Commander Steve Obisi V. Chief of Naval Staff (2001)
LawGlobal-Hub Lead Judgment Report
ADEREMI, J.C.A.
The appellant, a commissioned officer in the Nigerian Navy was appointed the Military Assistant to the Military Administrator of Imo State of Nigeria between December, 1993 and November, 1994 and was later appointed Assistant Weapons Officer on board NNS Aradu. He was by virtue of his appointment, subject to service law under the Armed Forces Decree No. 105 of 1993 as amended. He was arrested on the 25th of May 1996 and interrogated by way of investigation by the Director of Naval Intelligence, Cdr. U. J. Egbele.
Following the investigation, he was arraigned before a Court Martial on 19th December, 1996 on a three-count charge viz:
- Disobedience to standing orders contrary to section 57(1) of Decree No. 105 of 1993. Did disobey standing orders on the Code of Conduct in that he engaged in private business on or about 6th March, 1996 thereby receiving the sum of N12,000,000.00 only as gratification from Agric. Consult (Nig.) Ltd. of Plot 182 kofo Abayomi Street, Victoria Island being part of the proceeds realised from the sale of power plant generators belonging to the Imo State Government of Nigeria?
- Scandalous conduct contrary to section 91 of Decree No. 105 of 1993. The accused did behave in a scandalous manner unbecoming of an officer and a gentleman on or about the 11th of March, 1996 when he donated N1,000,000.00 with Wema Bank Cheque No.603899 to Christ Chapel International Churches Ijora which is beyond his legitimate income.
- Conduct to the prejudice of good order and discipline contrary to section 103 of Decree No. 105 of 1993.
The accused officer acted in a manner prejudicial to good order and service discipline on or about 22nd April, 1996 when he travelled out of Nigeria to London in United Kingdom without official permission and as well as lodging with Barclays Bank of London the sum of $40,000.00 only in fixed deposits.
The appellant pleaded not guilty to all the charges. The prosecution called three witnesses, tendered 17 documents tendered as exhibits “A” to “Q”. The appellant gave evidence in his own defence and tendered four exhibits which were admitted as exhibits “R” to “U”. He called no witness. The 1st PW called by the prosecution Cdr. U.J. Egbele, the Director of Naval Intelligence testifying said that the appellant engaged in private business as a Naval Officer in that he travelled to London without prior authorisation and opened a fixed deposit account at the Barclays Bank of England. He was also said to have donated N1 million to his Church in Lagos. When confronted with these allegations, he said the appellant denied them but initially refused to make a written statement. He (appellant) however volunteered a written statement following what he called the subtle approach he (witness) used. That written statement was tendered as exhibit C. Other items which were recovered from the residence of the appellant during a search were tendered as exhibits A, B, D and Q. PW2 Mrs. G. O. Solanke, the Branch Manager of Wema Bank Iponri Branch Lagos, on her brief evidence said that the appellant lodged in his account with the bank a total sum of N12 million. Mr. Olayinka Oladitan, the PW3 a solicitor to Agro Consult (Nig.) Ltd a company which bought the generators from the Imo State Government, said he carried out the instructions of his client by paying the cheque of N12 million into the appellant’s account. He would not know what the money was meant for. The appellant in denying the allegations stated that on the instructions of Rear Admiral Eyitayo he took certain people (whose names he failed to mention) to Owerri who had manifested interest in purchasing some plant generators property of the Imo State Government. He said he assisted one Mr. Gullati to secure a loan of N6 million at the rate of 100% interest from one Mr. Tony Kweagan (both persons were not called as defence witnesses). Within three months, he continued, Mr. Gullati refunded the loan of N6 million plus the accruing interest which translated to N6 million, totally N12 million to Kweagan. He claimed he was given N3 million as a gift by Mr. Kweagan out of which he donated N1 million to his Church. He changed the remaining N9 million into pounds sterling and paid some to Mr. Kweagan in London. He denied traveling to London but admitted that he opened a bank account in England and this he claimed he did from Nigeria. It was his evidence that he lost his passport and reported the loss to the Police. He denied making the statement contained on exhibit C. He also denied the allegation that he was engaged in private business. At the close of the defence, addresses of the prosecution, defence and Judge Advocate were taken.
The lower court, the Court Martial found the appellant guilty as charged. He was accordingly convicted and sentenced to various terms of imprisonment.
Being dissatisfied the appellant has appealed against the conviction and sentence.
The notice of appeal carries ten grounds. The appellant has distilled four issues from the said grounds of appeal and they are as follows:-
(1) Whether the prosecution proved the 3 count charge against the appellant beyond reasonable doubt.
(2) Whether the Court Martial was right in shifting the burden of proof to the appellant.
(3) Whether the defence of the appellant was properly considered by the Court Martial.
(4) Whether the Court Martial was not biased against the appellant.
On his part, the respondent identified two issues for determination and they are in the following terms:-
(1) Whether or not there was sufficient evidence before the Court Martial at the trial of the appellant upon which he was convicted.
(2) Whether or not the prosecution proved its case beyond reasonable doubt.
The two issues raised by the respondent, from the way they are couched, can be taken together. And it is my view that the two are similar to issue No.1 distilled by the appellant. I therefore propose to take together the sets of issues in the consideration of this appeal.
I shall thereafter take issues Nos. 2, 3 and 4 identified by the appellant seriatim.
Arguing issue No.1 in his brief of argument, the appellant has submitted that the totality of the evidence led by the prosecution shows that the appellant did not participate in the transaction leading to the eventual sale of the power generators property of the Imo State Government. He further reasoned that the evidence of PW1, Cdr. Egbele was inadmissible and ought to have been expunged as it was hearsay; he placed reliance on the decision in Ajiboye v. The State (1994) 8 NWLR (Pt.364) 587. It was his further contention that all the exhibits tendered through PW1 were recovered by the two officers instructed by the PW1 to search the house of the appellant and to render them admissible in law, proper foundation as directed by section 34(3) of the Evidence Act must have been laid. He cited Njoku v. The State (1992) 8 NWLR (Pt.262) 714.
The respondent in his brief submitted that the prosecution has proved that the appellant committed the offence as the evidence has revealed that he breached the Code of Conduct; Exhibits K and L which forbid officers from using their position or connection in any way to do anything relating to or connected with commercial transaction for or without compensation. Officers are even forbidden from accepting gifts, gratification or favours. He reviewed the evidence and submitted that the appellant was properly convicted on count ONE. On count TWO he contended that the donation of N1 million to Christ Chapel International Church Ijora which is beyond the legitimate income of the appellant is a conclusive proof of the charge and the appellant, according to him, was properly convicted on that count. On count THREE it was submitted that the act of opening a foreign bank account and possession of all travelling documents are all a pointer to the fact of commission of the crime. Exh. “C” the statement of the appellant is admissible in law and was freely and vountarily made by the appellant while relying on the decision in Yusuf v. The State (1976) 6 SC 167. The evidence of PW1 is admissible and believable, in law, as he again reasoned, PW1 testified only as to the outcome of his investigation and this is in line with the provisions of section 77 of the Evidence Act Cap 112, Laws of the Federation of Nigeria 1990 and the decision in Ajiboye v. The State (1994) 8 NWLR (Pt.364) 587. He further submitted that the case of Njoku v. The State (1992) 8 NWLR (Pt.262) 714 relied upon by the appellant is inapplicable to his case. The lodgment of money in his foreign account by the appellant was an act prejudicial to the good order and service discipline as contained in Decree No. 105 of 1993 and the Code of Conduct of the Navy.
Even the oral evidence of the appellant without the contents of exh. C is sufficient to justify the conviction of the appellant.
Section 57(1) of the Armed Forces Decree No. 105 of 1993 as amended provides:-
“A person subject to service law under this Decree who contravenes or fails to comply with a provision of an order to which this section applies, being a provision known to him, or which he might reasonably be expected to know is guilty of an offence under this section and liable, on conviction by a Court Martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Decree.”
Exhibit K is the Code of Conduct which the appellant was said to have run foul of. Para 25.02 there of which is the relevant provision states:
“An officer shall not engage in private business. He shall not use or allow to be used, government property, his name, position and connection in any way with commercial enterprises outside employment or activity with or without compensation which interferes or has the tendency of interfering with his official duty or which may be reasonably expected to bring discredit to the service.”
He was said to have breached the standing order of the Code of Conduct which I have reproduced supra in that he was alleged to have engaged in private business on or about 3/9/96 thereby receiving the sum of N12,000,000.00 gratification from Agro Consult (Nig.) Ltd. which sum is part of the proceeds realised from the sale of power plant generators belonging to the Imo State Government of Nigeria. In exhibit L Chapter 19 of the Code of Conduct standing orders 1903 which is the relevant provision states:-
“An officer shall not accept gifts, gratitudes, favours, entertainments etc from persons having business dealing with the Navy.”
What was the evidence led in support of the charge? P.W.1 Cdr. Egbele in his evidence before the Court Martial said that the last time he met the appellant was the year he received a petition from the Directorate of Military Intelligence that the appellant was perpetually in Owerri area. The D.M.I. again forwarded a document containing catalogue of accusations against the appellant. He went into action by delegating two officers Lt. Cdr. Osojiofor and Lt. Cdr. Okojie to conduct a search on the house of the appellant. The search brought forth some documents showing evidence of an account with Wema Bank, and deposit of ?40,000.00 with a London Bank. He said the appellant made a statement sequel to the subtle approach he claimed he gave him. The documents tendered are ex.
A letter of request for visitor’s visa for the appellant. Ex. B is a similar letter, ex. C is the statement of the appellant dated 3/7/96. Ex D is the Wema Bank Pic Cheque for N1 million. The PW1, Mrs. Solanke, Manager of Wema Bank, Iponri Branch confirmed that the appellant has an account with the Branch of her Bank at Iponri. PW3 Mr. Olayinka Oladitan, the solicitor to Agro Consult (Nig.) Ltd., said that the then FOC (W) introduced them to the appellant in respect of the power plant in Imo State where the appellant was a Naval Assistant to the Military Administrator up to October, 1994; they went into discussion and negotiations with the appellant after which he (appellant) came to his office and collected a bank draft in the sum of N12,000.00. There is the evidence in defence, from the appellant that he donated N1 million to the Christ Chapel Church International, that he received N12,000,000.00 from Agro Consult (Nig.) Ltd. and that the fixed deposit account of ?40,000.00 in Barclays Bank, England was his account. Ex. C, the statement of the appellant is mainly what the admission of the appellant is predicated on. The admissibility of ex. C was however attacked by the appellant on the basis that once it was challenged the court below was duty bound to conduct a trial within trial to determine its admissibility. PW1 through whom Exhibit C was tendered had told the Court Martial that the appellant did not want to make a statement initially; but he made one when he (PW1) applied subtle approach.
He said the appellant had told him that he (PW1) was embarrassing him but when he (PW1) brought out the letter of accusation written against him by the DNI and after he had read it, he (appellant) then volunteered which is exhibit C. At the point when ex. “C” the statement was about to be tendered in evidence, the defence took objection to its admissibility on the ground that the prosecution had not established that the statement was written in the presence of the witness and he had not established how the witness recognised the signature of the appellant nor was it established that the statement was voluntarily made, since, according to the defence, the witness had said that he used subtle approach and that to him suggested that the appellant did not make the statement voluntarily. After listening to the reply of the prosecutor, the Court Martial overruled the objection and thereafter admitted the said statement in evidence while marking it as exhibit C. In their final findings the court below had, on the admissibility of ex. C, reasoned thus:
“The members of this court have considered critically the assertion by the accused officer that Ex. C his statement to the DNI was not voluntary. The court notes that the accused officer is a senior officer who is aware of avenues of redress of intimidation and coercion. He ought to have complained out to the appropriate authority before now that he was being forced to admit all that he wrote in Exh. C. Perhaps, if he had done so, he would have saved himself and the members of this court the incoveniences of going through this trial. For then a trial before trial as required by law would have unveiled this allegation assuming that it has some elements of truth.”
The appellant has argued in his brief that the summation of the Court Martial as set out above is not in accord with the well laid down principle of law guiding the admissibility of confessional statement. He cited the cases of Balogun v. A.-G., Federation (1994) 5 NWLR (Pt.345) 442, Bassey v. The State (1993) 7 NWLR (Pt.306) 467 and Obidiozo v. The State (1987) 4 NWLR (Pt.67) 748 for the well established principles of law guiding the admissibility of voluntary statement. In reaction to the submissions of the appellant on the admissibility of ex. C, the respondent, through his brief of argument, had argued that the appellant in his viva voce evidence before the Court Martial, admitted all the contents of ex. C the statement. Testifying about his encounter with the PW1, the appellant confirmed that the witness (PW1) showed him the letter from DNI. He denied that exh. C, his statement was voluntary.
He however said he signed exh. C. On the transaction of N12 million, the appellant said that in February, 1995 the former FOC West Rear Admiral Eyitayo requested him to come over and when he called on him, he (Eyitayo) asked if there was any generator available.
Although he was at that material time no longer the Navy Assistant to the Imo State Military Administrator and he was thus unable to go through the files where the entries of such materials were made, yet he volunteered an answer that generators were available. Eyitayo then directed him to take the gentlemen he met with him to Owerri where the generators were. He carried out the order and took the men to the Special Assistant in Imo State. He denied that he originated the sale of the generators. He said he was not even present when the payment of the generators was made. It was his further evidence that as a Pastor, while he was praying the spirit ministered to some one in London to whom he said he needed N6 million to assist some people in London. He got a fax massage from the individual that he had got someone who would provide the money.
The individual was Kweagan. The fax letter was tendered as Ex. R. He said he requested Kweagan to assist Mr. Guliati with ?40,000.00. The letter Guliati wrote him was tendered as exhibit Q.S. When called to read paragraphs 3 and 4 of ex. C he said it was the DNI who asked him to write it that way. He again said the money he received did not last a month as he had to convert it to dollars and forward same to Mr. Anthony Kweagan the man who assisted him to source for funds. Guliati, he said was the man who paid for the generators and while Anthony Kweagan assisted with funds in procuring the generators. He admitted that he was given N12 million. The money was in draft. He confirmed that he wrote exh. C.
Firstly, I wish to observe that this being a criminal case, to secure a conviction, the prosecution has a duty to prove its case beyond reasonable doubt. See Mbenu v. The State (1988) 3 NWLR (Pt.84) 615.
I wish to further say that an accused person can be convicted on his own free and voluntary statement but the acceptance of the confessional statement does not relieve the prosecution of its duty, in securing a conviction to prove its case.
Again, for a conviction predicated on the extra-judicial or confessional statement of an accused to stand, the court must seek some independent evidence which establishes the authenticity of the confession.
However, the law does not require corroboration of a confessional statement to be by direct evidence. It can be sustained by any material in the proceedings which even could come from. the maker of the confessional statement himself or by way of conduct or demeanour.
See Kanu v. R. (1952) 14 WACA 30; (2) R v. Omokaro (1941) 7 WACA 146 and (3) Kopa v. The State (1971) 1 All NLR 150.
I need only to add that there is authority for the proposition that the rule that a confessional statement before being used as a basis for conviction must always be corroborated is not one that is absolute.
See Akpan v. The State (1986) 3 NWLR (Pt.27) 225.
As I have observed, the appellant admitted writing exhibit C. And when shown he said though he wrote and signed ex. C he said he never wrote that he joined in dismantling the generator.
The appellant for his defence in tendering his testimony in court, admitted he signed the statement but that he never said what was recorded. He thereby sought to retract the statement or resile therefrom. Thus, the making of the statement rather than its voluntariness was in issue, an issue the learned trial Judge ruled upon by admitting same as exhibit B and B1 to wit, that exhibit B and B1 was the voluntary extra-judicial confessional statement of the appellant, pure and simple.
The garb of mystery learned counsel for the appellant in his submission sought to cast on that statement therefore, should not in my view, avail him. Hence, the principle in Oladejo v. State (1987) 3 NWLR (Pt.61) 419 and Asanya v. State (1991) 3 NWLR (Pt.180) 422 followed hot on the heels by Onwumere v. The State (1991) 4 NWLR (pt.186) 428, to the effect that an accused person resiling from his extra-judicial statement to the police should have his entire evidence at the trial regarded as unreliable, was overruled in the recent decision of this court in Egboghonome v. The State (supra). In the latter case it was held, inter alia, that where an extra-judicial confession has been proved to have been made voluntarily and it is positive and unequivocal and amounts to an admission of guilt, it will suffice to ground a finding of guilt regardless of the fact that the maker resiled therefrom or retracted it altogether at the trial, in as much as a U-turn does not necessarily make the confession inadmissible.”
See also the Supreme Court decision in ldowu v. The State (2000) 12 NWLR (pt.680) 48; (2000) 10 WRN 1.
Having stated the principle as laid down by decided cases, I wish to observe that the court below went on a wrong premises when, in upholding the admissisibility of ex. C it said that the appellant ought to have complained out to the appropriate authority before now that he was being forced to admit all that he wrote in ex. C and that if he had done that, that would have saved himself and members of the court below the inconveniences of going through the whole trial as a trial before trial, as required by law, would have unveiled the allegation. That, certainly is not the law. There is nothing called trial before trial in law. It is when the voluntariness of the statement is the cardinal issue in the sense that it has been shown not to have been freely and voluntarily made by the accused that a trial within trial and not trial before trial will be conducted to determine whether the accused was coerced, induced, deceived or forced to make the statement in question. But, where as in the instant case, the appellant is resiling, through his oral testimony at the trial, the written statement he had earlier made, a different consideration will apply. The extra-judicial statement of the accused so retracted at the trial will have to be subjected to some tests to determine the truth.
The tests for determining the truth or otherwise of extra -judicial confessional statement is to look outside for any corroborative evidence which makes it possible that the confession is true. In carrying out the test, the court will consider issues such as:
(1) Whether there is anything outside the confessional statement to show that it is true.
(2) Whether the confessional statement is itself corroborated.
(3) whether the statement of fact made in the confessional statement so far as can be tested is true.
(4) Whether the accused person had the opportunity of committing the offence.
(5) Whether given the surrounding circumstance, the confession of the accused was possible.
(6) Whether the confession was consistent with other facts which have been ascertained and proved at the trial.
See lkpasa v. A.-G., Bendel State (1981) 9 SC 7 and the Kanu case referred to supra.
I have set out earlier in this judgment the salient parts of the evidence of the appellant. And applying the above tests if one places the evidence of the appellant alongside the contents of exhibit “C” it is not difficult to come to the conclusion that the contents of Exhibit C are true. The court below was right in law to have convicted him. Consequently, I answer issue No. 1 in the appellant’s brief in the affirmative. Issue No.2 is non sequitur. I did not see anything in the record which suggested that the Court Martial shifted the burden of proof on the appellant. Issue No.3 is answered in the affirmative. As regards issue No.4, I say, with all emphasis, that there was no evidence of bias by the Court Martial against the appellant. Issue Nos. 1 and 2 on the respondent’s brief of argument are answered in the affirmative. There was sufficient proof upon which the conviction of the appellant by the Court Martial was well founded, and it is my considered view that the prosecution proved its case beyond reasonable doubt.
The appellant has however complained that the sentences imposed on the appellant were far in excess of the maximum punishment stipulated by the law. I have had a second look at the provisions of section 57(1) of the Armed Forces Decree No. 105 of 1993 under which the appellant was charged. The penalty stipulated upon conviction by a Court Martial, is for a term not exceeding two years or any less punishment provided by the Decree. The lower court, sequel to returning a verdict of guilt on each of the three counts, sentenced him on count one to 15 years imprisonment and an order to refund the sum of N12 million to the Federal Government, on count Two – 5 years imprisonment and on count three – 5 years imprisonment and an order to refund the sum of N40,000.00 to the Federal Government, the sentences are to run concurrently. The sentences are far in excess of what the law under which the three count charge was laid stipulates. They must be reduced in conformity with the dictates of the law.
Accordingly the sentences are reduced to 11/2 (one and half) years imprisonment for each count. The sentences are to run concurrently.
Other Citations: (2001)LCN/1005(CA)
