Ex-wo Aloysius Idakwo V. Nigerian Army (2003)
LawGlobal-Hub Lead Judgment Report
ABUBAKAR ABDUL-KADIR JEGA, J.C.A.
This is an appeal against the judgment of the General Court Martial presided over by Col. P.W. Forteta (Rtd.) and delivered on the 8th October, 1996.
The said General Court Martial on the 8th October, 1996 convicted the appellant of offences under sections 66(a) and 95 of the Armed Forces Decree No. 105 of 1993. On the first charge, he was sentenced to 2 years imprisonment while the second charge attracted 1 year. Both sentences were to run concurrently.
The appellant was on the 24th September, 1996, arraigned before the General Court Martial presided over by Col. P.W. Forteta (Rtd.) on two count charges to wit.
(a) Offences in relation to public/service property punishable under section 66(a) of the Armed Forces Decree No. 105 of 1993 in that he at Lagos between 01 April or 30 April, 1996 fraudulently misapplied flag staff house telephone No. 2633116 in receiving personal fax messages from Israel.
(b) Attempt to commit Military offence punishable under section 95 of the Armed Forces Decree No. 105 of 1993 in that he at Lagos gave a prize list for international calls in respect of telephone lines 2635662, 2637719, 684573 and 2633116 in flag staff house to LCPL.
Sunday Adebiyi for the purposes of commercializing the telephone lines.
The appellant pleaded not guilty to the charges. The prosecution called four witnesses while the appellant gave evidence and tendered one exhibit (exhibit II). At the trial, the Judge Advocate spelt out the ingredients or legal requirements of the two charges. He submitted that the ingredients of the offences were not proved and specifically in respect of the second charge said “the prosecutor did not tender evidence to show that the price list was in respect of the mentioned 5 telephone lines”.
In spite of the well-reasoned opinion of the Judge-Advocate, the General Court Martial without giving reasons for its findings, delivered its judgment, found the appellant guilty and sentenced him to 2 and 1 year respectively in respect of the first and second charges. Being dissatisfied, the appellant with the leave granted by this Honourable Court on 7th November, 2000 has filed a notice of appeal and grounds of appeal dated 16th November, 2000.
Parties have filed and exchanged briefs of arguments. At the hearing of the appeal on the 24th March, 2003, the appellant adopted his brief filed on 5/1/2001 and also the appellant’s reply brief filed on 8/4/2002 and urged the court to set-aside the trial. The respondents adopted their brief filed on 15/02/02 and urged the court to dismiss the appeal. Judgment was reserved on the 22/5/2003. On the 21st May, 2003, the respondent filed a motion on notice pursuant to Order 3 rule 20 of the Court of Appeal Rules and section 16 of the Court of Appeal Act, Cap. 75, LFN, 1990 praying for the following:
a) An order of court arresting the judgment of this Honourable Court in respect of this appeal.
b) An order granting leave for the respondent/applicant to amend the respondent’s brief of argument in respect of this appeal.
c) An order deeming as properly filed and served the amended respondent’s brief of argument filed along on the same date as this application.
d) And such further or other orders as this Honourable Court may deem fit to make in the circumstances.
This motion was taken on 22nd May, 2003 and granted and the respondent amended brief of argument filed on 21/5/2003 was adopted.
The appellant’s brief contains three issues for determination of the appeal, they are:
(i) whether the General Court Martial was not wrong in not giving any reason whatsoever in its “judgment” as to how and why the appellant was convicted.
(ii) whether a conviction can be made under section 95 of the Armed Forces Decree No. 105 of 1993 without reference to a substantive offence created by the Decree.
(iii) whether in the circumstances of the case especially the circumstantial contradictory and inadequate evidence adduced by the prosecution and the non proving of the essential ingredients of the offences, the conviction of the appellant on the two charges was right?.
The respondent has also formulated three issues for the determination of this appeal. The issues are:
i) whether the court martial is duty bound to give reasons for its judgment under the existing law.
ii) whether a conviction can be based on section 95 of the Armed Forces Decree No. 105 of 1993 (as amended) having regard to the fact that the court martial took judicial notice of the provisions of section 114(1)(2)(3) of the Armed Forces Decree and section sic 2-5 of the Telecommunications and Postal Offences Decree No. 21 of 1995.
iii) whether the court martial was right in convicting the appellant, having satisfied itself that all the ingredients of the offences have been established and the prosecution has proved its case beyond reasonable doubt.
In arguing the appeal, appellant’s counsel submits in the brief, that on the first issue for determination that there was no judgment that the General Court Martial (at page 34 of the record) said simply without more:
“WO Alloysius Idakwo, you are charged with two offences. The first one mis-application of service property. Your second charge is attempt to commit military offence. In charge one, the court finds you guilty and in charge two the court finds you guilty”.
It is submitted that the decision of judgment of a court or tribunal must be clear unambiguous and sufficient to show that the court or tribunal believed that the prosecution had succeeded in proving its case beyond reasonable doubt, reference made to Oro v. Falade (1995) 5 NWLR (Pt.396) 385 at 391.
Submit that where as in this case the judgment did not evaluate the evidence led before the court martial, did not state which evidence the court believed and which one it did not, did not state whether the prosecution has proved its case beyond reasonable doubt or not, did not state whether the ingredients of the offences had been proved or not such “judgment” is incurably bad and an appellant who was prejudiced by such erroneous judgment is entitled to a reprieve.
Appellant further submits that it is the duty of a trial court to see, hear and assess such witness as to whether he should be believed or not and where the trial court failed to discharge that responsibility, and a miscarriage of justice has occurred as in the instant case the appellate court will interfere with such findings, reference made to Oro v, Falade (supra); Madaki v. State (1996) 2 NWLR (Pt.429) 171.
On Issue No.2 counsel to the appellant submits that the appellant was found guilty of attempt to commit military offence punishable under section 95 of the Armed Forces Decree No. 105 of 1993, and consequently sentenced to one year in jail, page 35 of the record. Counsel refers to section 95 of the Armed Forces Decree No. 105 of 1993 which states:
“A person subject to service law under this Decree who attempts to commit an offence under any section of this Part of this Decree is liable, on conviction by court martial, to the like punishment as for that offence, so, however that if the offence is one punishable with death he shall not be liable to any greater punishment than imprisonment for life.”
Appellant submits that one of the ingredients of the offence of attempt under section 95 of Armed Forces Decree is an attempt to commit an offence under any section of the Decree and that section 95 did not create an offence of attempt at large nor did it envisage sundry unknown uncreated offences being smuggled under it.
Counsel argues that the words “attempt to commit military offence” used in the charge sheet and in the sentence by the General Court Martial is not an offence known or created by the Armed Forces Decree or any other for that matter. That commercialization of telephone lines also used in the charge sheet is also not an offence known or created by the Armed Forces Decree or any other law.
Counsel referred the court to sections 35(7) and 35(11) of the 1979 Constitution [now 36(8) and 36(12) of the 1999 Constitution] that a person shall not be convicted of a criminal offence unless the offence is defined and the penalty is prescribed in a written law reference made to Aoko v. Fagbemi (1961) All NLR 400; Ikomi v. A.-G., Bendel State (1986) 1 NWLR (Pt.16) 283.
Submits that the trial of a person for a non-existent offence or under a non-existent law is fundamental and renders the whole trial a nullity reference made to I.G.P. v. Gbadamosi (Lagos LD/47CA/64 of 4/2/65) quoted in the Encyclopedia of Laws of the Federal Republic of Nigeria by T.A. Nwamara First Edition at page 339 para. 64.
On Issue No.3 counsel submits that the prosecution admitted (at pages 4 and 5 of the record) that its case was based on circumstantial evidence; that for the prosecution to succeed on the basis of circumstantial evidence it must pass three tests.
(a) That circumstances from which an inference of guilt is to be drawn must be cogently and firmly established.
(b) That the circumstances should be definite tendencies unequivocally pointing towards the guilt of the accused.
(c) That the circumstances should form a chain so complete that there is no escape from the conclusion that within all human possibility that a crime was committed by the accused person and no one else, reference made to Aramode Ohunyon v. State (1996) 3 NWLR (Pt.436) 264, (1996) 2 SCNJ 280; Akinmoju v. State (2000) 6 NWLR (Pt.662) 608, (2000) 4 SC (Pt.!) at 64; Mohammed Bello & Ors. v. State (1994) 5 NWLR (Pt.343) 177 at 189.
Counsel submits that the prosecution’s case on the two charges was so contradictory and inadequate and the prosecution did not prove its case beyond reasonable doubt such that the conviction of the appellant was unsafe and amounted to a miscarriage of justice, particularly after the advice of the Judge Advocate (at page 33 of the record) was ignored.
Submits that samples of the inconsistencies and inadequacies as regards charge 1 i.e. “misapplication of service property contrary to section 66(a) of the Armed Forces Decree in that the appellant fraudulently misapplied telephone No, 2633116 in receiving personal fax messages are:-
(i) Exhibit 6 tendered by the prosecution relate to bills for calls made out of Nigeria.
(ii) There was no evidence (e.g. a copy of the fax) allegedly received.
(iii) There was no evidence that receiving personal fax messages was fraudulently bearing in mind that no evidence was led to show that NITEL charges for faxes received.
(iv) Exhibit 10A shows over 2000 telephone calls made to several countries and about 22 calls made to Israel and none could be proved to have been made by the appellant or that the numbers called belonged to somebody he knew.
There was evidence (at pages 13 & 16 of the record) that many people used the telephone lines.
Further submits that examples of inconsistencies and inadequacy of evidence as regards charge 2 i.e. attempt to commit military offence are as follows:-
(i) The prosecution did not give evidence to show that the price list was in respect of the mentioned five telephone lines – Judge Advocate’s comments on page 33 of the record.
(ii) Exhibit II which corroborated the evidence of the appellant that the price list was meant for the use of one Mr. Christian and not for the purposes of commercializing the telephone lines in flag staff house was ignored.
(iii) PW II gave evidence at page 9 of the record that they were not to collect money for the appellant if this is the case the purpose of exhibit 7, the price list becomes difficult to fathom.
(iv) There was no evidence of using a business name, identity of customers or how a telephone lines at Marina could be commercialized using a telephone number at Agege (a distance of about 200km) so as to prove that there was attempt at commercializing the line.
Submit that an act would only amount to an attempt where the act itself was sufficiently proximate to the crime which the accused intended to commit references made to Ibrahim v. State (1995) 3 NWLR (Pt.381) 35; Iden v. State (1994) 8 NWLR (Pt.365) 719.
Further submits that the prosecution did not prove its case beyond reasonable doubt and weaknesses identified in the prosecution’s case make conviction on the basis of circumstantial evidence (in the absence of direct evidence) very unsafe reference made to Teper v. The Queen (1952) AC 480 at 489 and Udedibia v. State (1976) 11 SC 133 at 138-139.
Finally, counsel to the appellant urged that the appeal be allowed.
The respondent in its argument contained in its amended brief filed on 21/5/2003 submits on issue No.1 that the appellant referred the Honourable Court to the case of Oro v. Falade (1995) 5 NWLR (Pt.396) 385 at 391. Where the Supreme Court held that a good judgment must contain:
(a) The issue or question to be decided.
(b) The essential facts, namely the case of each party and evidence or in appeals the argument in support of each.
(c) The resolution of facts and law.
(d) The conclusion or the general inference from the facts and the law as resolved and
(e) The verdict and terminal consequential orders.
The respondent concedes that, that was the decision of the Supreme Court but contends that a court martial is an exception to the above decision, that the above decision was not made in respect of a decision of a court martial that the said decision only relates to regular court and not a court martial.
Submits that a court martial is like a jury system and is established by military law or Armed Forces Decree No. 105 of 1993.
The respondent further submits that the General Court Martial does not need to give reasons for its findings, respondent referred the court to section 141(1) of the Armed Forces Decree No. 105 of 1993 which provides “without prejudice to the provisions of section 139 of this Decree the findings of a court martial on each charge shall be announced in open court and if the findings is guilty, shall be announced as being subject to confirmation.
The court was further referred to rule 67(1) rules 95 Procedure of the Army which provides the findings on each charge shall be announced in open court forthwith. Rule 67(3) of the same rules provides the findings shall be in the appropriate form set out in Schedule 4 to the Rules. Also referred to is Schedule D5 under the heading announcement as finding(s) under Schedule 4 referred to above of the same Rules.
Submits that the Court Martial in view of the foregoing was obligated by law not to give reasons for its findings and had no choice but to announce its findings without reasons in compliance with the law which gave it life and form. Further submits that by virtue of the provisions of Armed Forces Decree, the decisions of the court martial is not reached by a single individual, it is reached by members after deliberation, the major votes decide the decision of the court except in cases involving death sentence whose members have to be unanimous, respondent urged the court to discountenance the appellant’s submission in this regard, disallow the appeal and affirm the decision of the court martial as the court will find that the appellant’s submission in this regard is unfounded and baseless as it is not supported by a reasonable ground of appeal.
On Issue No.2, the respondent submits that a conviction can be based on section 95 of the Armed Forces Decree No. 105 of 1993 (as amended) in view of the provisions of sections 2-5 of the Telecommunications and Postal Offences Decree No. 21 of 1995 and section 114(1)(2)(3)(b) of Armed Forces Decree No. 105 of 1993.
That section 95 of the Armed Forces Decree clearly provides that an attempt to commit any offence under the Decree is an offence and is punishable under the said section. Section 114 on the other hand provides that a person subject to service law would not be exonerated from criminal liability it is established that he has committed any offence provided by our penal laws even though such an offence has not been specifically provided by the Armed Forces Decree.
That the Telecommunications and Postal Offences Decree provides that it is an offence to divert a telephone line that has been lawfully allocated to another person’s use for the purpose of enabling another person to make unauthorized phone calls.
The respondent contends that the offences which the appellant was tried and convicted for are not offences not known to law by virtue of sections 114(1)(2)(3)(b) of the Armed Forces Decree and sections 2-5 of the Telecommunications Offences Decree No. 21 of 1995. That no offence whether unknown or not were smuggled under the said section 95 of the Armed Forces Decree, the particulars of the offence were clearly stated.
Further submits that “attempt to commit military offences” in the charge sheet were clearly particularized or stated in the particulars of the offence as an attempt to commercialize the telephone lines of flag staff house by the appellant who drew up a price list and gave it to Sunday Adeniyi, who he instructed to connect one Christian to any line, both international and local by the use of the convenience facility in the flag staff house that the appellant in an attempt to commit the offence had set everything in motion except that he failed to obtain the co-operation of the soldiers working under him.
Respondent submits that the appellant’s contention in his issue for determination NO.2 covered by ground 2 of his notice of appeal is misconceived and urges us to affirm the decision of the court martial and dismiss the entire appeal because there is no reasonable ground of appeal before the Honourable Court in this regard.
On Issue No.3, counsel to the respondent in his brief of argument recounted the facts of the case, listed down what a charge sheet should contain and the proposition for procedure to be adopted in the trial pages 9 to 15 of the respondent’s amended brief of argument, respondent’s counsel referred the court to the cases of Obakpolor v. State (1993) 3 SC 497; DPP v. Kilbourne (1973) AC 729; Adepetu v. State (1996) 6 NWLR (Pt.452) 90; Nwambe v. State (1995) 3 NWLR (Pt.384) 385; Orepekan v. Amadi (1993) NSCC 133; Okasi and Ors. v. State (1989) 1 NSCC 378.
Respondent’s counsel submitted that un-contradictory, corroborated evidence at the trial court was adequate, consistent, corroborated, unchallenged, direct and circumstantial upon which the conviction was based.
Finally, counsel to the respondent urged us to discountenance the appellant’s submission in his brief of argument on Issue No.3 covered by ground 3 of his notice of appeal in this regard and uphold the decision of the Court Martial.
In this appeal, the appellant’s notice of appeal contained five grounds of appeal. Distilled from the said grounds of appeal for determination by this court are three issues which have been stated earlier in this judgment, both issues formulated by the appellant and the respondent are the same in all material respect as such the court would treat the issues as the same accordingly.
On Issue No.1 that is:
Whether the General Court Martial was not wrong in not giving any reason whatsoever in its judgment as to how and why the appellant was convicted.
The appellant through his counsel has contended that the General Court Martial did not give any reason for convicting and sentencing the appellant. The respondent has countered this contention by submitting that the General Court Martial was not obligated by law to give reasons for its findings and referred us to sections 141(1) of Armed Forces Decree No. 105 of 1993 (as amended).
Section 141(1) of the Armed Forces Decree No. 105 of 1993 as amended states:-
“Without prejudice to the provisions of section 139 of this Decree the findings of a Court Martial on each charge shall be announced in open court, and if the finding is guilty, shall be announced as being subject to confirmation.”
The above quoted section of Decree 105 of 1993, states that the findings of a General Court Martial be announced in open court.
It is logical that every finding of a court or tribunals must be based on reasons and the reason for reaching a particular finding or conclusion must definitely be based on facts. It is therefore imperative on every court or tribunal to give reasons for its decisions or judgment. Under section 143(1) of the Armed Forces Decree No. 105 of 1993, the rules as to evidence to be observed in proceeding before a Court Martial shall be the same as those observed in criminal courts in Nigeria, it is therefore mandatory on a General Court Martial to give reasons for its decisions or judgment based on the facts and evidence presented before it.
The conviction of the appellant by the General Court Martial is a decision or judgment and must include all the constituent parts of a good judgment. In Oro v. Falade supra the Supreme Court states the constituent parts of a good judgment as follows:
(a) the issues or questions to be decided
(b) the essential facts, namely, the case of each party and the evidence or in appeals the argument in support of each,
(c) the resolution of issues of facts and law.
(d) the conclusion or the general inference from the facts and the law as resolved
(e) the verdict and the terminal and consequential orders.
And this court in Madaki v. State (1996) 2 NWLR (Pt.429) 171 states thus:
“A trial court must clearly give the reasons for reaching a particular conclusion and the conclusion must definitely be based on facts. In the instant case, it is clear that the learned trial Judge did not say in what manner the evidence of P.W.1, P.WA and P.W.5 corroborated each other and the confessional state of the accused.”
In the instant appeal, the General Court Martial at page 34 of the records of proceedings states simply without more:
“WO Alloysius Idakwo you are charged with two offences. The first one misapplication of service property. Your second charge is attempt to commit military offence. In charge one the court finds you guilty and in charge two the court finds you guilty.”
There is nowhere in the record of proceedings before the court that the reasons of how the court martial arrived at the conclusion of guilt of the appellant on the two count charge was stated, there was only a pronouncement of the guilt of the appellant and no reason whatsoever to the pronouncement. None of the witnesses before the General Court Martial was assessed, reviewed and evaluated.
It is the primary function of a trial court or tribunal to evaluate evidence placed before arriving at a conclusion. It is only where and when a Judge fails to evaluate such evidence at all or properly that a court of appeal can intervene and in itself evaluate or re-evaluate such evidence.
None of the witnesses before the lower court was assessed, reviewed and evaluated. I also find that the opinion of the Judge Advocate as required by the law was not considered. It is in view of this that I hold the opinion that the judgment or findings of the General Court Martial failed to satisfy any of the elements of a good and considered judgment, therefore the conviction of the appellant based on a judgment or findings that failed to satisfy any of the elements of a good and considered judgment is perverse and wrong in law, it is in the light of this I must resolve the first issue in favour of the appellant.
The second issue is whether a conviction can be made under section 95 of the Armed Forces Decree No. 105 of 1993 without reference to a substantive offence created by the Decree. It is the contention of the appellant’s counsel that he cannot be charged and convicted for attempt to commit military offence punishable under section 95 of the Armed Forces Decree No. 105 of 1993. Unless the offence attempted to be committed is created under the Decree.
The respondent’s counsel on the other hand contends that under section 114(1) of the Armed Forces Decree No. 105 of 1993, a person subject to service law under the Decree who commits any other civil offence, whether or not listed under the Decree or committed in Nigeria or elsewhere is guilty of the offence under the Decree.
That the appellant was charged and convicted under sections 2 to 3 of the Telecommunications Offences Decree No. 21 of 1995.
Section 95 of the Armed Forces Decree No. 105 of 1993 states:
“A person subject to service law under this Decree who attempts to commit an offence under any section of this part of this Decree is liable on conviction by a Court Martial to the like punishment as for that offence, so however, that if the offence is punishable by death he shall not be liable to any greater punishment than imprisonment for life.”
Section 114(1) of the Armed Forces Decree No. 105 of 1993 states:
“A person subject to service law under this Decree who commits any other civil offence whether or not listed under this Decree or committed in Nigeria or elsewhere is guilty of an offence under this section.”
It is beyond doubt that by the provisions of section 114(1) of the Armed Forces Decree No. 105 of 1993 a person subject to service law can be charged and convicted for any civil offence created under any enactment, therefore a person subject to service law is liable to be charged with an offence to attempt to commit an offence under any other enactment and by punishable by virtue of section 114(1) of the Armed Forces Decree No. 105 of 1993.Now the charge against the appellant at the lower Court Martial states as follows:
Statement of Offence.
Attempt to commit military offence punishable under section 95 of the Armed Forces Decree No. 105 of 1993.
Particulars of Offence
In that he at Lagos gave a price list for international calls in respect of telephone lines 2635662, 2635591, 2637719, 684573 and 2633116 in flag staff house to LCPL Sunday Adebiyi for the purpose of commercializing the telephone lines.
The appellant on charge 1 was charged and convicted under section 95 of the Armed Forces Decree No. 105 of 1993 for the offence of attempt to commit military offence. Section 95 of the Decree created the offence of attempts to commit offence under any section of this Part of the Decree, for a person to be charged and convicted for an offence of attempt under that section it has to be shown that the offence attempted to be committed was created under the said Decree i.e. Decree No. 105 of 1993.
In the instant case, the appellant was charged with the offence of attempt to commit military offence, it has not been shown on the charge sheet which offence under Decree No. 105 of 1993 the appellant attempted to commit to make him liable under section 95 of the said Decree. There is no offence of attempt to commit military offence under section 95 of the Armed Forces Decree No. 105 of 1993. Simpliciter the attempt to commit the offence must relate to a particular offence created under any section of the Decree.
Also, commercialization of telephone lines used in the charge sheet is also not an offence known or created by the Armed Forces Decree or any other law.
I took note of the submissions of counsel to the respondent with regard to the provisions of section 114(1) of the Armed Forces Decree No. 105 of 1993 and sections 2 to 3 of the Telecommunications Offences Decree No. 21 of 1995, the appellant was not charged under the provisions of the two decrees cited as such they cannot avail the respondent. I therefore hold that the first charge against the appellant, attempt to commit military offence under section 95 of Armed Forces Decree is not an offence based on any offence created by any section of Decree No. 105 of 1995 and therefore an offence not known to law. Sections 35(7) and 35( 11) of the 1999 Constitution states that a person shall not be convicted of a criminal offence unless that offence is defined and the penalty is prescribed in a written law.
Since I have earlier held that charge 1 against the appellant is based on an offence unknown to law. The appellant was convicted on an offence not known to law, that is wrong in law, in the light of this
I must resolve the second issue in favour of the appellant.
On issue No.3 that is whether in the circumstances of the case especially the circumstantial, contradictory and inadequate evidence adduced by the prosecution and non-finding of essential ingredients of the offences the conviction of the appellant on the two charges was right. In the consideration of this issue, I will limit myself to the second charge since I have already held that the first charge against the appellant was based on a non-existent law and the whole trial under that charge is a nullity.
The second charge against the appellant reads:
Statement of offence
Offence in relation to public/service property punishable under section 66(a) of the Armed Forces Decree No. 105 of 1993.
Particulars of Offence.
He at Lagos between 01 April – 30 April, 1996 fraudulently misapplied flag staff house telephone No. 2633116 in receiving personal fax messages from Israel.
To prove this charge the prosecution is expected to establish the following ingredients:
(a) That the accused is subject to service law.
(b) That the property in question must be capable of being misapplied.
(c) That the accused must (sic)fraudulently misapplied the property.
(d) That the misapplication must be without consent of the owners.
For the prosecution to succeed, they must establish that the appellant fraudulently misapplied flag staff house telephone No. 2633116 in receiving personal fax message from Israel. Fraud has to be proved in this charge. From the record of the lower court, there was no evidence whatsoever that the appellant received any fax messages from Israel, fax messages are in form of written document the easiest way to prove receiving of fax message is to tender the fax message as evidence and this was not done in this case.
Again, there was no evidence that receiving personal fax messages was fraudulent in the sense that no evidence was led to show the charges made for the fax messages received. And beside the person receiving the fax messages has no control over the fax being sent to him, in the sense that if the sender decides to send the fax message, you cannot stop him because you do not have control over his facility.
It is therefore my finding that there is no iota of evidence at the lower Court Martial that the appellant received any fax messages from Israel or the mere receiving of fax messages without more constitute an offence under section 66(a) of the Armed Forces Decree No. 105 of 1993. In the light of the foregoing, I resolve the issue No. 3 in favour of the appellant.
The end result is that this appeal succeeds and is hereby allowed.
I set aside the conviction of the appellant by the General Court Martial on 8th October, 1996.
In substitution therefore I make an order discharging and acquitting the appellant on the offences charged.
Other Citations: (2003)LCN/1423(CA)
