Lt. Commander Ben Ofuani V. The Nigerian Navy & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
SALAMI, J.C.A.
The accused was arraigned on a two-count charge before a General Court Martial. The two counts against the appellant on the charge sheet read as follows:-
Charge One
Statement of the offence:-
Sexual relation with service personnel’s spouse contrary to section 79 of the Armed Forces Decree No.105, 1993 Particulars of the offence
In that: Lt. Cdr B. Ofuani did have carnal knowledge of rating’s wife, Mrs. Rosemary Edemumoh wife of CPOG 1 Edemumoh VE x 3315 in Navy Town between 1993-96.
Charge Two
Statement of the offence:- Scandalous conduct contrary to section 91 of the Armed Forces Decree No. 105, 1993.
Particulars of the offence –
In that: Lt. Cdr. B. Ofuani did behave in a scandalous manner unbecoming of the character of an officer and gentleman by having carnal knowledge of a rating’s wife, Mrs. Rosemary Edemumoh, wife of CPOG 1 Edemumoh VE X 3315 in Navy Town between 1993-96.
The accused pleaded not guilty to both counts; Thereafter evidence were led by each party. The court martial, on the 2nd day of May, 1997, at the Western Naval Command Base NNS Olokun, Apapa, Lagos, in a reserved and considered judgment did not find the accused guilty of count one and accordingly discharged and acquitted him. On the second count in the charge, the accused was found guilty and was accordingly convicted. The Naval Board has since confirmed appellant’s conviction by the General Court Martial. The accused before his trial and conviction was an officer of the Nigerian Navy of the rank of Lieutenant Commander. The accused, being dissatisfied or aggrieved, appealed to this court on seven grounds of appeal.
In accordance with the procedure and practice of this court, the accused (hereinafter referred to appellant) filed appellant’s brief. In the appellant’s brief the following seven issues were identified from the seven grounds of appeal contained in the notice of appeal:-
“1. Whether the elements of the second count charged to secure the conviction of the appellant as contained in the judgment was proved beyond reasonable doubt by the prosecution.
- Whether the appellant could be found guilty of the second count charge without corroboration by any witness, of the act of sexual intercourse and in the absence of the testimony of at least 2 independent witnesses.
- Whether the appellant’s right to fair hearing was violated by the general conduct of the court martial and by the failure to serve the appellant with a circumstantial letter.
- Whether the court martial failed to give reasons for its findings in its judgment? If yes, whether this did not lead to a miscarriage of justice against the appellant contrary to section 258 of the 1979 Constitution.
- Whether the judgment of general court martial is just reasonable and can be supported having regard to the evidence given during the trial.
- Whether there was any evidence of shock given by either of the children or neighbour so as to justify the general court martial in finding the accused guilty of second count charge.
- Whether the decision of the general court martial in securing a conviction on the second count is just, having regard to material contradictions in the evidence adduced during trial.”
In the respondent’s brief, two issues were identified as calling for determination having due regard to the appellant’s grounds of appeal. They read as follows:-
“(1) Whether the court martial conviction of the appellant was right in law, or whether the conviction of the appellant by the court martial was right in law.
(2) Whether the appellant’s right of fair hearing was breached or violated by the court martial.”
On the appellant’s first issue for determination which relates to ground 1 of the grounds of appeal, learned counsel contended, after reading the count and its particulars that the Judge advocate as well as the general court martial rightly identified the elements or the ingredients of the offence which tallied with his own formulations. Learned counsel went on to contend that the parties and the court having reached a consensus on the ingredients of the second count the main point was to examine how far the elements of the count were established in view of the burden of proof the prosecution was saddled with by sections 137(2) and 138(1) of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990. He referred to Kim v. State (1992) 9 LRCN 791; (1992) 4 NWLR (Pt. 233) 17 and Asanya v. State (1991) 3 LRCN 720, 733; (1991) 3 NWLR (Pt. 180) 422. Learned counsel argued that the prosecution failed to advert its mind towards or give evidence on the elements set out above. Learned counsel for appellant, in the appellant’s brief, strenuously contested the making out of some of the ingredients of the offence, such as:-
“(a) Whether appellant had carnal knowledge of a service personnel’s wife which requirement also implies celebration or performance of marriage rites between the accused and eleventh prosecution witness, accuser’s wife.
(b) Whether or not there was penetration.
(c) Whether any member of the naval community such as their neighbours heard about the act of carnal knowledge between the appellant and the accuser’s wife.
(d) Whether the people who heard about the act of sexual intercourse were shocked.
Learned counsel for appellant then concluded his submissions on this issue.
“We further submit that in the light of the above reasons, including the acquittal (by the court martial) of the appellant on the first count charge as seen in paragraph 4 on page 991 of the record of proceedings, the appellant’s conviction on the second count charge, which has common elements/ingredients of carnal knowledge and penetration (amongst other ingredients) were not proved or witnessed by the prosecution witnesses and could not have been proved beyond reasonable doubt.”
Notwithstanding that the appellant was discharged of the first count brought under section 79 of the Armed Forces Decree No. 105 of 1993 he was found guilty and convicted of the second count laid under S. 91 of the Decree. It is pertinent to set out the two sections under which the respective counts were brought. This is relevant especially when considering the appellant’s argument that a discharge and acquittal under one count should have resulted in the appellant’s acquittal on the second count. The relevant sections are reproduced immediately hereunder:-
“79. A person subject to service law under this Decree who has carnal knowledge of the spouse of any other person subject to service law under the Decree is guilty of an offence under this section and liable, on conviction by a court martial, to imprisonment for a term not exceeding five years, so however, that no person shall be convicted under this section upon the uncorroborated evidence of the witness.”
- An officer subject to service law under this Decree who behaves in a scandalous manner unbecoming of the character of an officer and a gentleman is guilty of an offence under this section and liable on conviction by a court martial to be cashiered. It is doubtful if the learned counsel for prosecution read the provisions of the two sections of the Act under which both counts of the charge were laid before preferring the counts. A casual reading of the two sections, which have already been read in this judgment, would disclose clearly that the two sections created distinctly different offences. It seems to me that the offence created in section 91 is a lesser offence than the one under section 79 for the prosecution to fall back upon in circumstances where a charge under section 79 might prove difficult to establish. The offence under section 79 involves having carnal knowledge, which invariably involves penetration and corroboration. In view of these risks or hazard in establishing a case under section 79, a prosecution under that section 91 will be less risky and equally less hazardous.
The source of the knotty problem bedeviling this appeal is traceable to the prosecution. The prosecution failed to read the words of section 91 before laying the charge in count two. When drafting a charge prosecution should follow the words of the provisions under which it is laid. If the prosecution had done so it would have been obvious that the count does not lie. See Asuquo v. The State (1967) 1 All NLR 123, 125. Although I set out the relevant count earlier in this judgment, I propose to repeat count 2 especially the particulars thereof for easy reference.
“Particulars of the offence
In that: Lt. Cdr. B. Ofuani did behave in a scandalous manner unbecoming of the character of an officer and gentleman by having carnal knowledge of a rating’s wife, Mrs. Rosemary Edemumoh, wife of CPOG 1 Edemumoh VE X3315 in Navy town between 1993-96.”
The General Court Martial apparently, without reference to the provisions of the relevant section of the Act under which the count was laid, also formulated the elements of the offence from the count. The Judge Advocate in his sum up, set out what he considered to be the elements or ingredients of the offence preferred against the appellant in count two and which the prosecution had a burden of proving beyond reasonable doubt. He stated thus:-
The prosecution must prove the following elements for charge two to ground conviction:-
(i) that the accused is subject to service law and a commissioned officer;
(ii) that the accused had carnal knowledge of a service personnel’s wife.
(iii) that there was penetration.
Section 91 of the Act was read earlier in this judgment but it would be convenient, at this stage, to recite it once more. It provides as follows:-
“91. An officer subject to service law under this Decree who behaves in a scandalous manner, unbecoming of an officer and a gentleman is guilty of an offence under this section and liable, on conviction by a court martial to be cashiered.”
When the enactment and the count are read conjunctively it is manifestly clear that the prosecution injected extraneous elements into the count. There are no provisions in the enactment for the importation of the act of carnal knowledge with a wife of a rating. The status of the officer whether commissioned or otherwise is immaterial. It also seems to me that the person to whom he behaves in scandalous manner need not be a military officer not to talk of his ranking. A person can be guilty of scandalous or ungentlemanly behaviour if he defecates in the public. Subject to the presence of other elements, in the circumstance of this case, merely entering the inner chambers of the accuser’s house with the accuser’s wife with or without carnal knowledge would be sufficient. He needed not have carnal knowledge of the woman nor was penetration required.
It was also unnecessary for there to be corroboration. So was it immaterial that the woman, the appellant was seen lying on top of, was married to his accuser. It would have been sufficient if he had been caught cuddling one of his accuser’s daughters.
There would have been nothing wrong with the charge without those particulars. But where more than required particulars are introduced in the charge, they are not to be regarded as a mere surplusage but are to be established with the same standard of proof as the remaining parts of the count. See Agumadu v. Queen (1963) 1 All NLR 203, 205; (1963) 1 SCNLR 379. The prosecution having included certain elements of count one in count two, these elements cannot be regarded as surplusage which could be ignored, they have to be established with the same strictness it would have been proved once it was made part of count two.
The question now is whether those elements which are common to both counts were found established by the court martial while dealing with the first count in the charge. In this regard, learned counsel for appellant argued that the court martial having found the element of having carnal knowledge and penetration which are common to both counts not established in the first count, the second count should also fail. In this regard the martial reasoned as follows:-
“It was proved that the accused officer had a close relationship with Mrs. Rosemary Edemumoh the complainant’s wife in particular and other members of complainant’s family except the husband of Rosemary, complainant. The court also established that the accused officer visited the complainant’s apartment at the ratings quarters in Navy Town, Ojo, the locus-in-quo alone and in company of other persons at various periods. At one of such visits during working hours Miss Peace Edemumoh testified that she saw and observed the act of sexual intercourse between the accused officer and Mrs. Rosemary Edemumoh in the sitting room through the bedroom window. In arriving at its decision the court visited the locus-in-quo and subsequently established that the act of sexual intercourse neither corroborated nor witnessed by at least two independent witnesses as required by law. Thus the court found that first charge under section 79 of the Armed Forces Decree of 1993 not proved beyond reasonable doubt.”
The finding of the court martial (set out above) had not been appealed against by the prosecution. It subsists until it is set aside: Chukwunta v. Chukwu 14 WACA 341, 343 and Timitimi v. Amabebo 14 WACA 374, 377. This finding inures to the appellant. The court martial was not consistent in its findings. It is basic that there should be certainty in law. The court is therefore not entitled to somersault after it held that sexual intercourse was unsatisfactorily established in the first count to turn around to hold in the second count that the same element had been established in all its ramification. Having acquitted the accused of the first count it was bound to equally discharge and acquit him of the second count unless it was able to show extenuating circumstance which is not the case in the instant appeal. The Court cannot respectfully approbate and reprobate. See generally Ikeanyi v. A. C.E. (1991) 7 NWLR (Pt.205) 626 and Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248.
No doubt the charge against the appellant in count two has not been properly framed. Our duty and in fact that of the trial court is to determine whether or not the facts of the case adduced in evidence properly support the count before the court. Learned counsel for respondent in the circumstance of the case, did not refer us to any enactment empowering us to convict otherwise than as charged and we, on our part, are not aware of any provision under the Criminal Procedure Law. The accused or appellant is entitled to acquittal since the evidence adduced did not establish the charge in the count. See A.G. v. Chanrai (1965) 1 All NLR 325, 323. I am therefore unable to agree with submission of learned counsel for respondent that the position taken by the learned counsel for appellant was erroneous and baseless. I agree entirely with the defence that the prosecution did not lead evidence to prove the elements of the offence contained in count two for which appellant was found guilty and convicted.
In the result, the appeal succeeds and it is allowed. The decision of the General Court Martial in count two is set aside.
Other Citations: (2006)LCN/2131(CA)
