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WRN 86 at 91
RAPHAEL OLUFEMI ROWLAND, JCA (Presided and delivered the leading judgment)
SIMEON OSUJI EKPE, JCA
ISTIFANUS THOMAS, JCA
MEIAUDU YUNANA ZURU
Joe Odey-Agi ESQ. – for appellant
Jimoh I. A. Adamu ESQ. – for respondents
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
COURT – Trial court – duty of same not to bridge the yawning gap in the case of the prosecution.
COURT MARTIAL – Convening order in a Court Martial – essence of.
COURT MARTIAL – Oath taking or affirmation by member of the Court Martial – whether it is a mandatory statutory provision.
EVIDENCE – Court martial – need for same to observe the rule of evidence.
EVIDENCE – Suspicion – whether amounts to evidence.
INTERPRETATION OF STATUTES –Clear and unambiguous statute – interpretation of same.
PRACTICE AND PROCEDURE – Appellate court – duty of same when record of evidence shows that witnesses gave two conflicting versions of an essential fact and trial court failed to make any specific finding on that fact.
PRACTICE AND PROCEDURE – Trial court – lengthy interrogation or examination of witnesses by same – whether violates elementary standards of fair trial.
STATUTE – Section 138(1) and (5) of the Armed Forces Decree 105 of 1993 as amended – non-compliance with same by a Court Martial – whether robs the court of its jurisdiction.
WORDS AND PHRASES – ‘Oath taking’ – meaning and importance of same.
RAPHAEL OLUFEMI ROWLAND, JCA: (Delivering the leading judgment):
This is an appeal by the appellant against the decision of the General Court Martial, N.N.S. Anansa presided over by Navy Captain S. E. A. Olamilokun and four others sitting in Calabar delivered on the 9th of February 2001 and sentenced the appellant to one year imprisonment for a two count charge of stealing and conspiracy.
The appellant was charged with one Yakubu of conspiring and stealing 5,800 litres of diesel. The appellant denied the charge. He was however found guilty and sentenced.
The appellant spent ten months in Afokang Federal Prison, Calabar without the confirmation of the sentence. Following an application to the Federal High Court, Calabar he was granted bail.
The appellant subsequently sought and obtained the leave of this court on the 8th October, 2001 to appeal against the conviction and sentence of the General Court Martial.
The notice of appeal dated 10th October, 2001 contains five grounds of appeal.
From the five grounds of appeal, the appellant formulated three issues for determination.
“1. Whether the non compliance with mandatory provision of the Armed Forces Decree 105 of 1993 as amended, the Constitution of the Federal Republic of Nigeria 1999 and the Criminal Procedure Act 1990 did not vitiate the entire proceedings thus rendering the judgment null and void.
The respondents also raised three issues for determination by this court.
They are follows:
“1. Whether or not the members of the General Court Martial complied with the provisions of section 138(1) Armed Forces Decree 1993 (as amended), 1999 Constitution, the Criminal Procedure Act 1990 and the judgment of the court being unsigned and undated as required by law render all the proceedings and judgment null and void.
The facts of this case appears to me to be simple. The appellant was a Naval Officer serving in N.N.S. Anansa, Calabar until he was arrested, detained and charged for conspiracy and stealing 5,800 litres of diesel valued at N110,200.00. The trial commenced from the 24th January through 9th February 2000. The prosecution called seven witnesses. The defence made a no-case submission. The no-case submission was overruled and the appellant gave an unsworn testimony. He and the other accused persons were found guilty and sentenced to one-year imprisonment. As I have indicated above, the appellant was aggrieved and dissatisfied, hence this appeal to this court.
On issue No.1, the counsel for the appellant submitted that it is a mandatory requirement of the Armed Forces Decree 1993 as amended that persons subject to service law shall be tried by a Court Martial. It was contended however, that the Court Martial must be convened by an officer who has the right and power to do so. It was submitted that in the instant cases there was no convening order as required by law. Learned counsel for the appellant submitted further that what is on the record is a convening order to try Commander M.B. Ajibade (NN/0780). It was contended that the only connection between the order and the appellant is that it is an addendum. It was argued that the law does not make provision for the addendum rather every person who is to be tried must have the Court Martial convened to try him and convening order must contain the following:
(a) The name of the President
(b) The names of the members and the waiting member
(c) The name of the Judge Advocate
(d) The place for sitting of the court
(e) The ranks of all the officers.
Reference was made to sections 133 to 135 of the Armed Forces Decree. According to the learned counsel for the appellant, the convening order as shown on the proceedings in this appeal is devoid of all these mandatory requirements. Learned counsel for the appellant submitted that another vital question that may never have an answer unless the original convening order is seen is – who convened the General Court Martial that Captain Attah is now making an addendum to? In the absence of a convincing answer, learned counsel for the appellant submitted that Captain Attah has no power to convene the General Court Martial and therefore the addendum is a nullity or that there was no convening at all. It is the contention of learned counsel for the appellant that an addendum to a convening order in another Court Martial cannot be said to be proper and valid. Reference was made to the case of Shekete v. The Nigeria Air Force (2000) 15 NWLR (Pt. 692) 868.
It was also contended that there was lack of compliance with the mandatory provision of section 138(1) of Decree 105 of 1993 as amended on administration of Oath to members and to any person in attendance. Learned counsel for the appellant also submitted that the date and signing of a judgment is a mandatory and statutory provision which the General Court Martial did not comply with and should therefore render the judgment void.
On issue No. 1, the respondents submitted that the clear provisions of section 138(1) Decree 105, 1993, as amended, were complied with by the General Court Martial. It was contended that the Court Martial was constituted earlier before the arraignment of the appellant and that this fact was clearly stated on the face of the letter signed by Captain S.O. Attah N.N. Commanding Officer wherein on the face of it references were made to the earlier correspondences between the Eastern Naval Command Headquarters, the convener of the Court Martial convened initially to try Commander M.B. Ajibade (NN/0780) while the appellants were only added in reference to A-E of the correspondences. It was contended that section 131 (3) of Decree 105 gave the Senior Officer of a detached unit authority to order a Court Martial in special circumstances.
Learned counsel for the respondent submitted that the judgment of the General Court Martial was signed and dated contrary to the contention of the appellant and forwarded for necessary consideration and confirmation. Reference was made to section 148 (1), (2) 3 of Decree 105 (1993) as amended. It was contended that while section 150 (1) of the Decree gives the confirming authority right to review/reverse its findings, sections 151 and 152 of the Decree are relevant. It was also submitted for the respondents that in military trial no ruling, sentence nor judgment is valid, until it is confirmed and promulgated that it becomes legal. At this juncture, I would like to point out that it is a mandatory requirement of the Armed Forces Decree 1993 as amended that persons subject to service law shall be tried by a Court Martial. However, the Court Martial must be convened by an Officer who has the right and power to do so. In the instant case as borne by the records, there was no convening order as required by law. What is on the record is a convening order to try one Commander M.B. Ajibade (NN/0780). It seems to me that the only connection between the order and the appellant is that it is an addendum. I hasten to say that the law does not make provision for the addendum rather, every person who is to be tried must have the Court Martial convened to try him. The convening order must contain the following:
(a) The name of the President
(b) The name of the members and the waiting member
(c) The name of the Judge Advocate
(d) The place of sitting of the court
(e) The ranks of all the officers
See sections 133 to 135 of the Armed Forces Decree.
It is manifest from the records that the convening order in the case in hand is devoid of all these mandatory requirements.
At this point in time, I wish to bring in aid the provisions of section 132(1) of the Evidence Act, Cap. 112 1990.
“When any judgment of any court or any other judicial or official proceedings, or any contract, or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings, or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained, nor may the contents of any such documents be contradicted, altered, added to or varied by oral evidence.”
See Olagunju v. Raji (1986) 5 NWLR (Pt. 42) 408.
The respondents in their brief made frantic effort to play down or obviate the provisions of section 132(1) of the Evidence Act and resorted to sophistry. We are bound by the records of proceedings of the Court Martial and anything outside it cannot be sustained to the detriment of the appellant in view of the said section 132(1) of the Evidence Act. One thing is therefore certain from the records of the Court Martial that the convening order as shown on the proceedings in this appeal of the mandatory requirements stated supra.
It must be mentioned that the essence of having a convening order with the names and ranks of the members is to effect the provision of section 133(3) of Decree 105 of 1993. It was so stated in the decision of the Court of Appeal in Okoro v. Nigerian Army Council (2000) 3 NWLR (Pt. 647) 77 at 90-91.
It seems to me that an addendum to a convening order in another Court Martial cannot be said to be proper and valid. See Shekete v. The Nigerian Air Force (2000) 15 NWLR (Pt. 692) 868.
Also section 128(1) of Decree 105 of 1993 as amended provides as follows:
“An oath shall be administered to every member of a Court Martial and to any person in attendance on a Court Martial as Judge Advocate, waiting member, member, shorthand writers and interpreters.”
I have taken a hard look at the entire record of proceedings and I am unable to see any place where any oath was administered to any member of the Court Martial let alone the shorthand writers. In Black’s Law Dictionary page 1071 (6th edition), oath is defined as follows:
“Any form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully.”
The importance of oath taking is further emphasized by section 138(5), which provides that “An oath required to be administered under this section shall be in the prescribed form and shall be administered at the prescribed time by the prescribed person in the prescribed manner.”
It goes without saying therefore that oath taking or affirmation by members of the Court Martial as provided is a mandatory statutory provisions and so does not call for a discretion on the part of the court. It must be said that any non-compliance with statutory provision which is mandatory renders the proceedings void. See Maiwada v. First Bank of Nigeria Plc. and Ors. (1997) 4 NWLR (Pt. 500) 497 at 507, Achineku v. Ishaga (1988) 4 NWLR (Pt.89) 411; Amadi v. N.N.P.C. (2000) 10 NWLR (Pt. 674) 76 at 97, Ifezue v. Mbadugha (1984) All NLR 256 at 272.
I must also point out that where the words of an enactment are clear and unambiguous a literal interpretation must be given to the enactment. See Awolowo v. Shagari (1979) 6-9 S.C 51 at 64-65. I hold a strong view that non compliance completely not even substantially with the mandatory statutory provisions of section 138(1) and (5) of the Armed Forces Decree 105 of 1993 as amended robs the Court Martial of jurisdiction, particularly when the failure is juxtaposed with the meaning of oath as expressed in Blacks Law Dictionary. It must be noted that Court Martials as their name signify are courts of law. They are created by Decree 105 of 1993 as amended and recognized by section 240 of the 1999 Constitution. In the circumstances, the court is bound to follow statutory provisions. I should also say it loud that the entire proceedings and judgment of the Court Martial in the case in hand is a nullity in that the judgment of the Court Martial was not signed or dated as required by law. The judgment is contained on pages 431 to 445 of the record of proceedings.
Section 245 of the Criminal Procedure Act 1990 provides as follows:
“The Judge or Magistrate shall record his judgment in writing and shall be dated and signed by the Judge or Magistrate at the time of pronouncing it.”
Also, section 294 (1) of the 1999 Constitution provides as follows:
“Every court established under this Constitution shall deliver its decision in writing and furnish all the parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
Thus the date and signing of a judgment is a mandatory statutory provision. It goes without saying therefore that failure to sign and date a judgment at the time of pronouncing it renders the judgment void. See Tsalibawa v. Habiba (1991) 2 NWLR (Pt. 174) 461 at 475-477.
From the foregoing, there is no gainsaying that issue No.1 in the briefs of the parties should determine this appeal. However, I am not going to stop there as I intend to consider the remaining two issues for whatever they are worth.
The next issue for my consideration in this appeal is issue No. 2. It is whether the failure of the prosecution to explain the contradiction in the evidence of the prosecution witnesses were not fatal to this case.
Learned counsel for the appellant stated that the appellant was charged with the offence of conspiracy and stealing of 5,800 liters of diesel, property of the Nigerian Navy. It was submitted for the appellant that it is important and essential for the prosecution to prove the quantity of the diesel allegedly stolen. It was contended that PW 1 claimed that he delivered 15,000 liters of diesel to the appellant, PW 2 said according to the learned counsel that he was told that only 10,000 liters of diesel was delivered and taken by the ship. It was submitted that PW 3 said he did not see the delivery of the fuel. PW 3 was supposed to be a star witness. It was further submitted by counsel for the appellant that PW 5 in his evidence said that he climbed and checked the tanker and it was filled up but that the driver said that the capacity of the tanker is 13,800 liters.
It was contended that even PW 4 who claimed to have carried out investigation was not forthright in his answers when asked of the quantity of diesel supplied. It was stated that he went into arithmetical calculation. It was submitted that he was only conjecturing and ought not to have been believed. It is the contention of the learned counsel for the appellant that the evidence of PW 2 and PW 7 were conflicting in very material points, viz, the period when the tanker allegedly left the Naval Base and who drove out with the tanker driver. While PW 2 it was contended, alleged that the tanker left with the stolen diesel at 7.30p.m., that is, 19.30 hours from the Naval Base and that the tanker driver drove out with “one other man, the two of them drove out together in the tanker.” It was stated that PW 7 who was the tanker driver said he left the Naval Base at 11.00 p.m. and said further that he drove out his tanker in company of the second accused. Learned counsel for the appellant submitted that this very serious and obvious contradictions on very vital issues were never resolved.
Issue No.2 in the respondents’ briefs is not akin to issue No. 2 in the appellant’s brief and does not touch the points at stake in issue No. 2 in the appellant’s brief. However, it was submitted for the respondent that the General Court Martial is not bound to give reasons or make findings for its conclusion before giving verdict or judgment under the Armed Forces Decree 105 of 1993 as amended. Reference was made to section 141 of Decree No. 105.
I must say straightway that the evidence of the prosecution witnesses as highlighted in the brief of the appellant is loaded with contradictions. The General Court Martial did not resolve the contradictions or give due regard to them.
In the case of Clark Ejuren v. Commissioner of Police (1961) All NLR 468, The Supreme Court had this to say:
“If on an appeal from conviction on a criminal charge, the record of evidence shows that the trial court heard witnesses who gave two conflicting versions of an essential fact and that the court failed to make any specific finding on that fact; the Supreme Court, as a Court of Appeal, cannot choose between the two versions of that fact in order to make a finding of fact against the appellant which the trial court did not make. In the absence of a specific finding by the trial court on an essential fact, on which conflicting evidence was adduced, the only conclusion an appellate court can draw from such conflicting evidence is that favourable to the accused person.”
The above statement of the Supreme Court holds good for the instant appeal. In the case in hand, the contradictions in the evidence of the prosecution witnesses are to the effect that none of the witnesses can be relied on solely to sustain the conviction of the appellant. This court should therefore take the version of the story of the prosecution witnesses that is favourable to the appellant and that is, no one has said conclusively that he saw him stole 5,800 liters of diesel. It is manifest from the records that the General Court Martial swallowed the testimonies of the prosecution witnesses hook, line and sinker without sifting the totality of the evidence.
Undue reliance placed on the evidence of PW 7 who contradicted himself materially and should therefore not be relied upon to sustain the conviction of the appellant clearly occasioned a miscarriage of justice. See Onubogu v. State (1974) 9 S.C page 1. It must be pointed out also that the evidence of PW 4 and PW 3 are all hearsay evidence and not evidence of witnesses who saw the commission of the alleged crime or that the appellant conspired with some other persons to commit the crime.
The learned counsel for the respondent cited section 141 of the Armed Forces Decree 105 of 1993 to validate what the General Court Martial did.
Section 141 reads:
“Without prejudice to the provisions of section 135 of this Decree, the findings of a Court Martial on each charge shall be announced in open court and if the findings is guilty, shall be announced as being subject to confirmation.”
With due respect to the learned counsel for the respondents, the above section 141 of the Armed Forces Decree 105 of 1993 as amended is irrelevant to the issues at stake in this appeal or relevant to what I have said hereinbefore.
The final issue for consideration in this appeal is issue No.3 and that is, whether or not the trial of the appellant can be said to be fair. It was submitted by the learned counsel for the appellant that the appellant was arrested and put in custody on allegation of stealing and conspiracy. It was further submitted that even after the investigation, the appellant was denied bail and access to his lawyer. It was contended that this denial of access to his lawyer made it very difficult for him to adequately prepare his defence. Learned counsel for the appellant submitted that there was a complete violation of his right to fair hearing as enshrined in section 36 of the 1999 Constitution. Learned counsel also stated that the court exhibited very harsh stance at the defence counsel by refusing him to ask certain questions which tend to establish the fact that the appellant was not guilty.
For the respondents, it was submitted that the rule of fair hearing was strictly adhered to in the entire trial as recognized and prescribed by the 1999 Constitution. A number of cases were cited to support the submission of the learned trial counsel for the respondent that the appellant enjoyed fair hearing during his trial.
I agree with the submission of the learned counsel for the appellant that is manifest from the records that the court exhibited harsh stance to the defence counsel by refusing him to ask certain questions which tend to establish the fact that the appellant was not guilty. It can be readily seen in the record of proceedings that whenever salient questions are asked by the defence counsel, the court will rise for a short while only to come and overrule such questions. This fact ostensibly led to the defence counsel shouting out at page 289 of the records that “My Lord, it seems our hands are tied.”
As borne by the records, it seems to me that the court showed clear interest in the case of the prosecution when it continued to educate the prosecution on how to present its case whilst the reverse is in the case of the defence.
To say the least, the court descended into the arena during the trial of the appellant and this fact is also exhibited in its judgment. It is manifest from the records that the court virtually took over the prosecution of the case by asking questions which tend to establish or provide answers to implicate the appellant. The examination of PW 2 by the court took four pages, that of PW 5 took eleven pages, PW 6 examination by the court took six pages and PW 7 took five pages.
I have no doubt in my mind that the lengthy interrogation or examination of witnesses by a trial court so as to get answers violates the elementary standards of fair trial. See Nwofoke v. Commissioner of Police (1981) 1 NCR 183 at 193. A cursory glance at the record of proceedings will clearly show that the trial of the appellant was anything but fair.
It is patently clear from the records that the trial Judge in summing up, manufactured evidence that was not adduced just to secure the conviction of the appellant. For example in his summing up, the General Court Martial erroneously held that the opening up of locked Anansa gate was opened on the directive of the appellant. That this was stated by PW 7 and PW 4. I have taken a hard look at the evidence of PW 4 and PW 7 and I am satisfied that no such testimony was given. Further, there was no evidence in the entire proceedings to show that the appellant drove his car ahead of a tanker as found by the court in its judgment. Rather that evidence was both conflicting and contradictory as PW 5 said on page 69 of the records that appellant was on board, whatever that means. I therefore have no hesitation in concluding that in the circumstances the trial of the appellant was not fair and therefore in breach of section 36(1) of the 1999 Constitution on fair hearing and therefore a nullity.
For the purpose of completeness, I must say that it is trite law that suspicion however grave-does not amount to evidence. A Court Martial must observe the rules of evidence. By virtue of section 143(1) of the Armed Forces Decree No. 105 1993, a General Court Martial is enjoined to observe the rules of evidence in criminal courts in Nigeria. Consequently, the guilt of a person standing trial before a Court Martial must be proved beyond reasonable doubt before a conviction can ensue on the offence created under the Armed Forces Decree 105 of 1993. I must say that it is not the duty of a trial court to bridge the yawning gap in the case of the prosecution. It is now settled that in order to secure a verdict of guilty against an accused person, the prosecution must prove its case beyond reasonable doubt. In the instant case, the prosecution failed to establish its case against the appellant beyond reasonable doubt.
See Lt. Col. Gbolawole Femi Majekodunmi v. The Nigerian Army and Anor. (2002) 16 NWLR (Pt. 784) 451, Lori v. State (1980) 8-11 SC 81; Woolmington v. D.P.P. (1935), A.C 462; R. v. Basil Lawrence (1932) 11 NLR 67. In the result, all the issues raised in this appeal having been resolved against the respondents this appeal succeeds. It is therefore allowed.
I set aside the judgment of the General Court Martial, N.N.S Anansa in Calabar delivered on 9th day of February 2001. The appellant is hereby discharged and acquitted.
SIMEON OSUJI EKPE, JCA: I had the advantage of reading in advance the leading judgment just delivered by my learned brother, Rowland, JCA. I entirely agree with his reasoning and conclusions for allowing the appeal and setting aside the judgment of the General Court Martial delivered on the 9th of February 2001 in this case.
Apparently, the mandatory statutory requirements for the exercise of jurisdiction by the General Court Martial to try the appellants were either overlooked or taken for granted by the General Court Martial. In the first place, it is mandatory that there should be a convening order signed by the appropriate authority for convening the General Court Martial to try the appellants. The convening order is a condition precedent to the exercise of jurisdiction by the General Court Martial. There was no convening order here. Secondly, the failure of the President and members of the Court Martial to take oath as prescribed by section 138(1) of the Armed Forces Decree No. 105 of 1993 is fatal to the trial. The requirement of oath taking before the commencement of a trial is also a condition precedent to confer jurisdiction on a General Court Martial and non- compliance with it is fatal to the adjudication.
In my considered view, from whichever angle one may look at the entire exercise or trial, there was failure to comply with the mandatory statutory provisions in the Armed Forces Decree No. 105 of 1993 and this failure rendered the trial a nullity.
For the above views and the detailed views of my learned brother, Rowland, JCA, in the leading judgment, I, too hereby allow the appeal and abide by the consequential orders made by him.
ISTIFANUS THOMAS, JCA: I have had the advantage of reading in draft the judgment of my learned brother, Rowland, JCA that has just been read and I now wholeheartedly agree that the appeal is meritorious and I also allow the appeal and for the fuller reasons in the lead judgment, I too set aside the verdict of the General Court Martial, N.N.S. Anansa delivered on 9th February 2001 and in its place I enter a verdict of discharge and acquittal.
Cases referred to in the judgment:
Shekete v. Nigeria Air Force (2000) 15 NWLR (Pt. 692) 868.
Olagunju v. Raji (1986) 5 NWLR (Pt. 42) 408.
Okoro v. Nigerian Army (2000) 3 NWLR (Pt. 647) 77.
Maiwada v. F.B.N Plc (1997) 4 NWLR (Pt. 500) 497.
Achineku v. Ishagba (1988) 4 NWLR (Pt.89) 411.
Amadi v. N.N.P.C. (2000) 5 WRN 47; (2000) 10 NWLR (Pt. 674) 76.
Ifezue v. Mbadugha (1984) All NLR 256; (1984) 5 S.C 79.
Awolowo v. Shagari (1979) 6-9 S.C 51.
Tsalibawa v. Habiba (1991) 2 NWLR (Pt. 174) 461
Ejuren v. C.O.P (1961) All NLR 468.
Onubogu v. State (1974) 9 S.C 1.
Nwofoke v. C.O.P (1981) 1 NCR 183.
Majekodunmi v. Nigerian Army (2002) 31 WRN 138; (2002) 16 NWLR (Pt. 784) 451.
Lori v. State (1980) 8-11 S.C 81.
Woolmington v. D.P.P. (1935) A.C 462.
Statutes referred to in the judgment
Armed Forces Decree 105, 1993 Ss.128, 131,133-135, 138,141, 143, 148, 150, 151 & 152.
Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990 s. 132.
Constitution of Federal Republic of Nigeria 1999 Ss. 36 AND 240.
Criminal Procedure Act Ss.36 AND 245.
Book referred to in the judgment
Black’s Law Dictionary 6th ed. p. 1071.