Lieutenant Anthony I. Bakoshi & Ors V. Chief of Naval Staff & Ors (2003)

LawGlobal-Hub Lead Judgment Report

SIMEON OSUJI EKPE, J.C.A.

The appellants above-named, were arraigned along with three others, before a General Court Martial presided over by Navy Captain S. E. A. Olamilokun, sitting at the Naval Base, Calabar, on a two count charge of conspiracy and stealing 5,700 litres of diesel, supplied to NNS Hadejia, property of the Nigerian Navy valued at N108,300 (one hundred and eight thousand, three hundred Naira). The appellants who pleaded not guilty were however tried and found guilty on the two count charge by the court. In its judgment delivered on the 9th day of February, 2000, the court sentenced each of the appellants to one year imprisonment on each count charge.

Dissatisfied with their convictions and sentences, the appellants have brought this appeal on five grounds of appeal which read thus:

“Ground 1:

The judgment of the General Court Martial is altogether unreasonable, unwarranted and cannot be supported having regard to the evidence.

Ground 2:

The General Court Martial trial and decision were a complete nullity thus, rendering the judgment void.

Particulars

(a) None of the members of the General Court Martial took oath or affirmed before the trial of the appellants, contrary to the mandatory provisions of section 138 of the Armed Forces Act, 1993.

(b) There was no convening order directing the sitting of the court, and trial of the appellants as required by law.

(c) The judgment of the court as shown on pages 431 to 445 of the record of proceedings was not signed or authenticated by the President or any member of the Court Martial.

Ground 3:

The General Court Martial erred in law, in denying the appellants a lawyer of their choice.

Particulars

(a) The court threatened their counsel through 1st appellant at page 367 thus:

‘Please, advise him not to come because I will lock him up for contempt of this court. Please I am making it frank … I am a military man.’

(b) The court denied the appellants right to be released on bail so as to contract a lawyer of their choice.

Ground 4

The court was unfair to the appellants and exhibited bias against them and was teleguided by the 2nd respondent, who was bent on convicting the appellants rightly or wrongly.

Particulars

(a) The President and Judge Advocate descended to the arena by asking prosecution witnesses questions to implicate the appellants or in aid of the prosecution.

(b) The appellants were detained in cell throughout the trial contrary to the Armed Forces Decree.

(c) The appellants were amongst the seven convicted persons, but three convicts were released and are still serving without any justification.

(d) The appellants were rail roaded into civil prison without the sentence (sic) being confirmed by the confirming authority contrary to the Armed Forces Decree, 1993.

Ground 5

The General Court Martial erred in law, in convicting the appellants when there were fundamental contradictions in the evidence of prosecution witnesses.

Particulars

(a) There was no evidence of agreement between the convicts to justify the conviction and sentence for conspiracy.

(b) There were conflicting evidence of the quantity of diesel allegedly stolen.

(c) The charge read that the appellant stole 5,700 litres of diesel, whilst the evidence of witnesses say between 7,500 and 8,500 litres.”

The appellants filed their brief of argument.

From the five grounds of appeal, the appellants formulated two issues in their brief of argument for determination of the appeal as follows:

“1. Whether the non-compliance with mandatory provision of the Armed Forces Decree, 105 of 1993 as amended, the Constitution of the Federal Republic of Nigeria, 1999 and the Criminal Procedure Act, 1990, did not vitiate the entire proceedings thus, rendering the judgment null and void.

2. Whether the Court Martial was fair in the trial and evaluation of evidence before it in reaching the decision of convicting the appellants.”

The respondents also filed their brief of argument and framed three issues for the determination of the appeal. They also read:

“(1) Whether or not the members of the General Court Martial complied with the provisions of S. 138(1) of the Armed Forces Decree, 1993 (as amended), 1999 Constitution, the Criminal Procedure Act, 1990, and the judgment of the court being unsigned and undated as required by law render all the proceedings and judgment null and void.

(2) Whether the entire proceedings of the General Court Martial against the appellants was a nullity due to the failure of the General Court Martial to give reason for reaching its finding/judgment.

(3) Whether or not the General Court Martial was fair in its trial of the appellants, evaluation of evidence before it in reaching the decision of convicting the appellants.”

Briefly, the facts of this case are that the appellants and three others who were charged and tried together before the General Court Martial for the said offences of conspiracy and stealing were at all times material to this case naval personnel, serving in N.N.S. Anansa, Calabar. The offences were alleged to have been committed on the 3rd of December, 1999 at Calabar. The trial was conducted between 21st of January, 2000 and through to the 9th of February, 2000, when the judgment was delivered in the case.

The prosecution called four witnesses and closed its case. There upon the defence counsel made a no case submission on behalf of the appellants which was overruled.

The appellants then gave an unsworn testimony. In its judgment, the General Court Martial found each of the appellants and the three others guilty as charged, convicted them and accordingly sentenced each of them to one year imprisonment without an option of fine. It is from this decision of the General Court Martial that the appellants have now appealed to this court.

Before I go further, I shall at this juncture consider the propriety of the issues framed by the respondents, in relation to the appellants’ grounds of appeal. The law is well settled that issues for determination in an appeal must of necessity arise from or be related to the grounds of appeal filed. Where, therefore an issue for determination does not arise from or is not related to the ground(s) of appeal filed, the issue is incompetent and is liable to be struck out.

In the instant case, the appellants filed five grounds of appeal from which they formulated two issues for determination. Relating the two issues to the grounds of appeal filed, it is clear that issue No.1 is related to ground 2 of the grounds of appeal, while issue No.2 is related to grounds 1, 3, 4 and 5 of the grounds of appeal. On the other hand, the respondents framed three issues for the determination of the appeal. While issue Nos. 1 and 3 of the respondents are related to grounds 2 and 4 respectively of the appellants’ grounds of appeal, issue No.2 is not related to any of the remaining grounds of appeal filed. The law is that a respondent who has not filed a cross-appeal or a respondent’s notice cannot go outside the appellant’s grounds of appeal to formulate his own issues not related to the grounds of appeal.

He has to adopt the appellant’s issues as formulated from the grounds of appeal, or at best recast those issues by giving them a slant favourable to his point of view but without departing from complaint raised by the grounds of appeal filed. See Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511 at 543 to 544. In the instant case, the respondents’ issue No.2 which is unrelated to any ground of appeal is incompetent and it is hereby struck out. See Udom v. Micheletti & Sons Ltd. (1997) 8 NWLR (Pt. 516) 187, (1997) 7 SCNJ 448 at 457; Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511 at 543 to 544; Udene v. Ugwu (1997) 3 NWLR (Pt. 491) 57.Arguing issue No.1 in the appellant’s brief of argument, the learned Counsel for the appellants, Joe Odey-Agi, Esq. submitted that it is a mandatory requirement of the Armed Forces Decree No. 1993 as amended, that persons subject to service law shall be tried by a Court Martial which must be convened by an officer who has the right and power to do so.

However, the learned Counsel contended that in the case on hand, there was no convening order as required by law. He referred to the ‘addendum’ to convening order for General Court Martial under the Armed Forces Decree (AFD) No. 105 of 1999 (as amended) to try CDR. MB. Ajibade (NN/0780)” in the record of proceedings and submitted that there is no connection between that addendum and the appellants, except that it is an addendum.

He argued that the law does not make provision for an addendum, but rather, every person who is to be tried must have his court martial convened to try him.

He referred to section 133 of the said Armed Forces Decree as to the contents of a convening order and submitted that the convening order as shown in the record of proceedings is devoid of the mandatory requirements of a convening order. He cited the Court Martial case of Nigeria Army v. Capt. I.O. Mohammed & Anor. dated 16th to 26th June, 1997 (unreported); the case of Okoro v. Nigerian Army Council (2000) 3 NWLR (Pt. 647) 77 at 90-91.

He also submitted that in the absence of the original convening order for the General Court Martial to which Captain Attah made the addendum in the record of proceedings, Capt. Attah had no power to convene the General Court Martial in this case and therefore, the addendum is a nullity and referred to Shekete v. The Nigerian Air Force (2000) 15 NWLR (Pt. 692) 868.

Another point of interest and indeed importance made by the learned Counsel for the appellants is the absence of administration of oath to every member of the Court Martial in the present case, contrary to section 138(1) of the Armed Forces Decree No. 105 of 1993. It was contended that non-compliance with the mandatory statutory provision rendered the proceedings void as it robbed the court of jurisdiction. Reliance was placed on Maiwada v. First Bank of Nig. Plc. & Ors. (1997) 4 NWLR (Pt. 500) 497 at 507; Achineku v. Ishagba (1988) 4 NWLR (Pt. 89) 411 for the interpretation of the word ‘shall’ in a statute as a word of command or as denoting obligation.

See Amadi v. N.N.P.C. (2000) 10 NWLR (Pt. 674) 76 at 97; Ifezue v. Mbadugha (1984) All NLR 256 at 272, (1984) 1 SCNLR 427; Woodword v. Sarsons (1975) LR 10 CP. 733 at 746. It was submitted that where the words of an enactment are clear and unambiguous, a literal interpretation must be given to the enactment and reference was made to Awolowo v. Shagari (1979) 6-9 SC 51 at 64-65.

Furthermore, it was the submission of the learned Counsel for the appellants that the entire proceedings and judgment of the Court Martial is a nullity because the judgment was not signed or dated as required by law, vide pages 451 to 465 of the record of proceedings. Reference was made to section 245 of the Criminal Procedure Act, 1990 and section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria; Tsalibawa v. Habiba (1991) 2 NWLR (Pt. 174) 461 at 475 – 477.

Finally, the learned Counsel submitted that the date and signing of a judgment is a mandatory statutory provision and failure to sign and date a judgment at the time of pronouncing it renders the judgment void.

The respondents’ issue No.1 as I have already stated, is akin to the appellants issue No. 1. In arguing this issue in the respondents’ brief of argument, the learned Counsel for the respondents submitted that the clear provisions of section 138(1) of Armed Forces Decree No. 105 of 1993 (as amended) were complied with. He submitted that the Court Martial was properly constituted before the arraignment of the appellants for trial and that this fact, was clearly stated on the face of the letter signed by Captain S.O. Attah N.N. Commanding Officer, wherein, on the face of it, references were made to the earlier correspondences between the Eastern Naval Command Headquarters, the convener of the Court Martial convened initially to try Commander M.B. Ajibade (N/N/0780), while the appellants were only added in reference to A-E of the correspondences.

It was also submitted that section 131(3) of the Armed Forces Decree No. 105 of 1993, gave the senior officer of a detached unit authority to order a Court Martial in special circumstances. The learned Counsel for the respondents further submitted that the record of proceedings herein is volume two, while volume 1 contains all the oath taking proceedings.

In addition, it was submitted that the judgment of the Court Martial was signed and dated contrary to the contention of the appellants and it was forwarded for necessary consideration for confirmation as provided by sections 148(1), (2) and (3) of Decree No. 105 of 1993 as amended. The learned Counsel for the respondent also referred to section 150(1) of the Decree, which gave the confirming authority right to review/reverse its finding. He also referred to sections 151 and 152 of the Decree as being relevant here.

It was strenuously argued for the respondents that the appellants did not raise the issue being now canvassed by them at the court of trial, nor did they obtain the leave of this court to raise the issues in this court. It was submitted that it is trite law that in appeal cases, appellants are required as a matter of law to seek for and obtain the leave of an appellate court, where the aim is to introduce new issues not canvassed at the court of trial. In support of this contention, the learned Counsel for the respondents referred to Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt. 109) 250; Ajuwon v. Adeoti (1990) 2 NWLR (Pt. 132) 271, where the court emphatically observed that the fact that leave was granted to the appellant to file his grounds of appeals does not automatically confer the authority to urge and argue new issues, and that the appellant must seek and obtain leave specifically for that purpose.

Issue No.2 in the appellants brief of argument is whether there was fair trial and evaluation of evidence by the Court Martial before reaching the decision to convict the appellants.

Arguing this issue, the learned Counsel for the appellants contended that the appellants were denied the right to get a lawyer of their choice from the date they were placed in custody after their arrest to the date of their arraignment and until their subsequent conviction and even when the appellants managed to retain a lawyer, he did his job under very excruciating conditions resulting in his withdrawing from the defence of the appellants.

The learned Counsel referred to page 307 of the record of proceedings where the President of the Court Martial, threatened to lock up the defence counsel should he appear in court again to defend the appellants.

It was therefore, submitted for the appellants that there was a clear violation of the fundamental right of the appellants to fair hearing as enshrined in section 36(6)(b) and (c) of the 1999 Constitution. It was also submitted that the Court Martial exhibited undue interest in the case that rendered the entire trial suspect in that the President of the Court Martial and the Judge Advocate asked so many questions that they virtually became the prosecuting counsel and digging to find answers from witnesses so as to implicate the appellants.

Illustrating the magnitude of the undue interference, the appellants’ counsel referred to pages 71, 75, 110- 114 and 179 – 185 of the record of proceedings and submitted that the President of the Court Martial’s questions to PW1 spanned from pages of the record, the questions to PW2 spanned four pages of the record and the questions to PW3 ran into seven pages of the record. It was contended that the questions asked were intended to elicit favourable answers to the prosecution.

The learned Counsel for the appellants referred to the High Court case of Nwofoke v. C.O.P. (1981) 1 NCR 183 and submitted that the undue interference by the Court Martial removed the trial from the realms of fair trial known to our jurisprudence.

It was also submitted that the Court Martial failed woefully in its appraisal and evaluation of the evidence before it. It was contended that while the charges against the appellants were for conspiracy and stealing 5,700 litres of diesel, the evidence of PW1 in one breath was that 7,500 litres of diesel were stolen or removed, and in another breath that 8,500 litres of diesel were stolen.

Again, PW2, the driver of the tanker through whom the appellants were alleged to have stolen the diesel, gave two conflicting versions of the quantity of the diesel allegedly stolen. He first testified that it was 7,500 litres, but subsequently he said that it was 12,500 litres.

It was also contended that the evidence of PW3, who took delivery of the stolen diesel was in conflict with the evidence of PW2. As to the evidence of PW4, the learned Counsel to the appellants contended that it was merely hear-say. He submitted that the contradictions were not explained, rather the court believed the witnesses, and the failure by the prosecution to explain the contradictions is fatal to its case. He cited Onubogu v. The State (1974) 9 SC 1; Ateji v. The State (1976) 2 SC 79; Jizurumba v. The State (1976) 3 SC 89; Williams v. The State (1975) 9-11 SC 139, (1975) 5 ECSLR 575; Joshua v. The Queen (1964) 1 All NLR 1.

On the charge of conspiracy, it was submitted that no evidence was adduced to support the charge, yet the court found the appellants guilty of that count.

Finally, the learned Counsel for the appellants urged this court to set aside the convictions and sentences and to re-instate the appellants with all their entitlements.

The respondents in their brief of argument argued issue No.3 in response to the appellants’ issue No.2. Jimoh Abdulkadir Adamu, Esq. learned Counsel for the respondents submitted that the rule as to fair hearing was strictly adhered to in the entire trial as prescribed by the 1999 Constitution. Referring to the case of Adigun v. A.-G., Oyo State (1987) 1 NWLR (Pt. 53) 678; (1987) 12 SC 118, on the true test of fair hearing as laid down by the Supreme Court, he submitted that there is nothing in the record of proceedings to show or give the impression that the General Court Martial favoured one side at the expense of the other.

He contended that by the rules of procedure guiding such trials as the one in hand the members of the Court Martial are permitted to ask questions, during the trial with a view to clear doubts or ambiguities arising from the evidence. He argued that the questions asked by the court in this case did not in any way favour the case of the prosecution, nor did they show that the members of the Court Martial had a preconception as to the guilt of the appellants. He also contended that the members of the Court Martial were not biased against the appellants and there was no evidence of bias or the likelihood of bias.

The case of Olaye v. Chairman, Medical and Dental Practitioners Investigating Panel (1997) 5 NWLR (Pt.506) 550 at 563 – 564 was cited. He therefore, urged this court not to disturb the findings of the court below because there were no exceptional circumstances shown that the inferences from the established facts are wrong or that the findings of fact do not flow from the evidence adduced before the court, and he alluded to Fashanu v. Adekoya (1974) 6 SC 83 at 91, (1974) 1 All NLR (Pt. 1) 35.

I have carefully considered the arguments of learned counsel for both parties on the two issues for the determination of the appeal.

Firstly, I shall take and resolve issue No.1 in the appellants’ brief of argument. This issue has catalogued instances of noncompliance with certain mandatory statutory provisions in the Armed Forces Decree, 1993, which as was argued went to the root of the trial and thereby affected the jurisdiction of the court and rendered the trial null and void. I shall now address these instances of non-compliance with the mandatory statutory provisions of the Armed Forces Decree, 1993 and their effect on the whole case before the General Court Martial.

The first instance of non-compliance has to do with the absence of a convening order for the trial of the appellants before the General Court Martial. Section 131(2) of the Armed Forces Decree No. 105 of 1993, provides for the ranks of officers, who have power to convene a General Court Martial to try persons that are subject to service law. For a Court Martial to be duly constituted it must comply with the provisions of section 133 sub-sections (1) to (6) and section 134(1) of the Decree. In this regard, therefore, there must be a convening order signed by a convening officer as provided in section 131(2) of the Armed Forces Decree, 1993.

Therefore, the question that arises is whether there was a convening order for the General Court Martial to try the appellants. Section 131(2) of the said Decree provides for the constitution of a General Court Martial, which may be convened by any of the following officers mentioned in the subsection:

(a) the President; or

(b) the Chief of Staff; or

(c) the Service Chiefs; or

(d) a General Officer Commanding or corresponding commands; or

(e) a Brigade Commander or corresponding command.

It was submitted by the learned Counsel for the appellants that there was no convening order for the General Court Martial as what is available in the record of proceedings is “addendum to convening order for General Court Martial under the Armed Forces Decree No. 105 of 1999 as amended to try CDR M. B. Ajibade (NN/0780)”.

I agree entirely with that submission. I have scrutinized the record of proceedings from page to page and I cannot find or trace the convening order in this case for the trial of the appellants. The addendum referred to above, is by no means the convening order for the trial of the appellants. The questions therefore are, where is the convening order? Who signed it? Who were the members that constituted the General Court Martial? In my view, the addendum per se (without the main convening order) cannot answer these questions with certainty. In my opinion, the convening order is a vital document for the purpose of exercising jurisdiction by the General Court Martial to try the case. Its importance cannot be over emphasised as regards the status of the convening officer, the composition of the members of the General Court Martial and the ranks of the members.

It is an elementary principle of law that a court is said to have jurisdiction or competence when:

(i) It is properly constituted as regards number and qualification of members of the bench and no member is disqualified for one reason or another.

(ii) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising jurisdiction.

(iii) The case comes before the court initiated by due process of law and upon the fulfilment of any condition precedent to the exercise of jurisdiction. See Madukolu v. Nkemdilim (1962) 1 All NLR 587 at page 595; Rossek v. A.C.B. Ltd. (1993) 8 NWLR (Pt. 312) 382; Skenconsult (Nig.) Ltd. & Ors. v. Ukey (1981) 1 SC 6.

It is the convening order signed by the appropriate authority that originates the trial by the General Court Martial. It is a condition precedent to the exercise of jurisdiction by the General Court Martial to embark upon the trial.

I therefore, hold the view that in the absence of the convening order, there was no valid trial as the Court Martial lacked jurisdiction to try the case. The purported trial of the appellants is a nullity.

The absence of administration of oath to every member of the General Court Martial is another aspect of lack of jurisdiction and competence by the trial court. Section 138(1) of the Armed Forces Decree No. 105 of 1993, provides as follows:

“An oath shall be administered to every member of a Court Martial and to any person in attendance on a Court Martial as Judge Advocate, waiting member, shorthand writer and interpreters.”(Italics is mine for emphasis)

It is well settled that in statutory interpretation, the word “shall” in a statute, is a word of command. It denotes obligation and gives no room to discretion. It imposes a duty, even though sometimes, it is construed as merely permissive or directory to carry out the legislative intention. See Katto v. C.B.N. (1991) 9 NWLR (Pt. 214) 126 at page 147; per Akpata, JSC; Achineku v. Ishagba (1988) 4 NWLR (Pt. 89) 411; Maiwada v. First Bank of Nigeria Plc. (1997) 4 NWLR (Pt. 500) 497 at 507. In my view, the word ‘shall’ in section 138(1) of the Armed Forces Decree No. 105 of 1993, denotes a command, obligation or duty and it gives no room for discretion.

I have carefully perused the entire record of the proceedings and there is no where on record oath was shown to have been administered to the members of the General Court Martial. That being so, I hold that there was non-compliance with section 138(1) of the Armed Forces Decree No. 105 of 1993, in the instant case. This noncompliance automatically renders the whole trial null and void and of no effect whatsoever, no matter how well conducted it might have been.

Another chequered history of the trial in this case, is that the judgment of the Court Martial was not signed and dated as required by law. Section 245 of the Criminal Procedure Acts, which applies to this court is binding on the court and it provides as follows:

“The Judge or Magistrate shall record his judgment in writing and every such judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed by the Judge or Magistrate at the time of pronouncing it…”

(Italics is mine for emphasis)

Again, the word “shall” in this section has the same force and import as in section 138(1) of the Armed Forces Decree No. 105 of 1993, as elucidated in the case of Katto v. CBN (supra). It is clearly a mandatory statutory requirement. It was decided in Unakalamba v. Police (1958) 3 FSC 7, that the language of the section is quite clear and that as far as Judges of the High Courts are concerned their judgments must be reduced into writing and signed and dated before they are pronounced. In my view, by extension the same applies to Court Martials. I have observed with dismay that, the judgment in the instant case was not dated and signed by the President of the General Court Martial, contrary to the mandatory statutory provision of section 245 of the Criminal Procedure Act. Consequently, this renders the judgment null and void. See Tsalibawa v. Habiba (1991) 2 NWLR (Pt. 174) 461 at 475 – 477.

The learned Counsel to the respondents was unable to convince us in his submissions on the above issues or matters of law raised in the appellants’ brief which demand strict compliance but were not complied with.

Be that as it may, the learned Counsel for the respondents has contended that the appellants did not raise the issues being now raised by them at the trial court and did not obtain the leave of this court to raise the issues in this court. He cited some authorities in support of his contention.

It is a correct proposition of law that generally, an appellant will not be allowed to raise on appeal, a point or issue that was not raised or canvassed or argued at the trial or considered by the trial court, without the leave of the Court of Appeal.

But an exception to this principle is that where the issue of jurisdiction is involved, it can be raised at any time and even on appeal for the first time. In Okoro v. Nigerian Army Council (2000) 3 NWLR (Pt. 647) 77 at pages 90 to 91, it was held that the issue of jurisdiction being fundamental in nature, it can be raised at any time in the proceedings even for the first time at the appeal level without any leave and it can be raised either at the instance of the parties or by the court suo motu, in order to avoid an exercise in futility.

It does not matter even if the appellant who is raising it for the first time on appeal had taken any part in the proceedings before the trial court. See Ajakaiye v. Military Governor, Bendel State (1993) 9 SCNJ 242; Yusuf v. Cooperative Bank Ltd. (1994) 7 NWLR (Pt. 359) 676. In the instant case, there is no doubt that the legal issues raised under issue No.1 by the learned Counsel for the appellants border squarely on the exercise of jurisdiction by the General Court Martial in the trial of the appellants. In my view therefore, since the issues raised border on the jurisdiction of the General Court Martial, they were properly raised at this stage on appeal. The issue of jurisdiction being so fundamental and decisive of any case cannot be compromised by the parties and even by the court.

Therefore, issue No. 1 is accordingly resolved in favour of the appellants.

Issue No.2 deals with fair hearing and evaluation of evidence by the Court Martial. The principle of fair hearing is enshrined in section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria. It provides that in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to ensure its independence and impartiality.

The question is, after going through the record of proceedings in the case, can it be said that the appellants were given a fair hearing by the General Court Martial? I will not hesitate to answer the question in the negative. The President of the Court Martial dominated the hearing in such a manner that he literally descended into the arena as if it was a battle between him and the appellants and the learned defence counsel who was defending under excruciating circumstances. The President did not restrain himself in the way and manner he asked questions to the prosecution witnesses as if the questions were intended to elicit favourable answers to the prosecution. The President, it would appear, did not realize that as a Judge, he was holding an impartial position in the case and should have no personal interest as if he was out to convict and send the appellants to prison in any event.

The test of a fair hearing is the impression of a reasonable person who was present at the hearing, whether from his observation justice was done in the case. See Mohammadu v. Kano N. A. (1968) 1 All NLR 424; Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587. In my view, the appellants were not given a fair hearing.

It is a fundamental principle of the law that where there is a breach or denial of fair hearing, the entire proceedings are a nullity and a party thereby affected is entitled ex debito justitiae to have the proceedings set aside. See Dawodu v. Ologundudu (1986) 4 NWLR (Pt. 33) 104; Ogundoyin v. Adeyemi (2001) 13 NWLR (Pt. 730) 403 at page 422.

On the evidence adduced before the Court Martial, there is no gain-saying the fact that there was conflicting evidence among the prosecution witnesses on the issue of the quantity of diesel allegedly stolen by the appellants. The prosecution made no attempt at the trial to explain the conflict and the court below did not resolve the conflict which cannot be described as minor or immaterial and consequently not fatal to the charge. Indeed, the conflicts raise doubt as to the guilt of the appellants. See Stephens v. C.O.P. (1986) 2 NWLR (Pt. 25) 673; Ogbodu v. The State (1986) 5 NWLR (Pt. 41) 294. In Opayemi v. The State (1985) 2 NWLR (Pt. 5) 101, the Supreme Court held that where there are material discrepancies in the testimony of the prosecution witnesses, it is not possible to hold that the evidence for the prosecution is overwhelming.

In the instant case, the evidence to support the charge of stealing the diesel was contradictory. If the court below had properly appraised and evaluated the evidence of the prosecution witnesses, it would have entertained doubt as to the guilt of the appellants. I am clearly of the view that there is doubt in the evidence of the prosecution witnesses and the doubt should be resolved in favour of the appellants.

In conclusion therefore, I hold that the appeal is meritorious and I hereby, allow it. The judgment of the General Court Martial delivered on the 9th of February, 2000, is hereby set aside. The appellants are hereby discharged and acquitted.

---

Other Citations: (2003)LCN/1396(CA)