Judgment
JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Ibadan Division delivered on 8th June, 2010 wherein the lower Court affirmed the judgment of the General Court Martial which convicted and sentenced the appellant to terms of imprisonment. The Appellant was the 1st accused at the trial General Court Martial convened by the General Officer Commanding 2nd Mechanized Division, Nigerian Army, Benin wherein the Appellant was charged with three other accused persons on a four count charge.
A summary of the facts leading to this appeal may be stated as hereunder.
The Appellant was one of the four military officers alleged to have aided some civilians in transporting weeds suspected to be Indian Hemp in an Army truck, having collected the sum of N28,000.00 (Twenty-eight thousand naira) from the civilians for that purpose.
The military truck was intercepted by the police and arrested along with two civilians and two military officers conveying the said weeds. The arrested men made statements to the police before the appellant came and secured the bail of the two military officers.
Subsequently, the General Officer commanding 2nd Mechanized Division of the Nigerian Army, Benin Division, convened a General Court Martial and charged the Appellant alongside three other military officers for disobedience to a Standing Order, Official Corruption, permitting improper carriage of goods in a military vehicle and agreeing to improper carriage of persons in a military vehicle.
The Appellant pleaded not guilty to these four count charges. The prosecution called five witnesses in proof of the charge, two of whom were the civilians caught alongside the two military officers. The other three witnesses were the police officers who investigated the matter. The Appellant testified on his own behalf as DW4.
The General Court Martial convicted the Appellant on all the four count charges and sentenced him to terms of imprisonment which were to run concurrently. The General Officer Commanding 2nd Mechanized division of the Nigerian Army, Benin Division, confirmed the conviction and sentence and the Appellant was imprisoned. Appellant’s appeal to the Court of Appeal was dismissed on 8th June, 2010.
The Appellant, not satisfied with the stance of the Court below, has further appealed to this Court. He filed Notice of Appeal on 7th July, 2010 with three grounds of appeal. However, by an amended Notice of Appeal dated 8th November, 2010, the appellant increased the grounds to four out of which he has distilled three issues for the determination of this appeal.
On 21st October, 2021 when this appeal was heard, the learned counsel for the Appellant, Taiwo Abe, Esq who settled the appellant’s brief of argument was absent, though the appellant was served with hearing notice. By the rules of this Court, the appeal was deemed argued having regard to the age of the appeal. The said brief was filed on 24th July, 2015. The three issues distilled in the Appellant’s brief are as follows:- 1.
Whether the Court of Appeal was correct to hold that the prosecution proved its case beyond reasonable doubt against the Appellant in the face of the obvious contradictions in the testimonies of the prosecution witnesses and doubts raised in favour of the Appellant. 2. Whether the Court of Appeal was correct in holding that the Appellant was part and parcel of the whole deal of using Army truck to carry improper goods and persons because there was no proper rebuttal of evidence that the Appellant collected N28,000.00 (Twenty-eight thousand naira) from one Mr.
Oloko for the illegality when the only evidence to that effect was the testimony of PW1 (Mr. Oloko) which was firmly denied by the Appellant. 3. Whether the Court of Appeal was correct in affirming the conviction of the Appellant when the Appellant was not afforded fair trial when he was denied his request of calling two material witnesses in his defence before the General Court Martial and when the Judge Advocate abdicated his statutory role of advising the General Court Martial to partake in the trial and conviction of the Appellant.
Learned counsel for the Respondent, Etukwu Onah, Esq., who filed Respondent’s brief of argument on 10th June, 2020 but deemed filed on 21st October, 2021, adopted the said brief and urged the Court to dismiss the appeal. Two issues are formulated for determination thus:- 1.
Was the Court of Appeal right in affirming the conviction and sentence of the Appellant by the General Court Martial based on the fact that the prosecution had proved its case beyond reasonable Court (sic) and there were no material contradictions in the evidence of the prosecution witnesses to set aside the Appellant’s conviction? 2. Was the Court of Appeal right to hold that the Appellant was not denied fair hearing throughout his trial, conviction and sentence by the General Court Martial.
From the facts of this case, the judgment of the Court below appealed against and the grounds of appeal in the amended Notice of Appeal, it seems to me that the two issues donated by the Respondent are enough to appropriately dispose of this appeal. This means that Appellant’s issues one and two shall be taken together with Respondent’s issue one while Appellant’s issue three shall be determined alone with Respondent’s issue number two. I shall proceed to resolve the issues in that order accordingly.
ISSUES ONE AND TWO In arguing issue one, the learned counsel for the Appellant submitted that it was not proper for the Court below to hold that the contradictions in the testimonies of prosecution witnesses were not material enough as to warrant setting aside the conviction of the Appellant. According to him, PW3 – PW5 testified before the trial General Court Martial that statements obtained without coercion from DW1 and DW2 confirmed that DW1 and DW2 were on official road test when they decided to help out two civilians they saw on the road.
That these testimonies are clearly in contradiction with the subsequent testimony of DW2 in the trial General Court Martial which subsequent testimony sought to indict the Appellant. He stressed that in considering what constitutes material contradiction, recourse must be had to the nature of the charge against the Appellant and the ingredients required for proof of such charge, relying on the case of Ibe v The State (1992) 23 NSCC (pt. 2) 205.
Learned counsel further submitted that a cursory examination of the facts of this case will reveal that the basic ingredient which the prosecution is required to establish against the appellant to sustain all the charges against him is that the Appellant was aware and in fact, gave authority to DW2 – DW4 to carry unauthorized goods and civilians in an Army truck.
He contended that the contradictions were material and since they were not clarified, the testimonies of prosecution witnesses ought to have been discountenanced, referring to Mbenu v The State (1988) 2 NSCC 232, Aruna v The State (1990) 21 NSCC (pt 3) 295, Kalu v The State (1998) 3 NSCC page 2.
On issue 2, learned counsel submitted that the prosecution called only one witness (PW1) in proof of the appellant’s alleged collection of the sum of N28,000.00 from Mr. Oloko who was also the PW1 for the illegal use of the Army truck. That even though, PW1 further stated that there was a witness to the transaction, one Mr. Efe, at no point was the said Mr. Efe called or explanation given as to why he was not called. He submitted that the Court below failed to attach any evidential value to the denial of the Appellant to the receipt of the N28,000.00.
He opined that this is against the decision of this Court in Uche – Williams v The State (1992) 3 NSCC, page 209 which held that any defence to which an accused person is entitled to, should be considered however stupid or unreasonable, for what it is worth.
Learned counsel submitted further that there was no clear cut evidence from the prosecution bearing out the finding by the Court below that the Appellant was part and parcel of the whole deal. That part of the evidence reveals that the Appellant was only aware that the truck was on road test, while the other part tends to point to the fact that the Appellant was part of the whole deal. On how to resolve the issue, learned counsel referred to the case of Ameh v The State (1978) 11 NSCC page 39.
Learned counsel further stressed that failure by the General Court Martial to summon O/C Narcotics and Mr. Efe to testify on behalf of the Appellant and the failure of the prosecution to call Mr. Efe as a witness raises a lot of questions and doubt as to the veracity of the testimony of the PW1. He urged this Court to resolve the two issues in favour of the appellant.
In response, the learned counsel for the Respondent submitted that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt in that in every human adventure, absolutism or certainty of any fact is impossible. That if the trial Court is satisfied that the prosecution has proved its case against the accused person beyond reasonable doubt based on the evidence led, it can convict the accused, relying on Bakare v The State (1987) 3 SC 1, Adekoya v The State (2012) 3 SC (pt 11) 36, Musa v The State (2013) 2 – 3 SC (pt 11) 75 at 105 amongst others.
Learned counsel submitted that the prosecution actually proved all the offences, the Appellant was charged with at the trial Court before he was convicted and that the lower Court was right to affirm the decision. He contended that the prosecution having established that the 3rd accused person was detailed by the Appellant, and had indeed established that Appellant collected N28,000.00 from one Mr.
Oloko, one of the civilians carried in the truck, and whose drugs (Indian hemp) was carried in the said truck, the prosecution had proved its case beyond reasonable doubt. Respondent’s counsel submitted further that, assuming without conceding that there were contradictions in the evidence of the prosecution witnesses, such alleged contradictions were not material enough to reverse the concurrent findings of facts of the two lower Courts.
That it is not every trivial or trifling inconsistency or contradiction in the evidence of the prosecution witnesses that could be fatal to the prosecution’s case. That it is only when such inconsistencies or contradictions are substantial and fundamental to the main issue in question before the Court and thus creates doubt in the mind of the trial Judge that an accused person is entitled to the benefit therefrom.
According to him, this is not the case here, relying on Okonji v The State (1987) 1 NWR (pt 152) 659, The State v Aibangbe (1988) 3 NWLR (pt 84) 548, Wankey v The State (1993) 5 NWLR (pt 295) 542, Ekpenyong v The State (1993) 5 NWLR (pt 295) 513 and Agbo v The State (2007) 10 WRN 95.
Learned counsel urged the Court to resolve this issue against the Appellant.
RESOLUTION:- The issues to be resolved in this segment of the judgment is whether the prosecution proved the charge against the Appellant beyond reasonable doubt and whether the Court was right to affirm the decision of the trial General Court Martial that the Appellant was part of the deal being the illegal use of the Army truck to convey some weeds suspected to be Indian hemp for a fee. By Section 135 of the Evidence Act, 2011, in all criminal trials, the burden is on the prosecution to prove the essential ingredients of the offence against an accused person beyond reasonable doubt.
That is to say, the guilt of an accused person must be proved beyond reasonable doubt. Where the prosecution fails to prove its case beyond reasonable doubt, the accused person must be acquitted and discharged.
For the avoidance of doubt, Section 135 of the Evidence Act, 2011 provides:- “135(1) If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. (2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of Section 139 of the Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.”
This Court has held in many decided cases that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt in that, in every human adventure, absolutism or certainty of any fact is impossible. Therefore, if the trial Court is satisfied that the prosecution has proved its case against the accused person beyond reasonable doubt based on the evidence led, it can convict the accused.
In Bakare v The State (1987) 3 SC 1, this Court, per Oputa, JSC made it very clear thus:- “Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt, that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says.
It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Lord Denning J (as he then was) observed in Miller v Minister of Pensions (1947) 2 All E.R. 373: “The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.
If the evidence is so strong as to leave only remote possibility in his favour which can be dismissed with the sentence – “of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt.” See also Nwaturuocha v State (2011) 6 NWLR (pt 1242) 170, Smart v The State (2016) LPELR – 40827 (SC), Akindipe v The State (2012) 16 NWLR (pt 1325) 94, Hassan v The State (2016) LPELR – 42554 (SC), Umoh Ekpo v The State (2018) LPELR – 43843 (SC).
My Lords, in the instant appeal, the evidence is clear that the Army truck involved was used by some Army personnel to carry weeds suspected to be Indian hemp on behalf of some civilians for a fee of N28,000.00. They were arrested by police and the result is this appeal. The contention of the learned counsel for the Appellant is that the prosecution failed to prove beyond reasonable doubt that the appellant was part and parcel of the deal. At page 206 to 207 of the record, the Court below concluded emphatically that the appellant was part and parcel of the deal.
It states:- “Appellant was part and parcel of the deal. Is there for example any proper rebuttal of the evidence that Appellant collected N28,000.00 from one Mr. Oloko for the illegal use to which the army truck was employed? I think the General Court Martial was right in its findings and I so hold.” The above conclusion was a confirmation of the decision of the trial General Court Martial. At the said Court Martial, the evidence of PW1 against the Appellant is found on pages 27 – 28 of the record.
It states in part as follows:- “My name is Lawrence Oloko from Delta State, My occupation is mechanic… When I finished my mechanic, I went to Ondo State to farm Indian hemp. It was one of my friend called Ify who introduced me to one major. …The major charged me N28,000.00 to help me carry the Indian hemp to the place we will sell it. On 5 Nov. 95, the Major asked me to pay N16,000.00. On the next day, he said I should pay the next money N12,000.00 before we move.”
After identifying the Appellant in the Court as the major, he was referring to, he continued his testimony thus:- “On our way going, we went to load the Indian Hemp. It was 140 bags. We were three, myself, Sunday, Obiabi, the Sgt and the LCPL. On our way going we were arrested at Sobe village by policemen. The policemen were three. They asked who owned the goods inside the vehicle, I said I am the owner. They asked who the person that authorized the use of the vehicle. I said it was one Major who was introduced to me by one of my friend Ify.
When we were arrested, the Major came and met the police and they discussed. They released the vehicle and the soldiers so we were taken to Sabongidi Ora and from there, we come (sic) to the State CID.”
Again, DW2, one Sgt Ekpeyong gave a graphic narration of how the appellant sent for him and ordered him to go and assist the PW1 to carry the weeds.
From the above and other pieces of evidence in the record, there is no doubt whatsoever that the trial General Court Martial and the Court below were right in holding that the appellant was part and parcel of the deal if not the mastermind of the deal. As was observed by the Court below, the appellant failed to properly rebut the evidence that he collected the sum of N28,000.00 from Mr. Oloko for the facilitation of the conveyance of Indian Hemps in the Army truck.
The argument of learned counsel for the appellant that there were contradictions in the evidence of prosecution witnesses does not fly at all. There is difference between what an accused person would say immediately he is arrested just to help himself and what is revealed during investigation. The law is trite that it is not every trivial or trifling inconsistency or contradiction in the evidence of the prosecution witnesses that could be fatal to its case.
It is only when such inconsistencies or contradictions are substantial and fundamental to the main issue in question before the Court and thus creates doubt in the mind of the trial Judge that an accused person is entitled to an acquittal. This is not the case here. The evidence against the appellant is so convincing that the trial Court martial was in order when it convicted him and upheld by the Court below. See Akpan v The State (1991) LPELR – 380 (SC), Ibeh v State (1997) 1 NWLR (pt 484) 632, Okonji v The State (1987) 1 NWLR (pt 152) 659, The State v Aibangbe (1988) 3 NWLR (pt 84) 548.
It is my well considered opinion, as was also held by the two Courts below that the alleged contradiction is not worthy of consideration and does not affect the concrete evidence adduced against the Appellant in this matter.
In all, it is my view that the two Courts below in their concurrent findings were right in holding that the prosecution proved its case against the Appellant beyond reasonable doubt and that the appellant took part in the deal. Appellant’s issues one and two and Respondent’s issue one are resolved against the Appellant.
ISSUE THREE:- In respect of this issue, the learned counsel for the Appellant submitted that because the Judge Advocate co- signed the sentence of the accused person with the President of the General Court Martial, this raises the presumption that the Judge Advocate was part and parcel of the panel that reviewed the evidence on record, deliberated on same and decided to convict all the accused persons including the appellant contrary to Section 139 of the Armed Forces Act Cap A20 Vol. 1 Laws of the Federation of Nigeria 2004 which provides that “A Judge Advocate shall be present at all sittings of a Court Martial except during deliberations on findings and sentence” According to him, this has vitiated the entire trial. Learned counsel submitted further that the right of the Appellant as provided for and protected under Section 36(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) was flagrantly breached by the trial General Court Martial when the Court refused to summon O/C Narcotics and Mr.
Efe to testify in the defence of the Appellant. According to him, the Appellant was denied fair hearing by this singular act relying on Attorney General of Rivers State v Ude (2007). He concluded that the failure of the General Court Martial to afford the Appellant fair trial by hearing his witness vitiates the proceedings in its entirety and that the lower Court should have upheld Appellant’s appeal accordingly, relying on Chungwon Kum v The State (1992) 23 NSCC (pt. 1) page 581. Learned counsel then urged the Court to resolve this issue in favour of the appellant.
Responding to the argument of the learned counsel for the Appellant, learned Respondent’s counsel submitted that there is nothing in the record of proceedings of the trial General Court Martial to indicate or suggest that the Appellant’s request to call witnesses was refused by the Court. That page 58 of the record referred to by the Appellant does not help him at all.
He contended that there is nothing on page 58 of the record to suggest that the Appellant was denied the right to call his purported “two material witnesses” in defence of the charge he stood trial for. Learned counsel further submitted that it is not the duty of the prosecution or the trial Court to call witnesses for the accused/appellant, relying on Emmanuel Okpulor v The State (1990) 11 – 12 SC 151, Inusa v The State (1992) 4 SC 41 at 68 – 69, Effiong Udofia v The State (1981) 11 – 12 SC 49 at 63. That if the Appellant indeed, wanted O/C Narcotics and Mr.
Efe as his witnesses, he had all the opportunity during the trial to call them as his witnesses to testify for him. He was never denied fair hearing under Section 36(1)(6)(d) of the Constitution (supra). That the cases of Attorney General of Rivers State v Ude (supra) and Kim v The State (supra) cited by the appellant do not apply.
On the submission that the Judge Advocate breached Section 139 of the Armed Forces Act (supra), learned counsel submitted that the record of appeal clearly states to the contrary. Referring to page 109 of the record where the Judge Advocate made his address to the members of the Court Martial, he stressed that the Judge Advocate did his job within the bounds of the law. That the concurrent findings of the trial Court martial as affirmed by the Court below cannot be faulted.
That the evidence on record shows that the Judge advocate never participated in the review of the evidence which led to the conviction of the Appellant. He urged the Court to resolve this issue against the Appellant.
RESOLUTION:- The pith and substance of this double barrel issue is that the Appellant was denied fair trial, in that, the Appellant requested the trial General Court Martial to summon two witnesses to testify for him but his request was turned down and secondly, that the Judge Advocate participated in the deliberation on the findings of the General Court Martial that led to the conviction of the Appellant.
Both the trial Court and the Court of Appeal in concurrence held that neither did the appellant request the Court martial to summon any witness nor did the Judge Advocate take part in deliberation which led to the conviction of the Appellant. I shall return to this anon.
My Lords, the right to fair hearing or fair trial is one of the fundamental rights guaranteed in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is one of the twin pillars of natural justice which supports the Rule of Law. The pillars are an indispensable part of the process of adjudication in any civilized society. They are:- 1. Audi alteram partem – meaning: hear the other side i.e. one must be heard in his own defence before being convicted or condemned, and 2. Nemo judex in causa sua – meaning: no one may be a Judge in his own cause.
See Ndukauba v Kolomo & Anor (2005) 4 NWLR (pt 915) 411, Ikomi v The State (1986) 5 SC 313, Okadigbo v Chidi (2015) LPELR-24564 (SC) 1 at 39 E – F, Arije v Arije & Ors (2018) LPELR – 44193 (SC). Fair trial/hearing requires that the trial must be conducted according to all applicable legal rules with a view to ensuring that justice is done to all parties before the Court. The law is trite that any proceeding conducted in breach of the right to fair hearing is a nullity and liable to be set aside. See Kotoye v CBN (1989) 1 NWLR (pt 98) 419, Ariori v Elemo (1983) 1 SC 81.
ln the instant case, regarding the first leg of the argument, I have gone through the whole gamut of the record and I am unable to find where the Appellant applied to the General Court Martial to call the O/C Narcotics and Mr. Efe and he was so refused and/or denied.
As was submitted by the learned counsel for the Respondent, Appellant’s alleged request to call the two witnesses is not borne out of the record of proceedings as compiled and transmitted to this Court, I have read page 58 of the record referred to by the learned counsel for the Appellant and I cannot see where the Appellant made such a request. All I can see is what the Appellant said during his evidence in chief when he was asked to clarify the allegation that he was paid the sum of N28,000.00 for the deal. It goes thus:- “Q. Now how do you clear the twenty-eight thousand naira issue? A.
I went there to the police, the OC NARCOTICS said boys said they gave me twenty-eight thousand naira and when the OC NARCOTICS asked him in my presence, he denied that it was his brother Efe who said so and OC NARCOTICS slapped him. So the OC NARCOTICS said this how I was robbed – in and that is why I needed both OC NARCOTICS and Efe as my witnesses.”
There is nothing on page 58 or the entire record to show that the Appellant was denied the right to call his two material witnesses. There is also nothing to suggest that the trial General Court Martial refused to hear his witnesses due to lack of time. It is therefore my conclusion that the argument of the learned counsel for the Appellant on this issue lacks evidential value. It is not borne out of the record.
Moreover, the law is trite that the prosecution has discretion to call witnesses of its choice. The prosecution is under no constitutional or statutory duty to call a particular witness or witnesses. It has no duty to call a particular number of witnesses. An accused person cannot dictate to the prosecution witnesses it should call to prosecute him. So also the defence. The prosecution cannot dictate to the accused what number of witnesses or particular witnesses it should call to defend the case. An accused person has the liberty to call relevant witnesses of his choice to defend himself.
See Idiok v The State (2008) 13 NWLR (pt 1104) 225, State v Olatunji (2003) 14 NWLR (pt 839), Osetola & Anor v The State (2012) 17 NWLR (pt 1329) 251, Chukwu v The State (1992) 1 NWLR (pt217) 255.
Let me also state clearly that it is not the duty of a trial Court to call witnesses for the prosecution or the defence in a criminal trial. If it does, it may be accused of descending into the arena. A trial Court should not take over the case of a party and conduct it for him. However, a situation may arise in which it appears to the Judge that a person can throw light on the case under trial but has not been called as a witness by either party because neither party wishes to make him a witness.
The Judge may call him with the parties who will also have the right to cross-examine the said witness. This was the decision of this Court in Elike v Nwakwoala (1984) 1 ANLR, 505, (1984) LPELR 1118 (SC) at pages 30 – 32 paragraphs E -A wherein Coker, JSC held as follows:- “In Bell – Gam v Bell – Gam (1965) 1 All NLR 106 page 108, this Court said “a judge has no power to call a witness except with the consent of the parties.
The situation may arise in which it appears to the judge that a person can throw light on the case under trial but has not been called as a witness by either party because neither party wishes to make him his witness. The judge may call him as a witness with the acquiescence of the parties and ask him the questions on which the judge thinks the witness can help.
If his answers are useless on the issue in the case, neither party would be allowed to cross-examine him but if his evidence is adverse to a party, that party should be given leave to cross-examine him on his answers only,” It has never been suggested that the trial Judge in this case was in breach of any of the foregoing in the course of the trial. Rather he has been accused of not doing what he ought not to do. There was nothing on record that the Court was aware that the defendants had more witnesses to call and that counsel informed the Judge, but was not allowed to call them.
If he had witnesses to call and wanted adjournment to enable him to call them he should have applied to the Court He never did so.” Outside the above position of this Court, a Court is not under any obligation to call witnesses for a particular party to bolster his case. The Appellant failed to make appropriate application to enable him call whoever he wanted to call. It is too late in the day.
It follows that the trial General Court Martial and the prosecution cannot be guilty of withholding evidence against the Appellant. On the second leg of the argument, which relates to the Judge advocate being part and parcel of the panel that reviewed the evidence on record, it is very clear that it is not borne out of the record. Rather, as clearly seen on page 109 of the record of appeal, the Judge Advocate made his last advice before the members of the panel retired to make their findings.
It is pertinent to reproduce the concluding remarks of the Judge Advocate as reproduced by the Court below on page 203 of the Record of Appeal as follows:- “The words of the Judge Advocate after his sum of the case is at page 109 of the record and is worthy of reproduction here, It runs thus:- “In conclusion, Mr.
President Sir, members of the General Court Martial having stated the evidence adduced by both the prosecution and the defence and the position of the law regarding the case before you, while you retire into findings, I will only pray that God gives you the wisdom with which to deliberate and arrive at a just decision as this is my last chance to advise you on this particular case. This is why I also touch on punishment sections so that you will find it easy to refer to them if need be.
Thank you sir. (underlining mine for emphasis.)” My Lords, contrary to the submission of the learned counsel for the Appellant, the Judge Advocate clearly and unequivocally demonstrated in his address to the General Court Martial that he knew his job as an adviser to the Court and not a Judge. There is nothing to show that he took part in the final deliberation leading to the conviction and sentence of the Appellant.
In fact, it was on the basis of the Judge Advocate’s conclusion cited above that the lower Court came to the conclusion when it held on pages 203 – 204 of the Record of Appeal as follows:- “I have taken pains to reproduce this last bit and to further emphasis certain portions of the last bit of the address of the Judge Advocate to show that he could not have and did not take part in the judgment process.
The underlined expression, “while you retire into findings” could not have been made by someone who followed the panel to take a decision on the case The underlined expression “as this is my last chance to advise you on this particular case” shows that the Judge Advocate appreciated his role as being that of an adviser and not a Judger Going through the records, I do not see anything to suggest otherwise…
The Judge Advocate was therefore not in breach of the principle of Nemo Judex in Causa Sua while performing his statutory functions, I therefore resolve this issue in favour of the Respondent against the Appellant.”
It is my well considered opinion that the above findings by the lower Court is unimpeachable and cannot be faulted by this Court. There is nothing in the record of proceedings to suggest that the Judge Advocate compromised his position or breached any extant law. He never participated in the review of the evidence of the trial Court martial which led to the conviction and sentence of the Appellant. He never breached the principle of Nemo Judex in Causa Sua as alleged by the learned counsel for the Appellant. It is on this note that I resolve this issue against the Appellant.
Having resolved the three issues against the Appellant, it only remains to say that there is no scintilla of merit in this appeal. It is hereby dismissed by me. Accordingly, I affirm the judgment of the Court below delivered on 8th June, 2010. Appeal Dismissed.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Okoro, JSC, and I agree with him that Court of Appeal rightly affirmed the decision of the General Court Martial that the Appellant was guilty as charged for the offences of disobedience to Standing Order contrary to Section 57(1) of the Armed Forces Decree, 1993, committing a civil offence contrary to Section 114 of the said Decree, and permitting improper carriage of goods in a military vehicle, which is contrary to Section 74(a) of the said Armed Forces Decree, 1993.
My learned brother covered the field, and I will only emphasize the point he made about the Appellant’s contention that there were material contradictions in the evidence of the Prosecution Witnesses.
It is settled law that Witness testimonies can only be said to be contradictory when they give inconsistent accounts of the same event, and for such contradictions to vitiate the Court’s decision, they must be so material that they cast doubt on the case presented as a whole. Thus, it is only a contradiction in respect of a material fact that would make a Court doubt the evidence, and what is material will depend on the facts of the case. SeeEke V. State (2011) 3 NWLR (Pt. 1235) 589, Kalu V. State (1988) 4 NWLR (Pt. 90) 503, and Ikemson V.
State (1989) 3 NWLR (Pt. 110) 455, wherein Karibi-Whyte, JSC, stated as follows – “Material evidence is such evidence, which on account of its logical nexus with the issue tends to influence decisively the establishment of the fact in issue. – – -For instance, the evidence of which the Appellants shot PW1 or PW2 or which leg PW2 was shot is not material to the issue of fact that PW1 or PW2 was shot. That PW1 or PW2 was shot at is material to the crime with which the Appellants have been charged. Similarly, the sequence of pointing a gun at PW1 and PW2 and blocking of the road on a Motorcycle.
The fact was that there was credible evidence that the gun was pointed at them, and the road was blocked by persons on a Motorcycle. Thus, none of the contradictions alleged – is material to affect the establishment of the fact that the offence of robbery with arms was committed, and that the Appellants have been identified as those who committed the offence.
The alleged contradictions are not material to the facts in issue, no explanation seems to me to be required.” Facts in issue, as defined in Section 258 of the Evidence Act, 2011- “Includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows…”
A fact is in issue when its assertion is denied by the other party. Thus, an issue is said to be joined by parties on a particular fact making its proof necessary when its assertion is disputed by the opposing party – see Mohammed & Anor V. State (2007) 11 NWLR (Pt. 1045) 303.
In this case, the fact in issue is whether the Appellant authorized DW2-DW4 to carry unauthorized goods and civilians in an Army truck. The Appellant’s contention is that the evidence of PW3-PW5 that the Statements obtained from DW1 and DW2 confirmed that they were on official road test when they decided to help the said two civilians, contradicted the testimony of DW2 and the Court of Appeal held that: “The question here is whether the contradictions were material.
It is trite that an appellate Court will only set aside the judgment of the lower Court where there are material contradictions – It is the Appellant’s argument that while PW1 stated that he hired the truck from the Appellant, PW3, PW4 and PW, gave evidence that they were told by 3rd and 4th accused persons that the truck was on road test. This contradiction cannot be said to be material enough to set aside the conviction.”
It is certainly not unusual to have inconsistencies in the evidence of witnesses, and it is evident that the Court of Appeal is right since the Appellant did not point to any major contradiction in the evidence of the said prosecution witnesses to warrant setting aside its decision. So, I agree with the Court of Appeal that the said contradiction is not serious enough to set aside the decision of the General Court Martial.
It is for this and the other articulate reasons in the lead Judgment that I dismiss this appeal and affirm the Court of Appeal’s decision.
HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read before now the judgment just delivered by my learned brother, JOHN INYANG OKORO, JSC and I am in complete agreement that the appeal is wholly without merit and should be dismissed. This is an appeal against the judgment of the Court of Appeal, Ibadan Division delivered on 8th day of June, 2010 Coram: Stanley Shenko Alagoa, Sidi Dauda Bage, Modupe Fasanmi (JJCA) which affirmed the decision of the General Court Martial convened by order of Brig. Gen. P. N.
Aziza (DSS, PSC(+) MNI) General Officer commanding 2nd Mechanised Division delivered on 18th March, 1996. The Appellant was arraigned and charged along with three others on three counts the substance of which is set out below: Charge 1: Disobedience to standing orders contrary Section 57 (1) of the Armed Forces Decree 1993. Charge 2: A civil offence to wit: official corruption contrary to Section 98 (1) (b) of the Criminal Code Act. Charge 3: Permitting improper carriage of goods in a military vehicle contrary to Section 74(a) of the Armed Forces Decree 1993.
Charge 4: Agreeing to improper carriage of persons in a military vehicle contrary to Sections 74 (c) of the Armed Forces Decree 1993.
The Appellant pleaded not guilty to the charges.
In summary, the case made out against the Appellant is that the Appellant collected the sum of N28,000.00 from PW1, Mr. Lawrence Okolo, before detailing his co-defendants (who were his juniors) to carry the two civilians and their weeds (suspected to be Indian hemp).
The prosecution called 5 witnesses and the Defendant called 4 witnesses. The Appellant gave evidence as PW4. At the trial, the General Court Martial determined the issue whether from the totality of the evidence adduced by the prosecution, it can be said they proved their case beyond reasonable doubt against the Appellant.
The Court martial found the Appellant guilty, convicted and sentenced him on count 1 to 2 years imprisonment, on count 2 to 5 years imprisonment, on count 3 to 2 years imprisonment and on count 4 to 2 years imprisonment. All the sentences were to run concurrently. The Appellant was dissatisfied and filed an appeal on 17/10/2000.
The Court of Appeal held that since the Appellant’s counsel failed to argue the issue of failure to take Appellant’s plea on the amended counts, it means the issue had been abandoned. The Court of Appeal proceeded to other issues. On the issue of whether the Court martial can convict for an offence which are not criminalized, the Court of Appeal held that from the provision of Section 57(1) & (2) Armed Forces Decree reproduced in the Armed Forces Act Cap 20, (Exhibit 2) which is a standing order which has been sufficiently defined and punishment against its violation.
The Court of Appeal also held that PW1 who gave the Appellant N28,000.00 to transport the weed and gave evidence at the General Court Martial as a prosecution witness was not an accomplice and even if he was an accomplice, by Section 178(1) of the Evidence Act, he was a competent witness against the Appellant and if the General Court Martial considered the evidence credible, it could rely on it and only advise itself that it could be unsafe to convict solely on it which it does not have to be in writing.
On issue three which borders on the principle of nemo judex in causa sua the Court of Appeal held that the Judge Advocate only acted as an adviser and not a “judge” in the Court Martial proceedings. The Appellant did not object to the presence of the Judge Advocate if he had any fears.
The Court held that based on the fact that when the 3rd Defendant at trial informed the Appellant the truck was used for an illegal purpose, the Appellant instructed the 3rd Defendant to report himself to his senior in order to claim innocence on his part, shows he was part of the deal and there was no proper rebuttal of the accusation that the Appellant collected N28,000.00 from one Mr. Oloko. The Court of Appeal affirmed the decision of the General Court Martial
Not satisfied with the outcome at the Court of Appeal, the Appellant has appealed to this Court. An amended Notice of Appeal was filed on 16th November, 2016 with eight grounds of appeal.
In the Appellant’s brief filed 24th July, 2015, five issues were identified by the Appellant for determination as set out below: 1. Whether the Court of Appeal was correct to hold that the prosecution proved its case beyond reasonable doubt against the Appellant in the face of the obvious contradictions in the testimonies of the prosecution witnesses and doubts raised in favour of the Appellant. 2.
Whether the Court of Appeal was correct in holding that the Appellant was part and parcel of the whole deal of using Army truck to carry improper goods and persons because there was no proper rebuttal of evidence that the Appellant collected N28,000.00 from Mr. Okolo for the illegality when the only evidence to that effect was the testimony of PW1 Mr. Okolo which was firmly denied by the Appellant. 3.
Whether the Court of Appeal was correct in affirming the conviction if the Appellant when the Appellant was not afforded fair trial when he was denied his request of calling (2) two material witnesses in his defence before the General Court Martial and when the Judge Advocate abdicated his statutory role of advising the General Court martial to partake in the trial and conviction of the Appellant. 4.
Whether the prosecution negative the defence of the accused and the learned trial Court and or the Court below took into account the position of the law as well as the defence(s) proffered in this case by the Accused. 5. Whether there is evidence upon which the Appellant could be convicted of criminal breach of trust and/or forgery which the Court below could have rightly affirmed on appeal.
In the Respondent’s brief filed 10th June, 2020 but deemed 21st October, 2021, the Respondent argued that: 1. Was the Court of Appeal right in affirming the conviction and sentence of the Appellant by the General Court Martial based on the fact that the prosecution had proved its case beyond reasonable doubt and there were no material contradictions in the evidence of the prosecution witness to set aside the Appellant’s conviction? 2. Was the Court of Appeal right to hold that the Appellant was not denied fair hearing throughout his trial, conviction and sentenced by the General Court Martial?
In this case, the evidence of the prosecution witnesses were not seriously controverted by the defence. The contention of the appellant’s counsel that the appellant was not part of the deal or conspiracy when he permitted an army truck to carry weeds suspected to be Indian Hemp as courier for a civilian for a fee of N28,000.00 is not supported by the evidence on record. Mr. Okolo from whom the money was collected turned state witness to give evidence which the Appellant could not rebut.
On the issue of fair hearing, the record of the Court Martial does not support the Appellant’s contention that he was not allowed to call all the witnesses he needed for his defence. This is an open and shut case wherein the Appellant wants us to set aside the findings of fact of the General Court Martial and the Court of Appeal. I can see no perversity in the findings of the two lower Tribunals and I find no merit in this appeal. I affirm the judgment of the Court of Appeal which affirmed the conviction and sentence of the Appellant. Appeal Dismissed.
ABDU ABOKI, J.S.C.: I have read a draft of the lead judgment just delivered by my learned brother, JOHN INYANG OKORO, JSC and I agree with the views expressed, as well as the conclusion reached on the germane issues which call for determination in the appeal. I only add a few words of mine in support.
This appeal is against the decision of the Court of Appeal, Ibadan Division, delivered on the 8th of June, 2010.
The concise statement of facts leading to this appeal and the arguments of Counsel on both sides of the divide on the issues raised for determination, have been amply detailed by my learned brother in the lead judgment and I need not repeat them, save where occasion demands.
Suffice it to say that this appeal is against the affirmation by the Court below, of the conviction of the Appellant by the General Court Martial, based on the fact that the Prosecution proved the offences against the Appellant. The lower Court held thus: “The exoneration of the Appellant from knowledge that the army truck was being used to carry men and drugs is not borne out of the records. At page 86 paragraph 26 of the record, the contention was that the 3rd accused was detailed to go and collect some gas cylinders.
Appellant came to know that the vehicle had been used for the illegal purpose of carrying people and drugs by the 3rd accused but declined to take disciplinary action against him because when the 3rd accused had committed an offence earlier and the Appellant took disciplinary action against him, it generated bad blood between them. That he instructed the 3rd accused person to report himself to his senior is to claim innocence of the whole incident. Appellant was part and parcel of the whole deal.
Is there, for example, any proper rebuttal of the evidence that the Appellant collected N28,000.00 from one Mr. Oloko for the illegal use to which the army truck was employed? I think the General Court Martial was right in its finding and I so hold.” I find the above finding by the lower Court unassailable, and adopt it as mine, I agree with the Court below that the Appellant failed to properly rebut the evidence that he collected the sum of N28,000.00 from Mr. Oloko for the facilitation of the transportation of Indian Hemps in the Army truck.
I have here before stated that this is an appeal against the concurrent judgments of the two Courts below. The Appellant’s grudge against the two judgments borders on the evaluation of evidence undertaken by the trial Court which the Court below endorsed to make same or similar findings of fact on the basis of which the conviction and sentence of the Appellant stands. I must stress that it is the primary duty of the trial Court to evaluate evidence and ascribe probative value to same.
The lower Court and indeed this Court which did not have the same opportunity the trial Court had in seeing and assessing the witnesses when they were testifying are all handicapped in assuaging appellant’s grudges. See: Wowem v. The State (2021) LPELR 53384 (SC); Ezeani v. FRN (2019) LPELR 46800 (SC). That being said, I remain hesitant to interfere with the concurrent findings of fact of the two Courts below as I am unable to see what perversity or injustice these findings have occasioned.
For the foregoing and more elaborate reasons contained in the lead judgment of my learned brother, OKORO JSC, I also dismiss the unmeritorious appeal. The judgment of the Court below is hereby affirmed. Appeal Dismissed.
TIJJANI ABUBAKAR, J.S.C.: Appeal is against the judgment of the General Court Marshal Ibadan Division delivered on the 8th day of June, 2010 wherein the lower Court affirmed the decision of the General Court Marshal of the 2nd Mechanised Division of the Nigerian Army delivered on the 18th day of March, 1996 and confirmed by the Army Council on the 5th day of April, 1996. Appellant was convicted and sentenced to terms of imprisonment.
The Appellant was charged for disobedience to standing orders, official corruption, improper carriage of goods in a military vehicle, he was among the persons accused for aiding some civilians in the transportation of weeds suspected to be cannabis sativa in a Military truck having been rewarded by the civilians, Appellant was adjudged guilty, he was convicted and sentenced of all the counts. He appealed to the lower Court, his conviction and sentence were affirmed by the lower Court, he therefore appealed to this Court after serving his term of imprisonment.
The Appellant nominated and argued three issues for determination while the Respondent through learned Counsel crafted and argued two issues.
Both the Court marshal and the lower Court found that there was sufficient evidence linking the Appellant to the alleged crime, the Appellant failed to advance any cogent evidence to rebut the evidence led by the prosecution. Appellant therefore participated in the infamous and disgraceful conduct of transporting Indian hemp using official military truck. The decision of the lower Court is on firm ground as rightly found by my learned brother in the leading judgment.
There is a concurrent finding of facts by both the General Court Marshal and the lower Court, I also carefully read the illuminating judgment prepared and rendered in this appeal by my learned brother OKORO, JSC who graciously granted me a preview, it is not the attitude of this Court to tinker with concurrent findings of facts unless there are compelling reasons to do, in the instant appeal the findings are not perverse and must be allowed to remain the way they are, the findings of the lower Courts are in accord with the evidence generated at the trial, and there is no reason whatsoever to disturb the findings.
This Court in LAWALI V. STATE (2019) LPELR-46405 held as follows: “…The concurrent findings, supported by credible evidence, cannot be faulted. The well-established presumption is that findings of facts are correct. The burden, on appeal, is on the appellant to displace the presumption. See BAKARE v. THE STATE (1987) 1 NWLR (pt. 52) 579 at 593.
Where the appeal challenges only the concurrent findings of fact the burden on the appellant to displace the presumption that the concurrent findings of fact are correct is made difficult by the rule of practice in the appellate Courts to the effect that an appellate Court is loath to disturb concurrent findings of fact and therefore such concurrent findings of fact should rarely be disturbed. See ENANG v. ADU (1981) 11 – 12 SC 17 at 27 (Reprint).
The usual circumstances concurrent findings of fact are disturbed are: when it is shown that the findings are perverse and not the result of a proper exercise of judicial discretion, or that there is no evidence at all to support a particular crucial finding, or that the trial Court made wrong deductions or drew wrong inference from the admitted or established facts. See UBANI & ORS v. THE STATE (2003) 18 NWLR (PT. 851) 224.”
I agree with the reasoning and conclusion reached in the leading judgment, I therefore, for the above reasons and the more detailed reasons set out in the leading judgment adopt the judgment as my own and join my learned brother in holding that the appeal is bereft of merit and therefore deserves to be and is hereby dismissed. I also affirm the judgment of the lower Court delivered on the 8th day of June, 2010.