Armed Forces/Military Offences

At the trial, Respondent called eleven witnesses and tendered thirty-two Exhibits, while Appellant testified in his own defence and tendered fourteen Exhibits. The GCM delivered its Judgment on 9/8/2010, wherein it found the Appellant guilty as charged and recommended that he be dismissed from the Nigerian Army, and this was confirmed by the Appropriate Superior Authority.
Dissatisfied, the Appellant appealed to the Court of Appeal with a Notice of Appeal containing six Grounds of Appeal. Both sides formulated Issues for Determination in their Briefs of Argument; however, the Court of Appeal, upon considering the facts, was of the view that there were two Issues for Determination, as follows:
i. Whether the offence of desertion on the Charge Sheet and for which the Appellant was tried and convicted was known to and maintainable in law under the provision of Section 60 (1) (a) of the Armed Forces Act. Cap A20 Laws of the Federation of Nigeria, 2004.
ii. Whether the Respondent proved its case against the Appellant beyond reasonable doubt to warrant the conviction and sentence of the Appellant to dismissal from the Nigerian Army.
It resolved both Issues against the Appellant, and concluded thus:
This Court finds and holds that this Appeal is completely lacking in merit and it is hereby dismissed. The Judgment of the General Court Martial delivered on 9/8/2010, finding the Appellant guilty of desertion and recommending him for dismissal from the service of the Nigerian Army as well as the confirmation of the sentence by the Appropriate Superior Authority of the Nigerian Army on 3/12/2010 are hereby affirmed.
Further aggrieved, the Appellant filed a Notice of Appeal that was later amended in this Court, and the Amended Notice of Appeal contains nine Grounds of Appeal. However, the Respondent filed a Notice of Preliminary Objection urging this Court to strike out or dismiss this Appeal, and the Grounds of Objection are as follows –
(1) The Grounds of Appeal were not premised on any ground of law and as a matter of law cannot be appealed against as a matter of right.
(2) Before the Appeal can properly be entertained by this Hon. Court, he needed first as a prerequisite to foremost obtain leave of this Court.
(3) Grounds 1, 3, 4, 5, 6, 7, 8 & 9 never emanated from the Judgment of the lower Court but from the Judgment of the trial General Court Martial.
(4) Grounds 1, 3, 4, 5. 6, 7, 8 & 9 were supported by incongruous particulars that are not connected with the Grounds.
The Parties filed and adopted their respective Briefs of Argument, and the Respondent argued its Preliminary Objection in its Brief.
But I must say the Briefs of Arguments presented by both Parties, leave much to be desired and fail the test of what a brief should be.
A well-written brief should contain a concise statement of facts of a case that are material to the consideration of questions presented for determination by the Court. It should also contain direct, concise and succinct statement of arguments in the Appeal – see S.P.D.C. V. F.B.I.R (1996) 8 NWLR (Pt. 466) 256 and Nwokoro V Onuma (1990) 3 NWLR (Pt. 136) 22, wherein this Court, following the case of Duncan v. Kohler 37, Minn.379, defined a brief thus –
A condensed statement of the propositions of law or fact or both, which a party or his counsel wishes to establish at the Appeal; together with the reasons and authorities, which can sustain them.
In this case, under Statement of Facts at pages 1 to 6 of his Brief, Appellant narrated the entire history of when he joined the Army in 1978, his achievements as an Army Officer, and promotions etc., including his well-deserved deployment to the Nigerian Mission in the United Kingdom as the Deputy Defence Adviser, Finance, which made, not only his colleagues, but senior officers, jealous. For instance, he stated as follows at pages 4 to 5 of his brief that –
He had persistently been a victim of gang-ups the gang-ups sent him to redundant offices and left him with no functions – – or just on the eve of promotions to stop him from promotion or good appointment; punitive steps always

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premised on false and unfounded allegations to achieve the damage of preventing his promotion or appointment. The same gang had started a fresh plot and he decided to resist being manipulated out of promotion and his only good posting in his entire career.
He canvassed similar arguments in his 21-page Brief of Argument of gang-ups due to jealousy, which led to the Charge against him, conviction by the GCM, and dismissal from the Nigerian Army. So, most of what he had to say touched on sentiments and not the law.
The Respondent did not fare any better; it focused on flaws in the Grounds of Appeal in its entire brief. As the Appellant noted in his Reply Brief, the Respondent included its Preliminary Objection “in the main body of the submissions in the brief”, which is wrong.
The Appellant is right; there is a marked difference between a Preliminary Objection and Issues for Determination. This Court, per Chukwuma-Eneh, JSC, termed them “strange bedfellows” in Odunze V Nwosu(2007) 13 NWLR (Pt.1050) 1, wherein he said that:
Issue for determination and preliminary objection under our Rules, do not have a common meeting ground.
Preliminary objection strictly speaking runs counter to the intendment of issues for determination in the claims before the Courts in the sense that it aborts, indeed forecloses hearing of the case in limine and if upheld, terminates the case; it automatically puts an end to the case without determining the rights of the Parties while issue for determination presupposes that the case is, all things being equal, on course for the hearing. An issue for determination is a combination of facts and the law on a particular point, which when decided, affects the fate of the appeal – – it must relate to the grounds of appeal. The two are more or less strange bedfellows: and so, for a preliminary objection to be dressed in the garb given to it here is strange and improper.
In other words, the determination of a preliminary objection to the hearing of an Appeal, is not a hearing of the Appeal, which can only be considered based on issues for determination distilled from grounds of Appeal – Sanusi V Ayoola (1992) 9 NWLR (Pt. 265) 275.
Briefs of arguments are meant to assist in the administration of justice by making the work of counsel and Court simpler once a matter gets to the oral hearing stage. “It is to promote justice”? – see Eng. Ent. V. A.-G., Kaduna State (1987) 2 NWLR (Pt. 57) 381 SC, wherein this Court per Eso, JSC, further observed as follows-
The Courts gain immense assistance from excellent briefs when it gets to the stage of the Court undertaking research into the matter before it.
See also FSB International Bank Ltd. v. Imano (Nig.) Ltd. (2001) 11 NWLR (Pt.679) 620 at 630, wherein Achike, JSC, also stated that –
A good brief should be readable, concise but comprehensive, leaving no stone untouched in relation to the issues placed before the Court, which must be adequately addressed. On contrast, a bad brief bores the Court and sometimes, even a painstaking Judge, may be eluded in eliciting the matter in controversy to the chagrin of counsel’s client. It is, therefore, hoped that in the interest of the Court and the client’s case, counsel should appreciate that presentation of a good brief is an indispensable asset to successful appellate legal practice.
Be that as it may, there are numerous authorities on the principle that despite the inelegance or flaws in a Party’s brief of argument, an appellate Court has a duty to examine the arguments therein, and decide the case on its merit – see Ekpemupolo V Edremoda(2009) 8 NWLR (Pt. 1142) 166 SC, Akpan v. The State (1992) 6 NWLR (Pt. 248) 439 SC, and the locus classicus on the subject – Obiora v. Osele (1989) 1 NWLR (Pt.97) 279, wherein Oputa, JSC, aptly stated:
It is my view that the filing of these Briefs (no matter how faulty each is, or all of them are), does indicate a willingness, an eagerness and a readiness on the part of the Appellant to prosecute his appeal. A bad, faulty and/or in elegant Brief will surely attract adverse comments from the Courts but it will be stretching the matter too far to regard such defective Brief as no Brief. A faulty Brief is a Brief, which is faulty. One cannot close ones eyes to the fact of its existence.
The fact is that this Appeal must be resolved one way or the other. However, in view of the faulty/inelegant Briefs filed by the Parties, which this Court cannot close its eyes to, resolving the Appeal will entail sifting out facts that are

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material to the Appeal in this Court; and scrutinizing complaints in the Grounds of Appeal to lay bare, as it were, the real Issues that call for determination in the Appeal.
Now, it is an established fact that in July 2006, the Appellant was nominated for deployment to the Nigerian Mission in London, as the Deputy Defence Adviser, Finance and that he duty reported. But in July 2007, he was shortlisted as one of the Officers to attend a Course at the Armed Forces Command and Staff College, Jaji, with effect from 1/8/2017. The Respondent’s case is that he did not report immediately, and refused to hand over his office in London. He eventually reported on 14/9/2007, but the College authorities refused to admit him on the ground that he was seven weeks late. After intervention by the office of the Chief of Army Staff [COAS], he was reinstated into the course sometime in November, 2007.
The Appellant did not report back to the College until 7/1/2008, and he pleaded for a deferment of his nomination for the course. In approving same, COAS directed that he be redeployed within the Nigerian Army Finance Corps, and by a letter dated 21/2/2008, Appellant was redeployed to the Nigerian Army School of Finance and Administration [NASFA], but rather than report at the school, he returned to the Nigerian Mission in London without clearance.
The Appellant was declared Away Without Official License [AWOL] in March 2008. A Board of Inquiry was then convened to investigate the circumstances of his absenteeism and its Findings and Recommendations were forwarded to NASFA Headquarters for necessary action, and following the directive of the COAS that its recommendations be implemented, the name of the Appellant, with his photograph, was published as a deserter in an edition of “Soja Magazine” and his name was deleted from NASFA database.
But upon his return to Nigeria, the Appellant was arrested on 2/2/2010, and by a letter dated 4/2/2010, he was “rejabbed” into the Nigerian Army, and his name was reinstated in NASFA data base. Thereafter, the GCM was convened to try Appellant for desertion.
On his part, the Appellant admitted he appealed for deferment of his nomination for the said Course, and it was granted and he, thereafter, returned to London but only to complete the handover. He narrated how he was advised to vacate his official residence in London not later than 14/12/2017. When he failed to vacate same, a firm of Solicitors wrote him and his wife a letter dated 19/1/2009, giving them two weeks to vacate the premises. By a letter dated 23/3/2009, the office of the Defence Adviser informed him that he had been declared a deserter with effect from 29/12/2008 and he was to submit military accouterment and government property in his possession including diplomatic passport, and vacate the said official Residence; and he responded by a letter dated 14/42009.
While he was trying to sort out all these issues, his diplomatic passport was repossessed by the Nigerian High Commission and when he was declared AWOL, he pleaded with the Commission to allow him to return to Nigeria. He wrote letters to the officials on the need to release his passport to enable him travel to Nigeria to sort out issues, but all to no avail until he was declared a deserter.
He was eventually ejected from the Residence in January 2010. He got an Emergency Travelling Certificate and a ticket paid for by Nigerian High Commission, which he used to return on 2/2/2010.
After considering the evidence before it, and closing Addresses of the Prosecution and Defence as well as the summing up of the Judge Advocate, the GCM remarked as follows in its Judgment –
a. The Accused did not want to attend the Senior Staff Course firstly because he got the nomination late. Secondly, he believed it was not necessary or relevant to his career growth being a Direct Regular Commissioned Officer and thirdly, he felt he has not yet served out his perceived tenure as DDA [Deputy Director, Finance] in London.
b. He made spirited attempts to avoid attending the course, which included writing a letter of appeal for the deferment of the Course [Exhibit P10] to the Comdt (sic) AFCSC. The Comdt AFCSC forwarded the application for deferment of the course for the necessary action of the COAS [Exhibit P11].
c. The COAS approved the appeal for deferment of the course and thereafter gave directive to redeploy the Accused within the NAFC, which was strictly carried out [Exhibit P12]. The claim by the Accused that he returned to his unit in London as DDA Fin on the strength of any return to Unit letter was spurious.

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d. The Accused was redeployed with immediate effect to NASFA vide Exhibit Pl5; NA/FIN/123/1/VOL 16/10 dated 21 Feb 08. His posting consequently remains to NASFA with effect from 21 Feb 08. It was the same NASFA that rejabbed him and reinstated him into Service after his arrest on 2 Feb 10.
e. Rather than the Accused reporting to NASFA and obtaining a pass therefrom for whatever he might need to do, he chose to travel back to London without authorization. In London, he refused to hand over as ordered by the DA first to DDA Library on the pretext that DDA Library was not a Finance Corp officer and later to Lt Col Ochei his successor Finance Corp officer on the pretext that Lt Col Ochei had no diplomatic passport.
f. If the Accused had a legitimate reason to return to London after his deployment to NASFA vide a letter dated 21 Feb 08, he would have applied for a pass and proper security clearance to travel.
g. The Accused did not exhibit the traits of a disciplined officer in the way he conducted himself by defying all voices of reason and counseling by superiors and contemporaries alike. He unreasonably wanted to stay put as DDA Fin and resisted reporting to NASFA.
h. The Accused had been redundant and unproductive in the Service of the NA since he handed over to Lt Col Ochei in September 2007. After following the procedure, which takes time to attain, Exhibit P13: AHQ/G1/300/194 dated 3 Dec 08 directed that Accused be declared a deserter and this was dutifully carried out vide the publication in [Exhibit P24] New Soja Magazine. First Quarter Edition for year 2009.
i. The Defence Section of the National (sic) High Commission also dutifully informed the Accused of his Deserter Status Compliance vide Exhibit D12: NHC/DA/29/A dated 23 Mar 09. Despite receiving this letter [Exhibit D14], the Accused failed to still turn himself in until he was arrested on 2 Feb 10. The Accused never had any intention of rejoining the NA though his unit; NASFA until he was arrested.
j. The Accused had contemptuously reneged on the oath he took while being commissioned that he would go wherever and whenever ordered by land, sea or air and would obey all the commands of those placed above him with the way he chose not to report to NASFA. It is unthinkable that any reasonable officer of the rank of Lt Col who is mindful of his career in the NA would behave the way Accused did.
k. It is fanciful for the Accused to say that he was staying in the official residence of DDA Fin London during the material period (21 Feb 08 – 2 Feb 10) but he was there as an unwanted guest. The GCM believes that the Defence Section, Nigerian High Commission decided to play along with nuances and idiocy of the Accused in order not to create embarrassment particularly for the Nigerian High Commission and generally soil the name of Nigeria. This GCM finds you Lt Col PY Awusa (N/9006) guilty of the offence of desertion as charged.
As I pointed out earlier, the Court of Appeal identified two Issues for Determination in its Judgment, and on the Issue of whether the offence of desertion as charged is known to law, it observed that:
The real grouse of the Appellant under this Issue for Determination is with the particulars of the offence with which was charged, and not with the offence itself. Counsel stated that the charge read that the Appellant committed the offence of desertion by refusing to join his unit as against the wordings of the Section [i.e, Section 60 (1) (a) of the Armed Forces Act], which talk about refusal to join the Armed Forces.
After reviewing the position of the law, it concluded as follows
It was not the case of the Appellant that he was misled by the framing of the Charge and/or that he did not understand the purport of the allegation against him in the Charge. In fact the Record of Appeal shows that in the course of exchanges between the President of the GCM and Appellant before the start of trial, the Appellant confirmed that he clearly understood the statement of the offence read to him. It is trite that even where there is an alleged defect in a Charge and the Record of the Court shows that the Accused was not misled by the said defect and clearly understood the allegation against him and was represented by Counsel at the trial, an attempt to challenge his conviction on appeal on the basis of the defect in the charge will be puerile, nothing but a storm in a teacup .This Court finds and holds that the offence of desertion as stated on the charge sheet and for which the Appellant was tried and convicted is known to and maintainable in law under the provisions of Section 60 (4) (a) of the Armed Forces Act and that, even assuming that the charge was defective, the Appellant cannot raise such defect at this stage of proceedings and any such defect, if any, cannot affect the decision of the GCM. The first issue is resolved against the Appellant.

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On Issue 2, whether the Respondent proved its case against Appellant, it referred to GCM’s Findings Nos d. to j. (supra), and held as follows:
The Appellant has not challenged these findings and not even the conclusion drawn therefrom that he never had the intention of rejoining the NA through his unit, NASFA until he was arrested. The Appellants case is that the GCM was wrong in fixing him with an intention of permanently leaving the Armed Forces because the authorities knew where he was the whole time and that he exchanged oral and written communications with senior officers during the period of said desertion. As examples of such communication, the Appellant pointed to the letter informing him of the approval of his request for deferment of his nomination for the Senior Officers Course dated 3/3/2008.
Exhibit D2 as well as to discussion he had with Major General Charles Airhiavbere, the tenth Prosecution Witness, who was the then Commander Corps of Army Finance and Administration (C-CAFA) on 3/3/2008 and letters written to him by and on behalf of the Defence Section of the Nigerian High Commission requesting him to vacate the official residence allocated to him and informing him of his deserter status, Exhibit D11 and D12.
This Court must say it fails to see the relevance of these to the issue at stake in this matter. It is not an ingredient of the offence of desertion that the Military Authorities must not know the whereabout of and/or not have any communication with the Appellant throughout the period of the desertion. This point was made by Akin Kejawa in his book Military Law in Nigeria where the learned author stated that culpability for desertion attaches where an Accused fails to join or leaves his unit to avoid service in particular circumstances and that it is immaterial that he remains in the service of another unit, for his presence in a unit other than the one he is officially posted is culpable.
In none of the said communications was the action of Appellant in failing to report to NASFA sanctioned or authorized by the Military Authorities.
In fact, the need for the Appellant to report at once to NASFA was emphasized by Major General Charles Airhiavbere and by the Defence Adviser in their respective communications with Appellant Counsel suggested that the Appellant was unable to return to Nigeria to sort issues with Military Authorities because of the seizure of his passport.
The suggestion is self-serving. The issue of the seizure of the diplomatic passport of Appellant did not arise until late 2009 as evidenced by the date on Exhibits D14 and D15, so they cannot be the reason for the refusal of the Appellant to join his unit on 21/2/2008 and to remain away from the unit till late 2009. What is evident to this Court is that the Appellant, rather than report to NASFA on his deployment there on 21/2/2008, chose on his own, without any authorization or permission from appropriate Military Authorities, to return to his former posting in London and travelled to London on 10/3/2008. The Appellant stayed put in London despite everything done to him by the Defence Adviser to get him to return to Nigeria, including threats to reject him from the official residence, stopping his allowances and payment for his utilities, locking him out of the Mission Office and warning of the possible repercussions of his refusal on his career in the Army.
The Appellant admitted very clearly in his statement Exhibit P1, and in the letter he wrote on his deserter status, Exhibit D13, that his reasons for returning to his former posting in London in March 2008 and for staying put thereat until 1/2/2010 were personal and that he chose to stay on in London despite his salary and allowances being stopped by the NA since 2008 and despite his being advised by the Defence Adviser that his actions would jeopardize his career. These show that Appellant was obviously willing to forgo his career to satisfy personal reasons for staying in London. In R. Vs. Mahoney supra, the English Court Martial Appeal Court stated:
“If a man is absent from October, 9 to October, 31st, I should say that that is ample time for Court-Martial to hold that he did not intend to return.
Why he did not intend to return has to be explained by him, No explanation being given, there was ample evidence here on which the Court-Martial could hold that the Appellant was absent from unit from October, 9th, 1955 till his arrest on April, 1956, and therefore there was ample evidence that he had been absent from such a long time, in the absence of any explanation by him, he intended to desert Her Majesty’s Forces.”
In the instant case, there was ample evidence before the GCM that Appellant was absent from and did not join his unit from 27/2/2008 to 2/2/2010 and the Appellant did not present before the GCM any authorization or a national and legally justifiable reason for his absence and refusal to join the unit. The GCM was thus correct in fixing the Appellant with the necessary intention of desiring to be permanently remaining absent from duty.
The next port of call is Respondent’s Notice of Preliminary Objection. Apart from Ground 2, which is the omnibus Ground of Appeal that the decision of the Court below is unwarranted, unreasonable, and cannot be supported having regard to the evidence, the Respondent objected to the other eight Grounds

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of Appeal on the ground that they are not premised on any grounds of law; that the Appellant did not seek leave of Court to file same; that they did not emanate from the Judgment of the Court below; and they are supported by incongruous particulars.
In arguing the Objection in its Brief of Argument, the Respondent referred to Section 233 (2) of the Constitution (as amended) and cited:
Ojemien V Momodu (1983) SCNLR 135 at 136
Gov. of Kaduna State V Dada (1986) 4 NWLR (Pt.38) 687 at 695
Uchendu V Ogboni (1999) 5 NWLR (Pt.603) 337 at 346
Yaro V Arewa Cons. Ltd (2007) 17 NWLR (Pt.1063) 333 at 343
Jov v. Dom (1999) 9 NWLR (Pt. 620) 538 at 542
Gen. Electric Co V Akande (2010) 18 NWLR (Pt.1225) 596 at 601
Jim Jaja V. COP (Rivers) [2013] 6 NWLR (Pt 1350) 225 at 233
Obijuru V. Ozims (1985) 2 NWLR (Pt.6) 167 at 169
Irhabor V. Ogaiamien (1999) 2 NWLR (Pt.616) 517 at 519
Based on the principles enunciated therein, it urged this Court to hold that the Appeal is incompetent as the said Grounds with their particulars are predicated on the conditions enumerated under Section 233(2), which relates only to those conditions upon which an appeal lies with leave, and Appellant having not procured the necessary fundamental leave has, thereby imperiled the Appeal.
It also argued that an Appeal is confined to consideration of the record from the Court below with no new testimonies taken or new issues raised thereon; that it is an invitation to the superior Court to find out whether or not proper consideration of the law and facts by the lower Court are correct and defensible- Ibodo V Enarofia(1980) NSCC (Vol.12) 195; that in the Issues formulated, the Appellant did not state which Grounds of Appeal they were formulated from; and that he completely abandoned arguments on Issues raised in the Appeal but strangely embarked upon his arguments as if it was in the trial Court that the Appeal is pending. It urged this Court to strike out the Appeal for being incompetent.
The Appellant argued in his Reply Brief that the said Grounds are premised on Section 233(2) (a), b) and (c) of the Constitution. Citing Nwadike V Ibekwe [1987] 4 NWLR (Pt. 67) 718, he submitted that the relevant Rules established therein apply to each Ground; that the main thrust of this Appeal challenges the validity of the trial on the absence of evidence of service of the order of transfer [Exhibit P15]; and that the evidence relied on by the GCM conflicts with official Records of the Army, since he went to see DAFA [aka C-CAFA] only once but there are three versions of that meeting.
He reproduced excerpts from testimonies of witnesses and some Exhibits, and proffered arguments supported by a number of judicial authorities from pages 4 -7 of the Reply Brief, which is, certainty, not the essence or import of a reply brief in an Appeal.
A reply brief is filed when issues of law or arguments raised in the Respondent’s brief call, for a reply; it deals with new points. Thus, a reply brief is limited to finding answers to questions raised in the Respondent’s brief, which the Appellant has not addressed or dealt with in the main brief – see Ikine & Ors v. Edjerode & Ors (2001) LPELR-1479(SC) and Mozie V. Mbamalu (2006) 15 NWLR (pt. 1003) 466 SC, wherein Tobi, JSC, aptly observed as follows –
A reply brief, as the name implies, is a reply to the Respondents brief. A reply brief is filed when an issue of law or arguments raised in the Respondents brief call for a reply. A reply brief should deal with only new points arising from the Respondent’s brief. In the absence of a new point, a reply brief is otiose and the Court is entitled to discountenance it. A reply brief is not a repair kit to put right any lacuna or error in the Appellant’s brief.
As to the Objection, I must say that I find it actually disheartening that notwithstanding the tons of judicial authorities on the subject, this Court in 2018, still has to explain rudimentary principles of law regarding the

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importance and essence of grounds of Appeal, etc.
But, in view of the Respondent’s Objection; this must be done. Grounds of Appeal arise from the ratio decidendi of the decision appealed against and the issues formulated for the determination of the appeal arise from the Grounds of Appeal, which emanated from the decision appealed against Ibigbami & Anor V. Mil. Gov. Ekiti State (2004) 4 NWLR (Pt.863) 243 SC.
It is also settled that the particulars are the specific reasoning, finding or observations relating to or projecting the error or misdirection complained of – see Globe Fishing Ind. Ltd. v. Coker (1990) 7 NWLR (Pt.162) 265 SC, wherein this Court, per Akpata, JSC, further explained as follows:
They are in a sense the itemization of the error or misdirection in the Judgment or Ruling. Particulars required are not the arguments or narratives that should be proffered at the hearing of the Appeal to establish that the Court erred or misdirected itself. They should also not be independent complaint from the ground but ancillary to it.
See also Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR-41822(SC), wherein M. D. Muhammad, JSC, observed that:
The complaint of an Appellant can hardly be understood where there is a dichotomy between the mother/main ground and its “children or particulars. The law does not allow a party to divorce the particulars of a ground from the main ground. They are the specifications of errors or misdirection, which show what the complaint against the decision is. To determine whether or not a ground of appeal is relevant to the issue formulated in an appeal, that ground must be read in conjunction with the particulars to make it a complete ground and must be based on the issue in controversy between the parties.
It is also settled that in determining whether the ground of Appeal alleges an error in law or fact, it is relevant and crucial to construe the ground together with the particulars of error alleged because its classification as a ground of law can only give competence to an Appeal without leave, if the nature of the misdirection or error clearly stated in the particulars bears out the category assigned –
Garuba V. Omokhodion (2011) 6-7 SC (Pt. V) 89, Metal Construction (W. A.) Ltd. v. D. A. Migliore & Ors (1990) 1 NWLR (Pt.126) 299 SC.
What is more, where a ground of appeal involves questions of fact or mixed law and fact, leave to appeal must be obtained by the Party from the Court of Appeal or this Court. Failure to obtain leave renders the appeal incompetent, and it will be thrown out Garuba V. Omokhodion (supra). The question, therefore, is what is the distinction between the questions of law and questions of fact?
In answering same, Obaseki, JSC, made the difference clear in Metal Const. (W.A) Ltd. V. D.A. Migliore & Ors (supra) as follows:
Matters of fact have to be ascertained, failing admission by competent and relevant evidence given by witnesses, experts or provided by deeds records, reports, etc. Matters of law have to be ascertained, failing admission, by interpretation of statutes, cases and other authoritative sources of law aided by argument of counsel to parties in the litigation. An Appeal on matters of fact allows investigation at the hearing of the Appeal of the evidence and the proper inferences from it whereas an Appeal on a point of law limits consideration of the Appeal to such questions as to whether facts admitted or held proved, justify or permit by rules of Court a particular decision or disposal of the case before the Court. In a secondary sense, any matter to be decided on evidence and inference therefrom is a matter of fact and other matters are matters of law. A decision of a trial Judge is normally a mixed finding.
It is also an elementary principle that an appellate Court will not allow a Party to raise a fresh issue on appeal that was not raised at the trial Court, except where such an issue involves substantial points of law, substantive or procedural, and this must be allowed to prevent an obvious miscarriage of justice – see Okenwa V. Military Governor, Imo State (1996) 2 NWLR (Pt.455) 394 at 407 SC, wherein this Court per Iguh, JSC, further elucidated as follows
An appellate Court must not allow an Appellant to jettison before it, the question on which the Parties joined issue and fought their case before the trial Court as to do otherwise would amount, in effect, to permitting the Appellant to commence an entirety new case before the appellate Court. In the same vein, an appellate Court before which a new point is sought to be canvassed will refuse to grant leave to do so where the fresh point raised introduces a new line of

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defence completely different from the issues fought by the Parties in the Court below. An Appellant will also not be allowed to raise on Appeal, a fresh point or question, which was not raised or tried or considered by the trial Court, particularly where to raise such a point or question will require fresh or additional evidence to be adduced Where, however, such a fresh point or question involves a substantial point of law, substantial or procedural, and it is plain that no further evidence needs be adduced which would affect the decision on the matter, the appellate Court will allow the question to be raised and the point taken to prevent a miscarriage of justice.
In this case, all the principles of law spelt out above come to play, because Respondent’s contention is that Grounds 1, 3 to 9 of the Grounds of Appeal are grounds of mixed law and fact, not of law, and the Appellant did not seek leave to appeal on those grounds; that they never emanated from the Judgment of Court of Appeal but from that of the GCM; and that where it does, the Particulars of Error are incongruous, and unrelated to the Grounds of Appeal.
In his Reply Brief, Appellant submitted that the source of life of his Issue 1 can be traced to Grounds 3, 4, 5 & 8, which complain:
Ground Three: The Honourable Appellate Court Justices erred in Law when they upheld the decision that there was a valid transfer instruction served on the Appellant and thereof held
“On the second ingredient, it was not in dispute in this matter that by a letter dated 21/2/2008, the Appellant was redeployed to NASFA by the Nigerian Army Finance Corps.
PARTICULARS OF ERROR
1. There was no evidence that the letter of transfer of 21/2/2002 (Exhibit P15) was ever served on the Appellant.
2. Appellant asserted that it was on 3/32008 that he was interviewed by DAFA (PW10) and was thereafter only served the Deferment to school letter, Exhibit 2, and this was corroborated by PW4.
3. The Appellant was on military/diplomatic posting to Britain.
4. That Federal Republic of Nigeria provided the Appellant with all the financial and administrative support needed for him to take up the posting in London with his family from Nigeria.
5. That the letter of recall to school a few months after their arrival and re-settlement in London, made no provision for Appellant to bring back the Appellant s family who had settled in London.
6. The recall was premised on false, unfounded and un-established allegation that Appellant was repatriated by the British Government.
7. That any letter of recall that made no provision for Appellant’s familys return, amounted to an Order on the Appellant to abandon his family in foreign land which will constitute breaches of the rights of the Appellant and of the Appellant’s wife and children under Sections 34 and 37 of the Constitution of the Federal Republic of Nigeria.
Ground Four: The Appellate Court Justices erred in Law when they held.
“With respect … his copious submission on Exhibit D12 was a lot of noise about nothing the declaration of the Appellant as a deserter on 29/12/2008, was part of a process done in part implementation of the recommendations of the Board of Inquiry To show that the Board of Inquiry recommendations were not final, Section 172(4) of the Armed Force Act states that the evidence given before the Board of Inquiry shall not be admissible against a person in a proceeding before a Court martial and Section 173(3) states that the recommendation shall become spent where the person involved subsequently surrenders or is arrested…
PARTICULARS OF ERROR
1. It was common ground that Appellant was in his official residence at all material times and was in touch with his office in London.
2. The Board of Inquiry proceedings was a quasi-judicial proceeding that tried the Appellant in absentia on the presumption that he could not be reached and reached decisions that effectively terminated the Appellants commission.
3. The Board of Inquiry proceeding were in breach of the Appellants right of fair hearing, as it was a proceeding with a foregone conclusion, that had the irreparable consequences.
4. The findings of the Board of Inquiry temporary achieved the same result as the Court Martial and laid the foundation for the Court Martial, the temporal termination of the commission of the Appellant as a Soldier, and the attendant denial of the Appellant of the financial resources to defend himself and other consequences that reduced his capacity to

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defend himself.
5. There was no credible evidence that Exhibit P15, the document relied on for the conviction, was ever served on Appellant.
Ground Five: The Learned Justices of the Appellate Court erred when they upheld as valid the construction of and/or the provision of the Armed Forces Act in so far as it purportedly authorizes an ex parte judicial process against a person who can be reached without serving him summons and giving him the opportunity to defend himself.
PARTICULARS OF ERROR
i. Under Section 36 of the Constitution of the Federal Republic of Nigeria, a person is entitled to be heard in all judicial and quasi-judicial proceedings determining his rights and obligations.
ii. The proceedings of the Board of Inquiry and its implementation effectively removed the Appellant from the Army and terminated his commission.
iii. Notwithstanding the provisions of Section 172(4) of the Armed Force Act that precludes admissibility of the recommendation of Board of Inquiries, the core-content of that recommendation and its implementation was the premises of the Court Martial trial with evidence of Appellant being declared a deserter, his commission terminated, removed from the Army records, arrested by a junior officer, rejabbed, given half salary and in custody as a prisoner-awaiting trial, all before the Court, and key part of the Evidence.
iv. The fact that Section 173(2) of the Armed Force Act states that the recommendation of the Board becomes spent on arrest or surrender, does not fully revert the grave consequences of the implementation of the recommendation, as the Appellant permanently lost his rights and privileges thereafter, adjudged guilty and the trial just for him to prove his innocence.
Ground Eight: The learned Appellate Justices erred in Law when they upheld conviction over a period when the unchallenged facts show contradictions in the way the Military authorities related to the Appellants Status in the Army over that period.
PARTICULARS OF ERROR
1. The Appellant was convicted of desertion for the period – 21/2/2008 to 2/2/2010.
2. The 4th Prosecution Witness, Chief of Staff to Commander Corps of Army Finance & Administration, testified that PW10 (DAFA) met and interviewed Appellant on 3/3/2008 & Exhibit D2. Letter of Deferment for his attendance of Senior Officer Course 30 as a serving Soldier was served on the Appellant.
3. The Exhibit D12, letter from Defence Adviser, declared the Appellant a deserter from 2912/2008 as against 21/2/2008 when the Judgment held he was in desertion.
4. The Exhibit P15, signed by PW2, declared the date of deployment (by extension, date of desertion) to be 21/2/2008 even as PW2 claimed he served the Appellant Exh P.15 on that 21st February 2008 and advised Appellant to relocate his family back to Nigeria, with no corroborating evidence of such service before the Court, given Appellants denial of service and evidence of PW4.
I agree with the Respondent that some of the particulars are mere narratives that add nothing to the Grounds of Appeal, and that the issue of whether the Appellant was served with Exhibit P15 or not, was not raised at the Court of Appeal, therefore, it is a fresh issue.
However, despite their superfluous Particulars, Appellant’s complaint in those Grounds of Appeal is that the letter of transfer, Exhibit P15, which he allegedly disobeyed to constitute desertion, was not served on him, and that he was denied a fair hearing.
The law is that once the error complained of is identified and properly oriented in the ground of Appeal, the fact that particulars to the said ground are argumentative, repetitive or narratives is not enough for an appellate Court to sidestep from doing justice – See Best (Nig.) Ltd. V. B.H. (Nig. Ltd. (2011) 5 NWLR (Pt. 1239) 95 SC, and Omisore V. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 at 257, where this Court per Nweze, JSC, made the point clear as follows:
It is not every failure to attend to grounds of appeal with the fastidious details prescribed by the Rules of this Court that would render such a ground incompetent. This is particularly so where sufficient particulars can be gleaned from the grounds of Appeal and the adversary and the Court are left in no doubt as to the particulars on which the grounds are founded. Even then, Courts are encouraged to make the best they can out of a bad or inelegant ground of appeal in

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the interest of justice. Put differently since the essence of the particulars is to project the reason for the ground complained of, the inelegance of the said particulars would not invalidate the grounds from which they follow This position: a position shaped by the contemporary shift from technicalities to substantial justices is, clearly evidenced in such cases like Aderounmu V Olowu (2000) 4 NWLR (Pt. 652) 253 Indeed, this Court, recently stamped its infallible authority on this current posture. Abe V Unilorin (2013) LPELR-20643; (2013) 16 NWLR (Pt 1379) 183.
In this case, the Appellant’s complaint to the Court of Appeal was that the GMC had erred in law when it proceeded to convict him on charges not known to law. He did not raise the issue concerning service of Exhibit P15, and the Court of Appeal did not deal with it.
Nonetheless, he is waving a banner of fair hearing in this Court, and an allegation of lack of fair hearing involves a question of law that can be raised at any stage, even at this Court for the first time. The Objections to Grounds 3, 4, 5 & 8 are, therefore, overruled.
Appellant also submitted in his Reply Brief that his Issue 2 takes its life from Grounds 1, 2, 6, 7 & 9″, which complain thus –
Ground One: Court of Appeal erred in law and thereby occasioned a miscarriage of justice when she sustained conviction and sentence of the GCM passed upon [him] upon charge(s) that were unknown to law.
PARTICULARS:
a. The charge proffered against [him] was that of desertion in that he failed to join his unit from 21/2/2008 to 2/2/2010 with the intention at the period of so failing or thereafter of being permanently absent from duty without leave.
b. The aforesaid charge as framed is not covered by the aforesaid Section 60 of the Armed Forces Act Cap A 20 Laws of the Federation 2004 under which the Appellant was Court martialed.
c. The Court of Appeal was patently in error to have sustained the findings, conviction and or sentence of the General Court Martial upon allegations or charges that were-unknown to law.
Ground Six: The learned Justices of the Court of Appeal erred in Law when they held.
The Appellant has not challenged these findings on this Appeal and not even the conclusion drawn there-from that he never had intention of rejoining the N.A. through his unit NASFA until he was arrested on 2nd February 2010.
PARTICULARS OF ERROR
1. The Appellants case was that he held on to his official residence in London whilst asserting that he was still seized of his diplomatic office and status until he hands over to a diplomat.
2. The Appellant was in touch with different levels of his superiors, pleading his case for time before rejoining his unit and for proper arrangements to hand over his diplomatic office and for his family to be bought home, as his defence of having acted bona fide in defence of his rights, was an issue in the appeals.
3. The Appellants passport was seized as the Federal Government continued to assert their right and control over the Appellant, was in context before the Appeal Court.
4. The Appellant was issued Emergency Traveling Certificate (ETC) on 20/1/10, evicted on 26/1/10 and returned to Nigeria with the ETC and a ticket paid for by the Embassy and he accompanied the Medical Equipment of the Late President of Nigeria on the 28/1/10, put to issue any finding that he was in desertion.
5. That Appellant held diplomatic status until his return (Exhibit P13)
Ground Seven: The Learned Justices of the Court of Appeal erred in Law when they upheld the conviction for desertion when what was proved was insubordination to constituted authority.
PARTICULARS OF ERROR
1. The Appellant was in a disclosed Federal Government accommodation in touch with his bosses’ at all relevant times, as manifest in all Exhibits, particularly Exhibits P13 and P14.
2. The Appellant was, questionably but innocently, asserting his rights to remain in his diplomatic posting until he hands over to a diplomat and provisions made to relocate his family to Nigeria.
3. The Appellant was the only Lt Colonel sent to Senior Staff Course 30 in the Armed Forces Command and Staff College with his juniors and his protests only got him reprimand and ordering around by officers of his rank who he saw as a group in a gang-up with their god-father to remove him from his diplomatic posting, because his god-fathers had left the army.

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4. The Appellant by his defence, raised a claim of right to what he considers a maliciously inspired recalled based on the falsehood that he was repatriated.
5. The appellate Court never considered the defence that [He] had bonafide claim to remain in diplomatic posting as an office different from his military status and or that his re-posting was malicious which was why three of the prosecution witnesses were directly involved at different stages to his trials, or [He] had a right to insist on proper handover to a person fit for that position by his entry status.
Ground Nine: The Learned Justices of Court of Appeal erred in putting a lot of weight on Exhibits P15, P16, P17, P20, P22, P24 and P25 and the evidence of the key witnesses, in reaching the conclusions that the officers acted purely “in course of their respective duties to defeat the Appellants defence of absence of evidence of intention to be permanently absent from duties, notwithstanding that the crux of the Appellant’s case was that he was a victim of a gang up and blackmail to get him out of his choice posting and these witnesses were his direct competitors, his course mates, same rank and same Corps (NAFC).
PARTICULARS OF ERROR
1. The Appellant in para. 6.34 of his Final Address argued: “we submit that the entire case of desertion was contrived.
2. Ground five of the Notice of Appeal, alleged that the Judge Advocate at the Trial, was quickly appointed Director of Legal Service to the Army Council, which enabled him to review the case for the Army Councils Approval with prejudicial consequence to the Appellant.
3. That on 3/3/08, PW2. Col. Akerele (then) who signed Exhibit P15, and course-mate of the Appellant then as Chief of Staff to Nigerian Army Finance Corp. and of the same Lt. Col. Rank, became Deputy Commandant NASFA and he promptly advised the commandant to commence desertion proceedings to issue Absentee Report, which Report he, PW2 issued and tendered as Exhibit P16.
4. 3 days later on 6/3/08, the same PW2 issued AWOL Report Exhibit P17 dated 10/3/08.
5. One week later, PW2, was instrumental to the setting up of Col. B.A. Taiwo investigative panel, which convened on 2/4/2008 and found the Appellant guilty of desertion, in his absence.
6. PW4 Col. Adeyemi Adetayo then Lt. Col.. of Finance Corp. signed the letter of 10/6/2008 Exhibit P20 sent to Army Administration for implementation of Investigative Panel Report.
7. On 16/10/08, the same PW4 wrote Exhibit P21 to Nigerian Army Finance Corp. for implementation of the Investigation Panel Report by publishing the Appellant as a deserter and removing him from the database of the Army.
8. PW4 on directive on 4/10/10 rejabbed Appellant after his arrest, without paying him his accumulated salaries indicating that the removal from data base actual interlocutorily, terminated the commission of the Appellant and his re-jab did not entitle him to the salaries denied during termination, or return him to status quo ante.
9. Maj. Gen. Airhiavbere, the Commander of Army Finance Corp. PW10, testified to his being visited by his predecessor Maj. Gen. Toun to persuade him to rehabilitate the returning officer, and he gave evidence that the Appellant was deported as the prelude to his recall, giving credence to the allegation of god-fatherism being at the crux of the matter between prosecution witnesses and the Appellant.
10. The Appellant testified how PW10 as new DAFA, whom he went to, for advise, told him he was in trouble, and that he was deported for drunk driving and that he will be prosecuted for drunk driving, because PW10 falsely alleged that Appellant divulged official information to former Chief of Army Staff Gen. Azazi, and that Appellants alleged that the two God-fathers Gen. Toun and Azazi cannot save Appellant from the impending doom for being deported for drunk driving.
11. PW10, Maj. Gen. Airhiavbere testified that [he] was re-patriated on disciplinary grounds, showing prejudice by PW10 even before the alleged desertion started, as that was not the case before the Court.

Exhibit P32 contains the false allegation of indictment/repatriation preceding allegation of desertion.
Apart from Ground 1, which complains that the Court of Appeal erred by sustaining his conviction and sentence based on a charge that is unknown to law, which is what the Appellant raised there, the complaints in the other Grounds of Appeal are targeted at the trial before the GMC, and where they are not, they are supported by incongruous Particulars that are unconnected to the Grounds.
Ground 6 may have referred to the Court of Appeal’s finding, but the Particulars made no mention of how, where and when the said findings of the GCM were challenged. The Appellant merely narrated his case as presented before the GCM, without more.
As for Ground 7, on his being convicted for a lesser offence, the Appellant never raised the issue that he may have been guilty of insubordination to constituted authorities,” and not desertion, before the two lower Courts, and they never

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addressed that issue. Thus, he cannot complain to this Court that the Court of Appeal erred in law when it upheld his conviction for “desertion when what was proved was insubordination to constituted authorities”.
Apart from the fact that he is raising a fresh issue on Appeal for which leave of Court is required; Ground 7 is a ground of fact or mixed law and fact because resolving the question raised thereby involves examining evidence and drawing inferences therefrom, and he also requires leave from the Court of Appeal or this Court. As the Respondent rightly submitted, the Appellant never sought or obtained the requisite leave, and so. Ground 7 is incompetent.
Ground 9 is in a worse shape than all the Grounds of Appeal the Respondent objected to; the Appellant’s complaint is that the Court of Appeal “erred in putting a lot of weight” on some Exhibits, but he merely carried out a review of his case in the Particulars of Error, as if he was addressing the GCM. He made no reference to any pronouncements by the Court of Appeal on the said Exhibits. There is no flesh on the bones of Ground 9, and it is incompetent.
Be that as it may, even if all the Grounds that the Respondent objected to are incompetent and struck out, the Respondent is not challenging Ground 2, which complains that “the decision of the Court of Appeal is altogether unwarranted, unreasonable and cannot be supported having regard to the evidence”. What’s more, the Appellant submitted in his Reply Brief that the said Ground 2, being an omnibus ground of Appeal, can also sustain the Appeal, citing Abisi V. Ekwealor (1993) 6 NWLR (Pt.30) 643, and I agree.
The position of the law is that when an Appellant alleges that a decision is against the weight of evidence, he means that when evidence he adduced is balanced against that of the Respondent, Judgment in the Respondent’s favour is against the weight that should have been given to the totality of the evidence adduced – See Akinlagun V. Oshoboja (2006) 12 NWLR (Pt. 993) 60 at 82 SC. The complaint is only concerned with appraisal and evaluation of all the evidence and not the weight to be attached to any particular piece of evidence – Osolu V. Osolu (2003) 11 NWLR (Pt. 832) 608 SC.
In this case, the complaints in the said Grounds of Appeal are, more or less, against the evaluation of evidence at the GCM trial. However, the Appellant alleges that the Court of Appeal failed to take into account evidence adduced in his favour in its Judgment, which is enough, in my view, to have the Appeal heard on its merit.
In the circumstances, the Objection is of no moment in this Appeal.
Coming to the Appeal itself, the Appellant formulated two Issues for Determination from the said Grounds of Appeal: that is:
1. Was the Appellants fundamental right to fair hearing breached by the pre-trial proceeding and the trial Court?
2. In the light of the circumstances of this case, was the up-holding of the conviction by the Appeal Court justifiable in law?
Obviously, Issue 1 raises a red flag as it made no reference to the Court of Appeal, and worse than that, in his submissions on same, Appellant had nothing whatsoever to say on the Court of Appeal.
Citing Pam v. Nasiru Mohammed (2008) 16 NWLR (Pt.1112) 1, he submitted that determining whether a Party has been denied his right of fair hearing or not, is to be adjudged by the nature and circumstances surrounding the case. He divided the process and proffered arguments on “five chain-major-inter-wined stages:”
a. The service or otherwise of the key letters to the Appellant.

b. The Investigative Panel to find out the circumstances leading to [his] absence that resulted in the issuance of the Absentee Report.
c. The first indictment proceedings that issued the AWOL Report that indicts the Appellant for AWOL.
d. The second indictment proceedings that indicts the Appellant for DESERTION or ordered serious and far reaching sanctions.
e. The Court Martial, which was the final trial Court.
His arguments on these “processes spanned from pages 6-15 of his brief of Argument. He focused completely on his ordeal in the hands of his colleagues and senior Army Officers, and, thereafter, he concluded as follows at page 14 to 15 of his

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Brief of Argument
If, [he] harbored any fears that his tormentors had any influence in the trial process, this fear was heightened when the Judge Advocate, who played the key role in the trial, was promptly made Director Legal Services to Army Council, who reviewed the case for Army Approval of the conviction. This J.A., who at page 374 of Records called an isolated mistake of Counsel throughout the trial, attempts at importing:
Virus into the trial”, showing his strong views against the Defence. This same man with a formed opinion on the matter, was appointed and did review the trial for confirmation by the confirming Authority. This was ground five of the Grounds of Appeal to the Court of Appeal and it did challenge the independence of that Court Martial and Approving Authority and re-enforces [his] contention that the Ex-parte trials that led to declarations of AWOL and DESERTION were all part of desperate gang-up to get him out of his commission. In the light of the above, the declarations of AWOL and Desertion were all void and the Court Martial was void for being based on this void proceeding and even more the independence of that Court Martial/Approving Authority was seriously in question in the circumstances of the case and any doubt should be resolved in favour of the Appellant.
Under Issue 2, Appellant referred to what “Desertion means, as defined in Black’s Law Dictionary 7th, Ed., which provides for desertion in (peace) Civil Circumstances and in a state of war or during military operations. He explained what this entails and submitted that he was charged for desertion under Section 60 (1)(a) of the Armed Forces Act, which narrowed the desertion in issue to the first arm of desertion; desertion in a state of Peace.
Furthermore, that under the said Section 50 (1) (a) of the Act, the key elements are that (1) he failed to join the Armed Forces; (2) for a disclosed period; and (3) with the intention at the time of his first failing or the intention formed thereafter or in the alternative (to permanent intention to abscond), intention to remain permanently absent from duty without lawful authority.
On the first ingredient, he submitted that the said Exhibit P15 was an incomplete letter as the Order of the COAS authorizing the transfer purportedly attached, was not attached and the omission was key because of the alleged gang-up and victimization, a key defence before the Court; that even if Exhibit P15 was a valid order the failure to make provision for the return and resettlement of [his] children amounted to ordering [him] to abandon his spouse and children in a foreign land as homeless destitute in breach of their constitution rights; that to constitute valid instructions for recalling him, provisions must be made to bring back his family, and that he was not served with Exhibit P15, and only got notice of its content for the first time upon the receipt of proof of evidence.
On the second ingredient, he argued that the evidence shows “consistent inconsistency in the relationship and status of how his bosses related to him; that the meetings he had with relevant Officials negate the premise on which the desertion is based “that he disappeared and cannot be reached” and that desertion could only arise from the date he was ejected from Nigerian Premises.
On the last ingredient, he submitted that Nigeria not being in a state of war and he, not being posted to Combat Operational command, the fact that he moved back into his official residence, which is part of Nigerian Territory in law, and the fact that he was in contact with his boss and successors, who had the means and capacity to arrest him in their premises, destroys any suggestion that he formed, the permanent intention to desert that he raised his defence in Exhibit P1, which he set out in his Brief, as follows:
This case of desertion cannot be a true story because at the time I was so declared, I was in London trying to resolve the issue of allowances which has not been resolved, and to clear my name of certain allegations that I was deported by UK government, and un-authorized disclosure of official document to the former CDS using internet to steal the unit funds…there are no funds missing…this had been a trend for the pass (sic) twenty (20) years with similar allegations until the office is taken over (sic) from me in order to correct the allegation. I had wanted the handing over to my successor be property corrected (sic) the DAFA insisted that I was the only one who had been blackmailed …to ensure that I do not escape the charges, they (DAFA & team) must not allow me hand-over properly. For my information, he (DAFA, PPW10) had stood against my posting then and now that they DAFA’s then Superiors) are (sic) out of those post (sic) that they were using to protect me, I must face those charges whether it was a blackmail or not. He (PW10) had promised that I will never get another appointment in the NA and I will never

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be promoted. For my information, he is going to nominate me for the course to shoe (sic) his seriousness about what he had told me. He said, I can carry it to any place. This implication of those allegations (sic as he meant threats) have far damaging consequences on me (sic) as a person and my career and also will be affecting my family as a whole especially my children. I had no other choice than to find away to ensure that I handover properly. In the alternative is to stay back in the UK to wait for the deportation letter if it is true.
He also argued that the conclusion that he formed the intention of permanently leaving the Armed Forces” is erroneous because:
a. He thought that the deferment of his nomination to the course would make authorities return him to his UK office or another office and communicated of the transfer and provision made for him to bring home his family.
b. Evidence showed he did not abscond from his official residence, but held on to it, asserting that his tour of duty had not yet terminated.
c. His Diplomatic Passport was taken by courier service supposedly to send to Licence office to Nigeria High Commission who seized it and refused to re-issue him with ordinary passport to enable him return notwithstanding his several appeals. A deserter in a foreign country is “a beast of No-Nation. Any person, who applies in his real name for passport, from the very office fully informed of his circumstances can never be inferred to have made up his mind permanently to desert, because that amounts to surrender to Federal Government, who can arrest him at any stage. He held interviews, meetings with the Nigerian Government in UK on his passport at a time, the same Government had declared he should be arrested, wherever he is found. The Nigerian High Commission premises are in International Law, part of Nigerian Territory.
d. A deserter is a fugitive he cannot go to the Embassy to finance and arrange his return, nor will he be entrusted with the duty and responsibility of conveying Medical Equipment of late President of Nigeria. A deserter will in disguise sneak into his country.
He further argued that the Court of Appeal missed the vital point that he was not served nor was he privy to Exhibit P15 that he was supposed to obey and paid no attention to his argument that “the entire case of desertion was contrived, which made it credit probative value to documents obtained by key witnesses, whose evidence should have been treated with suspicion and caution, citing Oguonzee V. State (1998) 5 NWLR (Pt. 551) 521, Ishola v State (1978) NSCC 499, Omotola V State (2009) 2-3 SC 7.

On its part, Respondent argued its Objection in its Issue 1, but it canvassed arguments on its Issue 2 – whether or not the Judgment of the lower Court dismissing Appellants Appeal is meritorious and sustainable? It submitted that the Court below made cogent findings but the Appellant did not challenge same either in the Notice of Appeal or his Brief, therefore, Appellant by necessary implications, veered off and missed the needful”: that rather than argue his Appeal on the substance of the said findings, he embarked on incongruous submissions predicated upon invisible fundamental rights, miscarriage of justice, etc. that his rehash of arguments as if the lower Court was a Court of first instance is improper; and that the arguments on issues that he embarked on were totally strange and a total disconnect between his arguments and the Judgment of the lower Court.
It further argued that the Appellant had a miss-step when it embarked on arguing issues that are unrelated, unconnected and spurious, especially on issues that had been resolved with finality, which were not challenged, and the said conclusions were omitted from being challenged vertically or horizontally, that the submissions challenging incompleteness of the letter of replacement never arose from the lower Courts Judgment; and that others relating to failure to make provisions for return and resettlement of his family, etc., are strange references that never emanated from the copious findings of the lower Court.
Citing Adimora V. Ajufo (1988) 3 NWLR (Pt.80) 1 @ 12 SC on the format of a good brief , and the essence of a legal argument, it argued that such arguments cannot abandon the main grouse as depicted in the notice of appeal and issue(s) formulated; that the Appellant having argued this Appeal on extraneous matters that the Judgment did not cover has not frontally challenged the findings of the lower Court; and that most entertaining is his arguments on a non existing five intertwined stages whereby the Appellant abandoned and/or neglected to address the main grouse of the Appeal and embarked on disconnected Issues.
It further argued that the Appellant misdirected the entire energy of the Appeal and thereby failed to discredit the

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findings of the GCM and the lower Court; that unless and until it is shown that the findings led to a miscarriage of justice, or is perverse, this Court has always declined to reverse such a Judgment. Balogun v Amubikahun (1989) 3 NWLR (Pt. 107) 18. Akeredolu V. Akinremi (1989) 3 NWLR (Pt. 108) 164 & Ajeigbe V Odedina(1988) 1 NWLR (Pt. 72) 584 cited: that the unimpeachable findings of the lower Court, which he failed to dislodge, were predicated upon findings of fact that are “impeccable, flawless, decisive, sacrosanct and holy in nature, citing Atolagbe V. Shorun (1985) 1 NWLR (Pt. 2) 350 @ 361 and Adimora V. Ajufo (supra): and being a concurrent Judgment of two lower Courts, he failed to show legal and factual reason to justify reversing the said Judgment.
The Appellant argued in his Reply Brief that the Respondent missed the thrust of the Appeal but chose to mock his arguments on Fundamental Right breaches as a figment of his imagination; that the cornerstone of our judicial system is built on the twin pillars of the Rule of Natural Justice expressed in the Latin Maxim “Nemo Judex in causa sua and audi alterem partem, codified as Section 36 of the Constitution; and under Section 36 (2) (a) thereof, Respondent is under obligation to send invitation to the Officer’s last place of address or office, notifying him to appear and make representations before he is declared a “deserter” or on “AWOL”, given the grave consequences that follow such declarations.
The Appellant, thereafter, referred to some of the Exhibits, testimony of some of the Respondent’s Witness, and the position taken by the Prosecutor, Defence, and Judge Advocate at the trial, to show that contrary to the Respondent’s submission, the” issue of human right was not an invisible figment of [his] imagination”.
This is totally unacceptable because as I said: “a reply brief is not a repair kit to put right any lacuna or error in Appellants Brief” – Mozie V. Mbamalu (supra).
A reply brief is not the forum for the Appellant to strengthen his main Brief by repeating or expanding the arguments contained therein; not to mention the introduction of fresh arguments that should have been made in the main brief. In effect, a reply brief does not open the door for the Appellant to take a second bite at the cherry; he will not be permitted to do so.
In this case, there is nothing that Respondent said in its Brief to warrant the Appellant’s reference in his Reply Brief to Exhibits, oral testimonies and final addresses of the Prosecution, defence and Judge Advocate, made or adduced at the trial before the GCM. He made no reference in his main Brief to the findings of the Court of Appeal that is related or connected to his allegation of lack of fair hearing; he will not be allowed to smuggle into his Reply Brief what he should have said about that allegation in his main Brief.
The bottom time, and I will not hesitate to say it upfront, is that this Appeal totally lacks merit. The Appellant had two hurdles to surmount when he approached this Court to provide him succour. He had to persuade this Court to reject the lower Courts’ findings predicated on the credibility of witness, which is a herculean task, and convince this Court to set aside the concurrent findings of the two lower Courts, which is an even more herculean task, because concurrent findings of two lower Courts are seen as sacrosanct.
In other words, this Court rarely upsets findings made by the trial Court and affirmed by Court of Appeal since the findings were arrived at after cross-examination and observation of witnesses by the trial Court – Adegbite V. State (2017) LPELR-42585(SC).
It is also settled that in order that such concurrent findings of fact may stand the test and enjoy respect, “they must be such that can justifiably be defended primarily from the available evidence” -see Mojekwu V. Iwuchukwu(2004) 11 NWLR (Pt. 883) 196 SC.
In this case, Appellant was charged with desertion contrary to Section 60 (1) (a) of the Armed Forces Act, which provides that:
A person subject to service law under this Act who: –
(a) Deserts; or
(b) Persuades or procures any other person subject to service law to desert, is guilty of desertion and liable, on conviction by a Court martial

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to imprisonment for a term not exceeding two years or any less punishment provided by this Act.
Section 60 (4) of the same Armed Forces Act further provides:
For the purposes of the Section and other Sections of the Act, a person deserts who:
(a) Leave any service of the Armed Forces or when it is duty to do so, fails to join the Armed Forces, with (in either case) the intention, subsisting at the time of the leaving or failure to join of formed thereafter, of remaining permanently absent from his duty or;
(b) Being an offer, enlists in or enters any of the other services of the Armed Forces without having resigned his commission, or being a soldiers, rating, aircraftsman, enlist in or enters any other services of the Armed Forces without having been discharged for his previous enlistments or:
(c) Absents himself without leave with intent to avoid serving at any place outside Nigeria or to avoid service or any particular service when before the enemy.
And reference in this section or other sections of this Act to desertion shall be construed accordingly.
In its Judgment, the Court of Appeal resolved the issue of whether the offence as charged is unknown to law against the Appellant. He complained in Ground 1 of his Grounds of Appeal that it erred in law when it sustained his conviction on charges unknown to law. But he said nothing about this complaint in his Brief of Argument, rather he veered off into a totally new issue that was not raised at the GMC or at the Court of Appeal that he was denied fair hearing because he was not served with Exhibit P15, redeployment letter.
It is the Appellant, who alleged that he was not served with the said Exhibit P15, and the onus is on him to prove that allegation, and establish that the failure to serve him with the said Exhibit P15 was detrimental to him, and it occasioned a miscarriage of justice – see Gbadamosi V. Dairo (2007) 3 NWLR (Pt.1021) 282 at 306 SC, wherein this Court per Tobi, JSC, very aptly observed as follows –
Miscarriage of justice connotes [a] decision or outcome of legal proceeding that prejudicial or inconsistent with the substantial rights of the Party. [It] means a reasonable probability of more favourable outcome of the case for the party alleging it. The burden of proof is on the Party alleging that the justice has been miscarried. Learned counsel related the issue to fair hearing. Fair hearing is not an expression of mere rhetoric or empty verbalism but a fundamental right of the individual guaranteed in the Constitution, a breach of which will nullify the proceedings in Favour of the victim. It cannot be construed outside the facts.
Accordingly, a Party alleging the breach must show clearly from facts of the case that the right is violated or breached.
In this case, the Appellant’s contention is that the said Exhibit P15 is incomplete since the order of the COAS authorizing his transfer was not attached, but the Court of Appeal observed as follows –
The Appellant admitted in his statement made to the Nigerian Army Military Police, tendered as Exhibit P1, and under cross-examination that he was aware of his redeployment to NASFA and the deployment was with immediate effect. The Appellant did not lead any evidence to contradict the case of the Respondent that he refused to join the School from 2/2/2008 to 2/2/2010. The Appellant admitted that instead of joining NASFA, he travelled back to London in March, 2008 and this was where he was until he returned to Nigeria in February 2010 and was arrested on his arrival. This court has no reason to disturb the finding of the GMC that the Appellant did not join his unit between 21/2/2005 and 2/2/2010.
Evidently, there is no question that the Appellant was aware of his redeployment to NASFA, but rushed back to London for reasons that were unacceptable to the Respondent. In the circumstances, I cannot see how the failure to serve him with the said Exhibit P15, occasioned such a miscarriage of justice that will sway this Court to interfere with the concurrent findings of the two lower Courts.
The Appellant smuggled in this Issue under the cover of his right to fair hearing, but it is not enough for him to merely wave the banner of fair hearing, and expect this Court to jump to attention and decide in his favour, just for the asking. The position is that the appellate Court must be satisfied that the alleged miscarriage of justice is really substantial, not one of mere technicalities, which had caused no embarrassment or prejudice to the Appellant” – See Adebayo V. A.-G., Ogun State (2008) 7 NWLR

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(Pt.1085) 201 SC, where this Court per Tobi, JSC, hit the nail on the head, as follows:
I have seen that Parties’ who have bad cases’ embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse Party and the Court, with a view to moving the Court away from the live issue in the litigation They make the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a causal principle of law available to a Party to be picked up at will in a case and force the Court to apply to his advantage. It is a formidable and fundamental constitutional prevision available to a Party, who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants, who have nothing useful to advocate in favour of their case, leave the fair hearing constitutional provision alone because it is not available to them just for the asking.
In this case, the Appellant also argued in the alternative that even if Exhibit P15 was a valid order, he had every reason to rush back to London and stay there with his family because the Respondent did not provide for the “return and resettlement’ of his children; and that obeying the order contained in Exhibit P15, would amount to abandoning his family “in a foreign land as homeless destitute. What has this got to do with the offence that he was charged with?
In arguing as he did, including that his recall from his juiciest posting in the Army, is due to gang-ups and victimization by other senior officers because his godfathers had retired from the Army, the Appellant lost sight of the fact that it was the Respondent that deployed him to London as the DDA, Finance in the first place and the same Respondent redeployed him to NASFA. The Appellant said he joined the Army in 1978; was commissioned an Officer on 4/10/1989; became a Captain on 4/10/1993; a Major on 4/1/999; and a Lt. Col. on 4/1/2004. He further stated as follows in his Brief – His official record describes him as “possessing initiative and drive and never gave up on issues relating to soldiers welfare until such issues were satisfactorily resolved”. At 68 NARHY, he was acknowledged for his credibility and hard-work. In HQ TRAD0OC he was described as an officer with integrity and most of the attributes expected of a finance officer. He held Award of Force Service Star.
Despite his record as an excellent officer, the GCM found that
The Accused had contemptuously reneged on the oath he took while being commissioned that he would go wherever and whenever ordered by land, sea or air and would obey all the commands of those placed above him with the way he chose not to report to NASFA. It is unthinkable that any reasonable officer of the rank of Lt Col, who is mindful of his career in the NA would behave the way Accused did.
The Court of Appeal reinforced this point when it observed that –
The Appellant admitted very clearly in his statement Exhibit P1 and in the letter that he wrote on his deserter status, Exhibit D13, that his reasons for returning to his former posting in London in March, 2008 and for staying put thereat until 1/2/2010 were personal and that he chose to stay on in London despite his salary and allowances being stopped by the Nigeria Army since 2008 and despite his being advised by the Defence Adviser that his actions would jeopardize his career. These show that the Appellant was obviously witling to forgo his career to satisfy personal reasons for staying in London.
The Appellant took a solemn oath to go wherever and whenever ordered by Land, sea or air and to obey officers placed above him. And yet, when the chips were down, he chose to disobey the order of the Respondent that would take him out of what he considered the only good posting in his entire career. The facts of this case speak for themselves, and what they say loud and clearly is that the Court of Appeal was right to affirm the GCM’s findings that the Appellant had the intention to remain permanently absent from duty without lawful authority, which is indisputably desertion”.
Without question, this Appeal lacks merit and is dismissed.
IBRAHIM TANKO MUHAMMAD, J.S.C.: This is an appeal against the concurrent findings of the General Court Marshal which held at 1 Division officers Mess, Kaduna in which the appellant was charged for an offence of Desertion contrary to the provisions of Section 60 (1) (a) of the Armed Forces Act Cap A 20 Laws of the Federation 2004. The Court of Appeal, Kaduna Division further upheld the decision of the General Court Marshal in its Judgment delivered on the 27th June, 2013 in a unanimous decision.
I have had the advantage of reading the Judgment of my learned brother Augie, JSC, I agree with his reasoning and conclusion. The appeal is hereby dismissed by me.

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OLUKAYODE ARIWOOLA, J.S.C.: I read before now in draft the lead judgment of my learned brother Amina Augie, JSC just delivered. I am in agreement with the reasoning therein and conclusion arrived thereat, that the appeal is lacking in merit and should be dismissed. I too will dismiss the appeal.
Appeal dismissed.
KUMAI BAYANG AKA’AHS, J.S.C.: I had the privilege of reading in draft the judgment of my learned brother, Augie JSC wherein the appeal was dismissed for lack of merit.
By order of Lt. Gen AB Dambazau (then Chief of Army Staff) NA/COAS/GI/39 dated 6 April 2010 a General Court Martial was convened for the trial of the appellant who was charged with desertion contrary to Section 60 (1) (a) of the Armed Forces Act which provides as follows:-
“60 (1) A person subject to service law under this Act who –
(a) deserts; or
(b)
is guilty of desertion and liable on conviction by a court – martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.”
He was found guilty of the offence charged and sentenced to dismissal from the service of the Nigerian Army. The sentence was confirmed by the appropriate Superior Authority on 3 December, 2010. The appellant appealed against the verdict reached by the GCM in his Notice of Appeal dated 31 October, 2011. The appeal was dismissed by the Court of Appeal, Kaduna on 27 June 2013 and this prompted the further appeal by the appellant to this Court in his Notice of Appeal dated 27 August, 2013. An Amended Notice of Appeal containing 9 grounds was filed on 3 March, 2016 which the respondent objected to with the exception of ground 2.
My learned brother, Augie JSC meandered through the labyrinth of objections raised and dismissed most of the objections in order to deal with the merit of the appeal.
I agree with my learned brother, Augie JSC’s reasoning and conclusion that this appeal essentially is concerned with the concurrent findings of fact reached by the General Court Martial and the Court below and unless the appellant is able to show that the findings made by the General Court Martial and affirmed by the Court of Appeal led to a miscarriage of justice or are perverse, there will be no justifiable reasons to reverse such finding. See: Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360 and Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1 at 12. This Court will hardly set aside the findings of the lower Courts which are predicated on the credibility of witnesses. It is the trial Court that sees the witnesses testify and notes their demeanor and from that assesses their credibility. See:Nwaezema v. Nwaiyeke (1990) 3 NWLR (Pt.137) 230; Ishola v. U.B.N. (2005) 6 NWLR (Pt.922) 422; Onisaodu v. Elewuju (2006) 13 NWLR (pt.998) 517; Anyegwu v. Onuche (2009) 3 NWLR (Pt.1129) 659 and Agu v. State (2017) 10 NWLR (pt.1573) 171.
The appeal lacks merit and it is accordingly dismissed.
PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft, the judgment just delivered by my Learned brother, Augie JSC and I agree with the reasoning contained therein and the conclusion arrived thereat.
All the issues submitted for determination of this appeal have been admirably resolved in such a way that I have nothing useful to add. I find the appeal lacking in merit and same is hereby dismissed.

In outline, the facts as presented by the appellant were that the appellant was in command of a Nigerian Navy ship NNS LANA. Other officers and some ratings were under the appellant onboard the ship at the material time. On 13-11-12 the armourer of the ship raised alarm that two browning pistols and 100 rounds of ammunition were missing from the armoury on the ship.
The appellant commenced investigation into the matter. Before the appellant would proceed deep into the investigation the Fleet Commander and the Flag Officer Commanding Western Naval Command, his superior, stopped the investigation. The appellant’s written plea on two occasions to be given time to continue with investigation of the matter were turned down by his superiors. The last two officers that kept duty could not account for these service items which formed part of the items that are handed over daily by duty officers and their daily record maintained.
The officers earlier indicted by the appellant in the course of investigation were relieved of the restrictions placed on them even when they acknowledged that they took over the missing items as duty officers and could not account for the same. A Special Court Martial was convened to try the appellant and the ship’s company which convicted and sentenced the appellant as indicated (supra).
While the facts as presented by the respondent were that on 13-07-2012 and 27-09-2012 the appellant refused to count the arms and ammunition on the ship and caused the loss of service property of 2 browning pistols and 100 rounds of ammunition which amounted to negligence on the part of the appellant.
The said disciplinary measure taken by the appellant against the two officers during investigation were ignored by the Convening Authority which caused the appellant to be Court-martialled leading to his said conviction and sentence with the court-martial reasoning in addition that the appellant brought some marabouts on the ship who forced the ship’s company to drink dangerous concoction as part of his investigation of the disappearance of the arms and ammunition.
Not satisfied with the judgment of the court-martial the appellant filed a notice of appeal with 12 grounds of appeal followed with a brief of argument filed on 09-12-14. The appellant argued that by the GSM handset messages recorded therein, Exhibit 44, there was information that he was set-up by his superiors showing bias which the court-martial overlooked in its judgment thus denying the appellant a defence available to him.
It was also argued that Exhibit 12 showed PW5 and PW6 signed taking/receiving the missing items without accounting for them which was also ignored by the court-martial. Likewise, the appellant’s defence that there was a conspiracy between some of his superiors and the ship’s company to set-up the appellant at the material time, therefore the appellant was not given a fair trial vide Ltd. Col. KD Ajia v. Nigerian Army (2012) A.F.L.R. (pt.1) (no pagination).
The

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appellant contended that Exhibit 43, the Captain’s Standing Order, did not assign any duty to the appellant, but to the ship’s company, therefore the court-martial erroneously relied on Exhibit 43 to convict the appellant.
It was contended by the appellant that some evidence from the PW3 and PW10 stated that there were no missing pistols as the armoury was safe by all standards at the material time which were admissions in favour of the appellant; while the other pieces of evidence from the PW1 to PW10 were replete with contradictions indicating the innocence of the appellant; and that if the court-martial had properly analysed the evidence of the prosecution witnesses and the evidence of the PW10 in particular alongside the appellant’s evidence the court-martial would have arrived at the verdict that the case against the appellant was not proved beyond reasonable doubt and would have found the appellant not guilty of negligence particularly as the statements of the witnesses to the investigator and their sworn evidence were in sharp conflict on the issue of negligence videSection 135(1) of the Evidence Act 2011 (Evidence Act), Adeyeye v. Ajiboye (1987) 3 NWLR (pt.61) (no pagination) Article 1816 of Naval Book of Reference (BR 11), Udo v. State (1992) 2 NWLR 471, Onubogu v. State (1974) 9 SC 9, Agbiti v. Nigerian Navy (2012) A.F.L.R. (Pt.1) at 29.
It was also argued by the appellant that 20 witnesses were called and 48 Exhibits tendered while the judgment of the court-martial was 5 pages without evaluation of the evidence before conviction was recorded in the judgment against the appellant, so the judgment should not stand vide Eyeboles v. Akande (2009) 15 NWLR (p1.1163) 119 at 147.
The appellant argued that having regard to the fact that the evidence adduced by the prosecution favoured the co-accused tried with the appellant who were discharged at the close of the case for the prosecution, the appellant was also entitled to be set free by the court-martial on the said evidence and not having done so the court-martial erred vide Lt. Col. E.M. Kalu v. Nigeria Army (2010) 4 NWLR (Pt.1185) 291.
The appellant argued that by denying him the right to address the court-martial on issues of law raised by the judge advocate under Article 101 and 326 of the BR 11 Naval Court Martial Rules of Procedure the court-martial breached the appellant’s right to fair hearing; and that the court-martial erred by exceeding the time limit set for the proceedings vide Section 135(3) of the Armed Forces Act CAP A20, LFN 2004 (AFA, 2004).
The appellant contended that after relying on Exhibit 12 to hold that there was no missing service property upon which the court-martial discharged the 4th accused, the court-martial should not have convicted the appellant of negligence for loss of service property that allegedly occurred in July and September 2012 after ruling that the items were intact up to 07-11-12 and without further evidence.
It was argued by the appellant that his GSM conversation with two out of the three members of the court-martial revealed that they admitted doing “a bad work”; that they signed the judgment even though they were not part of the decision making; that the judgment was prepared before even the judge advocate gave advice; that they ignored all laws; that they agreed that there were many grounds of appeal and advised the appellant to appeal; therefore from the revelations of the two members of the court-martial the appellant was entitled to be acquitted vide Section 140(1) and (2) of AFA 2004; also, that the sentence was duplicated and was contrary to Section 118(2), (5), (6) and 17 of AFA 2004 and should be set aside.

…………………….C…………………….

The appellant argued that count 3 of the charge on conduct prejudicial to service discipline in that the appellant was alleged to have used marabouts to help in the investigation of the case of the missing service property who allegedly prepared concoction and forced majority of the ship’s company to take thereby putting their lives in danger is an offence unknown to law and that the court-martial should not have convicted the appellant on the non-existent law vide Section 36(12) of the 1999 Constitution read with the case of Capt. GNA Asake v. Nigerian Army (unreported) (no citation).
The appellant argued that the condition precedent to the constitution of the court-martial as provided by the Mandatory Article 1602 of BR 11 and Article 176 of the Naval Court Martial Rules of Procedure were not complied with in that the charges and summary of evidence and the circumstantial letter did not exist at time and date the court-martial was constituted vide Exhibits 31 and 32 thus depriving the court-martial of the jurisdiction to entertain the case; and the fact that circumstantial letter was sent after the proceedings commenced vide the back-dated letter served in April, 2013 and the testimonies of DW1 to the 3rd accused as well as the 3rd accused himself and Exhibit 33 showing the charges framed and signed by the assistant prosecutor and served 16 days after the constitution of the court-martial which also showed the summary of evidence was dated 15-12-12 and the report of investigation was signed and dated 17-12-2012 when the court-martial was ordered on 12-12-12, showed the court-martial lacked the jurisdiction to entertain the case vide Agbiti v. Nigerian Navy A.F.L.R. (Pt.1)(no pagination), Madukolu v. Nkemdilim (1962) 1 All NLR (Pt.4) 589; and that the failure of the court-martial to rule on the issue of jurisdiction when it was raised before it but proceeded with the trial without ruling on the issue of jurisdiction first occasioned a miscarriage of justice to the appellant vide Ogunleye v. Jegede (1991) 6 NWLR (Pt.199) 994.
It was argued by the appellant that reviewing and confirming his sentence by the Navy Board during the pendency of the notice of appeal which was served on the respondent violated Section 198 of AFA, therefore the confirmation of the sentence by the Navy Board should be set aside; consequently the appellant urged that the appeal should be allowed and his conviction and sentence be quashed with substantial compensation given to him together with an order that the appellant be promoted to the rank of Commodore.
The respondent contended in her brief of argument filed on 23-11-16, but deemed as properly filed on 06-06-17, that Exhibit 44 was temporarily admitted pending the production of the phone, the primary evidence of it, which was not produced at the trial and Exhibit 44 being inadmissible in evidence in the way it was tendered would not constitute legal evidence and cannot be admitted as legal evidence even by the consent of the parties videKale v. Coker (1982) 1 SC 252, Omega Bank (Nig.) Plc v. OBC Ltd. (2005) 1 SC (Pt.1) 49; that the court-martial evaluated the evidence forming part of the parties’ final address vide Enclosure 27.
The respondent submitted that the appellant as the commanding officer of a ship was directly responsible for whatever happened on board the ship he commands, and that by Exhibit 43, the Captain’s Standing Order, the appellant was duty bound to conduct captain’s round once a month which he negligently refused to carry out throughout his stay onboard the ship NNS LANA vide the evidence of PW5 which was partially corroborated by the evidence of the appellant that he inspected the ship 3 or 4 times within 6 months before signing the handing/taking over note during the Chief of Naval Staff (CNS) advance team inspection visit.
The respondent submitted that all the ingredients of the offences were proved beyond reasonable doubt on the evidence tendered by the prosecution at the court-martial inclusive of Exhibits 15, 25, 26 and 27 and that whatever contradiction in the evidence was minor, therefore it was submitted that the

…………………….D…………………….

court-martial was right in convicting the appellant on the said evidence vide Dibie v. State (2007) 9 NWLR (Pt.1033) 26 27, Dagayya v. State (2006) 7 NWLR (Pt.980) 648.
The respondent submitted that the discharge of the other accused was based on lack of evidence vide 588 paragraph 6008 of the record of appeal (the record) which was not the case with the appellant as there was evidence for his conviction and sentence which the court-martial rightly used in convicting and sentencing the appellant for the offences charged.
The respondent submitted that issue of jurisdiction raised by the appellant was considered by the court- martial vide page 1090 paragraph 9237 of the record; that even if the judge advocate failed to advise the court-martial on some issues raised (though without conceding) such failure only amounts to procedural irregularity and does not occasion any miscarriage of justice and cannot vitiate the proceedings vide Obaks Ofor v. State (1991) 22 N.S.C.C. 25 at 41; that the objection to jurisdiction was neither raised by the prosecution, nor the accused or friend of the accused as required by Article 326 of BR 11; and that the objection to jurisdiction was raised when the court-martial had already delivered its ruling and was functus officio.
The respondent referred to pages 1120 1126 of the record to submit that the court-martial considered the evidence before it arrived at the decision convicting and sentencing the appellant for the offences charged.
The respondent submitted that the allegation of bias was not particularized, nor did the record disclose the allegation of bias, so it should not be countenanced; and that the sentence was not duplicated but was in accordance with Section 118(2) of AFA 2004 read with the case of Ogunsanya v. The State (2011) 6 MJSC (Pt.1) 24.
The respondent submitted that count 3 was based on Section 103 of AFA 2004 and the evidence establishing it that the appellant brought marabouts on the ship who served bread on the entire ship’s company after making some incantations as a means of investigation contrary to conventional method of investigation and thus an assault on the competency and intelligence of the investigative segment of the Armed Forces and rendering redundant the investigative department of the service which was a prejudicial act capable of bringing the Armed Force into disrepute vide Zakari v. Nigerian Army (2012) 5 NWLR (Pt.111) 478.
The respondent observed that Exhibits 31 and 32 referred to by the appellant are not contained in the record served on her. The respondent proceeded to submit that paragraphs 6413, 6421 and 6423 of the record clearly showed that the charge and the circumstantial letter were in existence before the court-martial started proceedings; that the appellant who alleged the circumstantial letter was back-dated did not prove the allegation as it is trite that he who asserts must prove the assertion and that the defence counsel raised the issue of jurisdiction in final address vide the statement of the judge advocate in page 1090 paragraph 9237 of the record, therefore the court-martial possessed jurisdiction at the inception of the case, so concluded the respondent on the point citing in support Amadi v. FRN (2008) 12 SC (Pt.111) 55.
The respondent argued that an appeal does not operate as a stay of execution and that whereas the notice of appeal was dated 09-12-2014, the confirmation by the Navy Board was done on 30-09-2014, the confirmation was done before the appeal was filed; that at any rate AFA affects only the confirmation not the judgment; that an appeal can only be lodged after confirmation; that having filed the appeal

…………………….E…………………….

before the necessary confirmation the appeal is a nullity; and that based on these submissions the appeal should be dismissed and the appellant reprimanded.
The contradiction or discrepancy in the case is not material and was satisfactorily explained by the witnesses concerned and is expected from testimonies of witnesses not tutored to give evidence, so the argument on material contradictions is a storm in a tea-cup, so to speak and is hereby rejected vide Jizurumba v. The State(1976) N.S.C.C. 156.
The “findings and judgment” in respect of the appellant are contained in pages 1120 – 1127 and enclosures 27 and 28 of the record. There the names of the parties, the charge sheet against the appellant, the submissions of the parties and the crux of the case are summarised, the findings of the court martial and the law backing the findings as well as the conviction and later sentence after plea of mitigation together with the signature of those that were on the court-martial as adjudicators are stated therein. In my modest opinion, this qualifies as a judgment. It is not the volume but the substance of what is contained in a judgment that makes a judgment. Consequently, I conclude that this is a valid judgment vide C.P.C. V. INEC (2012) 13 NWLR (Pt.1317) 260.
The judge advocate did not say anything on jurisdiction. The court-martial treated the complaint on jurisdiction as a technicality stating that the appellant admitted he was served the charge sheet and the circumstantial letter before arraignment therefore the court-martial was properly constituted.
The court-martial also stated in page 1111 of the record that it had ruled on jurisdiction. In the event anything was left out the appellant whose learned counsel prepared his address contained in enclosure 19 comprising 73 pages in which the issue of jurisdiction was addressed in pages 54-62 thereof had every opportunity to incorporate whatever he wanted in the written address on jurisdiction whether raised before but not considered by the court-martial including arguments on issues of law raised by the judge advocate, therefore I fail to see substance in the contention of the appellant that he was denied fair hearing on the issue.
At any rate, the issue of jurisdiction was determined on the threshold by the court-martial in pages 1090 – 1903 of the record showing the issue of jurisdiction was first determined before judgment was given in the case. Even in some cases and for the purpose of saving time and cost, though raised in limine, jurisdiction could be decided at a later stage of the proceedings in the judgment of the Court starting first with the issue of jurisdiction vide by analogy Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt.439) 637, Newswatch Communications Ltd v. Atta (2006) 12 NWLR (Pt.993) 144 at 168 – 169, Amadi v. NNPC(2000) 10 NWLR (Pt.674) 76 at 100, Senate President v. Nzeribe (2004) 9 NWLR (Pt.878) 251 at 274, Olorunkunle v. Adigun (2012) 6 NWLR (Pt.1297) 407 at 426.
In addition, where Court of first instance did not properly determine the issue of jurisdiction raised before it, an Appeal Court is still entitled to entertain the issue of jurisdiction raised before it as it is trite that an issue of jurisdiction can be raised at any stage of the proceedings, even on appeal for the first time.
The appellant’s argument that the Court martial exceeded the time-frame for the granting of adjournment, if in breach of Section 135(3) of AFA was not shown to have led to substantial miscarriage of justice and, is accordingly, of no moment vide the proviso to Section 185(1) of AFA.
Accordingly, even if the court-martial had on some occasions

…………………….F…………………….

adjourned beyond 6 days without consent of the accused and prosecution which was not specifically pointed out by the appellant, not having shown that the appellant suffered failure of justice in the case the point would not have led to the reversal of the decision of the court-martial on that point vide the proviso to Section 19(1) of the Court of Appeal Act 2004, as amended.
It is trite that the record is binding on the Court and the parties and unless properly amended by the leave of the Court nothing outside the record will be countenanced vide C.O.P. v. Okoye (2012) 14 NWLR (Pt.1320) 396 at 425 – 426 per Augie, J.C.A., (now J.S.C.) following Onwuka v. Ononuju (2009) 11 NWLR (Pt.1151) 174, Olufeagba v. Abdur-Raheem (2009) 18 NWLR (Pt.1173) 1173.
In the absence of affidavit evidence that the other two members of the court-martial signed the judgment involuntarily, I am bound by the record and the presumption of regularity that official acts are deemed to have done regularly vide Section 168(1) the Evidence Act.
Exhibits 31 and 32, the dispatch from Fleet Headquarters West and Western Naval Command, respectively, are not in the record. The respondent’s complaint in the brief that said Exhibits are not contained in the record was not met by the appellant; accordingly, the allegations by the appellant that the circumstantial letter was back-dated and that the charge was prepared after the court-martial was convened without the convening order, and that the circumstantial letter was not concurrently in existence with the charge being matters of documentary evidence which no oral evidence like the evidence of DW1 can alter, contradict or vary vide Section 128 of the Evidence Actwere not proved as they were not borne by the record. Exhibit 31 and 32 not having been made part of the record nor the 15 messages in the call phone not having been transcribed, Exhibit 44 cannot be good evidence of what it contains, more so that appellant testified that the message were from anonymous sources which spoke in veiled terms of his frame-up without disclosing the persons behind the alleged frame-up.
It is trite that he who asserts must establish the assertion and not having done so, the allegation that the circumstantial letter was back-dated and the charge framed after the court-martial was constituted is speculative and not proved vide Orji v. Dorji Textile Mills (Nig.) Ltd. (2010) All FWLR (pt.519) 999 at 1013 – 1014, F.A.T.B. Ltd. v. Partnership Investment Co. Ltd. (2004) FWLR (Pt.192) 167.
Moreover, the allegation of back-dating a public document such as circumstantial letter is criminal in nature and required proof beyond reasonable doubt which was not met by the appellant in this case vide Section 135(1) of the Evidence Act.
Allegation of bias of an adjudicator is grave. It must be clearly raised in the proceedings and if the facts constituting it are discovered after the case, affidavit evidence of it should be filed and served on the person(s) accused of bias for their reaction which was not the case here.
In addition, the phone conversation on the allegation of conspiracy or gang-up between the appellant’s superiors and some of his ship’s company and members of the court-martial were not properly proved in evidence as its contents were not demonstrated in the court-martial by a witness conversant with it vide S.T. Hon’s Law of Evidence in Nigeria 2012 in pages 506 507 where the learned author aptly wrote
“… a GSM gadget or telephone itself, if it contains valuable information, can be successfully tendered in evidence together with whatever message or information stored therein; as evidence, the only duty of the tendering party being to read it in open Court and to demonstrate its contents in the open Court in the similitude of reading ordinary documentary evidence when admitted in evidence or taking them as

…………………….G…………………….

read.”
As pointed out by the respondent even Exhibit 44 was provisionally admitted pending the tendering in evidence of the GSM phone so a document admitted provisionally or tentatively cannot be formally in evidence until the event upon which it was admitted occurred or was accomplished by the party upon the responsibility rested to accomplish the event vide Commercial Bank (Credit Lyonnais) Nigeria Ltd. and Anor. v. Joke Ishola and Anor (2014) LPELR – 24070 (CA), Makurdi Local Administration v. Yabubu Billa (1973) N.N.L.R. 101 at 104, Alhaji Yahaya Mohammadu v. Oturkpo Local Administration (1973) N.N.L.R. 112 at 144 and Sunday Ani and Anor v. State (2009) 16 NWLR (Pt.443) at 456 (letter H), Barde Egwa v. Moses Ciroma Egwa (2007) 1 NWLR (Pt.1014) 71 at 94.
Confirmation of the verdict of the court-martial by Navy Board was made on 07-11-14 and reduced the sentence of the appellant vide Page 1 of the additional record of appeal (additional record) thus –
“a. One year loss of seniority with consequential loss of Command including the period of Command of NNS LANA.
b. Payment of the sum of N354,330.00 as cost of the missing pistols and 100 rounds of 9m ammunition.
c. Two years loss of seniority.
2. Please note that the punishment of one year loss of seniority is to run concurrently with the two years loss of seniority.
While the notice of appeal was filed on 09-12-2014 vide pages 2 6 of the additional record. The appellant had canvassed in his brief in page 22 thereof that he had filed application for leave to appeal on the 5th January, 2013 and properly served the respondent all the processes of the Court of Appeal since then to which the respondent in her brief neither confirmed nor denied.
The record of the Court confirmed that the motion for leave to appeal was served on the respondent on 11-02-14. The confirmation of the verdict by Navy Board was thus made during the pendency of the motion for leave to appeal and was on that ground premature vide Section 198 of AFA 2004 thus –
“Nothing in this part shall affect the exercise by the reviewing authorities of the powers conferred by Section 149of this Act in respect of a decision of a court-martial so far as regards the exercise thereof at a time before the lodging with the Registrar of the Court of Appeal of an appeal or an application for leave to appeal to the Court of Appeal against the decision and nothing in this part shall affect the exercise by the president of the prerogative of mercy. (My emphasis).
The confirmation of the verdict by Navy Board during the pendency of the motion for leave to appeal against the decision of the court-martial being premature is hereby struck out or set aside.
The court-martial relied heavily on the evidence that the appellant had carried physical inspection of the ship in his command 4 times in 6 months instead of once in every month in determining count 1 on negligence against the appellant. Page 34 of the Captain’s Standing Orders in volume Two of the record (Exhibit 43) states on rounds of the Captain that –
1. I will conduct rounds of the ship once in a calendar month. The period may be reduced for security reasons which I may consider requires more frequent rounds.
2. I may also make surprise visits to any part of the ship if I consider it necessary at any time.
(My emphasis).

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It follows from the excerpt in Exhibit 43 above that the appellant as the captain of the ship had the discretion to conduct rounds once in a month or less or even more showing the lee-way the appellant had in the matter. The 4 rounds the appellant did in the 6 months period was therefore above average and did not violate the Captain”s Standing Order, Exhibit 43, and had the excerpt (supra) been taken into consideration by the court-martial it would not have held that the appellant was negligent in handling his post of Captain or Commander of the ship in the circumstances.
The unchallenged evidence of the appellant that he caused the inspection of the armoury to be made as required by service law was not taken into account by the court martial in its judgment. Had these important aspects of the case been given due weight by the court-martial the charge of negligence on count 1 against the appellant who personally inspected the ship 4 times in 6 months it would have swayed it to give the appellant the benefit of the doubt. Accordingly, I see merit in the appeal on count 1.
In view of the ruling of the court martial in relying on Exhibit 12 in the no case submission discharging the 4th accused wherein the Court martial held that the service property intact up to 07-12-12 when the charge sheet alleged in count 2 that thereof that the service property comprising 2 pistols and 100 rounds of ammunition were intact when the charge service property in question was said to be missing between July and September 2012 it was argued that the appellant should have been acquitted and discharged as well.
But the charge sheet against the appellant alleged in count 2 that the appellant negligently caused the loss of service property as commanding officer on or about 07-11-12 not between July and September 2012 therefore the appellant’s case was not on the same pedestal as the 4th accused; consequently, the contention of the appellant that the discharge of the 4th accused should have led to the appellant’s discharge and acquittal in the case when the ground(s) upon which the 4th accused got discharged on no case submission were not the same as in the appellant’s case.
There is evidence by PW5 in page 301 of the record that the 2 browning pistols and 100 rounds of ammunition were kept in the armoury and the PW10 testified in page 474 of the record that he was at the material time the armourer. But there was no evidence from the respondent that the appellant had the keys of the armoury. Rather there was evidence from the appellant that all the keys to the ship are with the OOD.
Exhibit 12, the handover/takeover, note, contained in volume two of the record with particular reference to second and third sheet thereof showed the handover note dated 13-08-2010 had under item 8 the arms and ammunition comprising inter alia pistols and 14 ammunition boxes containing assorted bullets which established that as at 13-08-2010 the 2 pistols and the 100 rounds of ammun were still in the armoury of the ship and were part of the items handed over to the PW5 and the PW6 showing the appellant was not in personal or direct control of the arms and ammunition.
Loss of service property was discussed in the case of Navy Lt. Odunlami v. The Nigerian Navy (2013) 12 NWLR (PT.1367) 20 at 49 to the effect that the accused must be subject to service law; the accused had charge of or was in care of the service property; the said service property is lost; the accused intentionally lost the service property or items; and the accused has no defence in law or on the facts. Kalu v. Nigerian Army (2010) 4 NWLR (Pt.1185) 433 was followed by the Supreme Court in Odunlami v. Nigerian Navy (supra) at 51 per the lead judgment prepared by Rhodes-Vivour, J.S.C., thus –
“In Kalu’s case the ammunitions were kept in an army store. Other items were also kept in the

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same store and Lieutenant-Colonel E.M. Kalu was not the only officer who had keys to the store. That is to say he did not have exclusive control of the store. Some items were missing, he was convicted by the court-martial. I sat on the panel that reversed the judgment of the Court-Martial. We reasoned, Dongban-Mensem, JCA at pg. 452, delivering the leading judgment that –
“……the appellant ought to be given the benefit of doubt as it was never established that the appellant was responsible for the loose and porous control of the store.”
In this case the appellant, though subject to service law, was not placed in direct charge or care of the armoury where the 2 missing pistols and 100 rounds of ammunition were kept nor does the third and fourth ingredients of the offence apply to the appellant. There was therefore no available evidence that the appellant had exclusive access to the armoury where the weapons were kept.
As it was not established by credible evidence or beyond reasonable doubt that the appellant did not have exclusive access to the armoury or was shown to be in direct control of or directly responsible for the armoury where the 2 browning pistols and 100 rounds of ammunition were missing, the court-martial should have given the appellant the benefit of the doubt and should have been wary in convicting the appellant on the loss of the 2 browning pistols and 100 rounds of ammunition. There is therefore merit in the appeal on the issue dealing with the conviction and sentence of the appellant on count 2 of the charge relating to service property.
Regarding count 3 on conduct to the prejudice of service discipline the appellant admitted in his evidence in pages 783 – 784 of the record that he brought some civilian marabouts on board the ship to help in the investigation of the missing 2 browning pistols and 100 rounds of ammunition and on the instruction of the civilian marabouts the appellant sent for bread which was bought and given to willing members of the ship’s company who ate it after the civilian marabouts said some prayers or incantations for the purpose of extracting confession from any person that was responsible for the disappearance of the 2 browning pistols and 100 rounds of ammunition.
The said method of investigation was an uncomfortable shift from the orthodox and conventional mode of investigation normally deployed by a branch of the Armed Forces specially trained to conduct such investigation. For the appellant to have employed the fetish method of investigation in disregard of the standard practice of the Armed Forces, a disciplined and cultured force, cast a dark shadow on the image of the Navy, which in the eyes of an officious bystander watching the marabouts in action would hold the Navy in disrepute.
In the case of Ex-Captain Zakari v. The Nigerian Army and Anor. (2012) 5 NWLR (Pt.1294) 478 at 504 this Court (Lagos Division) held in the lead judgment prepared by Okoro, J.C.A., (now J.S.C’) inter alia that conduct by a serving officer of the Armed Forces that would bring the Armed Forces into disrepute is an offence known to Law under Section 103 of the Armed Forces Act, 2004. The word ‘disrepute’ means disgraceful, not respectable, disordered and shabby vide Chamber’s Twentieth Century Dictionary page 375. The appellant was therefore charged with an offence with ingredients thereof and the penalty therefor prescribed in a written law – Section 103 of AFA, an Act of the National Assembly.
I am at one with the court-martial that the said conduct of the appellant, a serving senior officer of the Navy in command post at the material time, was prejudicial to good order and service discipline of the Navy as part of the Armed Forces and the court-martial was accordingly right in convicting the appellant under Section 103 of AFA 2004.
In conclusion, I find merit in the appeal on count 1 dealing with negligence of duty and on count 2 on miscellaneous offences dealing

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with service property and would allow the appeal on these counts and set aside the conviction and sentence of the appellant on counts 1 and 2 of the charge sheet which for the avoidance of doubt are hereby quashed and a plea of not guilty entered for the appellant in respect of the said counts 1 and 2 of the charge sheet.
Since the appellant was not convicted of fraud or fraudulent application or theft or any form of undue enrichment, the court-martial should not have ordered the appellant to pay a fine of N354,330.00k vide Section 118 (4) of AFA 2004. Also, having regard to the fact that the sum of N354,330.00k was imposed for the loss of the 2 browning pistols and the 100 rounds of ammunition, the holding (supra) by me that the appellant was wrongly convicted of the loss of the 2 browning pistols and the 100 rounds of ammunition automatically cancelled the imposition of the fine of N354,330.00k, which for the avoidance of doubt is hereby set aside and/or quashed.
There is, however, no merit in the appeal on the conviction on count 3 dealing with conduct to the prejudice of good order and service discipline contrary to Section 103 (1) of AFA 2004.
The conviction under Section 103(1) of AFA is, accordingly affirmed.
On sentence, the plea of mitigation by the appellant showed he had unblemished record of service of over 28 years and had contributed to the development of the respondent and was well behaved throughout the trial vide page 1126 of the record. Based on these factors a lesser sentence than reduction in rank from Captain to Commander with 4 years loss of seniority is, with tremendous respect to the court-martial, severe.
The punishment a court-martial may impose on an officer are stated in Section 118(1) of AFA in downward order thus –
“The punishments which may be awarded to an officer by sentence of a court-martial under this Act and those set out in the following scale, that is –
(a) death;
(b) imprisonment;
(c) dismissal with disgrace and dishonor;
(d) dismissal from the Armed Forces;
(e) reduction in rank;
(f) forfeiture of seniority in rank;
(g) a fine of a sum not exceeding the equivalent of 3 month???s pay;
(h) severe reprimand or reprimand;
(i) admonition;
(j) forfeiture, where the offence is fraud, fraudulent mis-application, theft, or any other form of undue enrichment of the accused, provided that evidence exists which satisfies the Court that the accused or his estate has benefited from the property or thing subject of the offence;
(k) stoppages, where the offence has occasioned any expense, loss or damage not exceeding one third of the total sum”. (My emphasis).
I would interfere with the sentence vide Section 19(3) of the Court of Appeal Act 2004 which provides inter alia that –
“On an appeal against conviction the Court of Appeal shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as it thinks ought to have been passed. (My emphasis).
Accordingly, I quash the sentence and substitute therefore a sentence of reprimand under Section 118(1)(h) of AFA which literally means to tell somebody officially that you do not approve of his behaviour where the behaviour is unprofessional vide Oxford Advanced Learner’s Dictionary (7th Edition) 1240.
The request by the appellant for the court to direct the respondent to promote him to the rank of Commodore cannot be granted as the modalities for promotion in Public Service are not within the purview of the Court but belong to the sector of the Public Service concerned, consequently the said request is hereby refused. Order accordingly.
TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading before now the lead Judgment prepared and rendered by my learned Brother JOSEPH SHAGBAOR IKYEGH JCA. I am in complete agreement with the reasoning and conclusion and adopt the entire Judgment as my own with nothing useful to add.
JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the draft of the lead judgment just delivered by my learned brother JOSEPH SHAGBAOR IKYEGH JCA and I agree with the judgment, adopt it as mine with nothing further to add.

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KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.:(Delivering the Leading Judgment): This is an appeal against the decision of the Court of Appeal, Abuja Division delivered on 18th March 2010 affirming the decision of the General Court Marshal sitting at Officers Mess Mogadishu Cantonment, Abuja delivered on 29th August 2005, which found the appellant guilty on a one count charge of defilement contrary to Section 78 of the Armed Forces Act Cap.
A20 Laws of the Federation of Nigeria (LFN) 2004 and sentenced him to a term of four years imprisonment.
The charge against the appellant is as follows:
“The accused 91NA/32/4119 Cpl Isah Ahmed AHQ Gar being a person subject to service Law is charged with:
Statement of offence: DEFILEMENT CONTRARY TO SECTION 78 OF THE ARMED FORCES CAP A20 LAWS OF THE FEDERATION OF NIGERIA, 2004, Particulars of offence: In that he at Abuja between Jan 04 and March 05 had carnal knowledge of Miss Ruth Waziri, a girl under the age of 16.”
He pleaded not guilty. In proof of the charge, the prosecution called 5 witnesses and tendered 6 exhibits marked Exhibits P1, P2, P3, P4, P5 and P6 respectively. The appellant called 2 witnesses and testified in his own defence as DW1. At the conclusion of the trial, the General Court Martial found him guilty as charged. Dissatisfied with the decision he appealed to the Lower Court, which on 18/3/2010 affirmed the decision.
Still dissatisfied he has further appealed to this court vide his notice of appeal filed on 22/4/2010 containing two grounds of appeal.
In compliance with the rules of this Court, the parties duly filed and exchanged their respective briefs of argument.
At the hearing of the appeal on 14/4/2016, ABDULLAHI HARUNA ESQ. leading Messrs A.V. Olubiyo and C.N. Uwalaka adopted and relied on the appellant’s brief filed on 10/6/2013 and his Reply brief filed on 24/9/2013. He urged the court to allow the appeal.
J.C. OKPOKO ESQ. Assistant Director, Federal Ministry of Justice leading Mallam J.A. Adamu Esq, (Assistant Director) and Habiba U. Chime (Mrs.) (Assistant Chief State Counsel), adopted and relied on the Respondents brief filed on 28/8/2013 and urged the court to dismiss the appeal.
The appellant distilled a single issue for determination as follows:
“Whether the Lower Court was right in holding that penetration of the virgina (sic) of the prosecutrix by me accused had been established beyond reasonable doubt to sustain the conviction of the appellant.
The respondent also formulated a single issue thus:
“Whether the learned justices of the Court of Appeal were right to have dismissed the appellants appeal and affirmed the decision of the General Court Martial?
I am of the view that the sole issue for determination in this appeal is whether the prosecution proved its case against the appellant beyond reasonable doubt. I shall proceed to determine the issue accordingly.
Arguing the appeal, learned counsel for the appellant referred to the appellant’s written statements, Exhibits P1 and P2 and his oral testimony in court where he denied having carnal knowledge of the prosecutrix (PW2) and submitted that where the accused person denies committing the offence of rape, the type of corroboration to be considered is medical evidence and not evidence showing injury to other parts of the victim or seminal stains on her clothes or those of the accused person. He referred to Ukershima V. State (2003) FWLR (Pt.137) 1117. He contended that the crux of this appeal is whether, from the evidence before the trial court, there was strong evidence of corroboration of penetration, an essential element in proving intercourse in a charge of rape or defilement under Section 78 of the Armed Forces Act. He observed that PW5, the medical doctor who carried out a medical examination on PW1 and tendered Exhibit P6 (the medical report), examined PW2 two days after the alleged sexual intercourse. He noted that PW2s statement, Exhibit 5, was made on 10/3/2005, the same day the medical examination took place and two days after the last sexual intercourse was alleged to have occurred (as per Exhibit P6).
He observed that notwithstanding the fact that in her statement made on 10/3/05, PW2 stated that she had “been seeing blood stains and feeling pain in her vagina”, PW5 who examined her the same day, stated that she found no bruise, laceration or bleeding on the vulva to suggest forceful intercourse. He submitted that the evidence of PW2 was flawed, doubtful and discredited and ought not to have been relied upon by the General Court Martial.
He contended that there are material conflicts regarding the date on which PW5, the medical doctor, examined PW2.
He referred to PW5’s evidence in chief at page 144 of the record where she stated that PW2 was brought to her for examination on 8/3/2005. He submitted that since the alleged sexual intercourse was said to have taken place two days before the medical examination, it means it must have taken place on 6/3/05, yet Exhibit P6 puts the date of the medical examination at 10/3/05. He argued that this suggests that the sexual Intercourse took place on 8/3/05. He also argued that there were material contradictions in the testimony of PW2 as to last date on which sexual intercourse occurred between her and the appellant. He contended that the said contradictions create a doubt in the prosecutions case as to whether or not sexual intercourse actually took place between the parties.
Learned counsel argued further that there is no nexus between the offence for which the appellant was charged, which was said to have occurred between 4th and 5th March and PW5’s medical report said to be predicated on an offence that occurred on 8/3/2005.
Learned counsel submitted further that sexual intercourse, in a case of rape or defilement, is established upon proof of penile penetration of the vagina, and that such penile penetration must be unequivocally proved to be by the accused person. He submitted that the medical report did not establish this fact. He contended that there was no medical proof that the appellant had sexual intercourse with PW2. He also referred to Exhibit P3, the statement of one Japhet Almuru who claimed that he had sexual intercourse with PW2 at her request and argued that an 11-year-old girl who demands sexual intercourse could not be said to be entirely honest or innocent and that her evidence could not be regarded as credible. He noted that PW2 had testified that she did not report the several instances of intercourse with the appellant because he had

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threatened that she would die if she told anyone and queried why she did not report the sexual intercourse she had with Japhet, who did not make such a threat.
He submitted that the Lower Court erred in affirming the finding of the General Court Martial that a birthmark identified by PW2 on the appellant’s thigh was conclusive proof of the offence of defilement. Relying on the case of: Edet Okon Iko V. The State (2001) 7 SCNJ 391, he submitted that the identification of a scar on the appellant’s thigh by PW2 did not constitute corroborative evidence of sexual intercourse.
Learned counsel contended that reliance on evidence of a birthmark on the appellant’s thigh amounted to misplacement of the burden of proof. He argued that the corroborative evidence relied upon by the trial court and affirmed by the court below has a faulty and weak foundation. He contended that varying references to “2 birth marks” in Exhibit P6 and “some marks”, “the marks” and “the mark” in PW5’s evidence in chief were inconsistent with the evidence of PW2 who in her written statement and in her oral evidence in court mentioned only one birthmark. He argued that the prosecution failed to prove penetration of PW2 by the appellant beyond reasonable doubt, which is required to sustain a conviction for rape or defilement.
He urged the court to hold that the finding of the General Court Martial affirmed by the Lower Court is perverse and has occasioned a miscarriage of justice. On what constitutes a perverse decision, he relied on: Atolagbe V. Shorun (1985) 1 NWLR (Pt. 2) 360; Nwosu V. Board of Customs & Excise (1988) 5 NWLR (Pt.93) 225. He maintained that the General Court Martial closed its eyes to obvious material contradictions that had a direct bearing on the reliability and credibility of the medical report and also ignored the inconsistency in PW2’s evidence as to when the offence allegedly occurred. He urged the court to resolve the sole issue in favour of the appellant.
In response to the submissions of learned counsel for the appellant, learned counsel for the respondent in paragraph 3.2 at pages 4 – 5 of his brief set out the salient aspects of the written statement and oral evidence of PW2 as follows:
a. She lives with her parents in the same block with the appellant and she knows him.
b. The appellant, between January 2004 and March 2005, had sexual intercourse with her more than three times.
c. The appellant sent her to buy coke for him and when she came with the coke he closed the door and had sex with her.
d. That after the sexual intercourse she had with the appellant she saw blood in her vagina.
e. The appellant was the first person to have sexual intercourse with her.
f. That nobody was in the appellant’s house at the time he had sexual intercourse with her.
He submitted that PW2 maintained her testimony under cross-examination. He submitted that PW5 who carried out a medical examination on both PW2 and the appellant found that PW2 is not a virgin and that the appellant had marks on his thigh, identified by PW2 that could only be seen when he is undressed. He noted that the appellant on the other hand denied having sexual intercourse with PW2 although he admitted that he knew her and was a very close friend of her father’s but that it was his wife who used to send PW2 on errands. He noted further that the appellant admitted that he had marks on his thighs.
Relying on the case of Onafowokan V. The State (1987) 3 NWLR (Pt.61) 538 @ 551 – 552, he submitted that the Lower Court was right in affirming the conviction and sentence of the appellant based on the credible evidence given by PW2. He noted that the offence for which the appellant is charged is one that is usually committed in secret and that PW2 did testify that when the sexual intercourse occurred there was no one at home. He submitted further that the offence charged under Section 78 of the Armed Forces Act does not require corroboration of the evidence of the prosecutrix as a condition precedent to securing a conviction thereon. He submitted that the test is the credibility of the witness and not corroboration of her evidence. He submitted further that the appellant was charged for defiling PW2 and not for raping her, which is an offence provided for under Section 79 of the Act. He submitted that the argument of learned counsel for the appellant in paragraphs 2.2 – 2.16 of his brief to the effect that corroboration is required to secure a conviction under Section 78 of the Act, is misconceived. He submitted that where the words used in a statute are clear an unambiguous they must be given their natural and ordinary meaning. He referred to: A.G. Federation V. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt.681) 187 @ 264 G – H.
He submitted that the two Lower Courts found PW2’s evidence to be credible, clear and unequivocal and that the appellant has failed to show that the concurrent findings are perverse or have occasioned a miscarriage of justice. He submitted that in the circumstances this court should not interfere with the findings, He relied on: Ibeme V. The State (2013) 10 NWLR (Pt.1362) 333 @ 365 C – D. He contended that the General Court Martial, being the court of first instance was in a better position to evaluate PW2s credibility. He referred to: Ndulue V. Ojiako (2013) 8 NWLR (Pt.1356) 311 @ 339 C – F.
Learned counsel submitted that there were no contradictions in the evidence of PW2, PW5 and the medical report Exhibit 6, as the examination carried out by PW5 was not done to determine whether the appellant had sex with the appellant on the stated date but was to determine whether PW2 was a virgin and whether the appellant had any marks on his thigh, which PW2 said she saw when he took off his clothes to have sex with her. He submitted that the alleged contradictions are not material enough to warrant the judgment being set aside. He referred to the case of:
Nwokoro V. Onuma (1999) 12 NWLR (Pt.631) 342 @ 355 where it was held that witnesses my not necessarily testify to the same facts with equal and regimented accuracy, particularly where they testify from failed memory or from slightly different perspectives. He noted that PW2, at the time she testified was 11 years old and not much lettered in English Language. He submitted that Exhibit P6 shows that she was not a virgin and that the appellant had marks on his thigh that could only be seen if he were naked. He posited that this evidence confirms the evidence of PW2 that she saw the marks when the appellant took off his clothes to have sexual intercourse with her and also confirms that she was not a virgin.
He contended that the evidence, though circumstantial, was reinforced by PW2’s credibility and was sufficient to ground the conviction. He cited the following cases: Mbang V. State (2013) 7 NWLR (Pt.1352) 48 @ 77 B – C:
Omotayo V. The State (2013) 2 NWLR (Pt.1338) 235 @ 252 – 255, He noted that the appellant was charged for having defiled PW2, a girl of 11 years of age between January 2004 and March 2005 and not for the last sexual intercourse he had with

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her on the 6th of March 2005. He submitted that the submissions of learned counsel for the appellant on alleged contradictions in the evidence of PW2 regarding the last date on which the appellant had sexual intercourse with her are, in the circumstances, not tenable. He submitted that even assuming, without conceding, that there were such contradictions, it would not justify setting aside the decision of the court below on grounds of being perverse. On the meaning of “perverse” he referred to the case of Atolagbe v. Shorun (1985) 4 SC (Pt. I) 250 @ 289 and urged the court to hold that the appellant has not been able to show that the judgment is perverse. He urged the court to dismiss the appeal.
In reply on points of law to the submission that an offence under Section 78 of the Armed Forces Act does not require corroboration, learned counsel for the appellant submitted that sexual offences or sex related offences require corroboration even where the statute creating the offence does not specifically provide for it. He referred to: Iko V. State (2001) 7 SCNJ 391; (2001) 14 NWLR (PT. 732) 195; Ibeakanma V. Queen (1963) 2 SCNLR 191 @ 194 – 195. He submitted that the offence of defilement or rape requires corroboration. He relied on: Okoyomon v. The State (1973) 1 SC 21. With regard to the submission that the appellant was not charged with rape, learned counsel referred to the judgment of the Lower Court where it held that Section 78 of the Armed Forces Act is in part materia with Section 282 (1) of the Penal Code and on that basis predicated its judgment on the ingredients of the offence of rape under Section 282 (2) of the Penal Code. He submitted that by the finding that Section 78 of the Act is in pari materia with the offence of rape under Section 282 (1) of the Penal Code, the offence of defilement under Section 78 requires corroboration to ground a conviction.
Apart from the above submissions, other arguments in the appellant’s reply brief are a re-argument of the appeal, which is not the purpose of a reply brief.
Section 78 of the Armed Forces Act Cap. A20 LFN 2004, under which the appellant was charged before the General Court Martial, provides as follows:
“A person subject to service law under this Act, who has carnal knowledge of a girl, being under the age of sixteen years, is guilty of an offence under this section and liable on conviction by a court-martial to imprisonment for a term not exceeding fourteen years or any less punishment provided by this Act.
In order to secure a conviction under this provision the prosecution must establish the following beyond reasonable doubt:
1. That the accused is a person subject to service law under the Act.
2. That the victim is a girl under the age of 16 and
3. That the accused had carnal knowledge of her.
The First two ingredients are not in dispute. With regard to the third ingredient, the Armed Forces Act does not define “carnal knowledge”. In Black’s Law Dictionary 8th edition at page 226, “carnal knowledge” is defined as follows:
“Carnal knowledge: Sexual intercourse esp. with an underage female” ”intercourse” is defined at page 827 as:
“2. Physical sexual contact. esp. involving the penetration of the vagina by the penis.€
In Magaji V. Nigerian Army (2008) 8 NWLR (Pt.1089) 338 @ 373 E, the appellant, a commissioned officer of the Nigerian Army was charged before the General Court Martial on a charge of sodomy contrary to Section 81 (1) (a) of the Armed Forces Decree No. 105 of 1993. It was alleged that the appellant had carnal knowledge of four boys.
On the meaning of “carnal knowledge”, this court per Tobi, JSC said:
“The Armed Forces Act 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.
The court reiterated the settled position of the law that a court or tribunal can convict on strong circumstantial evidence, which leads to the commission of the offence. Several authorities were cited, including: Chewmoh V. The State (1986) 2 NWLR (PT. 22) 331; Adio v. The State (1986) 2 NWLR (Pt. 24) 581: Ikomi V. The State (1986) 3 NWLR (Pt. 28) 340; Iyaro V. The State (1988) 1 NWLR (Pt.69) 256. His Lordship, Niki Tobi, JSC also noted that the offence of sodomy, like the offence of unlawful carnal knowledge of a girl under sixteen years of age, is not an offence where corroboration is statutorily required. In that case he held that even if corroboration were required, the appellant’s pre-trial statement would have gone a long way in proving the charge.
In Ezigbo V. The State (2012) 16 NWLR (Pt. 1326) 318, a mother (PW1) saw her two young daughters, aged 8 and 6 years respectively, in the company of the appellant with ice cream in their hands. When she called to them, the appellant changed direction and continued to walk away. The girls did not heed their mother’s call. The mother ran after them, at which point the appellant abandoned the girls and ran away.
Upon inquiry it was discovered that the appellant used to lure the girls to his shop where he would have sexual intercourse with them and occasionally give them money. PW1 reported the matter to her husband who reported the matter to the Police. The appellant was charged and convicted for the offence of rape. One of the issues in contention in that case was whether there was sufficient corroboration of the unsworn testimony of PW2 having regard to the evidence of the medical doctor, PW5, who in her medical report, Exhibit P2, found that the hymen of the two girls had been ruptured but did not testify that it was penetration of the appellants penis into their vaginas that caused the hymens to disappear. This court, per Onnoghen, JSC at page 329 C – D of the report held as follows:
”Corroboration in respect of the offence of rape is evidence which tends to show that the story of the prosecutrix that the accused committed the crime is true – see Sambo V. State (1993) 6 NWLR (pt.300) 399; Upahar V. State (2003) 6 NWLR (pt.816) 230.
Corroboration need not consist of direct evidence that the accused committed the offence charged, nor need it amount to confirmation of the whole account given by the prosecutrix. It must, however, corroborate the said evidence in some respects material to the charge in question. It is also settled that corroborative evidence must itself be a completely credible evidence.”
In that case, the evidence accepted by the trial court and affirmed by the court of appeal and this court, was the testimony of PW2 that the accused had sexual intercourse with her by putting his penis in her private part and that blood and white liquid came out of her body, which evidence was corroborated by the testimony of the medical doctor, PW4 who

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stated in his medical report that he found that the hymens of the two girls were not intact and that in his opinion the disappearance of the hymen might have been caused by penetration into the vagina and that the penetration must have occurred several times. This evidence corroborated the testimony of PW2, though unsworn, that the accused had sexual intercourse with her on more than one occasion.
In other words, as rightly pointed out by learned counsel for the respondent, an offence such as the one under consideration is usually carried out in secret with the only witnesses being the victim and the perpetrator. Therefore, in determining whether the prosecution has proved its case beyond reasonable doubt, the court will take all the surrounding circumstances into account. See: Magaji v. Nigerian Army (supra) at 375 B-C.
I deem it appropriate at this stage to give a brief summary of the facts as gleaned from the record that led to the charge in order to put the submissions of learned counsel in perspective. The appellant, a corporal in the Nigerian Army who works as a computer operator and teacher at NAOWA Model Nursery and Primary School and the family of the prosecutrix (PW2) all reside in the same block at Mogadishu Cantonment in Abuja. Helen Waziri, the mother of PW2, who testified as PW4, testified that on 9/3/2005 she saw PW2 outside her school around 12 pm when she ought to have been in her classroom. She sent her back inside. Later the same day, her friend informed her that she had seen her daughter around the church premises during school hours.
PW2 was questioned and eventually admitted that one Japhet Almuru had called her to the church and had sexual intercourse with her. At that stage PW4 raised an alarm and attracted other neighbours. PW2 repeated her story and stated further that Japhet Almuru was not the only one who had had sexual intercourse with her. She then informed those gathered that the appellant had also had sexual intercourse with her.
PW4, a housewife, who sells soft drinks, recalled that she was pregnant and on bed rest at the time and that the appellant would send PW2 to buy him soft drinks from her. She also testified that the appellant was a good family friend who had been of great assistance to her and her family while her husband was away on duty in Sierra Leone. She also stated that the appellant’s wife was her good friend. It was this interrogation of PW2 and the revelations that followed that led to the matter being reported to the Military Police and the appellants subsequent prosecution.
The prosecutrix, Ruth Waziri (PW2) testified inter alia as follows at pages 73 – 74 of the record:
There is one day Oga Isah called me that I should bring coke for h1m then I now bring coke for him, he now say I should sit down when I sit down he now touched my breast and he said if I tell anybody that I am going to die, so he gave me (N20.00) Twenty Naira that I should 90 the next day he now called me that I should come and I now come and he now touched my breast then the next day again he called me that I should sit down in three seater he now went and locked the door. When he locked the door he now said I should lay down so when I lay down he now pull off my skirt and sleep with me….He lay on top of me… He put his penis in me … in my yansh … the one I use to piss.
… Then the following day he now said I should come and when I come he still do the same thing. Before he go Sudan that is what he used to do then the last day on Tuesday on 8.€
She continued at page 76 of the record:
“Before he went to the office by (sic) on Tuesday 8th he call me and I refused to go, my mummy now said I should go that someone wants to send me and that I don’t want to go. I now said okay and I now 90 there and he said I should go and buy him akamu. When I come back he now touched my breast and gave me N20.00 Twenty Naira that if I tell anybody I am going to die.”
She stated that on the 8th of March no sexual intercourse took place. In the course of her testimony she described the appellant’s penis and stated that she also saw a mark on his thigh. She stated further that when Japhet tried to have sexual intercourse with her he was unable to consummate the act. That there was no penetration. She also stated that the appellant was the first person to have sexual intercourse with her and that after he had intercourse with her she saw blood. She testified that he had sexual intercourse with her more than three times.
PW5 the medical doctor who examined PW2 found that she is not a virgin although no bruising or bleeding was found in her vagina. She also examined the appellant and found that he had a birthmark on his thigh as stated by PW2. The appellant in his defence denied the charge. His two witnesses, DW2 (a neighbour) and DW3 (the appellant’s wife) did not add anything of value to his defence as they had no knowledge of the alleged offence. DW2 was one of those invited by the mother of PW2 to hear what she had said regarding the appellant. DW3 was informed of what transpired by her friend, the mother of PW2.
The court below, in its judgment, held that the offence of defilement under Section 78 of the Armed Forces Act is in pari materia with Section 282 (1) of the Penal Code, which provides thus:
282. (1) A man is said to commit rape who, save in the case referred to in subsection (2) has sexual intercourse with a woman in any of the following circumstances –
(a) against her will;
(b) without her consent;
(c) with her consent when her consent has been obtained by putting her in fear of death or of hurt;
(d) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
(e) with or without her consent, when she is under fourteen years of age or of unsound mind.€
In Ogunbayo V. The State (2007) 8 NWLR (Pt.10351 157 @ 176 F-G. 177- 178 H-A and 178-179 H – C, it was observed that there is no statutory requirement that the prosecution must provide evidence of corroboration before an accused person can be convicted of the offence of rape. However, the court noted that over time it has become the practice for court’s to require some evidence of corroboration. Thus while it is acknowledged that it is desirable that the evidence of the prosecutrix should be strengthened by other evidence implicating the accused person in the commission of the offence, it is not the law that an accused person cannot be convicted on the uncorroborated evidence of the prosecutrix. The cases

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of: Iko V. The State (2001) 14 NWLR (pt. 732) 221; Ibeakanma V. Queen (1963) 2 SCNLR 191; Reekie V. Queen (1954) 14 WACA 501; Sunmonu V. I.G.P. (1957) WRNLR 23 were referred to.
It is worthy of note that the offence of defilement under section 78 of the Armed Forces Act is complete once it is proved that the accused person had carnal knowledge of a girl under the age of 16 years. In other words, while in the offence of rape, lack of consent is material, in a case of defilement, the consent of the prosecutrix is immaterial. I must state here that PW2, although 11 years old, was rigorously examined as to her capacity to understand the importance of speaking the truth and the General Court Martial was satisfied of her competence to testify under oath. The said court, which had the opportunity of seeing and hearing PW2 and observing her demeanour, found her evidence credible and unshaken under cross-examination.
Learned counsel for the appellant has argued strenuously that the absence of bruising or bleeding in PW2s vagina, as found by PW5 when she examined her on 10/3/2005 despite the fact that PW2 in her statement of the same date stated that she had been seeing blood stain and feeling pain in her vagina, showed that the medical evidence was flawed and should not have been relied upon in convicting the appellant, I think that the argument of learned counsel for the appellant, with respect, is misconceived. This is because the appellant is alleged to have had sexual intercourse with her on several occasions over a period of time – between January 2004 and March 2005 and not between 4th and 5th March 2005, as contended by learned counsel for the appellant. The report to the Military Police was the outcome of the interrogation of PW2 after a report by her mothers friend that she had been seen in the church premises during school hours and the fact that she confessed to having had sexual intercourse with one Japhet as well as the appellant, when questioned. The whole scenario was precipitated by the fact that PW4 found her daughter outside school when she ought to have been in the classroom, which led to the further revelation by her friend.
Thus, as rightly observed by learned counsel for the respondent, since the offence was allegedly committed on several occasions, the purpose of the medical examination carried out by PW5 was to ascertain whether or not PW2 was a virgin and whether the appellant had a birthmark on his thigh in an area that could only be seen if he were naked, which would corroborate the assertions of PW2. Both facts were confirmed by PW5 in Exhibit P6.
On this issue, the Lower Court held at page 375 of the record:
“A trial court is bound to consider, however stupid, the defence of an accused person more so in a case as serious as the one before the court. The court is enjoined to consider all available legal defences whether raised directly or remotely by the accused person, in the interest of justice before the trial court finds for or against the accused. In this regard is the fact that PW2 not being a virgin at the time of the medical examination and in the view of the defence should knock out the offence of rape is a clear shut (sic: shot) in the dark without hitting a target. With the other points, especially of the several acts of violation of the PW2 ranging between 2004 and 2005, talking of virginity would not avail the accused as it became irrelevant in the circumstance… In the case in hand, the appellant as accused in the Court Martial did not help himself when he set out for an outright denial, then made serious admission under cross-examination of the birth marks referred to by the prosecutrix, which was confirmed by the PW5 and her Medical Report.
This is a case in which there was strong circumstantial evidence that pointed to the commission of the offence by the appellant. PW2 was quite unequivocal in her evidence in chief and under cross-examination that she had had sexual intercourse with the appellant on several occasions. For a young girl of 11 years, the cross-examination was rigorous and lengthy but she stuck to her story. She was able to describe his private part including her observation of a birthmark on his thigh. I agree with the finding of the court below that the evidence of PW5 and her medical report, Exhibit P6 constituted sufficient corroboration of the evidence of PW2.
On the contention of learned counsel for the appellant that there were serious contradictions in the evidence led by the prosecution, the law is settled that it is not every contradiction in the prosecutions case that will raise a doubt, the benefit of which ought to be resolved in favour of the accused. It is only contradictions that are substantial and fundamental to the main issue in question that would be fatal to the prosecution’s case. For a contradiction to be material it must not only relate to a material fact, it must in addition lead to a miscarriage of justice. See: Dibie V. The State (2004) 14 NWLR (893) 257 at 280 A – D: Ikemson Vs The State (1989) 2 NSCC (Vol. 20) 471; Onubogu Vs The State (1974) 1 All NLR (part II) 5: Okonji Vs The State (1987) 1 NWLR (52) 659.
On the issue of the location of the birthmark on the appellant’s thigh, the court below held at pages 376 – 377 of the record:
The fact that the prosecutrix said the birthmarks were on the left side thigh of the accused/appellant and the PW5 sad it was on the fight side was Insufficient as an inaccuracy as to discredit either the witnesses or the piece of evidence as what was material was that such marks existed and in the very secret and private part of the appellant which could only be seen when he is undressed. Therefore that he had undressed himself before the PW2 is no longer in doubt and the PW5, medical doctor only saw it when appellant was undressed before her during the medical examination.”
I agree entirely with the above finding, which has not been shown to be perverse. I also agree with learned counsel for the respondent that the slight discrepancy regarding the date on which PW5 examined PW2, whether it was on the 8th or 10th of March, is immaterial to the finding of PW5, which confirmed that PW2 had had sexual intercourse on several occasions prior to the examination and that the appellant had a mark on his thigh that could only be seen by someone who had seen him naked. PW5 stated that PW2 gave her a description of the appellant’s penis, including its colouration.
In her evidence-in-chief at page 156 of the record, she described the location of the mark thus:
”It is found on the inner part of the thigh, about 5cm from where the hair is growing from the pubic region.”
I am of the view that the issue of the number of scars seen on the appellant’s thigh, whether one, two or several, is immaterial in so far as PW2 gave credible evidence confirmed by PW5 of at least one scar in a part of the appellants body that could only be seen when naked.
I agree with the court below that the evidence of PW5 and the medical report, Exhibit P6 constitute independent, credible evidence that corroborates the evidence of PW2.
Beyond this, it is also clear from the evidence before the General Court Martial that the appellant shamelessly abused his

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position as a trusted friend of the family to take undue advantage of the prosecutrix.
Before concluding this judgment, I deem it necessary to comment briefly on the submission of learned counsel for the appellant to the effect that from the statement made by Japhet, which was tendered as Exhibit P3, the prosecutrix went to the church premises to meet him voluntarily, and therefore she could not be considered to be an honest or innocent young girl whose evidence could be relied upon.
Firstly, the said Japhet did not testify before the General Court Martial and was therefore not subjected to cross-examination as per the contents of Exhibit P3, Furthermore, so long as a person has carnal knowledge of a girl under the age of 16, whether it is with her consent or not, an offence is committed.
It is a demonstration of a lack of understanding of the nature of the offence for learned counsel to ascribe any culpability to the prosecutrix.
In light of all that I have said above, I am of the view that the Lower Court was right when it affirmed the decision of the General Court Martial that the prosecution had proved its case against the appellant beyond reasonable doubt. No special grounds have been shown by the appellant to warrant interference by this court with the concurrent findings of fact by the two Lower Courts. I therefore hold that the appeal lacks merit. It is accordingly dismissed. The judgment of the Court of Appeal, Abuja Division delivered on 18/3/2010 affirming the conviction and sentence of the appellant to a term of four years imprisonment by the General Court Martial is hereby affirmed.
Appeal dismissed.
OLABODE RHODES-VIVOUR, J.S.C.:
I have had the benefit of reading in draft the leading judgment of my learned brother, Kekere-Ekun, JSC. I agree that there is no merit in this appeal. I intend to comment on the position of the law on the sole issue formulated by learned counsel for the appellant. The issue reads:
Whether the Lower Court was right in holding that penetration of the virgina of the prosecutrix by the accused had been established beyond reasonable doubt to sustain the conviction of the appellant.
The appellant was charged under section 78 of the Armed Force Act Cap A 20 Laws of the Federation of Nigeria, 2004. He is accused of having carnal knowledge of Miss Ruth Waziri, a girl under the age of 16.
Section 78 supra states that:
78. Defilement
A person subject to service law under this Act who has carnal knowledge of a girl, being under the age of sixteen years is guilty of an offence under this section and liable, on conviction by a court-martial, to imprisonment for a term not exceeding fourteen years or any less punishment provided by this Act.
For the court to be satisfied that the prosecution has proved its case beyond reasonable doubt, the prosecution must establish:
1. that the accused person is a person subject to service Law
2. that the accused person had carnal knowledge of the prosecutrix
3. that the prosecutrix was not 16 years old when the offence was committed.
A person subject to service law is a person in the Armed Forces of Nigeria, i.e. the Army, Navy, Airforce. The appellant is a Corporal in the Nigeria Army with Number 91NA/32/4119. He is subject to service law.
Though carnal knowledge is not defined in section 78 of the Armed Forces Act, once a mans penis penetrates the virgina of a female, no matter how slight the penetration the offence is complete. He is said to have had carnal knowledge of the prosecutrix. See Section 6 of the Criminal code. The appellant had carnal knowledge of the prosecutrix on several occasions.
It is not in doubt and it was not an issue that at the time the appellant had repeated sex with the prosecutrix she was eleven years old.
It is long settled that in sexual offences that corroboration of the prosecutrix evidence is desirable. That is to say the evidence of the prosecutrix should be strengthened by other evidence implicating the accused person in some material particular. See Sunmonu v. IGP (1957) WRNLR p. 23
Whether evidence is regarded as corroboration is a matter of law and it is the duty of the Judge to decide.
The prosecutrix testified that the appellant had sex with her several times and gave a description of his penis and the fact that he had a mark on his thigh, facts found to be true by PW5, the medical doctor, after examining both of them. In the circumstance of this case the testimony of the medical evidence is good corroboration of the evidence of the prosecutrix.
Finally the law does not recognize consent to sex by a girl under the age of 16 years. It is no defence to say a girl under 16 years consented to sex. I am satisfied that the prosecution proved the charge of defilement under section 78 of the Armed forces Act beyond reasonable doubt against the appellant.
For this, and the detailed reasoning in the leading judgment, concurrent findings of both courts below are correct. The appeal is dismissed.
NWALI SYLVESTER NGWUTA, J.S.C.:
I read in draft the lead judgment just delivered by my learned brother, Kekere-Ekun, JSC, and I entirely agree with the reasoning leading to the dismissal of the appeal as devoid of merit.
One of the issues canvassed for the appellant is the absence of bruises on the prosecutrix private part. This line of argument would be to the point on the issue of consent and showing that the prosecutrix offer no resistance. See Queen v. Kuti (1960) WNLR; DPP v. Morgan (1975) All ER 147; Ogunbayo v. State (2007) All FWLR (pt.365) 408 a 425-426 SC.
But consent is not an issue in this appeal. The prosecutrix was eleven years at the time the offence was committed. She

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was doli incapox. She was incapable of consenting to the act of the appellant on her.
The prosecutrix (PW2) gave a graphic account of her observation of the genital area of the appellant. She described the appellants male organ and its colouration as well as the birth mark on the appellants thigh.
This is not a direct evidence in proof of the charge as laid.
However, it is evidence of some collateral fact from which the existence or non-existence of some fact in question may be inferred. It is circumstantial evidence.
In dealing with circumstantial evidence in Kam Das v. State of Maharashtora AIR 1977 SC 1164 the Court held that a settled rule of circumstantial evidence is that where the circumstances are susceptible of two equally possible inferences, the Court should accept that inference which goes in favour of the accused rather than inference which favours the prosecution. On the facts of this case, there is only one inference to be drawn from the established fact and that is the guilt of the appellant.
Also it is unthinkable that a girl of the tender age of eleven years will cook up the story the prosecutrix told the Court. It has ring of truth and the trial Court was right to accept her story as the truth and the Court of Appeal rightly endorsed the decision of the trial Court.
In absence of any perversity in the concurrent judgments of the trial Court and the Court of Appeal, this Court cannot disturb the Judgment appealed against.
For the above and the comprehensive reasoning in the lead judgment I also dismiss the appeal and affirm the judgment of the Lower Court.
Appeal dismissed.
MUSA DATTIJO MUHAMMAD, J.S.C.:
This is an appeal against the concurrent findings of fact by the two courts below. Appellant has not shown the findings to be perverse. The appeal accordingly fails. I imbibe the detailed reasoning in the lead judgment of my learned brother Kekere-Ekun JSC, which I read in draft before now, to dismiss the appeal. I affirm the judgment of the Lower Court.
AMIRU SANUSI, J.S.C.:
I had the opportunity of reading the draft judgment of my learned brother Kudirat Motonmori Olatokunbo Kekere-Ekin JSC which has just been delivered.
Considering the evidence adduced by the prosecution and those lead by the defence and the surrounding circumstance of the case, I am convinced that the prosecution (now respondent) had duly proved the offence the appellant stood trial on, beyond reasonable doubt.
I am in entire agreement with the reasoning and conclusion arrived at by my noble lord Hon. Justice Kudirat Motornmori Olatokunbo Kekere-Ekun JSC. I adopt them as mine and have nothing useful to add. This appeal fails and is dismissed by me. I affirm the decision of the court below which had earlier affirmed the decision of the General Court Martial.