Brigadier General James Omebije Abdullahi V. The Nigerian Army & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

AYOBODE O. LOKULO-SODIPE, J.C.A.

This appeal is against the judgment of the General Court Martial, sitting at the Army Headquarters Garrison, Abuja delivered on 30th August, 2005. The judgment of the General Court Martial (hereinafter simply referred to as “GCM”) was confirmed on 5th April, 2006 by the Confirming Authority and the terms of the confirmation were conveyed to the Appellant by a letter dated 7th April, 2006.

The facts of the case are that pursuant to a Charge Sheet dated July, 2005 and signed by one Colonel M.B. Adamu, a six count charge was preferred against the Appellant. Four of the six counts alleged that the Appellant stole diverse sums of Service/Public property being those of the Nigerian Armed Forces. Each of the four counts of stealing was said to be contrary to Section 66(a) of the AFA, Cap. A20, Laws of the Federation of Nigeria 2004. In the remaining two counts, the Appellant was alleged to have made false official document; and also to have engaged in conduct to the prejudice of good order and service discipline contrary to Sections 90(a) and 103(1) respectively of the AFA Cap. A20, Laws of the Federation of Nigeria 2004. The Appellant pleaded not guilty to each of the six counts preferred against him. The prosecution called ten witnesses and tendered several documents which upon their admission in evidence were marked as Exhibits P1-P20.

After the prosecution closed its case, the Appellant made a no case submission to which the prosecution duly replied. The GCM overruled the no case submission made by the Appellant and thereafter called upon him to open his defence.

The Appellant alone testified in his own behalf, he called no other witness. The Appellant closed his case after he had been cross examined and re-examined.

One Group captain Akpofure was called as a “Court Witness” (CW1) and both the prosecution and Appellant’s counsel addressed the GCM after they had both cross-examined the said Court Witness. This witness was led in evidence by the Judge Advocate. The Judge Advocate also summed up the case for the GCM by reviewing the facts and evidence of witnesses, and gave direction to the GCM on the law and procedure applicable to the case.

The GCM in its judgment delivered on 30/8/2005 found the Appellant guilty on each of the four counts of stealing and the count of conduct to the prejudice of good order and service discipline. The Appellant was found not guilty on the count of making false official document and consequently discharged and acquitted in respect of the count. The Appellant after a plea in mitigation of sentence was sentenced to 2 years in respect of each of the five counts for which he was found guilty and the terms were to run concurrently. The GCM made an order of forfeiture of Appellant’s building and declared both the sentences passed on the Appellant, as well as the order of forfeiture, subject to confirmation. In accordance with its powers under Section 151(4) & (5) of the AFA, the Army Council at its sitting of 5/4/2006 confirmed the verdict of guilty entered against the Appellant in respect of Counts 1, 2, 3, 4 and 6 respectively. The sentence of 2 years imprisonment passed in respect of each of the said counts was reduced to 1 year and to take effect from 30/9/2005 and to run concurrently. The Appellant was ordered to refund N33,500,000.00 only to the Nigerian Army within 30 days with effect from the date of the confirmation of the decision of the GCM failing which his personal property is to be confiscated to recover the said amount.

The Appellant being dissatisfied with the judgment of the GCM as confirmed; sought for the leave of this Court to appeal against the same. Leave in this regard was duly granted on 8th June, 2006 and the Appellant filed his Notice of Appeal on 15th June, 2006. The Notice of Appeal contains five (5) grounds of appeal. The grounds of appeal of appeal, shorn of their particulars, read thus:-

“GROUND 1

The judgment of the General Court Martial delivered on 30/8/05 and confirmed on 5/04/06 is altogether unreasonable, unwarranted and cannot be supported having regard to the evidence.

GROUND 2

The General Court Martial erred in law when it found the Appellant guilty and convicted him for the 4 counts charge of Stealing and one count charge of Conduct prejudicial to good order and service discipline contrary to Section 66(a) and 103(1) of the Armed Forces Act 2004 respectively, whereas the prosecution failed to establish by evidence beyond reasonable doubt, the existence of the ingredients of the said offences and this has caused injustice to the Appellant.

GROUND 3

The judgment of the General Court Martial was a nullity in that, it failed to contain the necessary requirements or elements of a good judgment and consequently, all the findings of guilt by the Court against the Appellant for the 4 counts charge of Stealing and one count charge of Conduct prejudicial to Good Order and Service discipline contrary to Sections 66(a) and 103(1) of the Armed Forces Act, are perverse.

GROUND 4

The General Court Martial misdirected itself on the facts, when it proceeded to find the Appellant guilty and sentenced him to imprisonment for 2 years each, for the 4 (four) counts charge of Stealing and 1 (one) count charge of Conduct prejudicial to Good Order and Service discipline, contrary to Sections 66(a) and 103(1) of the Armed Forces Act, 2004 respectively, whereas the evidence points irresistibly to the fact that the total sum of N33,500,000.00 (Thirty Three Million, Five Hundred Thousand Naira Only) were withdrawn at the instance of PW4 (Major General S. A. Adejumo (Rtd) and handed over to him and this has caused a miscarriage of justice.

GROUND 5

The judgment of the General Court Martial is a nullity in that the confirmation was done in breach of the Appellant’s fundamental right to fair hearing guaranteed under the Constitution of the Federal Republic of Nigeria 1999, the Rules of National (sic) Justice and Good Conscience.”

In accordance with the Rules of this Court, parties to this appeal duly filed and served their respective briefs of arguments. The appeal was entertained on 27/1/2009 and Y. C. Maikyau, learned lead counsel for the Appellant, in urging this Court to allow the appeal, relied on and adopted the Appellant’s brief of argument dated and filed on 17/10/2007. Learned lead counsel for the Appellant having also disclosed that the Respondents’ brief of argument dated 11/1/2008 and filed on 14/1/2008 was deemed as having been properly filed and served by the order of Court made on 10/3/2008, urged that the said Respondents should be deemed as having argued the appeal given the fact that their brief is before the Court. This is more so as they had notice of the day’s proceedings but chose not to appear in court.

The Appellant formulated three Issues for the determination of the appeal in his brief of argument settled by Yakubu C. Maikyau. They read thus: –

“ISSUE 1 (GROUND 5)

Whether or not in view of the accusation of complicity made against the then Chief of Defence Staff, in the Commission of the offences for which the Appellant was convicted, vis-a-vis the Role of Chief of Defence Staff (C.D.S) both as accuser/complainant and in the confirmation of the judgment of the General Court Martial, the judgment of the General Court Martial was not delivered in breach of the Appellant’s Right to fair hearing?

ISSUE 2 (GROUND 3)

Whether the judgment delivered by the General Court Martial as continued on 5/4/06 satisfied the requirements of a good and valid judgment or, did the General Court Martial Evaluate (sic) the evidence before it to justify the conviction of the Appellant?

ISSUE 3 (GROUNDS 1, 2 AND 4)

Whether from the totality of evidence before the General Court Martial, the prosecution had discharged the burden of proof beyond reasonable doubt of the offences of the 4 Counts charge of “stealing” and 1 (one count) charge of “conduct prejudicial to Good Order and Service Discipline” contrary to Sections 66(a) and 103(1) of the AFA 2004, respectively?

In their brief of argument settled by Dr. Bello Fadile, the Respondents, like the Appellant, formulated three Issues for the determination of the appeal. The Issues read thus:-

“1. Whether in view of the manner the confirmation of the conviction and sentencing of the Appellant was done by the Army Council, and the record of proceedings in this case, the Appellant can be rightly said not to have had a fair hearing at the trial court, especially in the absence of any evidence of participation of the 2nd and or 3rd Respondent (sic) in the confirmation proceedings. (Ground 5).

2. Whether having regard to the provisions of the Armed Forces Act and the Rules of Procedure (Army) 1972, and the judicially recognised nature of proceedings before a Court Martial, the GCM ought to have evaluated the evidence before it, as would a regular civil Court, for its judgment to be good and valid, (Ground 3).
3. Whether the Prosecution proved its case against the Appellant and the GCM rightly convicted him based on the evidence adduced at the trial. (Grounds 1, 2 and 4).”

ISSUE 1

Appellant’s Issue 1 is distilled from ground 5 of the grounds of appeal. Dwelling on this Issue, the Appellant argued to the effect that the principles of fair hearing must be complied with in any adjudication, otherwise the whole proceedings would be rendered a nullity. The principles of fair hearing were set out to be (i) any person accused must be given an opportunity to be heard; and (ii) a man cannot be a Judge in his own cause. These principles of fair hearing were said to be enshrined in Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria. The cases of Mohammed v. Kana Native Authority (1968) 1 All NLR 424 at 415(sic); and Saleh v. Monguno (2003) 1 NWLR (Pt. 801) 221 were cited as setting out the test for the ascertainment of fair hearing.

The Appellant said that an examination of the matters that arose in the instant appeal would reveal that any dispassionate onlooker of the events would have no option than to conclude he (i.e. Appellant) was not given a fair hearing. The events/matters were catalogued as: –

(a) That by virtue of Section 7(1) of the Armed Forces Act, 1993, the Chief of Defence Staff (CDS) occupies a central role in the day to day running of the affairs of the Nigerian Armed Forces to which the Appellant belong;

(b) The Army Council has the responsibility for the command, discipline and administration of and for all matters relating to the Army and the Appellant is a member of the Nigerian Army.

(c) The Army Council is the Confirming Authority whenever there is a judgment in respect of a commissioned officer such as the Appellant pursuant to Section 152(1)(b) of the Armed Forces Act.

The above facts/events, according to the Appellant, showed glaringly that the office of the Chief of Defence Staff cannot be ignored under any guise in the administration of the affairs of the Armed Forces of Nigeria.

With specific reference to the evidence of PW1 at pages 28-29 of Volume 1 of the Record, the Appellant said that the witness disclosed the genesis of this case, to be a complaint by the Chief of Defence Staff. Aside from this, the Appellant stated that it was common ground that he was deployed to the Defence Headquarters where as the Director, Peace Keeping Operations (DPKO), he was the head of a Directorate and answerable to the Chief of Training Operations (CTOP) (then Major General S.A. Adejumo – PW4). That the CTOP was the senior officer between the Chief of Defence Staff and him (i.e. Appellant). The Appellant said that “while he was being charged for stealing money belonging to or property of the Armed Forces” he consistently insisted that the various sums of money were disbursed to PW4 and the Chief of Defence Staff at different times. In this regard, reference was made to Exhibit P1 which is at pages 477-479 and Exhibit P2 at pages 480-506 respectively of the Record. The testimony of the Appellant at pages 344- 347 of the Record was also set out and the sum total thereof, according to the Appellant, was that both the Chief of Defence Staff and PW4 were accused of complicity by him (i.e. Appellant), in what was presented as a case of stealing against him.

In the light of the provisions of Sections 148(1), (2) and (3) and 7 and 10, respectively of the Armed Forces Act 1993, which according to the Appellant deal with the confirmation of the judgment of the GCM and also show that both the Chief of Army Staff and the Chief of Defence Staff are not only complainants, but also persons who took part in the confirmation of the judgment passed against him by the GCM, the Appellant raised the poser as to what the conclusion of a reasonable man aware of the facts hereinbefore highlighted would be. The answer which the Appellant proffered is that such a reasonable man would certainly conclude that he was not afforded a fair hearing. The Appellant, in the premises, submitted that he was not accorded a fair hearing to the extent that the Chief of Defence Staff was involved in the confirmation of the judgment of the GCM by which he was convicted.

Indeed it was the submission of the Appellant that even if he had been discharged and acquitted by the GCM, the confirmation of such discharge and acquittal by the Army Council with the Chief of Defence Staff as a member, would have been, ab initio, bad in itself. The Appellant stated the settled position of the law to be that any breach of the fundamental rights provisions, rendered the acts subsequent to such breach a nullity. The case of Okafor v. A-G Anambra State (1991) 6 NWLR (Pt. 200) 659 at 678 was cited in aid. Stating that the occupants of the offices of the Chief of Defence Staff and Chief of Army Staff were the same persons in the offices at the time of the complaint which led to the investigation, prosecution, delivery of judgment by the GCM and confirmation by the confirming authority i.e. Army Council, the Appellant submitted that what ought to have happened, given the fact that he was deployed to the Defence Headquarters with the Chief of Defence Staff being his Commander, was for the said Chief of Defence Staff (who initiated the complaint) to have excused himself from participating in the sitting of the Army Council where the judgment of the GCM was confirmed. The case of Legal Practitioners Disciplinary Committee v. Chief Gani Fawehinmi (1985) 2 NWLR (Pt. 7) 300 was cited in aid. Again the Appellant submitted that there could not have been a greater breach of the rules of fair hearing in relation to him, when it is appreciated that his accusation, prosecution and trial were all generated and consummated between the Chief of Defence Staff and Chief of Army Staff. To buttress the submission, the Appellant catalogued the following: (i) that by his deployment to the Defence Headquarters as the DPKO, he was under the command of the Chief of Defence Staff; (ii) the accusation on the basis of which he was tried by the GCM was brought by the Chief of Defence Staff; (iii) the complaint of the Chief of Defence Staff was investigated by the authority of the Chief of Army Staff; (iv) the GCM was convened by the Commander Army Headquarters Garrison under the command of the Chief of Army Staff; (v) both the President and all the members of the GCM were all officers under the command of the Chief of Defence Staff; (vi) even the prosecutor in the GCM was a functionary in the command of the Chief of Army Staff; (vii) both the Chief of Defence Staff and Chief of Army Staff sat in the Council Headquarters and confirmed the sentence which the GCM passed on him (i.e. Appellant). It was submitted by the Appellant that the findings and sentence of the GCM as well as the confirmation order in respect of the same must therefore be rendered unconstitutional, invalid, null and void. Indeed it was the submission of the Appellant that apart from the general principle of fair hearing as enshrined in the 1999 Constitution, the Chief of Defence Staff being his Commanding Officer in the Defence Headquarters at the material time pursuant to Section 152(2)(b) of the Armed Forces Act 1993 was statutorily excluded from sitting or taking part in the confirmation of his sentence and that his taking part has rendered the exercise illegal and incurably bad. The case of Ihianle v. Nigeria Army (2002) 22 WRN 121 was cited in aid. The Appellant further submitted that the likelihood of bias on the part of the Chief of Defence Staff is an indication that the requirement of impartiality and independence of the confirming authority was not met. In this regard the Appellant said that it was humanly impossible for the Chief of Defence Staff, whom he had accused of complicity, not to be biased against him. The cases of Oyelade v. Araoye [1968] 1 NMLR 41; Abiola v, Federal Republic of Nigeria (1995) 7 NWLR (pt. 405) 417; and Chevron Nig. Ltd v. Onwugbelu (no citation) were cited in support of the submission. In concluding on the Issue under consideration, the Appellant urged this Court to set aside the judgment of the GCM as null and void ab initio, since the said judgment was confirmed in breach of the provisions of Section 36(1) of the 1999 Constitution and Section 152(2)(b) of the Armed Forces Act 1993.

The Respondents dealt with the Issue of breach of fair hearing raised by the Appellants under their Issue 1. Respondents’ Issue 1 Is distilled from ground 5 of the grounds of appeal. The Respondents highlighted the contentions of the Appellant on the Issue of breach of his right to fair hearing as being based on the following: (i) that the 3rd Respondent – i.e. Chief of Defence Staff (CDS) laid the complaint which led to the investigation of the Appellant; (ii) that the CDS from information which the Appellant claimed was given to him by the PW4, was a beneficiary of some of the sums of money the Appellant was said to have stolen; (iii) that since the judgment of the GCM is not one properly so called, until confirmed by the confirming authority – the Army Council, and as the CDS is a member of the said Council, the trial, conviction, sentence and ultimately the confirmation of the sentence of the Appellant all suffered a fundamental vice as the CDS was the accuser and judge over the Appellant, which is in violation of Section 36 of the 1999 Constitution.

It was the submission of the Respondents that apart from reason (i) above, which finds support in the evidence of PW1 at pages 28-29 of the Record, there is no scintilla of evidence to support reason (ii) save the uncorroborated extra judicial statement of the Appellant (i.e. Exhibit P1) and the testimony of the Appellant at pages 344-347. It was the further submission of the Respondents that Exhibit P1 and the testimony of the Appellant only suggested that PW4 told the Appellant that the 3rd Respondent told him (i.e. PW4) to tell the Appellant certain things and that this, to say the least, amounted to no more than hearsay evidence which is not admissible especially when the Appellant is asserting the truth of the information. Section 77(b) of the Evidence Act was referred to in this regard. The cases of Kala v. Potikum & Ors (1998) NWLR (pt.540) 1 at 15-16; Subramanian v. Public Prosecutor (1956) 1 WLR 965; and Maigoro v. Bashair (2000) 11 NWLR (pt. 679) 456, 472-473 were also cited in aid. The point was made that the Appellant never confronted PW4 with the allegation in order to substantiate the same or to remove it from the realm of hearsay evidence. And that he failed to call the said CDS (i.e. 3rd Respondent) as a witness so as to confront him with the allegation despite having the burden of proving allegations made by him pursuant to Section 137 of the Evidence Act, Cap. 112Â Â LFN, 1990. The submission of counsel no matter how brilliant, the Respondents said, cannot take the place of evidence and the case of Obasuyi v. Business Ventures Ltd (2000) 5 NWLR (pt. 658) 668 was cited in aid. It was again the submission of the Respondents that the involvement of the 3rd Respondent to be relevant or useful to this case, the said involvement must be based on accepted facts or evidence before the GCM and the case of Ikpo v. The State (1995) 9 NWLR (pt. 421) 540 at 551 was cited in aid. In conclusion the Respondents submitted that reason (ii) under consideration is faulty, baseless and unsupported by evidence led at the trial and cannot support the Appellant’s contention.

Dwelling on reason (iii) it was the submission of the Respondents that the same can only be sustained if the Appellant showed that the 3rd Respondent took part in the proceedings of the Army Council whereat the conviction and/or sentencing of the Appellant were confirmed and that the burden in this regard is on the Appellant by virtue of Section 137 of the Evidence Act. This, according to the Respondents, is because it is the Appellant that would lose in his contention that the 3rd Respondent took part in the proceedings unless he leads evidence on the point. The Respondents referred to Exhibit J01 annexed to the affidavit in support of the Appellant’s motion on notice dated and filed before this Court on 3/7/2006 for departure from the Rules and which they said forms part of the Record in this appeal. The Respondents stated that there was nothing in Exhibit J01 showing that the 3rd Respondent participated in the proceedings of the Council and that no member of the Council was called by the Appellant to prove this fact.

This was said to be fatal to the Appellant’s contention. The Respondents referred to Section 9(2) and (6) of the AFA and submitted to the effect that although the 2nd and 3rd Respondents are statutory members of the Army Council, it was not on all occasions they must attend or participate in the Council’s proceedings or deliberations and that in the absence of any evidence that the 3rd Respondent took part in the relevant Council proceedings or was in attendance, this Court cannot hold the statutory membership eo ipso means his attendance and/or participation at the Council’s confirmatory proceedings. It was further contended that to do this in the absence of evidence would amount to speculation and this, both the Supreme Court and this Court in many decisions, had held is not within the province of a court. The cases of Igabele v. The State (2006) 6 NWLR(pt. 975) 100 at 119; Agbi v. Ogbe (2006) 11 NWLR(pt.990) 65 135; Skypower Airways Ltd v. Olima (2005) 18 NWLR(Pt. 957) 224 at 256 were cited in aid. Dwelling on the case of Ihianle v. The Nigeria Army (supra) cited by the Appellant, the Respondents said that there was ample evidence showing that Major General P.N. Aziza was the General Officer Commanding (GOC) Lagos Garrison Command and that he was the appellant’s Commanding Officer. The Respondents further said that in the case under reference there was evidence showing that the said GOC was the confirming authority who confirmed the decision of the GCM that tried the appellant in the case. The case was said not to be helpful to the Appellant as there was no evidence of the participation of the 3rd Respondent in the instant appeal.

Assuming without so conceding that the 3rd Respondent took part in the proceedings of the Army Council for the determination of the Appellant’s conviction and sentences, the Respondents submitted that this did not amount to a violation of the principle of nemo judex in causa sua. This the Respondents submitted is because the 3rd Respondent, having regard to the statutory role conferred on him by Sections 7(1) and 10(1) and (2) of the AFA and his statutory membership of the Army Council, is by the doctrine of necessity not precluded from laying a complaint, overseeing the proceedings of the GCM, and/or as claimed by the Appellant, participating in the proceedings of the Army Council for the confirmation of the conviction, forfeiture order and sentences passed by the GCM on the Appellant. All of these the Respondents said the 3rd Respondent could do, notwithstanding the unproved allegation of his involvement in the transactions for which the Appellant stood trial. The case of Ex parte Olakunrin (1985) 1 NWLR (Pt. 4) 652 at 669-670 was cited in aid. The Respondents said that Sections 18(3) and 7(1) of the AFA charged the 2nd and 3rd Respondents with the responsibility of controlling the day to day activities of the Nigerian Army and Nigerian Armed Forces respectively and that the AFA equally made them members of the Council charged with the responsibility of confirming the convictions and sentences passed by a GCM on commissioned officers in Section 152. Section 152(2) of the AFA, the Respondents said, provides for a certain category of officers prohibited from confirming the finding or sentence of a GCM and neither the 2nd Respondent nor the 3rd Respondent is caught by the disqualification in the said Section. It was the submission of the Respondents that in view of the indispensable roles played by the 2nd and 3rd Respondents in the day to day command and superintendence of the Nigerian Army and Nigerian Armed Forces, they are by necessary intendment precluded from the operation of the doctrine of a man not being a judge In his own cause. It was the further submission of the Respondents that circumstances of the instant case constituted an exception to nemo judex in causa sua principle as the AFA being fully aware of such an eventuality made the 2nd and 3rd Respondents statutory members of the Army Council. The participation of the 3rd Respondent in the Council’s confirmation proceedings (even if true but which is not conceded) therefore did not violate the Appellant’s right to fair hearing as enshrined in Section 36 of the 1999 Constitution.

This is more so as the Appellant did not show that the 3rd Respondent influenced or brought to bear any pressure, undue influence or intimidation on the prosecution or members the GCM so as to pervert the cause of justice. In this regard reference was made to the commendation accorded the GCM by the Appellant’s counsel at page 19 of the Record in the following words: –

“…. but we do believe that as a Court there was nothing that you have brought to bear outside what has transpired before this Honourable Court before reaching a decision”.

The Court was urged to resolve this Issue in favour of the Respondents.

It is now not in doubt that the provision of Section 36(1) of the 1999 Constitution has entrenched the common concept of natural justice with its twin pillars namely:

(i) that a man shall not be condemned unheard or what is commonly known as ‘audi a/teram patem’; and

(ii) that a man shall not be a judge in his own cause or ‘nemo judex in causa sua’:

See BILL CONSTRUCTION CO. LTD v. IMANI & SONS LTD/SHELL TRUSTEES LTD (A JOINT VENTURE) (2006) 11-12 SC 90 at 93- 94.

The law is settled that it is the person who alleges the breach of the rules of fair hearing that has the burden of proving same, and in addition that whether a trial or proceeding had been fair or not, depends on the facts and circumstances of each case. See also ALHAJI RAUFU GBADAMOSI V. OLAITAN DAIRO (2007) 1 SC (Pt. II) 151 at 171-172; and AUGUSTINE MAIKYO V. W.E. ITODO & ORS (2007) 3 SC (Pt. II) 34 at 54.

It has been argued in the Appellant’s brief that the second concept of the rules of natural justice has been violated because the 3rd Respondent is both the accuser of the Appellant and judge in that he participated in the confirmation of the sentence passed on the said Appellant by the GCM. The 3rd Respondent is said to be the accuser of the Appellant because PW1 in his evidence at pages 28-29 of the Record disclosed “the genesis of the case to be, a complaint by the Chief of Defence Staff”. I consider it appropriate to re-produce the relevant testimony of PW1 that has bearing on the issue in full. It reads: –

“P.: I want you to take a look at the senior officer seated by your right and tell the court if by chance you know him.

PW1: Yes my Lord, it was in March this year that I come (sic) across Brigadier General JO Abdullahi.

P. You mean his name is Brigadier General Abdullahi?

PW1: Yes my Lord.

P. How did you come across him?

PW1: It was when I investigated in March a case of misappropriation of funds at (DHQ) Defence Headquarters.

P. You investigated a case?

PW1: Yes my Lord.

P. Please tell the court, all about it.

PW1:Thank you very much, it was in March this year that I came with Commander SIB Colonel Pat Akem who was then the leader of the investigation team on the case that was reported from DHQ. It was an investigation reported by the CDS to the COAS which COAS consequently, authorized the Provost Marshall to carry out a detailed investigation. My Lord, on arrival at Abuja we went to the DHQ where we were briefed, and immediately we commenced investigation. ”

The witness was cross-examined by learned counsel for the Appellant and it was elicited from him that a written report was made at the end of the investigation and that the said report was submitted to the Provost Marshal of the Nigerian Army.

The Chief of Defence Staff by virtue of the AFA is vested with the day to day command of the Armed Forces (not only the Army) subject to the general direction of the President and the National Assembly. The AFA equally provides for the appointment of Service Chiefs, namely Chief of Army Staff in the case of the Nigerian Army; Chief of Navy Staff in the case of the Nigerian Navy; and Chief of Air Staff in the case of the Air Force. Subject to such directions as to the operational use of the Army, Navy and Air Force, each of the Service Chiefs has the command, direction and general superintendence of the arm of the Armed Forces to which he belongs. The Appellant having regard to his rank and which fact is also glaring from the Record, was an officer in the Nigerian Army and clearly under the command of the Chief of Army Staff. All that the evidence of PW1, earlier re-produced show, is that the Chief of Defence Staff reported the case of misappropriation of funds – which the said witness investigated – to the Chief of Army Staff. I do not see how this by any stretch of imagination can constitute the Chief of Defence Staff as an accuser of the Appellant. All that is discernible or deducible from the evidence of PW1 and the relevant provisions of the AFA earlier referred to, is that the Chief of Defence Staff simply referred the matter of misappropriation of funds involving an Army Officer to the Chief of Army Staff who has the command, direction and general superintendence over the Nigerian Army for investigation. I do not find the facts of this case as disclosed by the evidence to show or establish the Chief of Defence Staff as the Accuser of the Appellant in respect of the offences for which he was charged, tried, convicted, sentenced and confirmed by the Army Council. Nor can it be said that the CDS investigated the case of misappropriation of funds involving the Appellant.

It was also argued by the Appellant, that the Chief of Defence Staff having been accused by him (i.e. Appellant) of complicity, in what was presented as a case of stealing against him was thereby a judge in his own cause.

I cannot but say that it is most clear from the testimony of the Appellant both during his examination in chief and especially under cross examination that he offered no factual basis for the accusation of complicity he made against the Chief of Defence Staff. Under cross examination the Appellant made it clear (i) that he did not have any direct dealing with the CDS; (ii) that he is not close to the CDS in any respect; (iii) that he has official interaction with the CDS only if he (i.e. CDS)sends for him, as protocol does not allow him to go to see the CDS on his own.

The only evidence of complicity which the Appellant therefore relies upon is what he claimed PW4 told him and as rightly submitted by the Respondents in their brief of argument, what the Appellant said in this regard is purely hearsay. In the circumstances, I find that the accusation of complicity on the part of the CDS is baseless. It therefore definitely cannot translate into the 3rd Respondent (i.e. CDS) being a judge in his own cause. An allegation of the violation of the Appellant’s right to fair hearing can definitely not be founded on an unproven accusation.

The Respondents have argued that the burden is on the Appellant to show the violation of his right to fair hearing and that the Appellant has failed to discharge the said burden. It was submitted that the Appellant had to show that the 3rd Respondent participated in the proceedings of the Army Council that confirmed the verdict of the GCM and that this, the Appellant failed to do.

The case of Ihianle v. Nigeria Army Council (supra) was cited by the Appellant to show that a finding of guilty made by a Court Martial shall not be treated as a finding or sentence of the Court Martial until it is confirmed. It would appear that this clearly shows that the proceeding of the confirming authority (i.e. Army Council) is part and parcel of the proceedings of a GCM. It is noted that the Appellant at page 34 of his brief of argument displayed/exhibited or set out the content of the letter dated 7/4/2006 by which the Army Council confirmed the GCM’s sentence in relation to him. The Appellant would appear not to have the presence of mind to place before this Court the proceedings of the Army Council which is the precursor of the letter of 7/4/2006 by making the same part of the Record of Appeal. This Court being an appellate court deals principally with printed records. If an appellant however sees the need to adduced additional or fresh evidence, for the purpose of his appeal, nothing stops him from making appropriate application for that purpose. It is for the Court to decide whether or not the application will be granted. The situation in the instant appeal is that there is indeed no iota of evidence remotely showing that the 3rd Respondent was among the members of the Army Council that sat to confirm the sentence passed on the Appellant by the GCM, talk less of his having participated in the proceedings of the Council whereat the confirmation was done.

While it is not in doubt that Section 9 of the AFA provides for the membership of the Army Council, it is equally not in doubt that the law does not make it compulsory that all the members must sit or be present at any of the Council’s proceedings to make it valid. This underscores the need for the Appellant who has alleged that the 3rd Respondent violated his fundamental right to fair hearing by participating in the Council’s proceedings to establish this from the facts of this case.

I cannot agree more with the Respondents that the Appellant has failed most woefully to do this. Accordingly, I have no difficulty in holding that the alleged breach of the Appellant’s right to fair hearing in that the 3rd Respondent who had every reason to be biased against the Appellant because he alleged complicity against him in the offence of stealing for which he was charged; that he (CDS) was the Appellant’s accuser; he (CDS) was the Appellant’s commanding officer; all fizzle to nothingness given the total lack of any fact whatsoever, establishing that the said 3rd Respondent ever sat with the members of the Army Council that confirmed the sentence of the GCM passed on the Appellant. See the case of MAJOR BELLO M. MAGAJI V. THE NIGERIAN ARMY [2008] All FWLR (Pt. 420) 603; or (2008) 34 NSCQR 108 at Pages 144-145 where Tobi, JSC; reiterated what he said in the case of Orugbo v. Una (2002) 16 NWLR (pt. 792) 175 at 211-212 on the principle of fair hearing thus: –

“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial court. But it is not so and it cannot be so.

The fair hearing constitutional provision is designed for both parties in ‘litigation, in the interest of fair play and justice. The courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on facts of the case before the court.

Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.”

The facts of instant case on appeal having regard to the Record before this Court do not support the invocation of the principle of fair hearing in favour of the Appellant as I do not see where the Appellant’s right to fair hearing was violated or contravened.

Appellant’s Issue 1 is therefore resolved against him.

ISSUE 2

The Appellant, having first re-produced extensively the proceedings of the GCM, submitted in the main that the failure of the said GCM to state the reasons or basis for reaching its decisions was fatal to the judgment. This it was further submitted made the judgment perverse and has occasioned a grave miscarriage of justice to the Appellant. The Appellant cited the case of Idakwo v. Nigerian Army (2004) 2 NWLR (Pt.857) 249 in support of his submissions and quoted extensively from the said decision. It was also submitted by the Appellant that it is when the a trial court gives reasons for its decision that it could be said to have satisfied yet another of its primary duties of evaluating the evidence of witnesses whose testimony the court heard and demeanour it observed – and which duty the GCM did not discharge in the instant case. The Appellant also observed that it was not shown anywhere in the record of proceedings that the GCM even gave the opinion of the Judge Advocate any consideration. The Appellant submitted that this was a proper case in which this Court should evaluate the evidence tendered as they were largely documentary given the situation that the GCM failed to evaluate the evidence placed before it in the determination of his guilt.

Dwelling on the Issue under consideration in their own Issue 2, the Respondents said that the submissions of the Appellant were highly misconceived and blatantly overlooked the essential nature of trials before Courts-Martial such as the GCM in the instant case. It was submitted by the Respondents that trial by a Court Martial has been recognized by this Court as being akin to trial by a jury and therefore a GCM, in arriving at its decision, is not expected to write a judgment wherein reasons for same would be given and evidence reviewed as would a court manned by a legally trained judicial officer. The failure to do all of these things, the Respondents further submitted, did not occasion a miscarriage of justice. The cases of The Nigerian Army v. Lt. Col. D.K. Ajia (Unreported) Appeal No. CA/L/9M/98 delivered on 6th July, 2000; Komonibo v. Nigerian Army (2002) 6 NWLR (pt, 762) 94 at 114- 115; Ameachi Gbasduzour v. Nigerian Army (Unreported) Appeal No. CA/L/324/98 delivered on 28th September, 2000; and Akande v. Nigerian Army (2001) 8 NWLR (pt. 714) 1 at 21 were cited in aid.

It was submitted by the Respondents in the main that the findings of the GCM in the instant case were announced in compliance with the provisions of Section 141 of AFA and Rule 67(1) of the Rules of Procedure (Army) 1972. It was stressed that in the instant case, the GCM gave the prosecution and the Appellant full opportunity to present their respective cases. Also that the Appellant in particular fully cross examined the witnesses called by the prosecution and the court and he also testified freely and without intimidation from any quarters. All of these, the Respondents submitted, met the test in Oyah v. Ikalile (1995) 7 NWLR (Pt 406) 150 which this court relied upon in the case of Akande v. Nigerian Army (supra) wherein it stated that a Court-Martial is a lay tribunal for which too high a standard of expectation in adjudicatory matters cannot be set as it is a body that is made of men of common sense. It was pointed out by the Respondents that the duty of reviewing, evaluating and/or assessing evidence led at a trial before a GCM is that of the Judge Advocate as provided under Rule 64 of the Rules of Procedure (Army) 1972, which the Judge Advocate in the instant case not only did, but with which learned counsel for the Appellant was exceedingly satisfied given counsel’s commendation of the Judge Advocate, as shown at page 19 of the Record. The Respondents also described as barren the submission of the Appellant that the GCM did not consider the opinion of the Judge Advocate. This particular submission of the Appellant was also described as unsupportable by evidence as he has not shown that he witnessed the deliberations of the members of the GCM, but also that the GCM was not obligated to state that it considered the summing up of the Judge Advocate before arriving at its decision. This Court was urged to hold that all that is required of a GCM is to give its finding or verdict in the open without having to do so in writing and thereby give effect to the manifest intention of the legislature by the use of the words “the finding of a court-martial on each count shall be announced” as used in Section 141(1) of AFA as against the phrase “deliver its decision in writing” used in Section 294 of the 1999 Constitution. This Court was also urged not to follow the decision in the Idakwo case (supra) as the jury nature of trial before a Court-Martial was not considered in the case even though the Court’s attention was drawn to the same. It was stated that if this Court had considered the jury nature of such a trial, it would have reached a different verdict. In conclusion the Court as urged to resolve the Issue under consideration in the Respondents’ favour and dismiss the appeal.

I have read the cases cited by both the Appellant and the Respondents in support of their diametrically opposed stance on the Issue under consideration. It is obvious from the cases, that the decisions of this Court on the Issue as to whether or not a GCM is expected to state the reasons or basis for reaching its decision, are parallel.

In the cases cited by the Respondents in their brief of argument, it is indisputable that this Court consistently held to the effect that a GCM is not obliged to give reasons in pronouncing its verdict, and that this is in consonance with the GCM’s jurisdiction as prescribed under the AFA.

Indeed in the case of Komonibo v. Nigerian Army (supra) cited by the Respondents, it was held amongst others that an appeal against the verdict of the jury, as in General Court Martial matters, should attack the summing-up by way of non-direction or misdirection and that the issue of whether or not the General Court Martial was enjoined to give reasons for its verdict must be resolved by having recourse to the AFA, and not some other law such as the Criminal Procedure Act or Criminal Procedure Code.

Conversely In the case of Idakwo v. Nigerian Army (supra) cited by the Appellant, this Court was emphatic that it is mandatory for a General Court Martial to give reasons for its decision or judgment based on facts and evidence presented before it. As recently as 4th day of June, 2008 this Court adhered to the trend in the Idakwo case. In this regard see the Unreported Judgment delivered in APPEAL NO. CA/A/98/C/08 – BRIGADIER GENERAL MAUDE AMINU-KANO V. NIGERIA ARMY & ANOR on 4/6/2008.

Having read the cases which have clearly brought out the parallel position of this Court on the Issue under consideration, I am Inclined to follow the recent decisions of this Court that require a GCM to state reasons for its decision, because of the danger to the administration of justice/miscarriage of justice inherent in an adjudicatory body of any kind not showing reasons for its decision on the face of its judgment.

However, having come across the decision in the case of MAJOR BELLO M. MAGAJI V. THE NIGERIAN ARMY [2008] All FWLR (Pt.420) 603 in the course of writing this judgment, I now do not believe that I have the luxury of a choice in the matter anymore. The case under reference was decided by the Supreme Court on 7th March, 2008.

Therein the Supreme Court, per Ogbuagu, JSC, specifically dealt with the criticism of the judgment of the GCM at pages 638-639. I will now re-produce what His Lordship said:-

” In concluding this issue, I note that at page 12 of the appellant’s brief, the conviction and sentence by the General Court Martial has been criticised. It is therein stated that it delivered its judgment in fourteen words at page 44/45 of the records as follows:

‘This court having (meaning having) deliberated carefully on this case, we find the accused officer guilty’.

It is submitted in the appellant’s brief that beyond this remark, the General Court Martial did not consider all the issues raised before it and did not state the reasons for its verdict thereby leaving room for arbitrariness …

It must be borne in mind that the General Court Martial cannot be equated to the regular courts where strict procedures are required. It is no more than a tribunal and at best, it can be equated to jury trial. Even in the regular courts, it has been stated that and restated that there is no specific style of writing a judgment. See the cases of Adamu v. The State (1991) 6 SCNJ 33 at 40 and Awobajo & 6 Ors v. The State (2001) 12 SCNJ 293. It is not contended by the appellant’s learned counsel, that the ruling of the General Court Martial is not the style it adopts in the trial of offences by it.

The Court below, at page 386 of the records, stated inter alia, as follows:

‘ ….. I agree with the learned counsel for the respondent that by its very nature, a Court Martial being akin to a jury trial has no compelling duty under the law to be detailed in its judgment in the manner of regular courts. See L.T. Col. KD Ajia v. Nigerian Army (Unreported) Ref. CA/L/9M/98 delivered on 6th July, 2000. I do not think that in the absence of an elaborate, detailed written judgment by the Court Martial, as contended by the appellant in this appeal, that alone should be the ground to set aside the judgment of the court, once the essential ingredients of the offence of sodomy was established beyond reasonable doubt’.

I also agree. My answer to this issue is in the affirmative/positive.”

Given the pronouncement of His Lordship quoted above, and applying the doctrine of precedence or stares decisis, I am of the firm view that this Court must now revert to and decide any challenge to the validity of the decision of a GCM on the ground that it does not disclose reasons therefor bearing- in mind that a GCM being akin to a jury trial as well as by the laws applicable to it, is not under any duty to give reasons for its decision unlike a regular court. In the light of the case cited hereinbefore, I am therefore unable to hold that the non-stating by the GCM of the reasons for its decision in the instant case vitiates its decision as the Appellant has invited this Court to pronounce.

From all that has been stated Appellant’s Issue 2 is therefore resolved against him.

ISSUE 3

In arguing this Issue, the Appellant adopted his submissions on Issue 1 and further submitted that given the peculiar facts of this case a situation has arisen for this Court to embark on the evaluation of the evidence on record in order to determine whether the prosecution discharged its burden under section 138(1) of the Evidence Act. The case of Ukana v. COP (1995) 8 NWLR (pt. 416) 705 at 722 was cited as setting out the elements of the offence of stealing, and it was submitted to the effect that the prosecution has to prove the elements in question beyond reasonable doubt to sustain a conviction. The cases of Eze v. Republic (1987) 1 NWLR 506 and Clark v. State (1986) 4 NWLR 381 were cited in aid. The Appellant said the allegation in the charge preferred against him is that he stole the total sum of N33.5Million and submitted that the prosecution had to prove that he fraudulently converted the money to his own use. He said that the evidence before the GCM however did not establish this and the other ingredients of stealing but that what appeared glaring on the record, was the complicity of PW4 in relation to the alleged theft. The Appellant said rather than assist in the proof of the ingredients of the offence of stealing against him, the statements of PW4 and CW1 clearly showed their involvement in the transaction giving rise to the criminal charge.

The contradictions and conflicts in the statements of these two witnesses, the Appellant said all stem from a desperate attempt to claim ignorance of the entire transaction and to distance themselves from the Appellant. The Appellant delved into the evidence of PW4 and highlighted the reasons why same was not worthy of belief.

Dwelling on Exhibit P19, the Appellant said it was an account or explanation by Group Capt. Akpofure for the N54 Miliion received for Troop Rotation. The Appellant said that the validity of the Exhibit was not questioned by the complainant and that neither was the maker put on trial. Rather desperate efforts were made to say that the Appellant drafted the letter and got Akpofure to sign the same. Exhibit P19, the Appellant further said, underscored the conspiracy between PW4 and CW1 because if they were not working in concert, CW1 would have stated that about N58 Miliion was received as Troop Rotation fund and not N54 Million. The Appellant raised the poser as to how the GCM could have inferred fraudulent intent on his part to deprive the Nigerian Armed Forces permanently of the total sum of N33,500,000.00 in the light of Exhibit P19.

Dwelling on the consequence of his acquittal on the Count of making Exhibit P19, the Appellant, in the main submitted that as the acquittal meant that the content of Exhibit P19 was not false, he ought not to have been held responsible for stealing the money which was promised to be made available later. The person to make the money available later having regard to the totality of evidence, the Appellant submitted is none other than PW4 who instructed him (i.e. Appellant) to make the withdrawals and to whom the money withdrawn was handed. The Appellant submitted that the fact that he went to withdraw the money, simpliciter, was not evidence of stealing. Also the fact that he (i.e. Appellant) admitted receiving the total sum of N7 Million given to him at various times by PW4 was equally not evidence of stealing in the absence of evidence showing that he took the money fraudulently and converted it for his own use. The case of Chinuobo v. State (2002) 2 NWLR (pt. 750) 225 was cited in aid. The Appellant further submitted that he ought to have been given the benefit of the doubt as one of the two possibilities unfolded by the evidence before the GCM suggested that he did not steal the money he is alleged to have stolen. The case of State v. Onyeukwu (2004) 14 NWLR (pt. 893) 340 at 379 was cited in aid. The Appellant also submitted that if a department of the Armed Forces whose funds were allegedly stolen, has admitted in an official communication, the whereabouts of the allegedly stolen funds, then he (i.e. Appellant) who is alleged to have stolen the money ought to be excused and be given the benefit of Exhibit P19, rather than be sacrificed as a scapegoat. The case of Onafowokan v. The State (1987) 3 NWLR (Pt. 61) 538 at 546 was cited in aid. The Appellant submitted that the prosecution did not prove the offences preferred against him beyond reasonable doubt and in this regard again in the main relied on Exhibit P19. It was again submitted by the Appellant that the fact that he withdrew money and gave it to PW4 when it was apparent to him that the money was not to be used for the purpose it was given was only evidence of lack of diligence on his part but not evidence of conversion. It was likewise submitted that the fact that PW4 undertook to refund the money completely exonerated the Appellant from knowledge of any fraudulent intent to convert the money by PW4 and that it was for this reason that Exhibit P19 reiterated the undertaking to refund the balance. The Appellant submitted that from the circumstances of this case, the evidence pointed irresistibly to the fact that PW4 was responsible for the N33.5Million he (i.e. Appellant) was accused of stealing.

Dwelling on the matter of his property in respect of which the GCM made a forfeiture order, the Appellant submitted that the prosecution failed to show by evidence that the said property was built with the money he was alleged to have stolen. The decision of the GCM in this regard the Appellant submitted is contrary to Section 174(1) of the AFA 2004. It was also submitted that the case of Ogunlana v. State (1995) 5 NWLR (Pt. 395) 256 cited by the prosecution did not support the decision of the GCM forfeiting the Appellant’s property. Likewise the case of Chianugo v. State (2002) 2 NWLR (Pt. 750) 225 was cited to show that the fact that the Appellant was found to have low earning power is not evidence of stealing. The Appellant having also submitted that both PW4 and CW1 are tainted witnesses and highlighting the reasons in this respect, concluded that he would definitely have been acquitted on all the six counts preferred against him, had the GCM properly evaluated the evidence before it. The Appellant would however appear to have conceded that the prosecution proved (i) that the various sums he was alleged to have stolen were indeed something capable of being stolen; and (ii) that they are properties of the Nigerian Armed Forces.

The Respondents treated the Issue of the conviction of the Appellant under their Issue 3 which deals with whether or not the GCM rightly convicted the said Appellant based on the evidence adduced at the trial. In this regard, the Respondents dealt with the proof of Counts 1-4 and Count 6 separately and engaged in considerable review of the evidence of witnesses considered relevant for the purpose of showing that the GCM was right in convicting the Appellant. I will refer to the relevant submissions made by the Respondents at the appropriate time. It has earlier been stated that the Appellant was charged with 4 Counts of stealing in the Charge Sheet dated July 2005 and signed by Colonel M.B. Adamu. The Charge Sheet is at pages 25A-25B of the Record. Aside from the stealing counts, the Appellant was also charged with a count of making false official document – Count 5; and another count of Conduct to the prejudice of good order and service discipline  – Count 6. The Appellant was discharged and acquitted on Count 5- making false official document. He was convicted on the 4 Counts of stealing i.e. Counts 1-4 and Count 6 – Conduct to the prejudice of good order and service discipline.

Each Count of stealing relates to Service/Public property allegedly stolen by the Appellant for a given period. The sum of N8,000,000.00 property of the Nigerian Armed Forces the Appellant is alleged to have stolen in Count 1, was alleged to have been stolen by him on or about 23rd August, 2004; that of N5,300,000.00 in Count 2 was alleged to have been stolen on or about 7th September, 2004; that of N15,500,000.00 in Count 3 was alleged to have been stolen on or about 14th October, 2004; and that of N4,700,000.00 in Count 4 was alleged to have been stolen on or about 22nd October, 2004.

In his brief of argument the Appellant cited the case of Ukana v. C.O.P. (supra) as setting out the ingredients of the offence of stealing which the prosecution must establish beyond reasonable doubt to sustain a conviction in respect of Counts 1-4. In their brief of argument the Respondents likewise cited the same case and that of Chianugo v. The State (2002) 2 NWLR (Pt. 750) 225, in relation to the offence of the elements of the offence of stealing under the Criminal Code. The Appellant equally cited this case in his brief of argument. The Respondents however went further to state the ingredients of the offences charged in Counts 1-4 given their tenor to be:

1. That the Appellant is a person subject to service law and jurisdiction of the GCM;
2. That the various sums of money specified in Counts 1-4 are capable of being stolen;
3. That the Appellant was concerned (in whatever form) in the stealing of the various sums of money specified in the Counts;
4. That the stolen money specified in each Count is the property of the Nigerian Armed Forces; and
5. That the Appellant by his conduct permanently deprived the Nigerian Armed Forces of its ownership of the various sums of money as specified in each of Counts 1-4.

While reviewing the submissions of the Appellant, I have earlier stated to the effect that he appeared to have conceded that the prosecution established (i) that the various sums he was alleged to have stolen were indeed something capable of being stolen; and (ii) that they are properties of the Nigerian Armed Forces. This is because the Appellant at paragraph 10.6, on page 69 of his brief, said thus: –

“Much as it may be conceded that out of the ingredients of stealing, the prosecution was able to show that (1) money was something capable of being stolen and (2) it is the property of the service of Nigerian Armed Forces, the Prosecution failed to show that the Appellant was dishonest and that he took the money as a matter of fact, one of the important elements of the offence of stealing, which is the intention to permanently deprive the owner of the thing stolen was not proved. Not only was it not proved that the Appellant took the money, there is in fact Exhibit “P19″ made on the authority of the agents of the owner explaining the where about of the money. EXHIBIT P19 actually promises to make the money available at some further time.”

Given the above concession by the Appellant, I do not think that time and energy need be wasted on wading through the evidence to see whether or not the sums of money the Appellant is alleged to have stolen are indeed something capable of being stolen and/or that they belonged to the Nigerian Armed Forces. In any event, given the unchallenged evidence of PW1 on Record to the effect that the funds of N58,874,471.59 and N12,500,000,00 allegedly misappropriated by the Appellant were for Troop Rotation of the Nigerian Armed Forces coupled with the nature of money which is obviously inanimate and moveable, I do not see how it can be successfully argued that the prosecution did not establish the fact that the sums of money the Appellant is alleged to have stolen indeed belonged to the Nigerian Armed Forces and capable of being stolen. I therefore agree with the submission of the Respondents in their brief of argument that the prosecution proved that the various sums the Appellant was alleged to have stolen being in the nature of chattels and moveable are not only capable of being stolen, but also that the said sums of money belonged to the Nigerian Armed Forces.

The Appellant has argued tenaciously that the prosecution failed to show that he was dishonest and that he took the money he is accused of stealing. That indeed one of the important elements of the offence of stealing, which is the intention to permanently deprive the owner of the thing stolen was not proved. Not only did the Appellant say that it was not proved that he took the money, he also relied on Exhibit “P19”, made on the authority of the agents of the owner explaining the where about of the money as exonerating him of stealing the money he was accused of having stolen. EXHIBIT P19, it was also said, actually promises to make the money available at some further time.

I am of the firm view that the Appellant having regard to the arguments highlighted above, and indeed other submissions in his brief of argument in support of his stance that the offence of stealing was not proved against him beyond reasonable doubt comfortably lost Sight of Exhibit P1 – his statement which he confirmed under cross-examination to have made Voluntarily, and his testimony under cross-examination.

Before now I have said to the effect that the money belonging to the Nigerian Armed Forces which the Appellant is alleged to have stolen on or about 23rd August, 2004 having regard to Count 1 is the sum of N8,000,000.00. Under cross-examination, the Appellant admitted cashing the cheque for the said sum. He said further that he gave the money to PW4. In this regard see pages 399-401 of the Record and the cheque i.e. Exhibit P14 at page 554. Also the money of the Nigerian Armed Forces which the Appellant is alleged to have stolen on or about 7th September, 2004 having regard to Count 2 is the sum of N5,300,000.00. Under cross-examination the Appellant admitted that he cashed the cheque in the said sum. In this regard see pages 402-403 of the Record and the cheque i.e. Exhibit P15 at page 554. Again the money belonging to the Nigerian Armed Forces which the Appellant is alleged to have stolen on or about 14th October, 2004 having regard to Count 3 is the sum of N15,500,000.00. Under cross-examination the Appellant admitted that he cashed the cheque in the said sum and that it was not used for Troop Rotation. In this regard see pages 403; and 406-407 of the Record and page 555 for the cheque i.e. Exhibit P16.

Lastly, the money belonging to the Nigerian Armed Forces the Appellant is alleged to have stolen on or about 22nd October, 2004 having regard to Count 4 is the sum of N4,700,000.00. Under cross-examination the Appellant admitted cashing the cheque in the said sum. See page 404 of the Record and page 555 for the cheque i.e. Exhibit P17.

The Appellant in his evidence in chief as well as under cross-examination left no one in doubt that he knew the specific or particular purpose the funds in the account from which he withdrew these various sums of money were meant for and which is for Troop Rotation. He also left no one in doubt that he never handed over the sums of money which he withdrew, to the appropriate authority, or anyone at all, to be used for the designated purpose. He claimed to have given the sums of money to PW4 for the use of the said witness and also for the use of the CDS. He however admitted the receipt of N7,000.000.00 from PW4. Given his evidence as highlighted above, the Appellant still argued that the prosecution did not establish the intention on his part to permanently deprive the owner of the money i.e. Nigerian Armed Forces of the same.

I consider this argument to be rather ludicrous in that it is simply incomprehensible to me how a person who admits giving away what belongs to another person (without the consent of that person) to some other persons for them to use as they wish, can be heard to say that he had no intention to permanently deprive the person who owns the thing given out, of it The Appellant by his own evidence that he gave away money which he knows to belong to the Nigerian Armed Forces and meant to be used for Troops Rotation, to PW4 for his personal use, as well as for the use of the CDS has clearly established his intention to permanently deprive the Nigerian Army of the various sums of money that he withdrew. The fact that he also admitted receiving a windfall in the sum of N7,000,000.00 from the said sums which he withdrew underscores this.

The law is settled that the guilt of an accused person may be proved by confessional statement(s); circumstantial evidence; or direct evidence from eye-witnesses to the commission of the offence. See NIGERIAN NAVY & 2 ORS V. L.T. COMMANDER S.A. IBE LABERT (2007) All FWLR (pt.398) 574 at 585 – 586.

Proof beyond reasonable doubt, decided cases have consistently held, does not mean proof beyond any shadow of doubt. Once the proof of a case as offered by the prosecution drowns the presumption of innocence of the accused, the court is entitled to convict him although there could exist shadows of doubt. The moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner of the mens rea or actus reus or both, the prosecution has discharged the burden placed on it by section 138(3) of the Evidence Act. Indeed the case of MONSURU SOLOLA & ANOR V. THE STATE (2005) All FWLR (pt. 269) 1751 at 1782 clearly shows that there is no other appropriate human being to give evidence of his own guilt more than the accused himself and that if an accused person therefore says he committed the offence and the court comes to the conclusion that he made the statement in a stable mind and not under duress, the accused must be convicted.

Therefore having regard to the evidence adduced before the GCM and particularly the evidence elicited from the Appellant under cross examination, I find the prosecution to have comfortably established the four Counts of stealing preferred against the Appellant beyond reasonable doubt. Indeed I must say that if the GCM had not found the Appellant guilty on the stealing Counts given the evidence before it and particularly the admissions made by the Appellant, such a finding would have been glaringly perverse.

I am aware that the Appellant in his brief placed great reliance on Exhibit P19 in respect of which he was discharged and acquitted in arguing that the prosecution did not establish the case against him beyond reasonable doubt. The said Exhibit P19 was re-produced at page 49 of the Appellant’s brief. I do not see how the letter can be said to exonerate the Appellant in respect of the Counts of stealing preferred against him. The Exhibit simply stated that the account where money is paid for Peacekeeping Operations including rotation was depleted and that as a result, the sum of N54,094,000.00 requested by DAOPS cannot be paid now. The use of the word “depleted” is not synonymous to the funds “having being used for designated purpose”. And the Appellant having regard to his evidence has clearly shown that the depletion of the funds (in the account referred to in Exhibit P19 and from which he admitted withdrawing various sums of money he is alleged to have stolen) was never due to the funds having been used for the designated purpose but that the funds were diverted to personal use or purposes.

The Appellant having regard to his brief of argument also made heavy weather of the involvement of PW4 in the commission of the thefts for which he was charged. The Respondents, in my view, have addressed this issue appropriately. Surely the Appellant at the investigatory stage made a statement implicating PW4. The prosecuting authority apparently saw no reason to charge any other person along with the Appellant. The Appellant from his evidence has comfortably shown that he committed the acts of stealing for which he was accused or charged. I do not see how not charging PW4 along with the Appellant has derogated from the burden of proof required to sustain the charge of stealing against him and which the prosecution has discharged. I wholly agree with the Respondents that it is untenable in law for the Appellant, rather than facing his case, to engage himself in accusing somebody else not charged along with him of being a thief too as he acted at the instance of the person. This is no defence to the Counts of stealing preferred against the Appellant. See the case of THE NIGERIAN AIR FORCE V. EX-SQN LEADER M.D. KAMALDEEN (2007) All FWLR (Pt. 361) 1676 at 1695 where it was held to the effect that it was for “an accused soldier” who relies on the fact that he acted pursuant to the order of a superior officer to establish the legality of such an order otherwise he is responsible if he obeys an order not strictly lawful.

The Appellant has also argued that both PW4 and CW1 are tainted witnesses. This is neither here nor there. As I have said before now, the Appellant, given his evidence under cross-examination, has comfortably enabled the prosecution to prove the Counts of stealing preferred against him beyond reasonable doubt. The Appellant by his own evidence said it loud and clear enough that he did steal the various sums he was alleged to have stolen. The evidence of PW4 and/or CW1 was not vital to sustain the Appellant’s conviction given his own evidence.

The Appellant, it is noted, never canvassed any argument in respect of his conviction on Count 6 – Conduct to the prejudice of good order and service discipline. The Respondents urged that this Court, given this situation, should deem the Appellant as conceding the correctness of his conviction on the Count.

I am of the firm view that the Appellant having formulated an Issue encompassing his conviction on Count 6 but not proffering any submission or argument in respect of the same in his brief of argument has thereby abandoned that aspect of the Issue formulated. The situation can be likened to one where an appellant fails or neglects to argue a ground of appeal. Such a ground is deemed, abandoned and can be properly struck out. See the case of ALH. ISSA ONISESE V. REVEREND OYELEYE (2008) All FWLR (Pt. 446) 1826 at 1858.

This Court not having the benefit of the Appellant’s submission in respect of Count 6 for which he was convicted and sentenced, in my view cannot engage in any meaningful consideration of the correctness or otherwise of the decision of the GCM in relation thereto. Whatever complaint/grouse the Appellant has with his conviction and sentence in respect of Count 6 is accordingly deemed abandoned.

The Appellant devoted some portion of his brief of argument to arguing about the propriety of the order of forfeiture by way of restitution made by the GCM and which was confirmed by the Army Council.

It would appear not to be in doubt that the GCM has the jurisdiction or power to make an order of forfeiture by way of restitution pursuant to Section 174 of the AFA, 1993. See the case of THE NIGERIAN AIR FORCE V. EX-SQN LEADER M.O. KAMALDEEN [2007] All FWLR (Pt.361) 1676 at 1695. Regrettably, there is no ground of appeal wherein the said order of forfeiture by way of restitution was challenged. This being the case, there was no Issue formulated in relation to the said order of forfeiture by way of restitution. The Respondents have submitted in their brief that the arguments canvassed by the Appellant “in-relation to the order of forfeiture by way of restitution go to no issue and they cited the cases of Okebola v. Boyle (1998) 2 NWLR (Pt. 539) 533 at 546; and Omaliko v. Awachie (2002) 12 NWLR (Pt. 780) 1 at 23 in aid.

Suffice it to say that I cannot agree more with the Respondents. The law is settled that issues for determination are confined to and circumscribed by grounds of appeal and that any issue not so related to the ground of appeal is incompetent. See E.O. FALOLA V. UNION BANK OF NIGERIA PLC [2005] All FWLR (Pt. 257) 1435. Accordingly all the arguments canvassed by the Appellant on the order of forfeiture by way of restitution made by the GCM are discountenanced as they flow from no Issue predicated on any ground of appeal.

From all that has been said before now, Appellant’s Issue 3 is therefore resolved against him.

All the Issues formulated by the Appellant for the determination of this appeal having been resolved against him, the appeal therefore fails in its entirety. It is accordingly dismissed. The decision and order of forfeiture by way of restitution, made by the GCM as confirmed by the Army Council, at its sitting on 5th April, 2006 and conveyed to the Appellant by the letter dated 7th April, 2006 are accordingly affirmed.

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Other Citations: (2009)LCN/3225(CA)