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In The Supreme Court of
On Friday, the 7th day of March
2008
Before Their Lordships
S.C. 204/2004
Between
And
Judgement of the Court
Delivered by
Niki
Tobi, JSC
This appeal involves the
beastly, barbaric and bizarre offence of sodomy. A more common place name is
homosexual or homosexuality. It is against the appellant, former Major Bello
Magaji. He wore Staff No.
N/6604 in the Army.
The victims are Emmanuel
Enega (PW1), Joseph
Unigbe (PW2),
Mohammed Abubakar and Isaac John. Emmanuel
Enega was 17 when he gave evidence before the
General Court Martial. He was a student of the
The common evidence of
Emmanuel and Joseph is that they were asked to drink a bottle each of small
stout which intoxicated them; it was in their state of intoxication that the
appellant performed the dirty act of sodomy on Emmanuel, and others.
Perhaps it is better to hear
from the mouths of Emmanuel and Joseph to appreciate the ordeal or pain they
went through. Emmanuel as PW1, said in his evidence in-chief at pages 23 and
24 of the Record, and I will quote the evidence in very large parts:
"When I went inside, I saw
Joseph with Oga Magaji.
Then Oga asked me my name, and then I told him
my Joseph (sic) said yes so he asked Joseph if he knew me and Joseph said
yes so he said I should go inside and sit down. Then when we went inside, I
saw Mohammed and he said it has been long he was inside, he overslept. Then
I asked Joseph the time they came there. Joseph said it has been long, that
Mohammed took a bottle of Gulder that's why he
went asleep. By then, Sam came in, brought a bottle of small stout and gave
me to drink, but I said I didn't want to drink because I was not used to it,
but he said if I don't drink it I wouldn't work for Oga,
he will not accept me. Then he opened the small stout for me. I took a
little out of it and it was bitter, I couldn't take it, so I gave it to
Joseph Unigbe who took the rest. After 5 minutes
my eyes were turning me Joseph said me and Mohammed should go inside the
bedroom to take a bath so that our eyes will stop turning us we accepted
took our bath and when we wanted to put our cloths on, Joseph brought out
one Army singlet, shirt and nicker, and a night
gown and he said we should put them on we asked him why. He said we could
not go home that patrol will hold us, that we had to sleep till the
following day so we accepted and put them on. Then he showed us the guest
room that we should go inside that that is where we were going to sleep. All
of us went inside the guest room, suddenly, Joseph went outside saying he
was going to collect something from the sitting room. When he went out, just
immediately he went out then Maj. Magaji came
inside the room. When he came inside, because I and Mohammed were sleeping
on the bed he sat on the bed and asked us what we were discussing, we said
nothing. It was then he removed his singlet and removed Mohammed's own and
started romancing Mohammed's body and used my hand and put it on his
tommy and said that I should be romancing his
tommy, After that he off his
nicker and off Mohammed's
nicker and he sexed Mohammed through the anus. Then Mohammed shouted
that this wasn't what Joseph told him that he was coming to do there. Then
Oga stood up and Mohammed went out. Before
Mohammed went out, he told Mohammed to bring a white container. When
Mohammed brought the container the container was filled with cream, so he
used the cream to rob our pains; I and Mohammed and then Mohammed went out
then Oga wanted to use me too. He turned me
upside down and used his penis and put it into my anus then, I shouted that
I can't take it that is not what Joseph told me too then he said I should go
out."
Joseph, in his evidence
in-chief, said at page 28 of the Record:
"There was a day, it was on a
Friday evening, I was standing in my area, then Oscar called me and said
that I should go and take bathe that he will take me to somewhere. I thought
that it was joking matter because I use to fear that boy before, but I took
my bathe. After taking my bathe, he gave me transport fare to go to camp 1,
at the offrs' mess. He said he was coming to
meet me there. He told me that he, was taking me
there to go and do a contract of ridges not knowing that he was taking me
there to go and do another thing when we enter Maj.
Magaji's house, they gave me small stout to drink. I said no that I
have not tried it before. They said I should try it that it is only a bottle
of small stout. When I drank it, it was bitter so I told them I can't finish
it but they urged me to finish it. After finished
drinking my eyes started turning me. Then the
offr told me to go into his bedroom and lie down so that my eyes will
steady. I went inside and lay on the bed. In the night the
offr came into the room and started romancing my
body so I was thinking within me, ah, this man is a senior
offr, how can he be doing a thing like this but
I was afraid to speak out so he told me to lie down on the floor and turn my
back, then I refused I told him I can't do that, so he brought a container
of cream and said I should be robbing the cream on his penis. After
sometime, I told him I had to be going because it was getting late in the
night. He said I shouldn't worry that I should go and bath. After my bath he
gave me
The following evidence came
out under cross-examination of Joseph at page 29 of the Record:
"Ques:
Wait, you said you were sleeping and Mohammed came and woke you up
that he has finished the job?
Ans:
Yes sir.
Ques:
What job did he tell you that he has finished?
Ans:
He said that the man has already sexed them.
Ques:
What do you mean by sex them?
What did he say?
Ans:
He said the man give him a cream to rub on his penis and put
his penis in his anus to sex him
Ques:
What do you mean sex him?
Ans:
He put a cream in his penis and put in his anus.
Ques:
And did what?
Ans:
And sleep with him
Ques:
What do you mean sleep with him?
Ans:
Sex him."
The General Court Martial
convicted the appellant and sentenced him to seven years. His appeal to the
Court of Appeal was dismissed. He has come to the Supreme Court. Briefs were
filed and exchanged. Appellant formulated five issues for determination:
"1.
Whether the Court Martial convened by Brigadier-General P. N. Aziza
was competent, having regards to the fact that there was no prior
investigation of the charge against the Appellant in the manner prescribed
by law and that the Appellant was not under his command (Grounds 1&2).
2.
Whether the lower court was right when it held that the prosecution
witnesses testified on oath (Grounds
3&4).
3.
Whether the lower court was right when (upheld the conviction of the
Appellant for the offence of sodomy as created under Section 81(1) (a) of
the Decree (Grounds 5, 6 &7).
4.
Whether the lower court was right when it upheld the admissibility of
the purported statement of the Appellant which was alleged to have been
obtained under Duress and was tendered from the bar. (Grounds 8
&. 9).
5.
Whether having regard to the Records of Proceedings of the Court
Martial the lower court was right when it came to the conclusion that the
Appellant was given a fair hearing (Grounds 10, 11 & 12.) ''
The respondent adopted the
above five issues.
Learned counsel for the
appellant, Mr. Robert Clarke, Senior Advocate of
He submitted on Issue No.
2 that the Court of Appeal was wrong in holding that the prosecution
witnesses testified on oath. He contended that the reproduction of Form
D2 without more is no proof that the prosecution
witnesses were duly sworn, as the Form was not completed with relevant
information and particulars as to the names of the witnesses, and whether
they were sworn on the Holy Bible or the Holy Quoran.
He submitted that the findings of the Court of Appeal are perverse. He cited
section 138(2) and (5) of the
Decree and
Agusiobo
v. Onvekwelu (supra);
Kallamu v. Gurin (supra);
Eimskip Ltd, v. Exquisite Ind. Ltd, (supra);
Ojong v. Duke (2002) 14 NWLR (Pt. 841) 581 and
Owoyemiv.
Adekoya (2003) 18
NWLR (Pt. 852) 307.
On Issue No. 3, learned
Senior Advocate submitted that the Court of Appeal was not right in
upholding the conviction of the appellant, for the offence of sodomy. He
contended that the offence was not proved by the prosecution. Pointing out
that Mohammed Abubakar and Isaac
Jonah, did not testify at the trial, learned
Senior Advocate argued that the charge ought to have failed in the General
Court Martial. He cited The Criminal
Law and Procedure of the Six Southern States of
On Issue No. 4, learned
Senior Advocate submitted that the Court of Appeal was wrong in upholding
the decision of the General Court Martial admitting the pre-trial statement
of the appellant, Exhibit 1.
He urged the court not to attach any evidential weight to the
exhibit. He cited sections 192 and 193 of the Evidence Act and the following
cases: Famakinwa
v. Unibadan (1992) 7 NWLR
(Pt. 255) 608;
Anatogu
v. Iweka (1995) 8 NWLR
(Pt. 415) 547;
Iyanda
v. Laniba (2003) 8 NWLR
(Pt. 810) 267;
Edoha
v. Attorney-General, Akwa
Ibom Slate (1996) 1 NWLR (Pt. 425) 488);
Ajayi
v. Fisher (1956) 1 NSCC 82 and
Trade Bank Pic v. Charmi
(2003) 13 NWLR (Pt. 836) 158.
Learned Senior Advocate
submitted on Issue No. 5 that the Court of Appeal was wrong in
holding that the appellant was given a fair hearing by the Court Martial.
Citing Garba
v. University of Maiduguri (1986)
1 NSCC Vol 17 page
245; Mohammed Kano NA (1968) 1 All NLR 424;
Kotoye v. CBN
(1989) 1 NWLR (Pt. 98) 419;
Unibiz
(Nig) Ltd, v. CBC I. Ltd. (2003) 6 NWLR (Pt. 816) 402;
Agoju
v. Adiche (2003) 2 NWLR
(Pt. 805) 509, counsel submitted that the appellant's right to fair
hearing was breached on the following grounds:
(i)
that the General Court Martial descended into the arena by virtually
taking over the case of the prosecution and thereby interfered with the
course of the proceedings;
(ii)
that the General Court Martial in allowing the prosecution to tender
Exhibit 1 from the Bar denied the appellant the right of cross-examination;
(iii)
that the confirmation of the verdict of
the General Court Martial only four days thereafter by the confirming
officer foreclosed the appellant's right to petition against the said
verdict within the three months period allowed under section 149(1) of the
Decree.
He urged the court to allow
the appeal.
Learned counsel for the
respondent, Mallam Jimoh
Adamu, Assistant Chief Legal Officer, Federal
Ministry of Justice,
Taking Issue No 2,
learned counsel submitted that the witnesses for the prosecution were all
put on oath before they testified in accordance with the Rules of Procedure,
1972. Citing the case of
Odu’a
investment Co. Ltd, v. Talabi (1997) 10
NWLR (Pt. 523) 1, learned counsel submitted
that courts should not follow technicalities but do justice.
On Issue No. 3, learned
counsel called in aid the evidence of PW1, PW2 and PW3 and submitted that
the prosecution proved penetration. He also cited Oxford Advanced Learners
Dictionary for the definition of penetration. He distinguished the case of
Taking Issue No. 4,
learned counsel submitted that the Court of Appeal was correct in upholding
the submission of the respondent on Exhibit 1. Assuming, without
conceding that Exhibit 1 was wrongly admitted, counsel contended that
the error by itself cannot ground a reversal of the entire case. He cited
Abadom
v. State (1997) 1 NWLR 1, Even if Exhibit 1 is not acted upon,
the appellant did not present any cogent evidence in defence, learned
counsel argued.
On Issue No. 5, learned
counsel submitted that the appellant was given fair hearing. He contended
that the questions asked by the court were merely aimed at clearing
ambiguities which arose in the course of examination in-chief He did not see
the application of the case of
Amachree
v. Nigerian Army (2003) 3 NWLR (Pt. 807) 255 cited by counsel for the
appellant. He also relied on Rule
56(1) of the Rules of Procedure
(Army) 1972. He pointed out that the answers bear no relevance to the
case of the prosecution. Counsel argued that the rule of fair hearing is not
a technical one which can only be raised where there is genuine and
deliberate contravention or denial of the Constitution. He cited
Onigbo
v. Una (2002) Vol. 12 MJSC 14 He urged the
court to dismiss the appeal.
Let me take the first issue on
the alleged failure of the prosecution to investigate the charge against the
appellant. Sections 123 and 124 of the Decree are relevant. They provide:
"123.
Before an allegation against a person subject to service law under
this Decree (in this section referred to as the 'accused') that he has
committed an offence under a provision of this Decree is further proceeded
with, the allegation shall be reported, in the form of a charge, to the
commanding officer of the accused and the commanding officer shall
investigate the charge in the prescribed manner.
124
(1)
After investigation, a charge against an officer below the rank of
Lieutenant-Colonel or its equivalent or against a warrant or petty officer
may, if an authority has power under the provisions of this Part and Part
XIII of this Decree to deal with it summarily, be so dealt with by that
authority (in this Decree referred to as 'the appropriate superior
authority’) in accordance with those provisions."
Section 123 provides for an
investigation of an offence against a person subject to service law. Section
124(1) provides for dealing with the offence summarily in appropriate cases
after investigation. This applies in respect of offences against an officer
below the rank of Lieutenant-Colonel or its equivalent or
a warrant or petty officer.
In an apparent reaction to the
submission of learned Senior Advocate for the appellant, the Court of Appeal
said at pages 406 and 407 of the Record:
"However, it would appear on a
cursory look at the Record of Proceedings, that the prosecution indeed
tendered a detailed report of investigation which the court admitted and
marked Exhibit 1. The
Appellant's case was duly investigated by the General Court Martial."
I find it difficult to
disagree with the Court of Appeal. I have seen Exhibit 1 and I arrive at the
same conclusion. In my humble view, the appellant did not show in what way
the provisions of sections 123 and 124 were not complied with. Learned
counsel relied on the often cited case of
Madukolu v. Nkemdilim
(supra) on jurisdiction. With respect, the case does not apply. The
General Court Martial that convicted the appellant was properly constituted
"as regards numbers and qualifications of the members". No member of the
General Court Martial was disqualified. The offence was within the
jurisdiction of the General Court Martial. The case came before the General
Court Martial by due process of law, and after complying with investigation,
a condition precedent to the exercise of the jurisdiction of the General
Court Martial. The issue accordingly fails.
The second issue is in respect
of taking of oath The Court of Appeal said at pages 407 and 408 on the issue
and I quote the court in externso:
"The Argument of the Appellant
is that his conviction was secured by the lower Court Martial based on the
unsworn testimony of the prosecution witnesses. How correct is the
Appellant's Claim? I have taken a cursory look at the Record of Proceedings.
It indicates that the witnesses were all put on oath before they testified.
Rule 92 of the
Procedure Rules Military Court Martial Rules, 1972, requires that the
Record of proceedings of a Court Martial be recorded in accordance with the
appropriate form set out in Schedule 16(6). The Rules provide that the
testimony of sworn prosecution witnesses shall be recorded in the following
manner:
The witnesses for the
prosecution are called and
......... being
duly sworn......."
I agree with the learned
Counsel for the Respondent that this format once used as was done in the
instant case; it is sufficient proof that the witnesses were duly sworn and
it is needless to insist on a verbatim recording of the proceedings whereby,
the prosecution witnesses were actually put on oath.
Furthermore, from the record
of proceedings on page 15 there are still further indications showing that
the prosecution witnesses were put on oath before they testified. In his
opening address the prosecution has this to say;
'We shall, in establishing the
case against the accused as required by
S.135
and 156 of the Evidence Act, lead evidence which will consist of
documentary evidence and testimony of witness, who will give evidence on
oath without wasting much of the Courts' time ...'
Again, on page 29 of the
Record of proceedings, the following dialogue took place between the
prosecutions and PW4:
'Ques:
Now Oscar, remember you are on oath, tell us truthfully, did you see
Mohammed Abubakar on that day?
Ans:
I saw Mohammed Abubakar.'
In the light of above opening
address and dialogue between the prosecution and PW4, it is clear as day
light that the witnesses for the prosecution were duly sworn to testify on
oath. I therefore have to resolve this issue against the Appellant."
I am not in a position to
improve on the above. The Court of Appeal got the point very well. I have,
in obedience to learned Senior Advocate, looked at the Forms he referred to
at paragraphs 5-6, page 7 of the brief, and I come to the inescapable
conclusion that they do not help the case of the appellant. The General
Court Martial, in my view, complied with the provision of section 138 of the
Decree. An appellant is bound by the Record of Appeal. He cannot go outside
the Record and canvass lo an appellate court what he thinks is in favour of
his case, which is not in the Record. The Record clearly shows that the
witnesses duly took that oath. The Court of Appeal was very clear on that
and I must go along with the court.
That takes me to Issue No. 3
on the proof of the offence of sodomy. Section 81 of the Decree provides in
part;
“against
the order of nature, or ...... is guilty of an offence under this section”
The Armed Forces Decree does
not define carnal knowledge. Section
6 of the Criminal Code Act defines carnal knowledge or the term carnal
connection. The term implies that the offence, so far as regards that
element of it, is complete upon penetration. While carnal knowledge is an
old legal euphemism for sexual intercourse with a woman, it acquires a
different meaning in section 81. The section 81 meaning comes to light when
taken along with the proximate words "against the order of nature". The
order of nature is carnal knowledge with the female sex. Carnal knowledge
with the male sex is against the order of nature and here, nature should
mean God and not just the generic universe that exists independently of
mankind or people. It is possible I am wrong in my superlative extension of
the expression. As that will not spoil the merits of the judgment, I live it
at that.
Where there is a hole or an
opening, there will be the possibility of penetration; penetration being the
ability to make a way or way into or through. While the common usage of the
word means putting of the male organ into the female sex organ when having
sex, it has a more notorious meaning and that is the meaning in section 81.
The natural function of anus
is the hole through which solid food waste leaves the bowels and not a penis
penetration. That is against the order of nature, and again, that is what
section 81 legislates against. I had earlier produced part of the evidence
of Emmanuel and Joseph. Emmanuel was a victim of the offence. Let me repeat
the exercise but this time limited to a short extract. Emmanuel said at page
24 of the Record:
"He turned me upside down and
used his penis and put it into my anus then, I shouted that I can't take it
that it is not what Joseph told me ....."
Joseph in his evidence
in-chief and under cross-examination told the General Court Martial that
Mohammed told him that
"he
has finished the job. He said that the man has already sexed him."
Appellant in his pre-trial
statement said:
"... I had some passes with
them short of sexual intercourse ... they massaged me. I have to state that
on the day in question the massage they did to me included my private parts
and I had romances with them. We were naked."
It is clear from the pre-trial
statement of the appellant that he admitted what was convenient for him to
admit. He admitted the naked romance which Emmanuel and Joseph confirmed in
their evidence. Does the appellant want this court to believe that the whole
matter ended in a romance, particularly in the context of a willing
Emmanuel? The evidence of appellant agrees with that of Joseph as it affects
Joseph in the romance. Unlike Emmanuel, Joseph was unwilling and the
appellant released him with a gift of
I should pause here to say
that the evidence of Joseph is clear hearsay. I thought learned Senior
Advocate will make the point. I am surprised that he did not. Mohammed woke
up Joseph from sleep and told him that "he has finished the job.”
That, in my view, is clear hearsay evidence which is inadmissible.
The hearsay evidence of Joseph
notwithstanding, the evidence of Emmanuel clearly proves the offence of
sodomy. That apart, the evidence of the appellant creates a circumstance
which leads to the conclusion that he committed the offence of sodomy. He
said he "had some passes with" the victims. He said they massaged him. He
said the massage included his private part, which I identify as the penis.
He said he had romances with them naked. Where did all these amorous
activities lead the appellant to? Should I believe that they did not lead
the appellant to commit the offence of sodomy on a willing Emmanuel, I ask
again"? While they may be incapable of rousing the feelings of an ordinary
man in the street, they will certainly rouse the feelings of a homosexual or
gay sodomite. The available evidence pin down the
appellant as one. There is the adage that an ostrich which buries its
head in the sand forgets that the rest of the body is exposed to any willing
eye to see and watch.
Apart from the direct evidence
of Emmanuel, there is enough circumstantial evidence justifying the
conviction and sentence of the appellant. After all, a court or tribunal can
convict on strong circumstantial evidence which lead to the commission of
the offence. See
Chewmoh
v. State (1986) 2 NWLR (Pt. 22) 331; Adio v.
State (1986) 2 NWLR (Pt. 24) 581; Ikomi v. State
(1986) 3 NWLR (Pt. 28) 340; Iyaro v. State
(1988) 1 NWLR (Pt. 69) 256; Ojegbe v. State
(1988) 1 NWLR (Pt. 71) 414; Atano v.
Attorney-General
Bendel State (1988) 2 NWLR (Pt. 75) 201;
Shazali v. State (1988) 5 NWLR (Pt. 93) 164;
Gabriel v. State (1989) 5 NWLR (Pt. 122) 457.
Learned Senior Advocate
submitted that as Mohammed Abubakar and Isaac
Jonah did not testify at the trial, the allegation
against the appellant in respect of them have been abandoned. I do
not see how this submission helps the appellant. If an accused person is
charged with committing an offence against two or more persons, he could be
convicted and sentenced in respect of committing the offence against one
person; and the conviction and subsequent sentence stand. Our adjectival law
does not require that the prosecution must prove the commission of the
offence against all the victims before the accused could be convicted.
Sodomy is not one offence where corroboration is statutorily required. Even
if it was to be so, the pre-trial statement of the appellant would have gone
a long way, if not all the way.
The next issue is in respect
of the admissibility of the pre-trial statement. I think I have touched it
by the last foregoing sentence. Let me go into it in more detail.
Rule 57 of the
Rules of Procedure (Army) 1972,
MM; 1972 provides that a written
statement which is admissible in accordance with the provisions of the
Criminal Justice Act, 1967, as modified by the Court Martial Evidence
Regulation 1967, shall be handed to the court by the prosecutor or the
accused as the case may be, without being produced by a witness. Learned
Senior Advocate would appear to have forgotten to consider the above rule.
If he had done so, he would not have raised the issue.
The impression is given by
both counsels that Exhibit 1
is a confessional statement. With respect, it is not. A
confessional statement unequivocally confesses to the commission of the
offence charged. The offence is sodomy. Appellant did not confess in
Exhibit 1 that he committed the offence. All he said is that he romanced
the victims and they romanced him in return. Mere romance without
penetration through the anus is not sodomy. Therefore the issue of
voluntariness of Exhibit 1 raised by learned Senior Advocate for the
appellant and the corresponding submission of counsel for the respondent do
not arise. Assuming that I am wrong (and I do not think so) there is clear
evidence outside Exhibit 1 justifying the conviction and sentence of the
appellant. And here, the evidence of Emmanuel readily comes out to the fore.
And that takes me to the last
issue on fair hearing; Learned Senior Advocate has seriously canvassed in
this court that the appeal should be allowed because the General Court
Martial took over the prosecution and thereby interfered with the course of
the proceedings. He took time to count the number of questions the General
Court Martial asked PW2, PW3 and PW4.
It is straight and strict law
that tribunals, or courts of law, by their special place in the adjudicatory
process, should not condescend to the nitty-gritty of the dispute or flirt
with the evidence in a way to compromise its independent and unbiased
position in the truth searching process. A tribunal or court is expected to
hold the balance in an egalitarian way so that the parties and persons
present in court will not accuse the body of bias. This is the real essence
of our adversary system of the administration of justice as opposed to the
inquisitorial system of the French prototype.
The above position of the law
is good as long as it is the general principle of law. For a conduct of a
trial tribunal or court to affect its decision in respect of interference,
an appellate court must be satisfied that there was bias or likelihood of
bias. In considering this, an appellate court will have a very close look at
the questions asked by the tribunal or court to see whether they affected
the live issues in the dispute and the live issues here mean issues which
will inevitably give rise to the decision of the tribunal or court one way
or the other. Therefore if a tribunal or court asked, say, a thousand
questions, which are peripheral, and in the opinion of an appellate court,
do not go to the root and foundation of the matter, it cannot allow an
appeal on that ground. In such a situation, an appellate court can only take
the conduct of the tribunal or court as noisy and lousy, which has no effect
on the conviction.
Emmanuel was the star witness,
so to say. He gave evidence as PW1. The court did not ask him any question.
Learned Senior Advocate did not say that the court asked Emmanuel any
question. He said that the court asked PW2 one question, PW3 fifteen
questions and PW4 ten questions. The questions counsel complained of in the
brief were mainly on the money appellant gave the victims as they related to
the offence of sodomy.
I do not think the evidence of
PW2, PW3 and PW4 are that material to the conviction of the appellant. I
made the point that the evidence of PW2, as it affects the commission of the
offence on Mohammed, is hearsay. PW3 lived with the appellant. PW4 lived at
Block 05/14, Ojo Cantonment. They did not give
evidence of the commission of the offence of sodomy and so questions heaped
on them really go to no issue.
I do not think the issue of
fair hearing canvassed by learned Senior Advocate will be of any assistance
to the appellant. In the case of
Orugbo
v. Una (2002) 16 NWLR
(Pt. 792) 175 cited by counsel for the respondent, I said at page 211
and 212 of the Report:
"It has become a fashion for
litigants to resort to their right to fair hearing on appeal as if 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 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."
I see no reason to depart from
the above. The facts of the case in this appeal do not support the
invocation of the principle of fair hearing in favour of the appellant
because I do not see where the appellant's right to fair hearing was
violated or contravened.
I think I have taken half the
issues raised by learned Senior Advocate. What the appellant decided to do
was to dare nature in his craze for immoral amorphous satisfaction. By his
conduct, the appellant re-ordered God's creation. Has he got the power to do
that? No. No human being, whether in the military or not, has the power to
re-order God's creation. After all, we are not talking of fighting a war. By
his conduct, the appellant has brought shame to himself. Although a bit of
the dent is on the Army, I am not prepared to hold that Force guilty of the
conduct of the appellant. The Army did not ask him to commit this heinous
and atrocious offence. He is a terrible criminal. And he is alone, clearly
alone.
This case clearly brings to
the open the problem of poverty in our society: not just poverty but abject
poverty. It is in evidence that the victims were hired by money. Parents
should try as much as they can to provide for the needs of their children.
And when I say this, I am not unaware or oblivious of the fact that some
children are not satisfied even if their parents supply all their needs
because of their insatiable growing and glowing gluttony for more and more,
like Oliver Twist of literary fame.
In sum, I do not see the
slightest merit in this appeal.
I dismiss it and affirm the conviction and sentence of the General Court
Martial.
Judgment Delivered by
Sunday Akinola Akintan,
JSC
The appellant was a
Commissioned Officer in the Nigeria Army and held the rank of Major.
He was arraigned before the General Court Marital (hereinafter
referred to as GCM) on 6th February, 1997 on a charge of sodomy
contrary to section 81(l) (a) of the
Armed Forces Decree 1993. The particulars of the offence are that he
sometime in 1996 had carnal knowledge of the following 4 men: Mohammed
Abubakar; Joseph Umaigbe;
Emmanuel Ilagoh and Isaac Jonah against the
order of nature. He pleaded not guilty to the charge and evidence was led by
the prosecution in support of the charge.
Each of the four men gave
evidence of their experience with the appellant. At the close of the
prosecution's case, the appellant did not lead any evidence in his defence.
Rather, his counsel informed the General Court Marital that the accused was
resting his case on that of the prosecution. The appellant was eventually
convicted as charged and a seven year sentence was passed on him.
The appellant's matter was
thereafter referred to the confirming officer as required under the said
Armed Forces Decree. The confirming officer reduced the 7 year term imposed
on the appellant to 5 years. The appellant was dissatisfied with his
conviction and sentence. He therefore filed an appeal to the Court of Appeal
which dismissed his said appeal. The present appeal is from the judgment of
the Court of Appeal Lagos Division which dismissed his said appeal.
The parties filed their
respective brief of argument in this court. The appellant formulated five
issues in the appellant's brief. The main appellant's compliant seriously
canvassed in this court are mainly on technicalities. They include that the
officer who empanelled the General Court Marital that tried him was not his
commanding officer as also required by law; and that there was no proper
investigations before his arraignment as required by the enabling law. Each
of these issues was adequately treated in the leading judgment written by my
learned brother, Niki Tobi,
JSC, the draft of which I have read. I therefore
do not intend to go over them as doing so would amount to unnecessary
repetition. All I need to say is that I entirely agree with his reasoning
and conclusion which I also adopt. I will, however, like to add that the
offence for which the appellant was convicted is an unusual, abnormal and
unbelievable one. Again, the appellant did not offer any defence at his
trial and all that he is now raising in this appeal ought to have been taken
up as an objection before entering his plea. The parties would have joined
issues on each point and heard before a ruling was made on every issue so
raised. But raising them first at the appellate level would be futile since
no proper foundation evidence was laid at the trial upon which the appellate
court could come to a conclusion that a breach had been committed, Again
merely resting his case on that of the prosecution amounts to nothing less
than admission of the evidence led by the prosecution.
In conclusion, therefore, for
the reasons given above and the fuller reasons given in the leading
judgment, I hold that there is totally no merit in the appeal and I
accordingly dismiss it.
Judgment Delivered by
Mahmud Mohammed, JSC
The Appellant in this appeal
was a Major in the Nigerian Army. He was arraigned before the General Court
Martial (G.C.M.) for short, on a charge of sodomy contrary to
Section 81(l) (a) of the Armed Forces
Decree No. 105 of 1993. The particulars of the offence were that
some time in 1996, he had carnal knowledge of Mohammed
Abubakar, Joseph Unigbe, Emmanuel
Ilagoh and Isaac Jonah against the order of
nature. He pleaded not guilty to the charge. In order to prove its case
against the Appellant, the prosecution called a total of four witnesses
before closing its case. The Appellant who was also represented by Counsel,
elected not to give evidence or call witnesses in his defence. His learned
Counsel informed the General Court Martial that the Appellant was resting
his case on the case as presented by the prosecution against him. At the
conclusion of the proceedings at the trial, the Appellant was found guilty
as charged and sentenced to seven (7) years imprisonment. This sentence was
later reduced to (5) five years imprisonment by the Confirming Authority.
Aggrieved with his conviction
and sentence by the General Court Martial, the Appellant appealed to the
Court of Appeal, Lagos Division which after hearing the appeal affirmed the
conviction and sentence on the Appellant. It is against this decision of the
Court of Appeal that the Appellant is now before this Court on a final
appeal. Five (5) issues were raised by the Appellant in his brief of
argument which issues were adopted by the Respondent. These issues are –
"1.
Whether the Court Martial convened by Brigadier-General P. N. Aziza
was competent, having regards to the facts that there was no prior
investigation of the charge against the Appellant in the manner prescribed
by law and that the Appellant was not under his Command (Grounds 1 & 2).
2.
Whether the lower Court was right when it held that the prosecution
witnesses testified on Oath (Grounds 3 & 4).
3.
Whether the lower Court was right when it upheld the conviction of
the Appellant for the offence of sodomy as created under Section 81(l)(a) of
the Decree (Grounds 5, 6 & 7).
4.
Whether the lower Court was right when it upheld the admissibility of
the purported statement of the Appellant which was alleged to have been
obtained under duress and was tendered from the bar (Grounds 8 & 9).
5.
Whether having regard to the Records of proceedings of the Court
Martial the lower Court was right when it came to the conclusion that the
Appellant was given a fair hearing (Grounds 10, 11 & 12).
Looking at these issues as
formulated from the 12 grounds of appeal filed by the Appellant, it is not
difficult to see that the main issue for determination in this appeal is
issue 3 which is whether the Court below was right in upholding the
conviction of the Appellant for the offence of sodomy as created under
Section 81(l) (a) of the Armed Forces
Decree 1993. Taking into consideration that the Appellant was
represented by Counsel throughout the proceedings of the General Court
Martial before which no complaint of denial of fair hearing was made on his
behalf, shows quite clearly that the issue is now being raised only in
struggling to find something to hand on at the hearing. The fact that at the
conclusion of his own trial, the Appellant elected not to go into the
witness box to refute all the evidence given against him by the victims of
the crime against which he was charged, must be regarded to have left his
fate to the General Court Martial. Since he had decided not to place any
fact before the trial General Court Martial other than those facts which the
prosecution placed on record in support of its case against him, the
Appellant had decided to keep to himself in the exercise of his right under
the law, his own side of the story in any possible rebuttal of those very
serious allegations made against him.
The law is well settled that
an accused person, who decided to rest his case on the case as presented
against him by the prosecution, is exposing himself to gamble and risk. This
is because if the case is such that even if all the prosecution witnesses
are believed, yet the offence as charged is still not proved, there it may
be permissible for an accused person to rest his case on the case of the
prosecution. However, Counsel will be taking a big risk, as in the present
case, where the issues of fact will have to be decided in favour of the
accused person, before his defence will succeed. See the cases of
Nwede
v. The State
(1985) 3 N.W.L.R. (Pt. 13) 444; Ali & Anor.
v. The State (1988) 1
N.W.L.R. (Pt. 68)1. Very unfortunately for the
Appellant, the nature and quality of evidence led against him including the
insertion of his penis into the anus of one of the victims of 'the charge
against him, is overwhelming in proving all the ingredients of the offence
of sodomy.
It is with these few comments
on issue 3, that I say, I entirely agree with my learned brother
Niki Tobi,
JSC that there is no merit at all in this
appeal. The appeal is hereby dismissed. The conviction and sentence of the
Appellant are hereby affirmed.
Judgment Delivered by
Ikechi
Francis
Ogbuagu, JSC
This is an appeal against the
Judgment of the Court of Appeal, Lagos Division (hereinafter called "the
court below") delivered on 30th June, 2004, affirming the
conviction and sentence of the Appellant by the General Court Martial
(hereinafter referred to simply as ("GCM") on 6th February, 1997.
Dissatisfied with the said
Judgment, the Appellant has appealed to this Court on twelve (12) Grounds of
Appeal. In his Brief of Argument, five (5) issues have been formulated which
have been adopted by the Respondent in their Brief. They read as follows:
"1.
Whether the Court Martial
convened by Brigadier-General P.N. AZIZA was competent, having regards to
the facts that there was no prior investigation of the charge against the
Appellant in the manner prescribed by Law and that the Appellant was not
under his command. (Grounds 1&2)
2.
Whether the lower court was
right when it held that the prosecution witnesses testified on oath (Grounds
3 & 4).
3.
Whether the
lower court was right when it upheld the conviction of the Appellant for the
offence of sodomy as created under
Section 81(1)(a) of the Decree (Grounds 5, 6 &
7).
4.
Whether the lower court was
right when it upheld the admissibility of the purported statement of the
Appellant which was alleged to have been obtained under duress and was
tendered from the bar. (Grounds 8&9)
5.
Whether having regard to the Records of Proceedings of the Court
Martial the lower court was right when it came to the conclusion that the
Appellant was
given a fair hearing. (Grounds 10,
11 & 12) ".
When this appeal came up for
hearing on 13th December, 2007, in accordance with the Rules of
this Court, the learned counsel for the parties, adopted their respective
Briefs of Argument. While the Appellant's learned counsel - Clarke,
Esqr, (SAN) urged the Court to allow the appeal,
Adamu, Esq, -
learned counsel for the Respondent, submitted that issue of penetration is
not relevant, That the law provides offence against course of nature. That
there was a Review Authority and that the Appellant did not petition against
the said confirmation.
He finally urged the court to dismiss the appeal. Thereafter,
Judgment was reserved till to-day.
The facts briefly stated are
that the Appellant - a Major
in the Nigeria Army, was arraigned before the GCM on a charge of
Sodomy contrary to
Section 81((1) (a) of the Armed
Forces Decree No. 105,1993. The particulars of the offence
are stated to be that he (on a date not stated) in 1996 had
carnal knowledge of Mohammed
Abubakar, Joseph Umaigbe,
Emmanuel llagoh and Isaac Jonah against the
order of nature. After pleading "Not Guilty" to the charge (see Form
C-Arraignment at page 11 of the
Records), the prosecution, called
four (4) witnesses in proof of its case. The Appellant was represented. The
Appellant did not testify or call evidence/witnesses) in defence,
but rested his case on that of the
prosecution.
I note that this fact of the
defence resting its case on that of the prosecution was never mentioned in
the Appellant's Brief. I will therefore, later in this Judgment, deal with
the effect or consequences of an accused person, relying/resting on the case
of the prosecution and not calling a defence or testifying in his defence.
However, at the end of proceedings, the GCM, convicted and sentenced the
Appellant, to seven (7) years imprisonment which was commuted to five (5)
years by the confirming Authority.
Dissatisfied with the said
conviction and sentence, the Appellant, appealed to the court below which
affirmed the said decision, hence the instant appeal to this Court. I will
deal with the said issues briefly.
Issue 1:
It is surprising to me that it
is contended in the Appellant's Brief that:
"the
Court Martial convened by Brigadier-General P.N. Aziza for the trial of the
Appellant lacked competence
and therefore had no jurisdiction
in that there was no prior
investigation of the charge against him in the manner prescribed by
law and that the said Brigadier-General
had no power to make the order
convening the Court Martial
as the Appellant was not serving under his command".
I say surprised because,
firstly, there is no evidence in the Records, that the Appellant or his
counsel ever raised any objection either before or after the charge was read
to the Appellant and he pleaded to it as to the competence of the GCM and
the jurisdiction in respect of the charge. It is settled that any objection
to a charge for any formal defect on the face thereof or for any perceived
irregularity relating say to procedure, shall be taken
immediately after the charge has
been read over to the accused and not later. See
Section 167 of the Criminal Procedure
Act and the cases of
Okaroh
v. The State (1990) 1 NWLR (Pt.125) 128
@
136 -137; (1990) 1 SCNJ. 124
and John Agbo
v. The State (2006) 6 NWLR (Pt.977) 545
@ 577-578:
(2006) 1 SCNJ. 332
@ 356:
(2006) 1 S.C. (PtII)
73;
(2006)2SCM81; (2006) 135 LRCN 808: (2006)
All FWLR (Pt.309) 1380; (2006) 4 JNSC (Pt.13) 253; (2006) Vol. 6 QCLR 48
and (2007) 10 WRN 95.
The word is "shall"
and this means that it is
mandatory.
Secondly, there are the
statutory provisions in Sections 123,
124, (also reproduced in the Appellant's Brief at page 3),
128 and 131 (1) of the Armed Forces Decree/Act 1993 (as amended)
hereinafter called "the Act") which read as follows:
"123
Before an allegation against a person subject to service law under
this Decree (in this section referred to as the "accused") that he has
committed an offence under a provision of this Decree is further proceeded
with, the allegation shall be reported, in the form of a charge, to the
commanding officer of the accused and the commanding officer, shall
investigate the charge in the prescribed manner".
124 (1)
After
investigation, a
charge against an officer below the rank of Lieutenant-Colonel or its
equivalent or against a warrant or petty officer may, if an authority has
power under the provisions of this Part and Part xiii of this Decree to deal
with it summarily, be so dealt with by that authority (in this Decree
referred to as "the appropriate superior authority") in accordance with
those provisions.
[The underlining mine]
It is stated in the
Appellant's Brief that the Appellant, does not
deny that the charge
against him was investigated
before the Court Martial was convened. That the contention is that
the investigation was not in the manner prescribed under the provisions of
the said two sections. That this is because of the internment of the said
Sections, That what is envisaged where there is an allegation of an offence
against a person subject to the Act, are (not is) as follows:
"(i)
The allegation shall be reported, in the form of a charge to the
commanding officer of the Accused officer;
(ii)
The commanding officer shall investigate the charge in the prescribed
manner;
(iii)
After the investigation the commanding officer may further proceed
with the allegation against the Accused officer by convening a court
martial".
It is not in dispute that
Brigadier-General P.M. Aziza was the Commander of the Lagos Garrison
Command. Section 128 (1) of the Act, provides that the following persons may
act as appropriate superior
authority to a person charged with an offence:
"(a)
The Commander 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 being".
The above provision is clear
and unambiqous. P.M. Aziza, was a
Brigadier-General and the Appellant was under his Garrison Command and by
virtue of the provision of Section 131 (1) (d) of the Act, he was qualified
and competent, to convene the GCM. In the case of
O.T.
Onyeukwu
v. The
State (2000) 12 NWLR (Pt.681)
256 @ 266
"(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
Brigadier Commander or corresponding command".
In the case of
Nigeria Air Force v. Ex SQN Leader A.
Obiosa (2003) (not 2000 as
appears in the Respondent's Brief)
1 SONJ.343: Vol. 3 MJSC. 78
@ 80 referred to
in both Briefs of the parties, it is conceded in the Appellant's Brief at
page 6 thus;
"that as was held by the lower
court (i.e. the court below) that "the power of an officer
of Brigadier General Aziza's
rank to convene a Court Martial has been settled in the case
of NAF v. Obiosa (2003) 1
SCNJ. 343 by Ejiwunmi,
JSC",
See also the case of
Nigeria Air Force v. Ex
Wing Commander LD.
James
(2002) 18
NWLR (Pt.798)
295 @ 317-318 -
per Onu,
JSC
(2002)12
SCNJ.379 and
(2002)12S.C.
(Pt.1) 1
Regrettably with respect, in
spite of all these clear statutory provisions, the decisions of this Court
which still subsist and is still binding on the parties and this Court and
the said concession by the learned counsel for the Appellant, it is
submitted that it is not in all cases, that such an officer, can convene a
GCM. That it is only after a full compliance with the provisions of Section
123 of the Act that the Accused Officer's Commanding Officer, shall further
proceed to convene a GCM as provided by Section 124(1) of the Act. It is
further submitted that there was a defect in the competence of the GCM
convened by Brigadier-General Aziza as, according to the learned counsel to
the Appellant, the case, was not initiated by due process and that a
mandatory requirement of the law, was not fulfilled. With profound humility
and respect to Clarke, Esqr.,
(SAN), learned counsel for the Appellant, I do not agree with him. I reject
the said argument in view of his said concession above stated. It must be
noted that Ojo Cantonment in which location, the
offence was said to have been committed, is within the Lagos Garrison
Command as found as a fact by the court below, and this fact, has not been
faulted by the Appellant in this Court.
I note that in the
Respondent's Brief, the statement of the court below at page 1379 of the
Records that,
"There is no disputing the
fact that the Appellant was not directly under the Command of Brigadier
General Aziza the convening Officer of the Court Martial that tried the
Appellant ...”.
has
been faulted as erroneous and incorrect by the learned counsel for the
Respondent who also urged this Court,
"to
hold that their lordships of the Court of Appeal
erred in that direction and
therefore enter an appropriate verdict of the appellant been under the
command (sic) of the convened authority", (sic)
I also note that there is no
Cross-appeal or Respondent's Notice
in this regard by the Respondent. However, this said holding by
the court below, has not detracted from the fact (which the Respondent's
learned counsel, deliberately or inadvertently did not also reproduce), that
immediately after that sentence or holding, the following appear inter alia;
“However, he (meaning
Brigadier General Aziza) is
empowered under S.131 (1) (d) of the AFD 1993 (as amended) to
convene the Court Martial to try
the Appellant. Moreover, the offence was committed in
Ojo Cantonment of the Lagos Garrison. The power
of an officer of Brigadier General Aziza's rank to convene a Court Martial
has been stated in the case of N.A.F
v. Obiosa (2003) 1 SCNJ.
343 by Ejiwunmi, JSC,
as follows ..............”
I therefore, see nothing wrong
in an ordinary slip/Comment which in any case, was immediately
corrected/remedied by the subsequent finding of fact and anchored on the law
or statute and the decided authority by this Court, I urge learned counsel
who prepare Briefs, to patiently read the whole finding of a fact and
holding of a court and not to pick the sentence that is convenient to
him/them before launching an attack such as the one complained of in the
Respondent's Brief.
As regard the complaint that
there was no investigation, I or one may ask, how come that the Appellant,
made a Statement which was recorded and later marked
Exhibit 1? I note at
page 31/38 of the Records, that during the re-examination of the P.W.4, the
prosecution applied that the Judge
Advocate read the first three (3) pages of the
Statement of the
Appellant together with the questions and answers therein. This was done and
the prosecution closed its case. Thereafter, the following appear:
"Def:
Having considered
critically the case of for the prosecution,
we have decided to rest our case on
that of the prosecution sir; therefore we should read our
address first".
At pages 39 to 43 of the
Records, appear the written address of the Defence. However, the following
appear at the same pages 31/38 of the Records;
"Pros:
May I stand down the
witness sir. We wish to make a humble application.
My Lords, this application is brought pursuant to R 57 RP (A)
1972 and
S.192
of the
Evidence Act
(Read) the portions. Therefore, we apply that the statement
offr- (sic)
be tendered by us and accepted in evidence by you. The
investigator of the case
is not around and the DMI certified the copy".
Def:
(Objection but overruled)
I take it that DMI means
Director Military Intelligence. There is the statement above that the
Investigator of the case was not around. Even if he was present only to
tender Exhibit 1, by virtue of Section 192 of the Evidence Act, he could not
have been cross-examined by the defence. What is more, Exhibit 1 was
certified by an Officer of that Command. As earlier stated by me in this
Judgment, the Appellant never testified, but rested his case on that of the
prosecution which included Exhibit 1. In the address of the defence counsel,
no word was said about Exhibit 1 - see pages 42/49 to 43/50 of the Records,
The Appellant, never, as I stated earlier in this Judgment, went into the
witness box to say that he did not make any statement to any of their
officers in-charge or that his case, was never investigated by anybody. He
is not a junior officer but a Major. It is now firmly settled that an
accused person who rests his case on that of the prosecution, has taken a
gamble and/or a risk. He has thereby, shut himself
out and will have himself to blame. This is because, he does not wish to
place any fact before the trial court other than those which the
prosecution, has presented in evidence. It also signifies that he does not
wish to explain any fact or rebut any allegation made against him. See the
English case of The
Queen v.
Singh (1962)
2
WLR 238 @
243-245 and our
local cases of
Nwede
v. The State (1985) 3 NWLR (Pt 13) 444
@ 455;
Ali & anor .v.
The State (1988) 1 NWLR (Pt.68) 1
@ 12, (1988) 1 SCNJ.
17
@
18. I therefore, hold that the Appellant's
case, was duly investigated as stated by the Respondent.
In conclusion, with respect, I
find no substance or merit in this issue.
I dismiss the same.
Issue 2:
I have no hesitation in
rejecting, with respect, the submission in the Appellant's Brief that the
conviction of the Appellant was based on the
unsworn testimonies
of prosecution witnesses. First, assuming that this is correct (it is not),
there is no evidence that the defence ever objected to such procedure. Thus
it consented to each of the said witnesses giving their evidence not on
oath. Secondly, the submission/argument is completely misconceived. At page
15/22 of the Records, the following appear:
"Evidence
We shall, in establishing the case against the accused as required by S.
135 and 136 (sic) of evidence Act, lead evidence which will consist of
documentary evidence and testimony of witness (sic)
who will give evidence on oath,
without wasting much of the Court's time, we apply to call our
first witness, Mr. Emmanuel Enega".
In the course of the evidence
of PW4 - Augustine Ayewa
alias Oscar in-chief, after he stated at page 29/36 of the Records
thus,"..... That is all I can remember about the September issue”, the
following immediately appear.
"Ques:
Now Oscar,
remember you are on oath,
tell us truthfully, did you see Mohammed
Abubakar on that day?
Ans:
I saw Mohammed Abubakar".
From the above, can it be
seriously and/or honestly, said that there is, a doubt that the said
prosecution witnesses, testified on oath? I or one may ask. I think not. I
am satisfied and I so hold, that the complaint, with respect, is baseless
and unfounded. I reject the same. In fact, the court below, at pages 380 and
381 of the Records, painfully and thoroughly, dealt with this issue - per
Galadima, JCA,
stated inter alia, at page 380 as follows:
“......... I have taken a
cursory look at the Record of Proceedings it indicates that the witnesses
were all put on oath before they
testified.....”
His Lordship referred to
Rule 92
of the Procedure
“The witnesses for the
prosecution are called and ....... being duly sworn .......”
and
stated as follows:
"I agree with the learned
Counsel for the Respondent that this
format once used as
was done in the instant case, it is
sufficient proof that the witnesses were duly sworn and it is
needless to insist on a verbatim
recording of the proceedings whereby, the prosecution witnesses were
actually put on oath".
I agree.
At page 381 thereof, His
Lordship, concluded thus:
"In the light of above opening
address and dialogue between the Prosecution and PW4,
it is clear as day light that the
witnesses for the prosecution were duly sworn to testify on oath. I
therefore have to resolve this issue against the Appellant".
I too, resolve this issue
against the Appellant as my answer to the same is rendered in the
Affirmative/Positive.
Issue
3:
This issue was also raised in
the third issue of the Appellant in the court below although differently
couched;
Section 81(1) of the Act
provides inter alia, as follows:
"A person subject to service
law under this Decree who (a) has carnal knowledge of a person
against the order of nature,
or
(b)
not relevant
(c)
- do -
Is guilty of an offence under
this section:
In the
Oxford Advanced Learner's
Dictionary at page 1130,
Sodomy is defined as
"a
sexual act in which a man puts his Penis in sb's
(meaning
somebody's) especially another
man's, Anus".
[The underlining mine]
What is the evidence of the
PW1 - a victim? At page 17/24 of the Records, P.W1 testified inter alia, as
follows:
"By
then, Sam came in, brought a
bottle of small stout and gave me to drink, but I said I didn't want to
drink because I was not used to it, but he said if I don't drink it I
wouldn't work for Oga, he will not accept me.
Then he opened the small stout for me. I took a
little out of it and it was
bitter, I couldn't take it, so I gave it to Joseph
Unigbe who took the rest. After 5
minutes my eyes were turning me
Joseph said me and Mohammed should go inside the bedroom to take a bath so
that our eyes will stop turning us we accepted took our bath and when we
wanted to put our cloths on, Joseph brought out one Army singlet, shirt and
nicker, and a night gown and he said we should
put them on we asked him why. He said we could not go home that patrol will
hold us, that we had to sleep till the following day so we accepted and put
them on. Then he showed us the guest room that we should go inside that that
is where we were going to sleep. All of us went inside the guest room,
suddenly, Joseph went outside saying he was going to collect something from
the sitting room. When he went out, just immediately he went out then
Maj Magaji came
inside the room".
P.W.1 continued in his said
evidence-in-chief.
"When
he came inside, because I and Mohammed were sleeping on the bed he sat on
the bed and asked us what we were discussing, we said nothing. It was then
he removed his singlet and removed Mohammed's own and started romancing
Mohammed's body and used my hand put on his tommy
and said that I should be romancing his tommy.
After that he off his nicker and off Mohammed's
nicker and he sexed Mohammed through the anus.
Then Mohammed shouted that this wasn't what Joseph told him that he was
coming to do there. Then Oga stood up and
Mohammed went out. Before Mohammed went out' he told Mohammed to bring a
white container. When Mohammed brought the container the container was
filled with cream, so he used the cream to rob our pains; I and Mohammed,
then Mohammed went out, then Oga wanted to use
me too. He turned me upside down and used his penis and
put it into my anus then. I
shouted that I can't take it that is not what Joseph told me too then he
said I should go out. When I went out into the sitting room, I met Mohammed
and Joseph they were quarrelling, so I too
joined. We were quarrelling with
Joseph that, that wasn't what he told us. He started quarrelling us too that
why shouldn't we accept, that he has been doing it and that there is nothing
in it then Oga came in and started quarrelling
with Joseph, that these people didn't respond fine".
Under cross-examination, at
pages 18/25, and 19/26 thereof, the following appear, inter alia:
Ques:
You told this court that
Mohammed was sleeping on the bed with you, tell this court if you know
anything about sex.
Anything you know about sex,
tell this court.
Ans:
What I mean about sex is
that he used his private....................
Ques:
No, what you yourself know
about sex?
Ans:
I don't know any other form
I can put it but I know it means making love to someone.
Ques:
To who?
Is it a man making love to a man or a man making love to a woman?
Ans:
It is supposed to be a man
making love to a woman
Ques:
But you said you were there
when he was making love to Mohammed?
Ans:
Yes Sir.
Ques:
And he was
furking him in your presence?
Ans:
But I was among now. He
said I should be romancing him.
Ques:
Tell this court how you
reported the matter to your father?
Ans:
After he gave us the money,
I and Joseph went to Mile 2 to buy clothes.
When my father saw me with the clothes he asked me from where I got the
money and told him, that was how he came to know what happened.
Ques:
How did you feel after
drinking the small stout?
Ans:
My
eyes_were turning me".
Under re-examination, at page
27 thereof, the following appear, inter alia:
Ques:
What do you mean by saying
the offr sexed you?
Ans:
He put his penis into my
anus".
The evidence is clear and
unequivocal in my respectful view. Having regard to the said definition of
Sodomy, there was definitely
penetration of the penis of
the Appellant into the anus of PW1. In any case, the evidence of PW1 as to
what happened to him was never challenged in cross-examination. Again, his
said evidence was not controverted in evidence
by the Appellant who rested his case on that of the prosecution. The effect
or consequences, I have already stated in this judgment. That puts squarely
to rest, all the arguments in respect of this issue in the Appellant's Brief
which with respect, under the circumstances, are irrelevant.
As rightly stated at page 27
of the Records by the prosecution when the Defence applied for the PW1 to be
tested/examined by a Medical Doctor,
"My Lords, the issue before
the court in a sexual issue my Lord, it is not an issue as to the resultant
effect of the act, but as to the act itself
simple; Did it take place or did it not whether the person become pregnant
or whether semen was poured all over. Again my Lords, the event took place
over 4 months ago. Definitely, traces of whatever would have been there
wouldn't have gone (sic). The issue of a doctor's test does arise at all and
we (sic) urge this court to disregard that application"
Again in my view, the
objection was, rightly sustained by the GCM. It seems to me that the
rejection of the said application, has led to the submission in the
Appellant's Brief about lack of
corroboration. I agree with the Respondent that the offence of
sodomy is not one of the offences that require corroboration. When however,
the Appellant rested his case on that of the prosecution, the settled law is
that evidence of prosecution not controverted or
disputed by an accused person, is deemed to have been accepted or admitted
by that accused person. See the case of Ubani
& 2 ors. v. The
State (2003)
12 SCNJ.
111 @
130. In the case of
Ohunyon
v.
The State
(1996) 2 SCNJ. 280
@
288, it was held
that an accused person has the burden of bringing the evidence on which he
relies for his defence. Also settled, is that where there is unchallenged
and uncontroverted evidence, a court has a duty to act on it where credible.
See the case of
Oforlete
v. The State
(2000) 7
scnj.
162 @
179, 1S3.
184.
I wish to pause here to state
that although the evidence of PW2 may be regarded as hearsay, but the
uncontradicted or uncontroverted evidence of
PW1, who was lying on the bed when the Appellant did the act described on
oath by the PW.1, I do not see how the evidence of PW2, the Appellants has
helped case. It is again firmly, settled that a court, can and is entitled
to act on the evidence of one single witness, if that witness is believed,
given all the circumstances, and a single credible witness, can establish a
case beyond reasonable doubt, unless where the law requires corroboration.
There are too many decided authorities in this regard. See the cases of
Alonge v.
Inspector General
of Police (1959). 4 FSC 203: Ali &
ors, v. The State (19881 1 NWLR (Pt. 68) 1
@ 20 (Supra):
Ogoala
v. The State
(1991) 2 NWLR (Pt.175) 509 @
533; (1991) 3 SCNJ. 61;
Uqwumba v. The State
(1993) 5 NWLR (Pt.296) 660 @ 674: (1993) 6 SCNJ.
217; Theophilus v.
The State (1996) 1 SCNJ. 79(5)
91; Nwaeza
v.
The State (1996)
2 SCNJ.
42 @ 51
and Gira
v. The State (1996)
4 SCNJ. 95
@ 101
and The State
v.Godfrey Ajie
(2000) 7 SCNJ.
1, just to mention but
a few. In my respectful view, by putting or
inserting his penis into the anus of the PW1, it amounts to having carnal
knowledge of him and this act is
against the order of nature and therefore, amounts to the said
offence of sodomy contrary to Section
81 (1)(a) of the Act.
In concluding this issue, I
note that at page 12 of the Appellant's Brief, the conviction and sentence
by the GCM, have been criticised. It is therein stated that it delivered its
judgment in fourteen words at page 44/51 of the Records as follows:
"This court having (sic)
(meaning having) deliberated
carefully on this case, we find the accused officer
guilty".
[The underlining mine]
It is submitted in the
Appellant's Brief that beyond this remark, the GCM did not consider all the
issues raised before it and did not state the reasons for its verdict
thereby leaving room for arbitrariness. The Court is urged not to allow the
said conviction to stand as according to the learned counsel to the
Appellant, the prosecution failed to establish clear evidence of
penetration and that the
suggested corroboration in fact, are not.
I have in this Judgment, held
or stated that the prosecution established completely, the case or guilt of
the Appellant beyond all reasonable doubt. The offence of sodomy for which
the Appellant was charged, tried and convicted, was proved at least by the
PW1. PW3's evidence of how the Appellant got his victims drunk or
intoxicated by causing them to consume alcoholic drink before he dealt with
them, was not controverted in evidence by the
Appellant, His evidence, amounts to corroboration in all the circumstances
of the said evidence of PW1 and PW2 in that respect. In my respectful view,
the above ruling or statement of the GCM, is all embracing or encompassing,
it is headed/titled “Findings” It is a finding of Guilty after a careful
deliberation. Period! It needs no interpretation. The plea in mitigation of
sentence at page 48/52 of the Records seems to me, to have influenced their
light sentence of the Appellant.
It must be borne in mind that
the GCM, 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 to a jury
trial. Even in the regular courts, it has been stated and
restated that there is no specific
style of writing a judgment. See the cases of
Adamu
v. The State
(1991) 6 SCNJ.
33 @ 40 and
Awobajo
&
6 ors. v. The
State
(2001) 12 SCNJ. 293. It is not contended by the Appellant's
learned counsel, that the ruling of the GCM, is
not the style it adopts in the trials offences by it.
The court below, at page 386
of the Records, stated inter alia, as follows:
"........ I agree with the
learned counsel for the Respondent that by its
very nature, a Court
Martial being akin to a jury trial
has no compelling duty under the law to
be detailed in its judgment in the
manner of regular Civil Courts. See
Lt. Col. K.D.
Ajiav. Nigerian Army (Unreported) Ref.
CA/L/9M/98 delivered on 6th July 2000. I do not think that in the
absence of an elaborate, detailed written judgment by the Court Martial, as
contended by the Appellant in this appeal that alone should be the ground to
set aside the judgment of the court, once the essential ingredient of the
offence of sodomy was established beyond reasonable doubt".
I also agree. My answer to
this issue is in the Affirmative/Positive.
Issue 4:
In the opening Address of the
prosecution already reproduced in this Judgment, the prosecution stated that
it "will lead evidence which will consist of
documentary evidence
....." I have also reproduced the application of the prosecution before the
Exhibit 1 was admitted. As
stated by the court below, the issue of duress raised by the defence counsel
was in the written Address and therefore, there could not have been
procedurally, trial within trial. The case of
Adeleya (not Adeja as appears
in Respondent's Brief) v. Attorney-General (WEST) (1956-84)
Vol. 10 Digest of
Supreme Court - per Lewis, JSC cited and relied on in the Appellant's
Brief, with respect, is inapplicable in the circumstances of this case
leading to this appeal. The application to tender the document was made
pursuant to
Rule 57
of the
Rules of Procedure (Army) 1972, M/M,
1972 which reads as follows:
"......... A written statement
which is admissible in accordance with the provision of
Section 9 of the Criminal Justice
Act, 1967, as modified by the Court Martial Evidence Regulation 1967
shall be handed to the court by the
prosecutor or the accused as the case may be, without
being produced by a witness".
[The underlining mine]
This provision in my
respectful view is an answer to this issue.
However, I have already stated
that if the purpose of calling as a witness is just to tender a document, a
trial court may dispense with the personal appearance of the person who
recorded the contents of the document such as the Investigator in the
instant case. Exhibit 1
although a photo copy is/was
certified. It is now settled that photo copies of documents,
must be certified. See Section 111/112 of the Evidence Act. In the case of
Daily Times Ltd, v. Williams (1986) 4 NWLR (Pt.36) 526 (referred to
by the court below as
Iheonu
v. F.R.A. Williams), it
was held that a photo copy of a certified document, is admissible, So this
authority, also puts to rest, the complaint in the Appellant's Brief about
the admissibility of the Appellant's Statement or Exhibit 1. As a matter of
fact, in the case of International Bank Nig. Ltd, v.
Dabiri & 2 ors. (1998) 1 NWLR (Pt.583) 284 (5) 297
C.A, it was held that photocopies of a
Certified True Copy
of a public document, needs no
further certification under Section 111 (1) of the Evidence
Act.
In all the circumstances, it
seems to me and I also hold that the said statement or Exhibit 1, is/was
relevant to the case and therefore, admissible. This is because, it is
now firmly settled that admissibility of a document, can also be based on
relevance. See the
cases Of Ogbuanyinya & 5 ors.
v. Obi Okudo (1979)
6-9
S.C. 32:
(1979) ANLR 105 & 112-113; (1979) 1MSLR 731; (1979) 3 LRN 318 & 324:
Qshunrinde
v. Akande
(1996) 6 SCNJ.
183 @ 199-200;
Artra - Industrial Ltd, v.
M.B.C.L (1997) 1
NWLR (Pt483) 574
C.A:
A.K. Faddatlah
v. Arewa
Textiles ltd. (1997) 7 SCNJ.
202 @ 217- per Ogwuegbu,
JSC (Rtd) and the
English case of Kuruma v. R (1953)
AC. 197 @ 203 to mention but a few, On these authorities and other
reasons above adumbrated, my answer to this issue, is also in the
Affirmative/Positive.
Issue 5:
This issue was also raised by
the Appellant in the court below which held at page 416 of the Records inter
alia, as follows:
"It was argued that the Court
Martial virtually took over the examination of prosecution witnesses. My
careful study of some of the questions put to the witnesses by the court
show that these questions were
aimed at clearing ambiguities which arose in the course of examination in
chief and cross-examination. The relevant rules allow the
Court Martial to put questions to witnesses called by the parties to the
proceeding without necessarily descending into arena of contest to take
side. By virtue of rule
56 (1)
of the Rules of Procedure (Army)
1972 MML 1972 the Court martial is allowed to call its own
witnesses where a just and fair adjudication of case so demands,
Rule 54(1) particularly states as
follows:
"The President, the Judge advocates and, with permission of the President,
any member of the court may put questions to a witness.
His Lordship, who read the
lead Judgment, concluded as follows:
"There is nothing in the
record of proceedings which indicates that the questions put to the
witnesses by the Court martial
contravened the appellant's right of fair hearing.'
Careful study of the record
reveals that PW1, the key witness,
was not asked any question by the Court martial.
As for PW2, only
one question was asked.
For PW3 and PW4 some questions
were put to them. Their answers
bear no relevance to the prosecution's case".
[The underlining mine]
I cannot fault the above. I
agree because, the above, is borne out from the Records. The lone question
the GCM asked the PW2 is:
"You said
Maj Bello gave you
Ans:
For what he did to me.
He said I should not tell anybody about it".
That was the end of the PW2's
evidence both in-chief and under cross-examination. There is no evidence
that the defence counsel applied to ask the PW2 or the other witnesses any
question thereafter and that this was refused by the GCM. This is because as
rightly stated in the Respondent's Brief,
rule 54 (2) provides
as follows:
"Upon any questions he
answered, the prosecutor and the
accused may put to the witness such questions arising from the answer
which he has given as seen proper to the court".
[The underlining mine]
My answer to this issue is
clearly and unhesitatingly, in the Affirmative/Positive.
In concluding this perhaps,
lengthy contribution which is necessitated by the volume of the arguments in
the respective Briefs of the parties which has led to many grammatical,
spelling and typing errors in the Respondent's Brief and which undoubtedly,
was not vetted before its being filed. The Appellant is lucky for the light
sentence eventually confirmed. In the reliefs sought in the Notice of Appeal
at page 400 of the Records and which the Appellant in his Brief has urged
the Court to grant, read thus;
"To quash
the conviction and sentence
of the Appellant.
To discharge and acquit the
Appellant of the offence for which he was convicted.
To order
re-instatement of the
Appellant and payment of all his entitlements from date of his arrest to the
date of the determination of his appeal and re-instatement".
Speaking for myself, since
there is an appeal against sentence, I should have increased/enhanced the
Term. He is also asking for re-instatement and payment of entitlements. This
is evidence, in my respectful view, that the Appellant has no
remorse for his
shameful and condemnable acts against these young boys who were given the
impression that they were going to be employed for work from where they will
earn some income. What distresses me with disgust, is that from the Records,
the Appellant is a married man with (2)
wives and seven (7) children and
according to him, three (3) girl friends in addition. He
preferred having or enjoying sex by first getting his victims - young boys,
drunk and when the victims tried to resist his despicable act, he bribed
them not to let anybody else know. He even complained to his agent - Joseph
Unigbe - "that these people didn't
respond fine". What
is worse, I have a hunch that he is or may have been a
lawyer since from his
statement at pages 125 of the Records, he was at the
From whatever angle I or one
looks at this appeal, with all sorts of defences/submissions, proffered in
the Appellant's Brief and which had been thoroughly and adequately dealt
with by the court below, it fails abysmally. Having made the above
observations, in the final analysis, having had the privilege of reading the
lead Judgment of my learned brother, Niki
Tobi, JSC which I am
in agreement with, I too, see no slightest merit in this appeal. I too
dismiss it and affirm the decisions of the two lower courts which are
concurrent and therefore, I
am unable to disturb or interfere with.
Judgment Delivered by
Francis
Fedode Tabai. JSC
The Appellant was a
commissioned officer of the Nigerian Army. He was of the rank of a Major. He
was charged before the General Court Martial on a charge of Sodomy contrary
to section 81(l) (a) of the Armed
Forces Decree No. 105 of 1993. The charge was that sometime in
1976 he had canal knowledge of four officers namely Mohammed
Abubakar, Joseph Unigbe,
Emmanuel Ilagoh and Isaac Jonah. On arraignment
he pleaded not guilty to the charge.
The trial involved the
testimony of each of the four victims of the alleged offence. The Appellant
informed the General Court Martial through his counsel that he would not
call witnesses and that he was resting his case on that of the prosecution.
At the end of the trial he was found guilty as charged, convicted and
sentenced to a term of 7 years imprisonment. The sentence was however later
reduced to 5 years by the Confirming Authority.
Dissatisfied with the
conviction and sentence, he appealed to the Court of Appeal. The Appeal was
dismissed. He has then come on further appeal to this court.
Before this court briefs have
been filed and exchanged. The issues presented for determination are
reproduced in the lead judgment of my learned brother
Tobi JSC. I need not reproduce them. He
has painstakingly dealt with the issues and I agree entirely with his
reasoning and conclusion. The Appellant has nothing challenge on the
findings of fact particularly having regard to the fact that he rested his
case on that of the prosecution. I shall also dismiss the appeal as lacking
in merit.
Counsel
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