CPL Osafele Friday V. Nigerian Army (2016)

LawGlobal-Hub Lead Judgment Report

UWANI MUSA ABBA AJI, J.C.A.

 This is an appeal against the decision of the Nigerian Army, 1 Mechanized Division General Court Martial sitting at 1 Division Headquarters Officers Mess, Kanta Road, Kaduna, presided over by Col. M.E. Odion (N/8437) as President, Col. J.O. Obasa (N/9025), Col. A. Garba (N/9496), Col. A.A. Bamgbose (N/9453), Lt. Col. B. Garke (N/9478), Lt. Col. S.I. Abdullahi (N/9854) and Lt. Col. R.B. Akindeyoje (N/9653); as members, and Capt. A. Mohammed (N/12687) as the Judge Advocate, delivered on 12/6/2013 in Charge No: 1DIV/G1/300/32, wherein the Appellant with 5 others pursuant to Section 62(b) of the Armed Forces Act, 2004, was convicted and sentenced to 2 years imprisonment and reduced to 18 Months by the confirming authority.

The lone charge against the Appellant in Charge NA Form B252, dated 31/7/2012 at pages 4-5 of the records reads as follows:

STATEMENT OF OFFENCE: Failure to perform Military duty contrary to Section 62(b) of the Armed Forces Act CAP A20 Laws of the Federation of Nigeria, 2004

PARTICULARS OF OFFENCE: In that you on 7 February, 2012 while on duty at Headquarters I Division Nigerian Army negligently performed your Military Duty thereby allowing suicide bombers access to the Division Complex.

COC EKULIDE

Col

For General Officer Commanding

The facts of the case by the Respondent is that the Appellant who was on duty at the main gate of 1 Division Headquarters on 7/2/2012 negligently performed his Military Duty thereby allowing suicide bombers access to the Division Complex. The Appellant’s case is that having been detailed as guard 21c from 6am to 12pm on the said date, he performed his sentry successfully without complaint and handed over to the next soldier, LCPL Collins Olubusola, by 12 pm and went inside the guard room to take his breakfast. Eventually, he heard the voice of the sentry man saying “stop that motor, stop that motor”. He suddenly heard a sound from the complex and when he went out, he discovered it was a suicide bomber. At the trial, the Respondent’s sole witness testified while the Appellant defended himself and made a no case submission which was overruled. Eventually, he entered his defence and rested his case on that of the Respondent. At the conclusion, the Appellant was convicted and sentenced to 2 years imprisonment contrary to Section 52(b) of the AFA, 2004, later reduced to 18 months by the confirming authority. Dissatisfied with the said conviction and sentence, he appealed vide an Amended Notice of Appeal dated 23/10/2015 and filed on 27/10/2015, wherein he raised 6 Grounds of Appeal hereunder reproduced without their particulars:

GROUNDS OF APPEAL

GROUND ONE

The Honourable General Court Martial erred in Law when it failed to sign the record of its proceedings/Judgment immediately after the conclusion of trial on 12th June, 2013, as mandatorily required by Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Rule 76(3) of the Rules of Procedure (Army) 1972.

GROUND TWO

The Honourable General Court Martial erred in Law when it assumed jurisdiction and tried and convicted the Appellant on the charge which was not signed by the Appellant? Commanding Officer as required by Paragraph 39(C) and 43 of the Manual of Military Law (MML) applicable to the

General Court Martial,

GROUND THREE

The Honourable Court Martial erred in fact and Law when it found the Appellant guilty of negligent performance of Military duty despite the fact that the Appellant was not on sentry at the main gate at the time of the attack on 1 Division Complex.

GROUND FOUR

The Honourable General Court Martial erred in Law when it failed and refused to consider the absence of any Standing Order and or Standard Operational Procedure (SOP) creating the duty over which if any the Appellant was found guilty for negligent performance.

GROUND FIVE

The Honourable Court Martial erred in Law when it found the Appellant guilty without enough evidence from the prosecution to support the finding,

GROUND SIX

The Honourable General Court Martial erred in Law when it based its finding on the failure of the Appellant to testify in defence of the charge against him,

In accordance with the Rules of this Court, the Appellant filed his Brief of argument dated and filed on 17/11/2015, settled by I.H. Mohammed, Esq, wherein he formulated 5 issues for the determination of the appeal to wit:-

1. Whether the proceedings, the judgment and or findings of the trial General Court Martial is valid when same was not signed immediately it was delivered. (Ground 1).

2. Whether the trial General Court Martial was right and or had jurisdiction to try the Appellant when the charge sheet upon which the Appellant was tried, convicted and sentenced was not signed by the Appellant’s Commanding Officer (Ground 2).

3. Whether the Appellant having successfully concluded his duty on sentry at the main gate and was eating breakfast in the guard room at the time of the attack on 1 Division was rightly found guilty by the General Court Martial for failure to stop and or avert the suicides bombers from charging through the gate and into 1 Division. (Ground 3),

4, Whether the Appellant’s exercise of his right not to incriminate himself by not entering a defence was rightly convicted by the General Court Martial in the absence of a prima facie case against the Appellant (Ground 6).

5. Whether the conviction of the appellant can stand in the absence of evidence proving the guilty of the Appellant beyond reasonable doubt as required by evidence Act 2011, (Ground 5),The Respondent on the other hand, filed its Brief of argument dated and filed on 17/12/2015, settled by Shuaibu Isah, Esq, and raised 3 issues:

(i) Whether the decision of the trial General Court Martial was validly delivered signed and dated as required by law.

(ii) Whether the trial General Court Martial had jurisdiction to try the Appellant on the charge upon which he was arraigned before the Court

(iii) Whether having regards to the evidence before the trial Court, the trial General Court Martial was right in convicting the Appellant.

There was also a Reply brief filed by the Appellant Counsel dated and filed on 21/1/2016. At the hearing of the appeal on 3/5/2016, the Counsel to the Appellant adopted his Brief of argument and prayed this Court to allow the appeal, set aside the conviction and sentence of the Appellant while the Counsel to the Respondent adopted his Brief and urged the Court to sustain the conviction and sentence of the trial Court martial.

I shall consider this appeal on two issues as summarized thus:

1. Whether the conviction of the Appellant can be set aside on the bases that the judgment was not signed immediately after delivery and the charge sheet not signed by his Commanding Officer

2. Whether the Respondent has proved the offence under Section 62(b) of the Armed Forces Act against the Appellant beyond reasonable doubt

ISSUE ONE:

Whether the conviction of the Appellant can be set aside on the bases that the judgment was not signed immediately after delivery and the charge sheet not signed by his Commanding Officer,

It is the Appellant’s learned counsel’s submission that the proceedings, judgment and findings of the trial GCM is invalid and not in conformity with the provision of Rule 76(3) of Rules of Procedure (Army) 1972, when same was not signed immediately it was delivered. It is contended that the findings of the GCM was delivered on 12/6/2013 at page 106 but the judgment was only signed on 26/7/2013, about 2 months after its delivery, which renders the judgment a nullity. He relied on Rule 76(3) of Rules of Procedure (Army) 1972, Sections 296(1) of the Criminal Procedure Code, 245 of the Criminal Procedure Act, 294(1) of the 1999 CFRN (as amended), CAPT. O.D. ERIZEA V. NA (delivered on 29/4/15) and LIEUTENANT YAHAYA YAKUBU V. CHIEF OF NAVAL STAFF (2004) NWLR (PT. 853) 94 AT 114H-115 A-B.

Contending further, he submitted that the trial GCM did not have the jurisdiction to try the Appellant when the charge sheet upon which the Appellant was tried, convicted and sentenced was not signed by the Appellant’s Commanding Officer. That the Charge Sheet on page 5 was signed by one COC EKUUDE Col. (N/9172) other than the Commanding Officer of the Appellant in breach of Rule 14(1)(b) of Rules of Procedure (Army) 1972 and Paragraphs 39(c) and 43 in Chapter II of MML. Thus, that the trial GCM wrongly assumed jurisdiction to try, convict and sentence the Appellant on an incompetent Charge. He stated that the issue of jurisdiction can be raised at any time. He cited NNPC V. ORHIO WASELE (2013) 13 NWLR (PT.1371) 211 AT 214 PARAS D-E, 224 PARAS A-B. On the definition of a “Commanding Officer”, he referred to NIGERIAN ARMY V. AMINUN KANO (2010) 5 NWLR (PT.1188) 429 AT 460 D-H. He prayed this issue be resolved in his favour.

The learned Counsel to the Respondent on the other hand has maintained that the decision of the trial GCM was validly delivered, signed and dated as required by law. That based on the records at page 106, the judgment of the trial GCM was dated and signed on 26/7/2013 and there is nothing to indicate that the decision was pronounced on 12/06/2013. That neither Rule 65, 73 or 74 of Rules of Procedure (Army) 1972, mandates the GCM to deliberate and deliver its findings on the same date after the Judge Advocate’s sum up. Thus, that the record of proceedings is the true reflection of what transpired in the Court. He relied on ODEGA V. OLLOH (2015) LPELR-24568 (CA), AGAGARAGA V. FRN (2007) 2 NWLR (PT.1019) 586, FAGBOHUN V. OGUNLEYE (2014) LPELR-22453 (CA). He submitted that assuming without conceding that the judgment was delivered on 12/6/2013, it nevertheless does not invalidate the trial and judgment of the trial GCM. He relied on Rule 76(3) of the Rules of Procedure (Army) 1972.

It is argued that the trial GCM correctly exercised jurisdiction in the trial of the Appellant on the charge upon which he was arraigned. It is conceded by learned Counsel that a charge sheet is the very foundation of a criminal proceeding and failure to sign is fundamental and touches on the jurisdiction of the Court Martial. He stated that though the charge sheet was signed by COL COC Ekulide (N/9172) on behalf of the General Officer Commanding, that there is nothing on record to show that COL COC Ekulide (N/9172) was not the Commanding Officer of the Appellant. Thus, he who asserts must prove. He relied on Section 135 of the Evidence Act, 2004, GENEVA V. AFRIBANK NIGERIA PLC (2013) LPELR-20662 (SC) and AGALA & ORS v. EGWERE & ORS (2010) 5 SCM 22 AT 37.

Furthermore, it is contended that the Appellant did not object to the charge at the time of his arraignment or throughout the trial. Thus, the proper time to object to a defect in a charge is at the time of arraignment. He relied on the authorities of Rule 37(1) of the Rules of Procedures (Army) 1972, GEORGE V. F.R.N. (2011) 10 NWLR (PT. 1254) 1 AT 66, JOHN AGBO v. STATE (2006) 1 SCNJ 332 AT 335-397. He urged that this issue be resolved in his favour.

A Reply Brief is not for a second bite at the cherry. Indeed, I see no new issue in the argument of the Respondent that should necessitate a Reply from the Appellant’s learned Counsel. A Reply brief is not for re-argument, rejoinder or adumbration of issues but for addressing new issues raised in the Respondent’s brief, if any. See NITEL PLC v. OCHOLI (2001) FWLR (PT.74) 254 AT 267. I have not seen merit to consider the Reply of the Appellant.

It is trite that the Court is bound by its record which is the true reflection of what transpired in the Court. See ODEGA v. OLLOH (2015) LPELR-24568 (CA), AGAGARAGA V. FRN (2007) 2 NWLR (PT.1019) 586. By the records before me, the trial Court Martial delivered its judgment on 12/06/13 at page 103-106. By the reflection of the records, on 12/06/13 at page 103 on line 15 the records states: Pre: this is the Court judgment. The signature of the President is at 106 while the date reflecting the signature is 26/07/13.

Same date reflects the signature of the Judge Advocate. This without dispute shows that the judgment was signed on 26/7/2013 except it is an error which has not been conceded here by the Respondent’s Counsel. Rule 76(3) of the Rules of Procedure (Army) 1972, provides that:

“76 (3) Immediately after the conclusion of the trial, the president and judge advocate (if any) shall date and sign the record of the proceeding. The president or the judge advocate shall then forward it as directed in the convening order.”

This same mandate is replicated in Sections 296(1) of the Criminal Procedure Code and 245 of the Criminal Procedure Act. Signing a judgment after about 44 days cannot be interpreted to mean “Immediately after the conclusion of the trial” or “at the time of pronouncing it” (in both the CPC & CPA) nor within the intent and spirit of Rule 76(3) of the Rules of Procedure (Army) 1972. This same matter was long buried in LIEUTENANT YAHAYA YAKUBA V. CHIEF OF NAVAL STAFF (2004) NWLR (PT. 853) 94 AT 114-115 PARAS A-B, the Court held amongst others without ambiguity that:

“…signing and dating of a judgment of a Court Martial is a mandatory requirement and failure of the Court Martial to sign and date the judgment at the time of pronouncing the verdict is void and thus rendered the entire exercise a nullity.”

On whether the trial General Court Martial correctly exercised jurisdiction in the trial of the Appellant on the charge upon which he was arraigned before the Court, it is without dispute that the charge sheet was signed by one COC EKULIDE Col for the General Officer Commanding”. To sign “for” is to sign on behalf and for the benefit of someone. It means procuration. This is the evidence we have on the record that the charge sheet was signed by a different person other than the Appellant’s Commanding Officer. If Col COC Ekulide is/was the General Officer Commanding, would he have signed “for”? It is commonsensical, logical and deducible that he was not the General Officer Commanding because “for” betrays his authority to sign. Moreover, the Respondent’s Counsel has not shown or led otherwise that Col Ekulide is the Appellant’s Commanding Officer. Indeed, in the present appeal, there is nowhere throughout the records that an objection to the Charge was ever raised by the Appellant. Objection to a charge is at the time of arraignment. See MAGAJI V. NIGERIAN ARMY (2008) 8 NWLR (PT. 1089) 338, GEORGE V. F.R.N. (2011) 10 NWLR (PT. 1254) 1 AT 66, JOHN AGBO V. STATE (2006) 1 SCNJ 332 AT 335-337. This nevertheless depends on whether it is a defect or a nullity. The failure to object to a nullity does not tantamount to a waiver of right. The Supreme Court in ZAKARI V. NIGERIAN ARMY (2015) 17 NWLR (PT.1487) 77, quoted and relied on the Court of Appeal decision in OKORO V. NIGERIAN ARMY COUNCIL (2000) 3 NWLR (PT.647), held:

“The failure of a party to raise an objection at a Court martial as to the membership of unqualified officers on the Court martial is not a bar, waiver or an estoppel for the said party to raise objection to the jurisdiction of the court martial on appeal. This is in line with the principle that a party cannot by consent or otherwise confer jurisdiction on a Court where the Court has no jurisdiction to entertain the action. In the instant case, the contention of the Respondent that because the appellant did not object to the membership of the two unqualified captains in the Court Martial, has waived his right to subsequently complain or he has thereby conferred on the said Court Martial, the jurisdiction that it did not have, has no substance in law”.

To put it straight, this Court cannot stamp on illegality as you cannot put something on nothing and expect it to stand. The issue of signing a charge sheet to Court-martial a soldier is a jurisdictional issue and a matter of law to be obeyed. As earlier observed that the Appellant did not object to the charge with which he was tried, would his objection had rectified the charge sheet or rather conferred authority on another to sign the charge sheet on behalf of the Commanding Officer of the Appellant? Rights of individuals can be waived. What I mean is that property, personal, even fundamental right can be waived but a party cannot waive a directive, obligatory or mandatory or constitutional provision of the law on him. The law must be obeyed! In the recent case of ZAKARI V. NIGERIAN ARMY (2015) 17 NWLR (PT.1481) 77 AT 81, LPELR-24721(SC), the Apex Court relying on the case of MOBIL PRODUCING NIGERIA UNLIMITED v. MONOKPO (2003) 18 NWLR (PT.852) 346; a judgment of this Court per Niki Tobi JSC stated:-

“Jurisdiction being a forerunner of judicial process cannot be acquiescence, collusion, compromise, or as in this case, waiver, confer jurisdiction on a Court that lacks it. Parties do not have legal right to donate jurisdiction on a Court that lacks it. Non-compliance with the rules which affect the very foundation, or props of the case/cannot be treated by the Court as an irregularity but as nullifying the entire proceedings. Once the non-compliance affects the substance of the matter to the extent that the merits of the case are ruined, then, it is impossible to salvage the proceedings in favour of the party in blunder, who in this appeal are the respondents, no amount of waiver by the party can be of assistance to the adverse party, The defence of waiver lacks merit and I so hold”

The issue of signing a charge sheet is a jurisdictional and fundamental one that the laws have expressly forbidden the Commanding Officer to delegate whatsoever. It is in fact conceded by the Respondent?s learned Counsel in page 7 paragraph 4.2.3 that “a charge sheet is the very foundation of a criminal proceeding and failure to sign or properly sign a charge sheet or such other defect in a charge is fundamental and touches on the jurisdiction of the Court Martial to try the Appellant.” Osamo, Bob, in his book “Fundamentals of Criminal Procedure Law in Nigeria” 2004, Dee-Sage Nigeria Ltd, Abuja, P.118, wrote on the non-delegation of this power in a Court Martial:

“Sections 174(2) and 211(2) of the 1999 Constitution permit the Attorneys-General of the Federation and states respectively to delegate their powers…against any person in any Court of law in Nigeria except a Court-Martial.” (underlined for emphasis)

The Court Martial law on this is even more explicit, express and unambiguous. Paragraph 43 of the Manual of Military Law provides as follows:

“A C.O having remanded the accused in accordance with R.P.13 will sign the charge-sheet. Care must be taken to ensure that a person who signs the charge-sheet is the C.O. of the accused at the date of signing; it must not be signed by another officer on his behalf.” (The underlined for emphasis)

Paragraph 39 of the Manual of Military Law also provides:

“The charge-sheet contains the whole of the issues to be tried at one time and consists of:

(a) The commencement of the charge-sheet

(b)The charges, each being divided into

(i) The statement of offence, and

(ii) The particulars of the act, neglect or commission constituting the offence;

(c) The signature of the commanding officer; and

(d)The order of trial” (The underlined for emphasis)

Paragraph 14 footnote (b) of the Rules of Procedure (Army) 1972 further provides:

“The charge-sheet should be prepared by the unit and the commanding officer will sign it after complying with A.A. 1955, 577 (3).” (The underlined for emphasis)

The law remains the law and must be obeyed and it does not matter whether the Appellant was adversely affected by the signing of the charge sheet by another officer unauthorized to so sign. On this note the Apex Court in AGBITI VS. NIGERIAN NAVY (2011) 13 WRN 1 AT 49 per Rhodes-Vivour JSC held:

“If the law states what is required for the Court martial to be properly constituted as regards its members and there is an infraction, no matter how negligible, so long as it is an infraction of the Act the trial ought to be nullified.” In the instant case there is an infraction of the law which requires the appropriate superior authority to determine the charge to be tried by a Court martial. In which case the trial based on the charge altered and signed bv an officer who is not the appropriate superior authority render it a nullity,” (The underlined for emphasis)

In another place, the Court held in KUDAMBO V. NIGERIAN NAVY (2014) LPELR- 22624(CA) Per OSEJI, J.C.A, thus :

“This is indeed trite and incontestable even in a trial before a Court martial as in this case, but it must be done in accordance with the relevant statutory provision as presented by Section 126 of the Armed Forces Act which requires that where an appropriate superior authority in the military determines that it is desirable that a charge shall be tried by a Court Martial, the prescribed steps shall be taken with a view to its being so tried. Hence the convening officer signs the charge for which an officer is to be tried. There is a contrast here with what obtains in the regular Courts where there is a standing and implied mandate enabling any legal officer to sign a charge sheet as well as amend it when necessary.” (The underlined for emphasis)

The law here is unambiguous and devoid of double interpretation. It further gives a caveat that the power cannot be exercised by another. It is express that this power of signing the charge sheet has been delegated only to the Commanding Officer; hence power delegated cannot be subdelegated (Delegatus Non Potest Delegare). See IBADAN CITY COUNCIL V. J. O. ODUKALE (1972) All N.L.R 755. Furthermore, by the rule of interpretation, the express mention of one thing is the exclusion of another (Expessio Unis Est Exclusio Atterius). See A.G. BENDEL V. AIDEYAN (1989) 4 NWLR (PT.188) 646 AT 672 and INEC V. PDP (1999) 11 NWLR (PT.626) 174 AT 191. Because the Commanding Officer has been expressly mentioned, it therefore excludes any other officer from signing a charge-sheet on his behalf. The signature by one Col COC Ekulide on behalf of the Commanding Officer of the Appellant is incompetent and renders the charge sheet null and void and is without remedy. In ORIZU V. UZOEGU (1999) 6 N.W.L.R. (PT.605) 32, it was held thus:

“I need to emphasis here that a signature by an unknown person on behalf of another is an incompetent signature.”

To be emphatic, the Respondent lacked the jurisdiction to try the Appellant on a charge-sheet not signed by his Commanding Officer. Similarly, the verdict of the trial GCM having not been signed immediately it was delivered on 12/6/2013 is not valid. This issue is accordingly resolved in favour of the Appellant.

ISSUE TWO:

Whether the Respondent has proved the offence under Section 62(b) of the Armed Forces Act against the Appellant beyond reasonable doubt.

Counsel to the Appellant argued that the trial GCM was not right to found the Appellant guilty for failure to avert the suicide bombers from charging through the gate into the 1 Division when he had concluded his duty and was eating breakfast in the guard room. That the failure to consider the facts in Exhibit 2 and the provision of the Armed Forces Act in relation to offences by sentry, watch, etc. under Section 50 and the Nigerian Army Field Craft Manual, 2009, amounted to both error in facts and law in convicting the Appellant. That by the manner and speed the attack was carried out, the Appellant who had handed over and was taking his breakfast would not have been able to avert the suicide bombers.

It is again submitted that the trial GCM was wrong to overrule the no case submission of the Appellant and order him to enter his defence in the absence of a prima facie case against him since there is no law that compels him to give evidence in his defence. He relied on Section 36(11) of the 1999 CFRN (as amended).

It is his argument that the conviction of the Appellant cannot stand in the absence of evidence to prove his guilt beyond reasonable doubt. He stated that it is on the Respondent to prove the guilt of the Appellant beyond reasonable doubt by proving all the elements of the charge. He humbly submitted that the Respondent did nothing to establish that the Appellant was negligent and that the Respondent could not contradict Exhibit 4 (Appellant’s statement) through the evidence of its sole witness. It is settled that by the evidence, the Appellant had performed successfully his military duty from 06:00hr to 12:00hrs on 7/2/12. Therefore, the burden of prove is on the Respondent to prove the guilt of the Appellant and not for the Appellant to prove his innocence. He relied on ADAMU V. THE STATE (2014) 4 SCNJ PART 1 AT PAGE 191 @ 194, R. V. BASIL RANGER LAWRENCE (1932) UNLR 6, OKOH V. THE STATE (2014) 3 SCNJ 261 @ 263. He prayed this Court to resolve the issue in favour of the Appellant; allow the appeal and set aside the conviction and sentence of the Appellant.

The submission of the Respondent’s learned Counsel here is that having regard to the evidence before the trial GCM, it was right in convicting the Appellant as charged. He submitted that the Appellant was not charged and tried for an offence by or in relation to sentries, watch, etc. specifically provided under Section 50 of the AFA, but rather under Section 62(b) of the AFA for negligent manner he performed his duty. Again, it is submitted that the powers of the Judge Advocate are primarily advisory as spelt out in Rule 80 of the Rules of Procedure (Army) 1972. Moreover, that the trial GCM took cognizance of the Judge Advocate’s advice on the Nigerian Army Field Craft Manual, 2009, before arriving at its decision on page 104. He maintained that there is no evidence on record that the trial GCM convicted the Appellant on his “failure or refusal to enter a defence at the trial”. It is shown that the trial GCM evaluated the evidence before it and did not base its findings on the no case submission.

That by the case of GAMI V. NIGERIAN ARMY (2001) 28 WRN 167 AT 177-178, the ingredients in Section 62(b) of the AFA are:- (a) That the accused is subject to service law (b) That the accused has a defined schedule of duties (c) That the accused neglected to perform or negligently performed the duty. He stated that PW1 established that the Appellant was fully armed, equipped and stationed on guard with 5 other accused persons at 1 Division Headquarters and charged with checking vehicles and persons coming into the barracks, opening of the gate and remaining alert, etc, and on 7/2/2012, while the Appellant was on duty, suicide bombers gained entry into the Division complex through the same gate the Appellant and 5 others were charged to guard, protect and prevent unauthorized entry. He urged this Court to take cognizance of the fact that the offence is strictly and purely a military offence and the trial GCM is empowered by Section 143(3) of the AFA to take judicial notice of matters of notoriety. He maintained that the function of evaluation of evidence is that of the trial Court. He in support quoted IGAGO V. STATE (1999) 14 NWLR (PT.637) 1, EGIRI V. UPER 1 (1974) 1 NMLR 22 PARAS A-B. Thus, the essential ingredients were proved beyond reasonable doubt. He urged that this issue be resolved in his favour, dismiss the appeal and uphold the conviction and sentence of the Appellant by the trial GCM.

In every criminal trial, it is always on the prosecution to prove the guilt of the accused and not otherwise. See Section 36(5) of the 1999 CFRN (as amended). By the decision in GAMI V. NIGERIAN ARMY (2001) 28 WRN 167 AT 177-178, the ingredients in Section 62(b) of the Armed Forces Act are: (a) That the accused is subject to service law (b) That the accused has a defined schedule of duties (c) That the accused neglected to perform or negligently performed the duty. It is not in dispute that the Appellant was subject to Nigerian Army service law and was accordingly detailed to the main gate of 1 Division Headquarters on 7/2/2012 as guard 21c from 6am to 12pm after being armed and equipped.

Touching on the 3rd ingredient, Section 62 (b) of the Armed Forces Act, LFN 2004 provides as follows:

“A person subject to service law under this Act who:- (b) Neglects to perform, or negligently performs, a duty of any description, is guilty of an offence under this section and liable, on conviction by a Court – martial, to imprisonment for a term not exceeding two years or less punishment provided by this act.”

Sifting from the above provision, the accused or military officer concerned must have neglected to perform or negligently performed a duty assigned to him. In this respect, the duty assigned to the Appellant was to be a “guard 21c from 6am to 12pm at the main gate of 1 Division Headquarters on 7/2/2012.” Nevertheless, suicide bombers gained access to the Division Complex resulting to an explosion.

What is at stake now is to prove and establish the neglect to perform or the negligent performance of the Appellant as guard 21c from 6am to 12pm at the main gate of 1 Division Headquarters on 7/2/2012.

“Negligence is defined as carelessness, disregard, default, inadvertence, indifference, inattention, laxity, omission, oversight, shortcoming, slackness, remissness, dereliction, heedlessness, forgetfulness and thoughtlessness. Black’s Law Dictionary 9th Edition also defines negligence as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. The term denotes culpable carelessness.” Per NIMPAR, J.C.A in DES-DOKUBO v. THE NIGERIAN ARMY (2015) LPELR-25969(CA).

I shall go over the proceedings at trial to establish neglect to perform or negligent performance or otherwise by the Appellant at his duty post on 7/2/2012 when the suicide bombers gained access into the main gate of 1 Division Headquarters. This is so important because the evidence generally has been presented and proved therein.

It has been established by the PW1 at page 15 Paragraph 8 of the records that the main gate “used to be closed and opened’ although “I am not too sure at the time” the gate is open or closed, as testified at paragraph 10 of page 15. By the evidence and statement, it is shown that the attack took place few minutes after 12 noon. The Respondent has thus not been able to establish whether the gate ought to be closed at that time. Nevertheless, by the testimony of PW1 at page 26 paragraph 3, the 2 vehicles of the suicide bombers could not be searched ” because it came with a very high speed and refused to stop.”Corroborating the above, at page 29 paragraph 12, PW1 investigated and found out that the vehicle broke through the iron bar. He thus advised that a stronger quality iron bar be used and checking of vehicles should be done outside the gate before allowing visitors in. It has been equally revealed that this security breach was not expected at all and by the evidence elicited from the PW1 at pages 28-29, there has been a different security measure adopted after the attack.

It has been revealed also by the testimony and investigation of PW1 that it was not proper for a soldier to fire inward at the vehicle that broke into the 1 Division Headquarters since that will mean killing his colleagues as stated in page 25 paragraphs 10-13. Furthermore, it was revealing that soldiers who were at their sentry did all they could militarily to fire the car at a risk but could not. It is interesting to note what transpired thus at pages 21-22 paragraphs 15 and 6 respectively:

“I saw the sentry running after the car, the next thing I hear was the explosion, I asked the soldier why he did not fire the car, he said, he corked to fire, but the rifle did not pick rounds…I collected the rifle, tried it and at did not pick, Lt Ayuba of the MP and the duty officer also tried the rifle and it did not pick, WO Sam Akhigbe of the MP came and collect the soldier’s rifle and tested it and it did not pick, shortly after that, we were asked to be locked up at the MP Guardroom.”

Similarly, the PW1 in the 1st to 3rd paragraphs at page 16 of the records testified that all the accused persons were at their duty posts and performed their sentry. I am not unaware of the fact that the Appellant was not involved in this but it is important to note that they were jointly charged and tried for the same offence under Section 62 (b) of the Armed Forces Act, LFN 2004.

As touching on the Appellant here, it has been testified as true at page 32 that except SSgt Bitrus, the four (4) accused persons including the Appellant ” performed their sentry 6-12 and dismounted from sentry” before the suicide bombers gained access to 1 Division Headquarters. This is without doubt corroborated by the Statements of the Appellant at pages 119-128 of the records. Same was repeated when PW1 during cross examination in paragraph 7 at page 16 read thus:

I was detailed on duty at 1 Division main gate on 06/2/2012, I performed my sentry on 07/02/12 in which I handed over the sentry at 12 noon to LCPL Collins.”

At page 17 of the records, it has further been affirmed by PW1 that the Appellant finished his sentry at 12 noon that day. At page 18 in paragraphs 10-11, the PW1 testified as true that all the accused persons including the Appellant “performed their duty from 6am-12noon and retired to take their breakfast.” Supporting the above, in paragraphs 2-7 of page 32, PW1 similarly stated especially at paragraph 7 that after his investigation, “there was nothing else otherwise than what they told me.”

Based on the foregoing evidence and facts, can it be held that the Appellant neglected to perform or negligently performed his duty as guard 21c from 6am to 12pm at the main gate of 1 Division Headquarters on 7/2/2012 when the suicide bombers “charged” into I Division complex? Is there anything to be connected to the Appellant as neglecting to perform or negligently performing his duty? Can one be held guilty of negligence or neglecting to perform after he has handed over duty? Sincerely, I cannot hold on anything. “It is settled that proof in a criminal trial is proof beyond reasonable doubt and not beyond all doubts. It is also not dependent on the number of witnesses but on whether there is evidence to establish elements of the offence charged. Once there is cogent evidence establishing the offence, a Court will without doubt find the accused guilty.

See THEOPHILUS V. STATE (1996) 1 NWLR (PT. 423) 151. However, the accused cannot be guilty if any element of the offence stands unproved.

I must reiterate that proof in criminal cases is by facts and evidence which include the calling of witnesses where available and possible. This of course includes trials before Court Martials. Can PW1 properly qualify as eye witness, expert witness, character witness or any competent witness in this case? A witness in criminal trial is one who is present at the Locus criminis. A witness in a criminal case is someone who testifies at a Court hearing because they observed and/or have direct knowledge of a crime or significant event.” A witness is any person who has a direct knowledge of any relevant fact in issue irrespective of his relationship with the party. see IKYEMUM v. IORKUMBOR (2002) 11 NWLR (PT.777) 52 AT 77.

It has not been shown by the Nigerian Army that all Court Martial cases are triable only by investigation without calling on witnesses even where such cases can safely and conveniently be established by calling witnesses. In the instant appeal, it is shown that PW1 was one WO SAM AKHIGBE, who was only delegated to carry out investigations and interrogations on the alleged suicide bombing on 7/2/2012 wherein the Appellant was detailed on duty at the 1 Division Headquarters. It is pertinent to note that the Respondent did not call him as an eyewitness but as an Investigator/Interrogator. At the course of investigation, it is reflective especially at pages 21-22 paragraphs 15 and 6 respectively that some Officers were involved to have proved that the soldiers in their sentry were never negligent or neglected to perform their assigned duty but were hitched by failure of the rifle to pick rounds. At page 22 in paragraph 6, the evidence runs thus:

“I collected the rifle, tried it, and it did not pick, Lt Ayuba of the MP and the duty officer also tried the rifle and it did not pick, WO Sam Akhigbe of the MP came and collect the soldier’s rifle and tested it and it did not pick, shortly after that, we were asked to be locked up at the MP Guardroom.”

All the officers involved herein would have been vital witnesses in establishing the third ingredient under Section 62(b) of the Armed Forces Act, yet none of them was called to testify by the Respondent. If I cannot charge the Respondent for withholding evidence in this appeal, then I must charge them for giving hearsay evidence which is inadmissible in law. PW1 himself at page 32 paragraph 7 after his investigation, admitted that there was nothing else, otherwise than what they told me? revealing that he was not an eyewitness but was told all that he testified and investigated about. Where it is allowed that the Police, any Prosecutor, Investigator or Interrogator is made the alpha and omega, vital witness or the only witness to establish a crime, then the end of justice has come!

It was held in OBOT V. STATE (2014) LPELR-23130(CA) that hearsay evidence is evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. Thus, where a third party relates a story to another as proof of the contents of a statement, such story is hearsay. See also JUDICIAL SERVICE COMMITTEE V. OMO (1990) 6 NWLR (PT.157) 407 CA. The Evidence Act, 2011, by Section 37 defined hearsay evidence as a statement; (a) Oral or written made otherwise than by a witness in a proceedings; or (b) Contained or recorded in a book, document or and record whatsoever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it. Section 38 of the same Act goes further to state categorically that “Hearsay evidence is not admissible except as provided by or under any other provision of this or any other Act.” The salient reasons which appear for the rejection of hearsay evidence include: (a) That the maker or originator of the statement was not under oath when he made it. (b) That there is no opportunity for the cross examination of the maker; (c) The likelihood of depreciation of the truth or accuracy of the facts in the process of repetition by the witness reporting it. (d) The Court would not have the opportunity to observe the demeanour of the maker as a witness since it is not a direct evidence from him.

In EDET V. STATE (2014) LPELR-23124(CA), it was held:

“Consequently, the evidence of PW1 was a narration of what Mrs. Lawani said and not what PW1 witnessed or knows personally. Such evidence is unacceptable and offends Section 38 of the Evidence Act 2011. That piece of evidence must be expunged from the record of Court.”

See also JAMB V. ORJI & ORS (2007) LPELR-8107(CA).

Aside the fact that PW1 failed to investigate and interrogate other eyes witnesses, the failure of the Respondent to call the likes of LT Ayuba and others who tested as a fact that the rifle could not fire rounds cannot be lightly treated and can be fatal to the case of the Respondent whose burden is to prove the neglect to perform or negligent performance by the Appellant. Again, the Court in the case of YUSUF v. STATE (2007) 1 NWLR (PT.1020) 94, held:

“… The complainant had stated that she was attacked and when she was attacked, two men came to her assistance and the situation was such that the two men were vital witnesses since their evidence would have been conclusive in support that there was indeed an armed robbery. The trial Court thought not but on appeal, the Court of Appeal held thus at page 118:- “There is no evidence in the record of appeal that attempt to secure the attendance of those vital witnesses by the prosecution was frustrated by certain circumstances. This is a criminal trial. The prosecution is bound to call all material witnesses in order that the whole facts may be put before the Court. Although the prosecution need not call a host of witnesses on the same point where there is a vital point in issue and there is a witness whose evidence will settle it one way or the other that witness ought to be called… having prayed prominent role…ought to have been called as witnesses, Failure to call them is fatal to the prosecution’s case”.

The evidence of PW1 is but hearsay that cannot be relied on to prove the third ingredient of the offence under Section 62(b) of the Armed Forces Act, 2004, and since there is no other evidence to rely on again except the testimony of the Appellant, this appeal must succeed as he is entitled to the benefit of doubt.

It is ideal in an adversarial system of adjudication to bring an accuser face to face with the suspect, otherwise the asserting party will fail. In VEEPEE IND. LTD. v. COCOA IND. LTD. (2008) NWLR (PT.1105) 486, the Supreme Court held

“In our adversarial system of litigation in this Country, the law places the burden of proving an existing fact which is claimed by a party who would otherwise fail if no evidence at all were given on either side”.

On the submission of learned Counsel to the Appellant that the Appellant was compelled to enter his defence, I have not much to say. As rightly submitted by the Respondent’s learned Counsel, there is no evidence at all that it was on this that the Appellant was convicted. However, any accused person who rests his case on that of the prosecution has taken a gamble and/or a risk. He has thereby, shut himself out and will have himself to blame. This is because, he does not wish to place any fact before the trial Court other than those which the prosecution has presented in evidence. See MAGAJI v. NIGERIAN ARMY (2008) 8 NWLR (PT. 1089) 338. A no case submission being overruled does not amount to conviction or incrimination but a product of an exercise of the function of evaluation of evidence by the trial Court.

The role of the Judge advocate is clearly advisory and he does not decide the guilt of an accused. The Court can reject a Judge advocate’s advice and decide otherwise. He is just but an officer of a Court-martial who acts as prosecutor. See THE NIGERIAN ARMY v. LT. PATRICK DODO (2012) LPELR – 828833 (SC). The trial Court Martial is indeed not bound by the advice of the Judge Advocate to make its findings.

This issue is equally resolved in favour of the Appellant. Accordingly, I am left with no option but to discharge and acquit the Appellant based on his trial on a defective charge sheet invalid judgment and non-proof beyond doubt of the offence under Section 62(b) of the Armed Forces Act. In conclusion, the conviction and sentence of the Appellant in the judgment of the GCM delivered on 12/6/2013 in charge No: lDIV/G1/300/32 is hereby set aside. The Respondent is ordered to reinstate the Appellant to the services of the Respondent, payment of all his salaries and allowances be made from the date of his dismissal from the services of the Respondent.

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Other Citations: (2016)LCN/8688(CA)