (Exhibit 4) and
submitted that the Statement constitutes the Respondent's admission of
contact with foreign Embassies/High Commissions by Nigerian Navy personnel
within the provisions of Exhibit 4. He relied on the English cases of
Kitchen v. Douglas 85 LJ KB P.462,
Smith v. Hughes (1960) 1 All E.R.
P.830 at p.832. He also relied on
Chia
v. State (1996) 6 NWLR (Part 455) at 465. It was his submission
therefore that there was evidence strong enough to sustain the conviction.
Learned counsel for the Respondent, Akin Kejawa,
submitted, amongst others, that criminal statutes are to be strictly
interpreted and that where a criminal statute is capable of two
interpretations, the one favourable to the accused is to be preferred. It
was his argument that to constitute a breach of the Standing Order, Exhibit
4, there must be personal contact with the foreign Embassy or High
Commission.
The Court below reasoned that
the crucial evidence, Exhibits 1, 2 and Exhibit 6 did not establish the
accused person's contact with the French Embassy prohibited by the Standing
Order, Exhibit 4, and that to warrant her conviction there must be proof of
her personal contact with the French Embassy. I am persuaded by this
reasoning of the Court below. The Standing Order, Exhibit '4' is headed
"visit to foreign mission". And it is "visits to foreign missions" that are
stated in (1) to be unethical and embarrassing. In (2) however it is contact
with Embassies/High Commission by NN Personnel that is prohibited. It is
contact
simpliciter. While the heading and paragraph (1) speak of visit
and personal contact with foreign Embassies and Missions, paragraphs (2)
simply speak of contact.
It is settled law that Penal
Statutes are to be construed strictly to the benefit of the accused person
and that where there is a reasonable construction that avoids the penalty in
any particular case, the Court must adopt that
construction. And if there are two possible constructions the court must
adopt the more lenient one. See
Ananaba
Ohuka & Ors v.
The State (1988) 1 NWLR (Part 72) 539 at 556; Tucks &
Sons v. Priester (1887) 19 B.B.D. 629. In
Attorney-General of
"If there is a reasonable interpretation which will avoid the penalty in any
particular case we must adopt that construction. If there are two reasonable
constructions we must give the more lenient one."
See also
Attorney-General Cross River State
and Anor v. Esin
(1991) 6 NWLR (Part 197) 365.
Similarly in the
interpretation of statutes which restrict the citizen's rights, any doubt,
gap duplicity or ambiguity as to the meaning of words used in the enactment
should be resolved in favour of the person who would be liable to the
penalty or a deprivation of his right. See
Nwosu
v Imo State Environmental Sanitation Authority & Ors (1990) 2 NWLR (Part
135) 688 at 723; London And
Country Commenercial Investment Properties Ltd
v. Attorney-General (1953) 1 ALL E.R. 436 at 441 - 442;
Peenok
Investment Ltd v. Hotel Presidential Ltd (1982) 12 SC 1 at 25.
In the instant case there is
no doubt that section 57 of the Armed Forces Decree No. 105 of 1993 with the
Standing Order (Exh.4) made thereunder
constitutes a Penal Enactment. It is also an enactment which restricts
rights otherwise open to the Accused/Respondent. In the light of authorities
which I have examined above, the court must, of necessity adopt a strict
interpretation beneficial to the Accused/Respondent. The head note of the
Standing Order (Exhibit 4) which reads. "Visit to foreign mission" read
together with paragraph (1) which speaks of "unauthorised visits to foreign
missions" show clearly that what is sought to be prohibited is the officer's
personal visit or contact with foreign embassies/missions and the provision
must be strictly so construed. It is my view therefore that to sustain the
Accused/Respondent's conviction under the third head of charge, the
prosecution had a duty to strictly establish her personal visit or contact
with the French Embassy. Mere proof of her contact with the French Embassy
either through her husband or a third party would not suffice.
Even if the Standing Order
admits of two possible interpretations and thus leaves a doubt as to its
correct interpretation the court has to adopt a construction with a leaning
in favour of the Accused/Respondent.
In view of the foregoing
considerations, I have no reason to fault the reasoning and conclusion of
the court below. And for the foregoing and the fuller
reasons contained in the leading judgment of my learned brother
Oguntade, J.S.C. I also dismiss the
appeal for lack of merit.
Judgment delivered by
Christopher
Mitchel Chukwuma-Eneh.
J.S.C.
I have had the privilege of
reading before now the judgment prepared by my learned brother
Oguntade, J.S.C. and I agree with him that there
is no merit whatsoever in this appeal. I adopt his reasoning and conclusion
as mine. I also dismiss the appeal and abide by the orders contained in the
lead judgment.
Counsel
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