S/sgt Godwin Imhanria & Ors V. Nigerian Army (2007)
LawGlobal-Hub Lead Judgment Report
AUGIE, J.C.A.
The appellants and two other soldiers serving with the 2 Mechanized Division of the Nigerian Army, Ibadan, were arraigned before the General Court Martial convened by Maj-Gen F. A. Mujakperuo on a two count charge of conspiracy to steal and the stealing of service property consisting of 264 metal panels and 12 wires. They were alleged to have stolen the said items from shed 6 “at Ibadan on or about 312100A Oct 97 while on guard duty at COD MT & Tech”.
They pleaded not guilty to the charge and the prosecution called three witnesses to prove its case. PW1 is Pte Umaru Isah who testified that on the night in question 5 civilians came to their duty post with torchlight and the 3rd appellant who is his Guard Commander went up to talk to them. The 1st, 2nd & 3rd appellants asked the civilians to go inside the Guardroom. The 2nd appellant later took the civilians to shed 6, which he had opened. After about ten minutes, the civilians went back to the guardroom and the 3rd appellant asked PW1 to “go and sit down at Abule road”, and if he sees anybody coming, he should tell the person to go back. PW1 obeyed and later saw a car coming to the main depot. As the 3rd appellant halted the car with their A.O, Capt. Akanni inside, the civilians and the 2nd appellant ran away.
The Capt came out; inspected all the sheds and saw that shed 6 was opened. Thereafter, another car came in and PW1 assisted in loading the stolen items.
Ismaila Yusuf, a commercial driver testified as PW2 that he was hired by one Ibo man who handed him over to the 4th appellant when they entered the barracks, and the 4th appellant took them to where they loaded “iron and barbed wire” onto his vehicle. However, it started raining and “the motor spoiled”, so they slept there and were later arrested by a patrol team. PW3 is the conductor, Everest Adagbo, and he corroborated the evidence of PW2. At the close of the case for the prosecution, the defence made a no-case submission contending inter alia that since the 264 metal panels and 12 wires allegedly stolen was not in evidence; the appellants had no case to answer. The Judge-Advocate in his advice on no-case submission referred the General Court Martial to “paragraph 36(b) of chapter 5 MML” and summed-up that –
“Absence of real evidence in Military Law does not nullify the substance of the entire case so long as oral evidence has been led, which point to the existence of the real evidence somewhere”.
In its ruling on the no-case submission, the General Court Martial held, thus –
“…We are satisfied that in the charge of conspiracy, evidence of acts done by one conspirator if it is of a common design may be inferred against all other alleged conspirator. We are also satisfied that the absence of real evidence before us i.e. metal pallets and wires is not necessarily fatal when oral evidence has been led that such items indeed exist and that that said items were moved from shed 6 of COD MT & Tech on the right in question. We are therefore satisfied that there are grounds to proceed with the case. the defence is therefore called to open their case. (Italics mine).
The defence however elected not to call any evidence and rested their case on that of the prosecution. The General Court Martial thereafter visited the locus in quo where it called two witnesses, and recalled PW1 who identified metal pallets and wire in the QM store as the things he carried to the car. The prosecution and defence then made their closing addresses and after the summing up by the Judge-Advocate, the General Court Martial closed to deliberate on their findings, which turned out to be a verdict of guilt for the appellants, who were dismissed from the regiment and also sentenced to six months imprisonment. The other two soldiers were discharged and acquitted. Dissatisfied with the decision of the General Court Martial, the appellants have appealed to this court with a notice of appeal containing 4 grounds of appeal, and briefs of arguments were duly filed in line with the rules.
In the appellants’ brief prepared by N. O. O. Oke, Esq., the following 4 issues were formulated as arising for determination in this appeal-
(i) Whether the General Court Martial was right in holding that the failure of the prosecution to produce and tender in court as exhibit of the real evidence (metal pallets and wires) was not fatal to the prosecution case.
(ii) Whether the failure by the prosecution to call a material witness (Captain Akanni) was not fatal to the prosecution’s case.
(iii) Whether from the general circumstances and facts of the entire case the General Court Martial was not in error in violating the appellants’ constitutionally guaranteed right to fair hearing under section 33 of the Amended 1979 Constitution and the principles of natural justice by conducting the prosecution’s case.
(iv) Whether the General Court Martial properly evaluated the evidence led by the prosecution.
The respondent however submitted in its brief settled by Chiesonu Igbojamuike Okpoko, Esq., that the issues for determination are as Follows-
(1) Whether the conviction and sentence of the appellants by the General Court Martial was right in Law?
(2) Whether the failure by the prosecution to call Captain Akanni was fatal to the prosecution’s case?
In my view, the issues formulated by the respondent are better drafted and straight to the point; nonetheless, I will adopt the appellants’ issues in dealing with this appeal, because the said issues, even if inelegantly drafted, actually hits the targets of their complaints against the General Court Martial.
On issue (i), the appellants submitted that it is an elementary principle of the rule of evidence that an identified item is not an exhibit that the court can look at, until it is tendered in evidence as exhibit; and that the identification of the alleged stolen items at the locus in quo was not enough and could not cure the defect in the prosecution’s case, which is therefore not established. The respondent however argued that the appellants’ submission is otiose in law, adding that in murder cases where the body is not tendered, all the prosecution ought to do is to call credible witnesses to show that the accused was the cause of the death of the deceased. This issue is easily resolved. Production of a subject matter of a robbery is not mandatory in all cases – see Oluwatoba v. State (1985) 1 NSCC (Vol. 16) 306, where the Supreme Court held that the failure to produce the car stolen by the appellant was not fatal to the case of the prosecution. The issue lacks merit and therefore fails.
As to whether Capt. Akanni is a material witness, which is the second issue, the appellants referred to the definition of a “vital witness” in Akono v. Nigerian Army (2000) 14 NWLR (Pt.687) 318, (2000) FWLR (Pt. 28) 2212, and submitted that the said Capt. is a vital witness because he saw that shed 6 had been opened and did not make any comment, or show any surprise or shock; that his evidence could have had an adverse effect on the prosecution’s case, if he had been called; and that there was no evidence that the appellants were not authorized to remove the said items, and the attitude of the Captain & ors at the inspection of shed 6 shows that
what the appellants did was not illegal, therefore his having not been called, was fatal to the prosecution’s case. They further contended that it was for the prosecution to prove there was no authority to remove the items, and since there was no such evidence, there is an element of doubt, which should be resolved in favour of the appellants. Mohammad v. State (2000) 12 NWLR (Pt.682) 596, (2000) FWLR (Pt. 30) 2623; Akono v. NA (supra); Okcke v. State (2000) 10 NWLR (Pt.675) 423, (2000) FWLR (Pt. 29) 2453; Oparaji v. Obina (2000) 1 NWLR (Pt.641) 449, (2001) FWLR (Pt. 43) 385, & section 149d of the Evidence Act, cited and referred to.
On its part, the respondent submitted that in our legal system the prosecution is only bound to call the witnesses who would give relevant evidence in proof of its case, citing Iziren v. State (1995) 9 NWLR (Pt. 420) 385, & Nwomukoro v. State (1995) 1 NWLR (Pt.372) 432. I quite agree. The law imposes no obligation on the prosecution to call a host of witnesses to prove its case; all it needs to do is to call enough material witnesses to prove its case, and in so doing, it has a discretion in the matter – see Udo v. State (2006) 15 NWLR (Pt. 1001) 179 SC; State v. Olatunji (2003) 14 NWLR (Pt.839) 138 SC & Nigerian Air Force v. Obiosa (2003) 4 NWLR (Pt.810) 233 SC, where Tobi, JSC observed as follows at 285 – 286 –
“Section 149(d) clearly provides for evidence, not a witness. The rationale behind the provision is to ensure that the prosecution has the liberty and right to pick witnesses and not be foisted with any particular witness.
… it does not matter whether a particular witness was not called to give evidence. I say that the respondent was free to call AVM Femi John Femi if he felt that his evidence would exonerate or exculpate him from criminal responsibility. He did not do that and he now complains, hiding under section149( d) of the Evidence Act. This court cannot hear him. The issue therefore fails”. (Italics mine)
A vital witness is a witness whose evidence may determine the case one way or the other, and failure to call a vital witness is fatal to the prosecution’s case – see State v. Nnolim (1994) 5 NWLR (Pt.345) 394 SC; Akana v. Nigerian Army (supra), & Edoho v. State (2004) 5 NWLR (Pt. 865) 17. In other words, a witness who knows something significant about a matter is a vital witness.What did Capt. Akanni know in this case? PW l’s testimony reads as follows –
“PW1: I went to sit down, later I saw one car coming to the main depot. The civilians inside the guardroom then ran and SSgt Paul (2nd App.) too ran. From that place my guard commander (3rd App.) halted the car so I left that place and I went to meet the guard commander. As I reach there I saw our AO that is Capt Akanni, Ssgt Imaria (1st App.) Sgt. Ehinebo (3rd App.), as I got there I saluted him and he asked from my guard commander where his 21/c was. He told him he went to eat in the house. Capt. Akanni carried them to shed 6. As they were going SSgt. Paul (2nd App.) came to see me and asked me whether Capt. Akanni saw shed 6 opened. I said yes. They all discussed at shed one but did not know what they discussed.
Prosecution: Where were you at that time?
PW 1: I was in front of the guardroom.
Prosecution: What happened?
PW1: SSqt Paul (2nd App.) went to meet Capt. Akanni, SSqt Imaria ( 1st App.) and my guard commander (3rd App.), all or them went to shed one. After they come back and Capt Akanni entered his car and after he left another bus entered inside the depot, and parked – of’ shed 6.
Prosecution: What happened?
PW1: Pte Marafa Maikano (4th App.) was inside that bus, the driver (PW2) and his two boys, my guard commander (3rd App.) collected my rifle and he said I should go and help them to load. I went to help them to load after we finished loading, he said I should go and stand for Abule road when returned my rifle (sic). After sitting down rain started to fall. Sgt Ehinebo (3rd App.) then called me I followed him inside guardroom and I lied down and sleep and I woke up around 5 0′ clock in the morning.
Prosecution: Who and who loaded the motor?
PW1: myself, SSgt Paul (2nd App.), SSgt Imaria (1st App.), and the 2 boys.
Prosecution: That will be all for the witness.
During cross-examination by the defence, PW1 replied as follows –
Defence: What time did you see the civilians?
PW 1: They came around some minutes to 9 O’ clock as they see Capt. Akanni’s motor they run.
Defence: Which motor did they see?
PW1: They see Capt. Akanni’s motor.
Defence: What time did Capt. Akanni come in?
PW1: He came some minutes to nine and they started coming around 9 O’clock.
Defence: How many people were inside Capt. Akanni’s car?
PW1: Nobody.
Defence: From the time Capt Akanni left and the time they started parking how long?
PW1: It will not pass the hour.
Defence: You said you did not hear what Capt Akanni discussed with the soldiers?
PW 1: No, I did not hear what they discussed.
Defence: Did you know the order he gave to them?
PW1: No, I did not.
Defence: Who always gives you order?
PW1: My guard commander.
Defence: Whatever you did that night it was your guard commander that told you to do it?
PW1: Yes.
Defence: The 5 civilians you talked about when Capt Akanni came, did they come back?
PW1: No. they did not come back.
Defence: Mention the shed number Capt Akanni and others that you checked that day
They checked from shed 8 to 1.
Defence: Who were with him when doing the checking?
PW1: Capt Akanni himself, SSgt Imaria (1st App.), and Sgt. Ehinebo (3rd App.)
Defence: Was shed 6 already opened when he was checking?
PW1: Yes.
Defence: Did he say anything about the opened shed 6?
PW1: No, he did not.
Defence: What time was that?
PW1: Some minutes to 9 O’clock.
Defence: Where was SSgt Paul (2nd App.) at that time?
PW1: He was hiding.
Defence: When did SSgt Paul (2nd App.) go to meet Capt. Akanni?
PW1: It was after Capt. Akanni, SSgt Imhanria (1st App.), Sgt. Ehinebo (3rd App.) came back from shed 8.
Defence: That night of 30 Oct there was no reason to make report to anybody?
PW1: I did not report to anybody, because the officer I should report to is Capt Akanni, he was there and he saw the shed open.
Defence: You did not make any statement to anybody?
PW 1: No, I did not.
Defence: As a soldier, ((your superior officer gave you order and you did not do it what will happen?
PW1: I will get into trouble. ”
Clearly, the cross-examination of PW1 by the defence only succeeded in filling in the gaps in the prosecution’s case and strengthening the case against the appellants, who elected not to call any evidence in their defence: a huge risk.
It was a risk they took; a gamble, I must say they lost. Yes, an accused is entitled not to say anything at all, if he so wishes – see section 287 (1) (a) (iii) of the Criminal Procedure Act. But when he rests his case on that of the prosecution, it means that he does not wish to place any facts before the court other than those, which the prosecution had presented in evidence. What this signifies is that the accused is satisfied with the evidence given and does not wish to explain any fact or rebut any allegations made against him. However, as Oputa, JSC explained in Ali v. State (1988) 1 NWLR (Pt. 68) 1 –
“It is always a gamble to rest the defence on the case of the prosecution. Where the case is such that even if all the prosecution witnesses are believed yet still the offence charged has not been proved, there it may be permissible to rest on the case of the prosecution. But counsel will be taking a big risk where issues of fact will have to be decided infavour of an accused person before his defence will succeed. There to rest his case on that of the prosecution will be highly prejudicial. ”
(Italics mine)
In this case, Capt. Akanni cannot be considered a vital witness.
He merely inspected sheds 8 – 1, and not making any comment when he saw that shed 6 was open is of no evidential value, not to the prosecution or to the court. The incident of stealing took place after Capt. Akanni had left the scene, and the prosecution called the witnesses it considered material to prove its case. If the evidence of Capt. Akanni would have been of value to the appellants, or would show that what they were alleged to have done that night was legally authorized, it was in their interest then to call him as a witness, and having failed to do that, they cannot now complain that the prosecution did not call a witness who would have given evidence that would have exonerated them from culpability. The prosecution has to prove the guilt of an accused person beyond reasonable doubt, and there is no duty on the accused person to prove his innocence, however, the law recognizes that there are circumstances where the accused person has some explaining to do, particularly where facts in evidence against him is strong. If he fails to offer any explanation, his failure will support the inference of guilt against him – see Igabele v. State (2006) 6 NWLR (Pt. 975) 100 SC. In this case, the evidence against the appellants was very strong, very damning in fact, and if they considered Capt. Akanni a vital witness, they should have called him.
The 2nd issue is therefore resolved against the appellants. As to issue 3 on lack of fair hearing, the appellants submitted, citing Akana v. NA (supra), Obadare v. President, Ibadan West District Grade B Customary Court (1965) NWLR 39; Omoniyi v. Central School Board (1988) 4 NWLR (Pt. 89) 448, & Okoduwa v. State (1988) 2 NWLR (Pt. 76) 333, that the proceedings was tainted with unfairness and bias against them; that at the locus in quo the General Court Martial became the prosecutor by calling two witnesses and recalling PWI; and that the said court put damaging questions to prove vital or material facts in the prosecution’s case, which has occasioned a grave miscarriage of justice in this case. It was conceded that the said court has power to call or recall a witness, but it was argued that even in civil cases, a court is not allowed to call a witness on its own volition without the consent of both parties, and that even a Court Martial should not give the impression that it wants a particular person punished by all means, citing Evoyoma & ors. v. Daregba & ors (1968) NMLR 389; Ogbodu v. Odogha (1967) NMLR 221; Bell-gam v. Bell-gam (1965) 1 All NLR 106; Omoregbe v. Lawani (1980) 3-4 SC 108. & Adeleke Arutu v. The Queen (1959) 4 FSC 66, where the Supreme Court set aside a conviction because the irregularity at the locus in quo occasioned a miscarriage of justice.
The appellants further submitted that the situation in this case is even more precarious than that in Arutu’s case (supra), because the visit to the locus in quo was made (a) after the no-case submission was made by the defence and overruled by the court, and (b) after the defence relied on the case of the prosecution and did not lead any evidence. Furthermore, that there is no evidence to show whether PW1 was put on oath or not; and that the Court Martial relied on the evidence (or demonstration) at the visit to locus in quo to hold that the material fact of the alleged stolen property was identified.
The respondent’s simple reply is that the contents of the proceedings the appellants complained against do not reflect and/or constitute unfairness and bias against the appellants, so their contention and submission is unfounded and baseless in law, citing section 33(1) of the 1979 Constitution.
Before I delve into the merit or otherwise of this issue, it is pertinent to note that a Court Martial is empowered to put questions to witnesses without necessarily descending into the arena of contest to take sides. By rule 54 (1) of the Rules of Procedure (Army) 1972, “the President, the Judge Advocate, and with the permission of the President, any member of the court may put questions to the witness”, and by rule 56(1), the Court Martial is allowed to call its own witnesses where a just and fair adjudication of the case so demands – see Magaji v. Nigerian Army (2004) 16 NWLR (Pt. 899) 222. These rules for use in a Court Martial are not any different and are in line with the provision of section 200 of the Criminal Procedure Act, which reads –
“The Court at any stage of any trial, inquiry or other proceedings under this Act may call any person as a witness or recall and re-examine any person already examined and the court shall examine or recall and reexamine any such person if his evidence appears to the court to be essential to the just decision of the case. ”
(Italics mine)
See also Onuoha v. State (1989) 2 NWLR (Pt. 101) 23, where the Supreme Court held that the overriding concern of an appellate court when dealing with matters under section 200 of the Criminal Procedure Act, is to see to it that no miscarriage of justice, was or had been occasioned by the wrongful use of the section by the trial court. For instance, the judge as umpire is not expected to descend into the arena – see Uso v. C.O.P (1972) 11 SC 37, (1972) NSCC (vol. 7) 631, R. v Aderogba (1960) NSCC (vol. I) 140, Tiwani Ltd. v. C.T.M.B. Ltd. (1997) 8 NWLR (Pt. 515) 140, where Onalaja, JCA stated as follows –
“The power (under section 200 of the Criminal Procedure Act) must not be exercised in a manner to assist the prosecution to establish the case or to use it as an engine to take over the prosecution of the case by the trial judge thereby failing in his duty as an impartial arbiter”.In this case, the General Court Martial called two witnesses of its own at the locus in quo. CW1 is Maj. G. Agu and the interchange with hi In reads –
“Court: Were you here when the alleged crime was committed?
CW1: Yes, I was newly posted in.
Court: What is this called? (Pointing to an object at the padlock of Shed 6)
CW1: It is called a seal.
Court: What is the purpose of a seal as it is now?
CW1: It is mainly to secure the door.
Court: That means that when the seal is put nobody can enter the store unless it is broken?
CW1: It depends on how you close it.
Court: How?
CW1: If it does not click it can be removed but if it clicks it cannot be removed. It can only be broken and when it is broken, it cannot be used again.
Court: The items which were alleged to have been removed, where are they?
CW1: They are in the QM.
Court: Where is this Abule road?
CW1: I don’t know because I am new here.
Court: Where is the guard post?
CW1: This is the guard post (points to a make shift booth)
CW1 was cross-examined by the Defence only and the record reads
Defence: Sir, when did you begin work here?
CW1: I was posted here in August 1997.
Defence: You were not on duty around here in Oct 1997?
CW1: I was not on duty. It is only Mondays to Fridays that duties can be performed by officers.
Defence: So what you have been telling the court is all that you heard from people?
CW1: I have not told the court anything other than about the seal which the court asked me of
Defence: Are all you have said the only things you know about this case?
CW1: Yes, I only explained the meaning and the use of seal. ”
Now, what is prejudicial and damaging about the questions put to CW1? Where is the evidence therein that proved “vital or material facts in the prosecution’s case”? CW1 merely explained the meaning and use of a seal, which so far as I can tell, is a worthless piece of evidence that had no relevance to the case against the appellants; it did not add or subtract anything from the evidence already adduced before the General Court Martial, and cannot therefore be said to have aided the prosecution’s case in any way.
CW2 is WO Vincent Osigwe, and the record of what transpired reads
“Court:- Where is Abule Road?
CW2: That is it…
Court: Were you there when the incident happened?
CW2: No sir.
Court: When you rep0l1ed, were you shown the pallets and wires?
CW2: I was there when the vehicle conveyed it to the depot?
Court: Do you know where they are now?
CW2: They are in the QM store.
Court: Take us to the QM store.
CW2: This is the QM store.
Court: Is this the place alleged stolen good are kept?
CW2: Yes sir.
Court: Are these the items?
CW2: Yes sir.
Court: When they were brought in did the QM take stock of the quantity?
CW2: Yes sir.
Court: Who owns the goods?
CW2: The government.
Court: Where did they come from?
CW2: From the Camp Hq. There was signal that the items that were alleged stolen by some of us are to be returned and that we are to make sure that it should be checked thoroughly.
Judge Advocate. Do you know the quantity?
CW2: I don’t know but QM knows.
Cross- Examination
Defence: Did you see them when they were removed on the night that they carried or removed it?
CW2: I don’t know I was not in the unit at that time.
Defence: You were only told that these were the things removed?
CW2: Yes sir.”
Once again, I do not see in what way the evidence elicited from CW2 could have aided the prosecution’s case to amount to a grave miscarriage of justice. The appellants’ complaint that CW2’s evidence was relied on to hold that the stolen property was identified is neither here nor there, and is of no moment. The General Court Martial had already ruled after the no-case submission and before the visit to the locus in quo that “the absence of the – – metal pallets and wires is not necessarily fatal when oral evidence has been led that such items indeed exist and that they were moved from Shed 6”, and as I stated earlier, the said items did not have to be in evidence as exhibits to prove the prosecution’s case against the appellants. It is clear therefore that the General Court Martial would have arrived at their decision without the evidence of the court witnesses. In any case, they were cross-examined by the defence – see R. v. Aderogba (supra), where the Supreme Court held inter alia that there was no substantial miscarriage of justice because defending counsel was allowed to cross-examine the witness called by the court, and that the trial court could have arrived at the guilt of the appellant without the evidence of the said witness. In this case, the evidence of CW1 & CW2 had no negative undertones against the appellants, and I so hold.
The same scenario applies in the case of PW1, who was recalled at the locus in quo’ where he merely identified the metal pallets and wire and no more. The issue of whether he was put on oath before he made the identification is of no consequence; it added nothing to the case against the appellants, and therefore cannot be said to have aided the prosecutions’ case against them. The appellants also complained that the entire proceedings is tainted with unfairness and bias against them, referring to PW1’s evidence at p. 30 under the title “Court’s Examination; PW2’s evidence at p. 33 under “Court Examination of PW2 “; and that of PW3 at p. 35 under “Court Question”. Looking at the questions put to the prosecution witnesses and their replies thereto vis-a-vis the circumstances of this case, I am of the firm view that the questions complained against were absolutely innocuous and cannot sustain the charge of “unfairness and bias” labeled against them. For instance, PW1 was asked whether he saw the civilians again; what the stolen items were, and where it was loaded from, etc. PW2 was asked whether he had seen the 4th appellant before, and what he was told, etc. The questions to PW3, reads –
Court Question
“Member: Do You know to repair motor Mr. Adagbo. (sic)
PW3: No Sir.
Member: Do you know how to work on spoilt vehicles?
PW3: I don’t even know how to drive with vehicle.
Member: You were only a conductor?
PW3: Yes with one another conductor”.
What can be more innocuous than that? Besides, as I pointed out earlier, the General Court Martial is allowed by its rules to put questions to witnesses, and there is nothing in the questions put to the witnesses that would validate the accusation that it conducted the prosecution’s case for it, and I so hold. This issue therefore lacks merit and is resolved against the appellants.
The last issue is on the evaluation of the evidence, and it is the appellant’s contention that the Judge-Advocate did not correctly evaluate the prosecution’s case in his summing up; that the witnesses are accomplices who are therefore tainted witnesses whose evidence needed corroboration or ought to have been received and regarded with considerable caution; and the trial court should have been wary in reaching a verdict of guilty against them.
State v. Okolo & ors. (1974) 2 Sc. 73; Mailayi v. The State (1968) All NLR 116, & Ishola v. The State (1978) 9-10 SC. 81, cited and referred to. They argued in this regard that PW1 participated actively in the commission of the offence, and that PW2 gave contradictory evidence to the trial court. It was further submitted that if the trial court had properly reviewed and evaluated the evidence, it would have arrived at a different verdict, citing Bassil v. Fajebe (2001) 11 NWLR (Pt. 725) 592, (2001) FWLR (Pt. 31) 1914; and that this is a proper case for this court to evaluate the “admissible” evidence before it, citing Imah v. Okogbe (1993) 9 NWLR (Pt.316) 159, (1993) 2 SCNJ 73; Union Beverages Ltd. v. Pepsi Cola International Ltd. (1994) 3 NWLR (Pt.330) 1; Edu v. C.A. WR.R.D. (2000) 12 NWLR (Pt.220) 316, (2001) FWLR (Pt. 55) 433. The Court was therefore urged to allow the appeal by the appellants, and quash their conviction and sentence; make an order discharging and acquitting them on the charges of conspiracy and stealing; and direct the respondent to pay their gratuities and other entitlements. However, it is the respondent’s submissions that the prosecution witnesses are credible witnesses with quality evidence, which ought to be believed and acted upon by the General Court Martial, citing Cizia v. State (1996) 6 NWLR (Pt. 455) 465; that the prosecution adduced sufficient credible and admissible evidence to establish the ingredients of the offence, citing Sam v. Motor (1943) 10 WACA 251; that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if evidence is strong against a man as to leave only a 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, citing Miller v. Minister of Pensions (1947) 2 All ER 372 & Akalezi v. State (1993) 2 NWLR (Pt. 273) 1.
I must first of all comment on the conclusion and prayers of the appellants. This is a criminal matter, and evaluating “admissible” evidence in a criminal case on appeal is unheard of. It is not within the purview of the duties of this court to retry a criminal case based on the record of proceedings before us – see State v. Usman (2005) 1 NWLR (Pt. 906) 80. Secondly, an order directing the payment of “gratuities and other entitlements” is a civil claim that is totally out of place in an appellant’s brief to a criminal case on appeal.
On the appellants’ submission that PW2’s evidence should have been treated with caution because he gave contradictory evidence, I must quickly say that it is not every minor contradiction that is fatal to a case and for a trial Judge to disbelieve a witness, the contradiction must be on a material point – see Kalil v. The State (1988) 4 NWLR (Pt.90) 503. In this case, the state of PW2’s bus after it was loaded with the alleged stolen items is irrelevant, and whether it rained and the bus broke down, or PW2 deliberately switched it off because they did not tell him it was business, the fact remains that PW2 was hired to drive his bus and carry stolen items out of the barracks and they were arrested before they left the barracks with the stolen items in the bus. Does that make PW2 a tainted witness? An accomplice as argued?
A tainted witness is one who is either an accomplice or who by his evidence, may be regarded as having some purpose of his own to serve – see Adetola v. State (1992) 4 NWLR (Pt. 235) 267 SC; Ogunlana v. State (1995) 5 NWLR (Pt. 395) 266 SC & Okoro v. State (1998) 14 NWLR (584) 181 Sc.
And an accomplice is “one who knowingly, voluntarily and intentionally unites with the principal offender in the commission of a crime” – see Black’s Law Dictionary 6th Ed. See also Okosi v. The State (1989) 1 NWLR (Pt. 100) 642, where the Supreme Court held that an accomplice is a person who participates in a crime for which an accused in court is being tried, and if he is tried with the accused on the same evidence would equally be guilty with the accused being tried. In essence, an accomplice is not tried, but if brought to trial along with other participes criminis, he would be an accused. In this case, I will say upfront that PW2 and PW3 cannot be considered accomplices, and they certainly do not have any purposes of theirs to serve. They were merely hired to carry out their usual trade; PW2 to drive his bus, which was taken to the barracks, where PW3 as conductor loaded the items. The case of PW 1 is not that clear cut. He is a soldier, and was on duty with the appellants; went to Abule Road to stop anyone from coming to the scene of the crime and actually assisted in loading the stolen items onto the bus. Does that make him an accomplice or a person with a purpose to serve? From my estimation, the answer would be – No. And the reason is simple.
Subordinates officers who act and obey orders are not seen as accomplices – see Ededey v. The State (1972) NSCC (vol. 7) 40, where some Police officers testified against their boss, a Senior Police Officer charged with stealing, etc. After his conviction, he appealed to the Supreme Court where he contended that they should have been regarded as accomplices, but the Supreme Court held that the subordinate Police Officers were acting and obeying the instructions of their boss, the accused, and did not benefit from the operations they carried out. As such, they were not accomplices to him. In this case, PW 1 narrated how he was asked to go and eat by one Cp1 Kadiri, and it was after he got back around 7 pm that he saw the civilians coming to their duty post with torchlight. Under cross-examination by the defence, he replied that he always obeyed the orders of the 3rd appellant, his guard commander, who told him to stand guard at Abule Road, and load the items. The defence failed to refute, challenge, or contradict the evidence of PW1, and his evidence must be accepted as true. The evidence before the General Court Martial, therefore, is that PW1 was merely obeying orders that night. He cannot therefore be regarded or treated as an accomplice, and I so hold. There was no reason to doubt the veracity of the evidence before it, and the General Court Martial was right to hold that the prosecution proved its case. In the final analysis there is nothing to sustain this appeal. I did say earlier, that it is always a gamble to rest the defence on the case of the prosecution; the defence shuts itself out and will have itself to blame, as the court cannot speculate as to what the accused might have said – see Adekunle “.
State (2006) 14 NWLR (Pt.1000) 717 SC. In this case, the appellants did not do themselves any good by opting to rest their case on that of the prosecution. They had the opportunity to tell their own side of the story. but did not use it. The end result is that the appeal lacks merit and is therefore dismissed.
Other Citations: (2007)LCN/2214(CA)
