Pius Nwaoga Vs The State (1972)
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SIR A. ADEMOLA, C.J.N.
The appellant was charged with another, for the murder on 20th July, 1969, at Ibagwa Nike, of Robert Ngwu (m). He was convicted and sentenced to death whilst the 2nd accused was discharged. This is an appeal from the conviction.
The incident which led up to the killing of the deceased happened during the civil war in the country. The appellant joined the rebel forces known as Biafran Army. He joined as a private and later became a lieutenant. He was attached to the BOFF (Biafran Organization of Freedom Fighters). He was deployed to Nike and at the time Nike was in the hands of the Federal troops.
The deceased was also a soldier in the rebel forces; he and the appellant were both natives of Ibagwa Nike and well-known to each other.
Before July 1969, the appellant was posted in command of a rebel company to a town called Oto, near Ibagwa Nike, with the operational headquarters of his brigade at Atta. In July 1969, the appellant was summoned to Atta. There he was instructed to lead Lieutenant Ngwu and Lieutenant Ndu to Ibagwa Nike and to point out the deceased to them. He was told that as he knew the area well and also knew the deceased, his duty was to identify the deceased to the two lieutenants who would eliminate him. His offence was that the deceased was given 3800pounds to re-open and operate the Day Spring Hotel in Enugu for the benefit of the members of the BOFF, but he had diverted the money to the operation of his contract business and had indeed undertaken a contract with the Federal Government to carry out repairs to the Enugu Airfield which had been damaged by rebel aircraft. Major Nwoye who gave him the instructions told him the instructions had come down from the “State House”.The appellant in obedience to the instructions given him took the two men to Nike. They went to Robert Ngwu’s (deceased’s) house and there, in the presence of the appellant, one of the lieutenants killed Robert Ngwu and another. They all ran away. The appellant was apprehended later and brought to trial.
His defence before the learned trial judge was that he had to obey the orders of his superior officers. Before us, counsel for the appellant adopted this same line of defence.
It was argued before us that the learned trial judge was wrong to have adopted the attitude that the order in this case was an order by an officer of an illegal regime.
It was submitted that in a civil war, the status of an illegal regime or rebels cannot be considered differently, and officers in that regime are entitled to give orders to junior officers in the same way as officers do in a legal and recognised regime, and that such orders must be carried out by the junior officers; that in carrying out such orders, junior officers in the one case are protected in the same way as in the other case. In other words, superior orders qua the forces to which the soldier carrying it out applies.
The question how far superior orders can be taken as justification was considered by Willes J. in Keighly v. Bell (1866) 176 E.R.781 at p. 793,
where the learned judge said:
“I hope I may never have to determine that difficult question, how far the orders of a superior officer are a justification. Were I compelled to determine the question, I should probably hold that the orders are an absolute justification in time of actual war-at all events, as regards enemies, or foreigners and, I should think, even with regard to English-born subjects of the Crown, unless the orders were such as could not legally be given. I believe the better opinion is, that an officer or soldier, acting under the orders of his superior-not being necessarily or manifestly illegal-would be justified by his orders. . .”
The learned trial judge, in the present case, considered in his judgment the case of R. v. Smith (1900) 17 S.C. R. 561, and said:
“It was held that a soldier is responsible by military and civil law and it is monstrous to suppose that a soldier could be protected when the order is grossly and manifestly illegal. Of course, there is the other proposition that a soldier is only bound to obey lawful orders and is responsible if he obeys an order not strictly lawful.”
He went on:
“In the case before me that order to eliminate the deceased was given by an officer of an illegal regime, his orders therefore are necessarily unlawful and obedience to them involves a violation of the law and the defence of superior orders is untenable.”
We would not necessarily disagree with the conclusions reached by the learned trial judge in this matter. We however prefer to view the case from another standpoint; and viewing the facts before him, we direct our minds to the following facts.
- That the appellant and those with him were rebel officers.
- That they were operating inside the Federal Territory as the evidence shows that the area was in the hands of the Federal Government and Federal Army.
- That the appellant and those with him were operating in disguise in the Federal Territory, as saboteurs.
- That the appellant and those with him were not in the rebel army uniform but were in plain clothes, appearing to be members of the peaceful private population.
On these facts, if any of these rebel officers, as indeed the appellant did, commits an act which is an offence under the Criminal Code, he is liable for punishment, just like any civilian would be, whether or not he is acting under orders.
We are fortified in this view by a passage from Oppenheim’s International Law, 7th Edition Volume II at p. 575, dealing with War Treason, which says:
“Enemy soldiers-in contradistinction to private enemy individuals -may only be punished for such acts when they have committed them during their stay within a belligerent’s lines under disguise. If, for instance, two soldiers in uniform are sent to the rear of the enemy to destroy a bridge, they may not, when caught, be punished for ‘war treason’, because their act was one of legitimate warfare. But if they exchanged their uniforms for plain clothes, and thereby appear to be members of the peaceful private population, they are liable to punishment. ”
In the footnote under this paragraph, Oppenheim refers to a remarkable case during the Russo-Japanese War in 1904, where two Japanese officers disguised in Chinese clothes were caught attempting to destroy with dynamite a railway bridge in Manchuria. They were tried, found guilty and shot.
We apply the above case to the matter before us. To our mind, deliberate and intentional killing of an unarmed person living peacefully inside the Federal Territory as in this case is a crime against humanity, and even if committed during a civil war is in violation of the domestic law of the country, and must be punished.
In the event, the conviction of the appellant is upheld and this appeal is dismissed.
Other Citation: (1972) LCN/1525(SC)
