Rear Admiral Francis Eche Agbiti V. The Nigerian Navy (2007)

LawGlobal-Hub Lead Judgment Report

PAUL ADAMU GALINJE, J.C.A.

This is an appeal against the decision of the General Court Martial (hereinafter to be referred to as the lower Court) sitting at Lagos.

The Appellant, who was a Rear Admiral in the Nigerian Navy was jointly charged along with two other officers of the Navy for the offence of conspiracy to commit felony contrary to Section 114 (1) of the Armed Forces Act, Cap A20 of the Laws of the Federation of Nigeria 2004. Thereafter he was charged and tried individually on a five counts charge of conduct to the prejudice of service discipline and alteration of service document contrary to section 103 (1) and 90 (b) of the Armed Forces Act, Cap A20, Laws of the Federation of Nigeria 2004.

The Appellant pleaded not guilty to all the counts. The matter was then set down for trial. At the end of trial, in which both the prosecution and the defence called witnesses, the lower Court, in a reserved and considered judgment which was delivered on the 5th January 2005 discharged and acquitted the Appellant on count 1. Count 4 was struck out on the ground that it was a repetition of Count 3. The Appellant was found guilty and was accordingly sentenced to dismissal on counts 2, 3 and 6. For Count 5 he was sentenced to a reduction in Rank to Commodore. The sentences were ordered to run concurrently. These sentences were subsequently confirmed by the Navy Board on the 21st day of June 2005 thereby giving effect to the sentences of dismissal and demotion in rank of the Appellant as directed in the judgment of the lower Court.

It is against the judgment and confirmation aforesaid, the Appellant has brought this appeal. His notice of appeal which is dated 4th July 2005 and filed the same day and which was deemed filed by this Court on the 18th day of January 2006 contains eighteen (18) grounds of appeal.

Pursuant to the relevant rules of this Court, parties filed and exchanged briefs of argument. The Appellant’s brief of argument is dated 12th day of April 2006 and filed on the 19th of April 2006. At pages 5-7, of the Appellant’s brief, eight issues were distilled for the purpose of determining this appeal. These issues read as follows: –

“1. Having regard to the clear provisions of section 36 of the Constitution of the Federal Republic of Nigeria 1999, section 137 of the Armed Forces Act, Cap A20 LFN, 2004, Section 133(3) (B) of the same Armed Forces Act, the express wording of the convening order constituting the General Court Martial, Chapter 8 Rule 16 of the Court Martial procedure for Royal Navy BR 11 and the accusation or implication of the convening authority, Vice Admiral Samuel Olajide Afolayan in the disappearance of the MT African Pride, whether or not the entire proceedings before the General Court Martial were/are not a nullity … Grounds 1, 4, and 17.

2. Whether or not the arraignment of the Appellant and the entire proceedings leading to his conviction and sentence are not a nullity on the ground that the conditions precedent to his arraignment, trial and conviction were not complied with. Grounds 5 and 6.
3. Considering the charge sheet as placed before the General Court Martial and the Improper Constitution of the Court, whether or not its proceedings and judgment are not altogether a nullity … Grounds 2, 3 and 7.
4. Having regard to the fact that Appellant was discharged and acquitted on count 1 for the offence of conspiracy in which he faced a joint trial with two other Naval Officers, coupled with the fact that no separate trial for the appellant was conducted, whether or not the General Court Martial was not in grave error to have convicted and sentenced the Appellant under count 2, 3, 5 and 6 on which no separate or additional evidence was given. And/or
5. Whether or not the entire proceedings of the Tribunal do not constitute a nullity by the transplant of the

evidence adduced in proof of count 1 relating to the joint trial to the trial on counts 2, 3, 4, 5 and 6 which relate only to the Appellant … Ground 8.

6. Was the General Court Martial right in convicting and sentencing the Appellant under count 2, 3, 5 and 6 relating to section 103 (1) of the Armed Forces Act when:

i. None of the ingredients of the offences was proved and/or

ii. The ingredients of the said offences were not proved beyond reasonable doubt …. Grounds 9, 10, 11, 12 and 14.

7. In view of the unreliable evidence adduced before the lower Tribunal, coupled with the type of persons or personalities called as witnesses vis-a-vis the evidence of the Appellant, whether or not the conviction of the Appellant was/is not a perversion of justice … Grounds 13, 16 and 18.
8. Whether or not the sentence passed on the Appellant was/is not oppressive, vindictive and unreasonable …. Ground 15.”

For the Respondent, eight issues were also distilled for the determination of this appeal at pages 9-10 of its brief. These issues are reproduced hereunder as follows: –

1. (a) Whether the Appellant was given a fair hearing in the determination of the charges against him in accordance with the Constitution of the Federal Republic of Nigeria and other relevant acts and rules governing the trial of an accused person in a GCM.

(b) Whether the convening officer was in fact implicated and if not or if yes whether that without more is enough to render the GCM decision a nullity given the fact that the said convening officer was only performing his statutory functions and not on trial neither did he sit as president nor a as member of the GCM.

2. Whether the condition precedent to the trial of the Appellant was complied with having regard to the evidence before the GCM.
3. Whether the court was properly constituted.
4. Whether the trial of Appellant for conspiracy was proper and whether his acquittal on conspiracy charge is a bar in law to his conviction on other charges.
5. Whether from the records, there was transplant of evidence before the General Court Martial.
6. Whether counts 2, 3, 5, and 6 was proved in accordance with the appropriate law.
7. Whether the witnesses called by the prosecution can be properly described as tainted, unreliable or accomplices giving the facts and circumstance of the case.
8. Whether or not the sentence passed on the Appellant was excessive.”

The Appellant filed a reply brief dated 9th April 2007

This appeal came up for hearing on the 3rd of October 2007. Chief Wole Olanipekun, learned Senior Counsel for the Appellant adopted the Appellant’s brief of argument and the reply brief and urged the Court to allow the appeal on the ground that what took place at the lower Court was a classical case of mistrial.

Mr. J. A. Asemota, learned counsel for the Respondent also identified and adopted the Respondent’s brief of argument and urged the Court to dismiss the appeal for lack of merit.

The facts of this case which are not denied and which I accept are well articulated in the Respondent’s briefs of argument as follows –

On the 8th of October 2003, a Nigerian War Ship (NNS Nwamba) on patrol within the Nigerian territorial waters arrested a foreign oil tanker (MT AFRICAN PRIDE) about 31 nautical miles south of escarvos at the Forcados river entrance. The Ship was carrying 13,300 metric tones of crude oil without valid documents. Capt. Aikhomu the commander of the war ship sent a signal to the Western Naval Command, who in turn sent another signal to the Naval Headquarters informing it of the arrest. The Appellant, who was the Chief of Training and operations at the Naval Headquarters at Abuja, on receipt of the signal ordered the ship to be released immediately on the ground that it had permission to operate within Lagos area. Against this order, Rear Admiral Bob-Manuel protested to the Appellant and also informed the Chief of Naval Staff of the development. This prompted the Appellant to cancel his release order.

On the 29th of January 2004, President Olusegun Obasanjo held a meeting at the State House with the Chief of Naval Staff, the Inspector General of Police, the minister of Transport and the Group anaging Director of NNPC. At that meeting the President directed the Nigerian Navy to hand over all arrested ships including MT AFRICAN PRIDE to the Nigerian Police and the Group Managing Director of NNPC was directed to take over the crude oil contents of the ships, while the Minister of Transport was directed to take over the ships as prizes after prosecution by the Nigerian police.

After this meeting, the Chief of Naval Staff directed the Appellant to communicate the presidential directives to all those who are concerned. The Appellant partially complied when he wrote to the Minister of Transport, the Inspector General of Police and the Group Managing Director of NNPC conveying formerly the presidential orders. He however failed to write to the flag officer under whose custody the ships were. Based on the letters aforesaid, the Inspector General of Police sent Mr. Fatai Adio Shittu (a Deputy Commissioner of Police) to Lagos on the 9th February, 2004 to take over the vessels, but the Flag Officer commanding Western Naval command refused to handover the vessels to the police on the ground that he did not have any such instructions from Naval Headquarters. On the 11th February 2004 however, the Appellant directed Commodore S. L. Baje to communicate the presidential directive to the Flag Officer commanding Western Naval Command. This was done. However on the 11th of February 2004, Commodore S. L. Baje acting on the instruction of the Appellant sent a signal canceling the handover of the vessels to the police.

On the same day the Appellant gave three signals clipped together to DCP Shittu who was set to travel to Lagos to take over the ships. The new directives contained in the clipped signals were that the police should take over only the crew of the ships while the Navy retains custody of the ships. DCP Shittu proceeded to Lagos, took over the crew and delivered them to the Inspector General of Police at Abuja.

On the 10th of August 2004, the vessel, MT AFRICAN PRIDE disappeared while it was in possession of the Navy. After the disappearance the Appellant informed the Chief of Naval Staff that the Police had since taken over the missing ship and prepared a brief to that effect which the Chief of Naval Staff took to the National Assembly to convince the House that the Navy had handed the ship over to the Police. The next day the police reacted by rebutting the claim by the Navy and published their version of the story. Because of the reaction by the police, who effectively denied taken over the ship, the Chief of Naval Staff set up a committee to investigate the circumstances surrounding the disappearance of the ship. After investigation had been completed, three officers including the Appellant were indicted. As a result of this indictment, the Chief of Naval Staff in exercise of the power conferred upon him by the relevant law convened a General Court Martial to try the Appellant and the two other officers that were indicted by the Board of Inquiry.

The substance of the issues formulated by the Respondent seem to be the same with those issues formulated by the Appellant. I shall therefore treat them together.

The Appellant’s first issue is distilled from grounds 1, 4 and 17 of the grounds of appeal. For the purpose of clarity these grounds are reproduced hereunder without their particulars as follows: –

“1. The entire proceedings of the General Court Martial are a nullity as same violate the express provisions of section 36 of the Constitution of the Federal Republic of Nigeria 1999 guaranteeing the Appellant’s right to fair hearing read together with section 137 of the Armed Forced Act, Cap A20, L.F.N. 2004.

4. The entire proceedings of the General Court Martial constitute a nullity in that –

i. The convening Authority Vice Admiral Samuel Olajide Afolayan has also been accused or implicated in the disappearance of the MT AFRICAN PRIDE, the subject matter of the proceedings before the General Court Martial.

ii. Vice Admiral Samuel Olajide Afolayan was/is the same person to whom the proceedings of the General Court Martial was to be submitted.

17. The General Court Martial erred in law and violated Appellant’s right to fair hearing by denying him the opportunity to give further evidence in respect of his allegations of bias against the president and other

member (s) of the General Court Martial as well as the implication of the Chief of Naval Staff in the charges brought against him (Appellant).”

In arguing the appeal on the Appellant’s first issue, Chief Olanipekun, learned senior counsel for the Appellant based his submission on the following areas: –

1. The Appellant’s objection to the membership of the Court Martial of the president and two other members for reason of bias.
2. The President of the Court Martial who the Appellant accused of bias violated the Appellant’s right of fair hearing by sitting and determining his qualification when he ruled against the Appellant’s objection to his membership.
3. That the Chief of Naval Staff who convened the lower Court to try the Appellant and other accused persons was implicated in the disappearance of MT African Pride, the subject matter of the trial before the lower Court during the proceedings of the House of Representatives Committee on Navy as such his act of constituting a Court Martial to try the Appellant amounts to being a judge in his own cause.
4. That the lead counsel for the prosecution quickly interrupted and frustrated the Appellant, when he (Appellant) was about elaborating further on the reasons and grounds of his belief and convictions that with two members of the tribunal who are biased against him, he will not get justice.

On the basis of the issues raised by the learned senior counsel, which I have painstakingly set out above, learned senior counsel contended that his client was not given a fair hearing. This is what he said –

“Against the foregoing background, it is our contention that right from the time the lower tribunal was constituted and/or through whom it was constituted and right from the very 1st day it was inaugurated or started hearing, appellant’s right to fair hearing was breached, violated and trampled upon with impunity and/or barefacedly.”

Learned senior counsel cited several authorities to support his submission.

Asemota Esq. of counsel for the Respondent in his argument submitted that the Appellant has avoided the facts for which he was convicted and is rather chasing after technicalities by seeking refuge in human rights violations where none exists. Learned counsel made copious references to the submission made on behalf of the Appellant and contended that the violation of the Appellant’s right to fair hearing and the so called implication of the Chief of General Staff exist only in the imagination of the Appellant. In aid of the submissions made on behalf of the Respondent, learned counsel cited several authorities, which I think are not relevant here.

The Appellant’s notice of appeal reads as follows: –

“I, REAR ADMIRAL FRANCIS ECHE AGBITI having been tried by the General Court Martial sitting in Lagos on the following charges ….. AND convicted on counts 2, 3, 4 and 6 pursuant to which a sentence of dismissal from the Armed Forces (Nigerian Navy) and demotion to the rank of Commodore was passed on me AND the conviction and sentence having been affirmed and promulgated by the Nigerian Navy Board vide letter Reference No. 08/68/NS/Vol.1/13 dated 21st June, 2005.

DO HEREBY GIVE NOTICE of appeal against the said decision as per the grounds of appeal appearing hereunder …..

Particulars of trial and conviction as set out by the Appellant are as follows: –

“i. Trial commenced on 3/11/04 and conviction was on 5/1/05.

ii. Nigerian Navy Board confirmed the decision of the General Court Martial on 21/06/05.

iii. Nigerian Navy Board promulgated sentence on 21/06/05

SENTENCE

Appellant was dismissed from the Armed Forces (Nigerian Navy) and also demoted to the rank of commodore.”

The reliefs which the Appellant seeks from this Court is stated at page 14 of the notice of appeal thus: –

“i. To allow the appeal and set aside the proceedings, judgment/conviction and sentence of the General

Court Martial.

ii. to restore Appellant to his duty post and rank of Rear Admiral in the Nigerian Navy.”

It is instructive to note that the 1st issue that was distilled from the 1st, 4th and 17th grounds of appeal and the argument canvassed thereupon are directed at the Appellant’s objection to the membership of the President and two members of the Court Martial. That objection was taken on day one of the proceedings which was 27th October 2004 and the lower Court in a considered ruling which was delivered the same day overruled the objection. That decision in which the objection was overruled is not reflected on the notice of appeal herein. In other words the Appellant did not appeal against that interlocutory ruling.

It needs to be said here in parenthesis that in the final judgment delivered by the lower Court on the 5th January 2005 the objection to the membership of the president and members of the lower Court was not made an issue upon which a decision was rendered. The only thing that was said about the objection aforesaid in the final judgment at page 293 of the record reads as follows: –

“At their arraignment before this General Court Martial (GCM), R/Adm Kolawole and R/Adm Agbiti, exercised their rights under the constitution raised preliminary objection (PO) against some members of the GCM. These objections were fully addressed and overruled for lack of merit. The objections were construed as an attempt to run away from legally constituted GCM under the law they all had sworn to abide with and the doctrine of compact they entered with the Nigerian Navy.”

This comment clearly did not reopen the objection which were raised by the two officers against the membership of the President and members of the Court Martial.

The ruling of the lower Court on the 27th October 2004 in which the Appellant’s objection to membership of the president and two other members was overruled and the final judgment of the lower Court which was delivered on the 5th January 2005 are under the 1999 Constitution of the Federal Republic of Nigeria both appealable to this Court. Under Section 241 (1) (a) and (b) of the said Constitution, a person aggrieved by a decision of a High Court could appeal to the Court of Appeal as of right in the following cases: –

“(a) Final decisions in any civil or criminal proceedings before the Federal High Court or High Court sitting at first instance.

(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.”

Under Section 243(1) of the same Constitution an appeal shall lie subject to the provisions of section 241 from the decisions of the High Court to the Court of Appeal with the leave of the High Court or the Court of Appeal.

In the instant case, if the Appellant wished to appeal against the decision of the lower Court which was delivered on the 27th October 2004 overruling their objection, he would require leave, not merely an extension of time, of the lower Court or this Court of Appeal, as the question of bias which was raised by the Appellant would be one of fact or mixed law and fact.

If on the other hand, the Appellant wished to appeal against the final judgment of 5th January 2005 he could do so as of right, it being the judgment of the lower Court sitting as a Court of first instance. Clearly where an Appellant requires leave to appeal and he fails to obtain such leave before filing such appeal, the appeal is incompetent. See Ikeki v. Ebele (2005) 2 SC (pt 11) 96; Yekini Onigbede & Anor v. Ishola Balogun & Anor (1975) 1 ALL NLR (pt 1) 232; Tilbury Construction Ltd v. Ogunniyi (1988) 2 NWLR (pt 74) 64; Nwadole v. Ibekwe (1987) 4 NWLR (pt. 67) 718.

The issue distilled from 1st, 4th and 17th grounds of appeal did not arise from the decision of 5th January 2005 against which this appeal lies. In Saraki v. Koloye (1992) 9 NWLR (Pt. 261) 156 at 184, while discussing the necessity for a ground of appeal to flow from the judgment appealed against, the Supreme Court made the following observation:-

“It is a well settled preposition of law in respect of which there can hardly be a departure, that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the

decision – see Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546 at 590. Grounds of appeal are not formulated in nubibus. They must be in firma terra, namely arise from the judgment. However meritorious the ground of appeal, based either on points of critical constitutional importance or general public interest, it must be connected with a controversy between parties. This is the precondition for the resting of the judicial powers of the constitution in the Courts. See Senator Adesanya v. President of Nigeria (1981) 1 NCLR 358. Like pleadings, parties are bound by their grounds of appeal and are not at liberty to argue grounds not related to the judgment appealed against.”

In this appeal, I am of the firm view that the Appellant’s first issue and the arguments thereupon are not directed at the decision upon which the appeal lies. The issue therefore and the argument canvassed thereon are incompetent, and are accordingly struck out. Grounds 1, 4 and 17 of the grounds of appeal are hereby dismissed

Having thus disposed of the first issue in this appeal, I propose to treat the 2nd, 3rd and the 4th Appellant’s issues for the determination of this appeal together.

The 2nd issue is distilled from grounds 5 and 6 of the grounds of appeal. The 3rd issue is distilled from grounds 2, 3 and 7 while the 4th and 5th issues are distilled from ground 8. I will therefore set out grounds 2, 3, 5, 6, 7 and 8 of the grounds of appeal without their particulars for the purpose of clarity as follows: –

2. The entire trial and conviction of Appellant by the General Court Martial consisting of officers who are lower to the Appellant in seniority are a nullity as same violate the clear provisions of Section 133 (3) (b) of the Armed Forces Act, Cap A20 L.F.N 2004.
3. The entire proceedings of the General Court Martial commencing on 27th October 2004 and terminating on 5th January, 2005 constitutes a nullity.

5 The entire proceedings before the General Court Martial are a nullity…

6. The entire counts leveled against the Appellant as contained in the charge sheet are a nullity…
7. The entire proceedings of the General Court Martial are a nullity as the Court Martial was not properly constituted.
8. The entire proceedings before the General Court Martial are bizarre and constitute a nullity…

All the grounds of appeal which I have set out above are directed at the procedure adopted at the lower Court. It is settled in a myriad of authorities that grounds of appeal, in order to be valid must complain against the judgment of the Court. Where grounds of appeal do not complain against the judgment of the court, they go to no effect. In Egbe v. Alhaji (1990) 1 NWLR (pt. 128) 546, the Supreme Court held that the grounds of appeal against a decision must relate to the decision and should be a challenge to the validity of the ratio of the decision.

In Ikeki v. Ebele (supra) at page 124 beginning from lines 35-40,Niki Tobi, JSC said,

“ground of appeal, in order to be valid, must complain on or about the judgment of the court, where grounds of appeal do not complain on or about judgment of the court, the merely gallivant in the process.” See Saraki v. Kotoye (supra) at 184, Senetor Adesanya v. President of Nigeria (supra); Int’l offshore const. Ltd v. S.L.N. Ltd (2003) 16 NWLR (pt.845) 157.

Clearly the procedure adopted at the lower court, while hearing the case is not the judgment of that court. The appellant had an unfettered right to raise objection against the proceeding of the lower court before the judgment. This the appellant could do by raising an objection or by making a no case submission praying the lower court to charge and acquit the appellant on the ground that the proceedings were a travesty of justice. A ruling in respect of the objection would have a decision against which an appeal could properly lie. The appellant failed to do this instead called evident in his defence and rendered an address before the final judgment. His objection to the proceeding at this stage is belated.

In Olue & Ors v. Enenwali & Ors (1976) 2 SC 23, where a judge who was a counsel to one of the parties while in private practice heard and determined the suit without any complain from the parties. On appeal, the appellant raised the issue of bias. The supreme Court held that as there was no objection to the trial court continuing with the case, the parties cannot on appeal complain. See Majorah v. Fassasi (1985) 5 NWLR (pt.40) 234; Odudu v. Atoyebi (1987) 2 NWLR (pt. 68) 660; Odunsi v. Oduunsi( 1979) 12 NSCC 57.

Grounds 2, 3, 5, 6, 7 and 8 of the grounds of appeal, are therefore incompetent since they are not directed at any decision of the lower Court I therefore strike them out. Having struck out these grounds there is nothing in place to support the 2nd , 3rd and 4th issues formulated by the Appellant and the argument canvassed thereupon. Accordingly I also strike out the Appellant 2nd, 3rd, 4th and 5th issues and the argument canvassed thereupon, In the result therefore, the appeal on the grounds aforesaid is hereby dismissed.

The Appellants complaint as contained in issue six is that the General Court Martial was in error in convicting and sentencing the Appellant under counts 2, 3, 5 and 6 for the offences under Section 103 (1) of the Armed Forces Act when none of the offences was either proved or proved beyond reasonable doubt.

Chief Olanipekun, learned Senior counsel for the Appellant who settled the Appellant’s brief of argument related this issue to grounds 9, 10, 11, 12 and 14, these grounds without their particulars read as follows: –

“9. The General Court Martial erred in law by convicting the appellant under Count 2 relating to prejudice against service discipline contrary to Section 103 (1) of Armed Forces Act, Cap. A20, LFN, 2004.

1. There is no proof before the General Court Martial that the appellant failed to ensure compliance with the order of the Chief of Naval Staff conveying the directive of the Commander-In-Chief of the Armed Forces of the Federal Republic of Nigeria that all arrested vessels inclusive of MT AFRICAN PRIDE under the custody of the Nigerian Navy should be handed over to the Nigeria Police Force.

ii. The evidence before the General Court Martial conclusively proved that appellant complied with the order given to him by the Chief of Naval Staff.

iii. there is no evidence before the lower tribunal of any nexus between the appellant and the Commander-In-Chief of the Armed Forces of the Federal Republic of Nigeria in respect of the MT AFRICAN PRIDE.

10. The General Court Martial misdirected itself in law by convicting the appellant under Count 3 which is repetitive of Count 2 relating to conduct prejudicial to service discipline contrary to Section 103 (1) of the Armed Forces Act, Cap A20, LFN, 2004 relating to the wrongful release of naval signal DTGM 171118 FEB O4.

WHEN

i. Appellant did not release or cause the release of the Naval signal DTGM 171118 Feb. 04

ii. It was one Commodore S. L. Baje that initiated and released the said signal.

iii. The evidence before the Court Martial conclusively prove (ii) supra.

iv. Naval signal DTGM 171118 FEB 04 was not initiated, initialed or approved by the appellant.

11. The General Court Martial erred in law by convicting the appellant under count 5 on conduct prejudicial to service disciple contrary to Section 103 (1) of the Armed Forces Act, Cap A20, LFN, 2004 on the ground that appellant gave impression to the Chief of Naval Staff that MT AFRICAN PRIDE had been released to the Nigerian Police force.

WHEN

i. There is no iota of evidence to prove or support the charge.

ii. The Chief of Naval Staff to whom an impression was purportedly given did not come to give evidence.

iii. The type of impression given to the Chief of Naval Staff by the appellant is neither stated in the charge nor proved in evidence.

12. The General Court Martial erred in law by convicting the appellant under charge/count 6 for alteration of service documents contrary to section 90 (b) of Armed Forces Act, Cap A20, LFN, 2004.
13. The General Court Martial misdirected itself in law by convicting the appellant on counts 2, 3, 5 and 6.

WHEN:

i. The conviction of appeal was based on mere suspicion.

ii. The ingredients of the offences were not proved and established:

iii. No credible or believable evidence was established to warrant the conviction of appellant.

iv. The Chief of Naval Staff who was/is constantly referred to in the charges did not come to give evidence.”

Learned senior counsel argued issued 6 under the following headings:-

1. Strange counts not supported by evidence.
2. Failure to call the CNS as a witness.

Under the first heading, learned senior counsel referred to count 2 on the charge sheet and submitted that the Appellant fully complied with the orders given to him by the Chief of Naval Staff in respect of all the ships that were in detention and this he did by writing exhibits C1, C2 and C3 to the NNPC, IGP and the Minister of Transport respectively. Learned senior counsel further submitted that on 11th February 2004, the Appellant instructed Commander S. L. Baje to write two letters marked exhibits C5 and D to the FOCS in furtherance of his obedience to the orders of Chief of Naval Staff. According to the learned senior counsel, it was not in evidence that the Appellant disobeyed any order of the Chief of Naval Staff and it was also not in evidence that the arrested vessel was under the custody of the Appellant as an officer of the Nigerian Navy or that it was his duty to directly hand it over to the Nigerian Police Force. Finally learned counsel contented on this count that it is not in evidence that the Chief of Naval Staff gave instruction or order to the Appellant to release MT African Pride to the Nigerian Police and he refused to do so.

On counts 3, 5 and 6, learned Senior counsel submitted that the ingredients of the offences mentioned therein were not established by the prosecution, as such the lower Court was wrong in returning a verdict of guilt on the aforementioned counts of the charge against the Appellant. In a further submission, learned senior counsel directed this Court’s attention to the four counts upon which the Appellant was convicted, particularly counts 2, 3 and 5 and contended that the Chief of Naval Staff remains a constant witness and recurring decimal and it is through him alone that the ingredients of the offences mentioned in the aforementioned counts can be established and that failure to call him as a witness is fatal to the prosecutions case.

In aid, learned senior counsel cited S. 138 (1) Evidence Act, Oladele v. The Nigerian Army (2004) 6 NWLR (pt. 868) 166 at 178; Onafowokan v. The State (1986) 2 NWLR (pt. 23) 496; (1987) 3 NWLR (pt. 61) 538 (SC); Opeyemi v. The State (1987) 2 NWLR (pt. 5) 101; Valentine Adie v. The State (1980) 1-1 SC 116 at 123.

Finally under this heading, learned senior counsel submitted that the offence of giving an impression is not known to law and the Appellant cannot be convicted on it. Learned counsel further submitted that the evidence adduced by the prosecution apart from being false, is at best speculative and based on suspicion, which no matter how strong cannot take the position of proof. In support of the submission herein, learned senior counsel cited Section 36 (12) of the Constitution of the Federal Republic of Nigeria 1999; Aoko v. Fagbemi (1963) 1 All NLR 400; The State v. Aibanigbe (1988) 3 NWLR (Pt. 84) 584; Boy Muka v. The State (1976) 9-10 SC 305; Zuru v. Chief of Naval Staff (2003) 32 WRN 86 at 100.

Under the second heading, which is failure to call the Chief of Naval Staff as a witness, learned senior counsel submitted that not only did the Chief of Naval Staff fail to give evidence and be cross examined, no one else gave evidence on his behalf in respect of the charges and particularly as to what happened and transpired between him and the Appellant relating to failure to comply with his order, telling lies and giving an impression. Continuing his argument, learned senior counsel submitted that none of the witnesses called by the prosecution gave evidence that the Appellant lied to the Chief of Naval Staff or gave impression to him. Finally learned senior counsel submitted that the evidence of Commander E. E. Etifit upon which the prosecution relies was flattened completely under cross examination as same was based on suspicion. In conclusion learned senior counsel cited some authorities and then urged the Court to allow the appeal on this issue.

In reply, Mr. J. A. Asemota, learned counsel for the Respondent made his submissions under six broad headlines. These headlines read as follows –

1. Ingredients of Count 2
2. Evidence in proof.
3. Ingredients of Count 3.
4. Ingredients of Count 5
5. Ingredients of Count 6
6. Failure to call Chief of Naval Staff as a witness.

In his argument under the headlines, which I will treat together in this judgment, learned counsel made copious reference to parts of the proceedings contained in volume three of the record of this appeal and submitted that the fact that the Appellant was subject to service law and that the Chief of Naval Staff passed the presidential directives to him was not in doubt and the prosecution had proved that it was the Appellant’s duty to ensure compliance with the directive which he failed to do and thereby submitted that it was clearly established by the prosecution that the Appellant not only did not ensure compliance, but personally countermanded the presidential directives through wrongful release of Exhibit E which prevented the Nigerian Police from taking over the vessels including MT African Pride.

On failure of the prosecution to call the Chief of Naval Staff as a witness, learned counsel submitted that the prosecution is not under any obligation to call a host of witnesses to prove its case. In aid, learned counsel cited Alor v. The State (1998) 1 ACLR 658 at 660.

The law is settled that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See Section 138 (1) and (2) of the Evidence Act, Cap 112 Laws of the Federation of Nigeria 1990; Adamu v. A.G. Bendel State (1986) 2 NWLR (pt. 22) 284; Akpan v. The State (1990) 7 NWLR (pt. 160) 101; Ojukwu v. Mil. Governor of Lagos State (1985) 2 NWLR (pt. 10) 806.

Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 provides that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. Flowing from above therefore, the burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts. See Alabi v. The State (1993) 7 NWLR (pt. 307) 511 at 531 paragraphs A-C; Solola v. The State (2005) 5 SC (pt. 1) 135.

Oputa, JSC in Mufutau Bakare v. The State (1987) 3 SC 1 at 32 defined proof beyond reasonable doubt in the following words: –

“Proof beyond reasonable doubt stems out of a compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt, that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the ministration of criminal justice.”

In Okere v. The State (2001) 2 NWLR (pt. 697) 397 at 415-416 paragraphs H-A, this Court had this to say on the meaning of proof beyond reasonable doubt –

“Proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. Consequently, if the evidence is strong against an accused person as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt.”

In my judgment in the case of Usufu v. The State (2007) 1 NWLR (pt. 1020) 94 at 112 paragraph H-A, I had this to say: –

“It is therefore settled that an accused person can be convicted on the evidence of a single witness, if the offence for which he is being charged is not one that requires corroboration and the evidence of such a single witness is material enough to be capable of being believed.”

Now, in the instant appeal, has the prosecution proved its case beyond reasonable doubt as to warrant a verdict of guilt against the Appellant? For this question to be properly addressed, I wish to set out the charges upon which the Appellant was convicted as follows: –

“COUNT 2-

Statement of Offence

Conduct to the prejudice of service discipline contrary to Section 103 (1) of the Armed Forces Act, Cap A20 Laws of the Federation of Nigeria 2004.

Particulars of Offence

That you Rear Admiral F. E. Agbiti NN/0237, as Chief training and operations (CTOPS) at Naval Headquarters Abuja between 29 January and 10 August 2004 failed to ensure compliance with the order of the CAN conveying the directive of the Commander-In-Chief of the Armed forces of the Federal Republic of Nigeria that all arrested vessels inclusive of MT AFRICAN PRIDE under the custody of the Nigerian Navy should be handed over to the Nigerian Police.

COUNT 3

Statement of Offence

Conduct to the prejudice of service discipline contrary to Section 103 (1) of the Armed Forces Act, Cap A20 Laws of the Federation of Nigeria 2004.

Particulars of Offence

That you Rear Admiral F. E. Agbiti, NN/0237, as CTOPS on about the 17th February 04 at NHQ Abuja wrongfully caused the release of a signal DTGN 171118 FEB 04 which led to the non-compliance with the Chief of Naval staff order that all arrested vessels inclusive of MT AFRICAN PRIDE under the custody of the Nigerian Navy should be handed over to the Nigeria Police Force.

COUNTS 5

Statement of Offence

Conduct to the prejudice of service discipline contrary to Section 103 (1) of the Armed Forces Act, Cap A20 Laws of the Federation of Nigeria 2004.

Particulars of Offence

That you Rear Admiral F. E. Agbiti NN/0237 as CTOPS sometime in September 2004, in NHQ Abuja gave the CNS the impression that the vessel MT AFRICAN PRIDE which was in custody of the Nigerian Navy had been released to the Nigerian Police Force knowing fully well that it was not true.

COUNT 6

Statement of Offence

Alteration of service document contrary to section 90(b) of the Armed Forces Act, Cap A 20, Laws of the Federation of Nigeria 2004.

Particulars of Offence

That you Rear Admiral F. E. Agbiti NN/0237 as CTOPS at NHQ Abuja on or about 21 June 2004 fraudulently made alterations to previous minutes on incoming mail with Reference NO. NWNC:077/101/vol. III/155 dated June

Counts 2, 3 and 5 of the charge relate to the offences under section 103 (1) of the Armed Forces Act. The issue under reference discusses the offences under S. 103 (1) only. I will therefore restrict myself the issue as formulated.

Section 103 (1) of the Act provides as follows: –

“A person subject to service law under this Act who 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 any less punishment.”

The offences mentioned under counts 2, 3 and 5 all crystallize into conduct to the prejudice of service discipline. For the prosecution to succeed in proving the offences alleged under this section, it must prove:-

1. That the accused was subject to service law.
2. That his conduct prejudiced service discipline.

Before I consider whether the prosecution has established the ingredients of the offences under S. 103 (1) of the Armed Forces Act, I wish to state here that every occupational group that is recognized by a validly enacted law of our land is governed by a set of laws, rules and regulations. These laws, rules and regulations which are applicable to the members of that occupational group only, as opposed to some Penal laws which are of general application, are created to enhance discipline that is required to meet the purpose for which that occupational group was created. For example the civil service rules which are applicable to the civil service have made provisions for punishment of civil servants up to the maximum of dismissal from civil service where some of the rules are disobeyed.

The Armed Forces Act is a law applicable to the members of the Armed Forces. By Section 1 (3) of the Armed Forces Act, the Armed Forces shall be charged with the defence of the Federal Republic of Nigeria by land, sea and air and with such other duties as the National Assembly may, from time to time, prescribe or direct by an Act. Clearly, the task of defending a nation is a weighty one. It is on this basis therefore that the Courts must be careful in reading into the law and the rules of procedure inherent in the conduct of affairs of the members of the Armed Forces, act which will breed indiscipline and bring about the destruction of established chain of command.

It is not in dispute that the Appellant was the Chief of Training and Operations (CTOPS) at the Naval Headquarters at Abuja and therefore a person subject to service law. Also not in the fact that the arrest of the offending ship was first communicated to the appellant through exhibit B which clearly stated that the ship was carrying 13,3000 metric tones of crude oil without valid papers. Despite this, the Appellant without consultation with the Chief of Naval Staff or anybody, ordered, the release of the ship through exhibit A. The conduct of the Appellant in ordering the release of the vessel MT African Pride immediately after he was informed of the arrest, without consultation with any other officer is a testimony that the Appellant was aware that matters concerning arrest and detention of ship were directly under him. Appellant admitted that he ordered the release of the vessel, but recalled his order 55 minutes later, when he confirmed from the Director Marine Services that the vessel the was carrying crude oil. The Appellant’s act of prejudicial to service discipline. I am not impressed with the argument of the learned senior counsel that the Appellant fully complied with the directives of the chief of Naval Staff when he wrote exhibits C1, C2 and C3 to the NNPC, IGP and Minister of Transport respectively. The FOC West, under whose custody the vessel was, was not directed to release same. Without such directive, exhibit C1, C2 and C3 were useless papers that were used to buy time. Since matters concerning detained ships under the Appellant’s control, the Appellant was tardy in the way he handled the directives of the chief of Naval Staff, a directive which conveyed the decision taken at a meeting between the President and Commander-in-chief of the Armed Forces and the Inspector General of police, group MD NNPC and the Minister of Transport. The Appellant could have done more that merely writing exhibits of C1, C2 and C3. He could have moved to where the ship was detained and hand over same to the Police or he would have sent a delegate to do so. The Appellant denied making exhibit E. Commodore Baje, DCP Shittu and MWO West all testified that the document, Exhibit E was authorized by the Appellant. Their evidence was corroborated by exhibit F which was an acknowledgement of the receipt of exhibit E by the FOC West. With this overwhelming evidence, the lower Court was right when it accepted that Exhibit E was authorized by the Appellant. Exhibit E runs contrary to the directive of the Chief of Naval Staff. Failure to obey lawful directives from superior officers is an offence punishable under the Armed Forces Act. The orders of the Chief of Naval Staff, that the vessel MT African Pride be handed over to the Police was not carried out. The vessel was declared missing while it was in the custody of Navy on the 10th August 2004. This was a clear case of dereliction of duty and a clear violation of the mandate assigned to the Navy to protect our territorial waters. The learned Senior counsel submitted that none of the witnesses called by the prosecution gave evidence that the Appellant lied to the Chief of Naval Staff or gave impression to him and that the offence of giving impression is not known to law as expressed under S. 36 (12) of the Constitution of the Federal Republic of Nigeria 1999 and Aoko v. Fagbemi (Supra) that no one can be convicted for an offence that is not known to law. In the instant appeal the word impression is the same thing as pretension, and it is used to describe the behaviour of the Appellant which gave rise to the offence and not the offence in itself. When MT African Pride became missing, the Appellant strenuously claimed that he had authorized the handover of the ship to the Police. The minute of the Appellant on exhibit Q folio 8 is very instructive. The minutes read thus: –

“The Commander-In-Chief directive was that after prosecution by the NPF, MOT will thereafter take the ship as prize. Therefore Naval personnel have to maintain watch of the ships till completion of the trial process of the crew.” The Appellant insisted that the phase “if the NPF has not taken over” was the concluding part of the minutes above when he made it. The prosecution on its part insist that the phrase was added later after the ship was missing, thus creating the impression that he had directed the release of the ship to the Police. The minutes above which directed the Naval personnel to maintain watch over the ship by the Appellant was in contravention of the directive for the release of the ship. The addition, “if the NPF has not taken over” is of no consequence as it was an attempt to create in the minds of the Chief of Naval Staff that he had directed the handover. For a ship that was arrested and placed under the custody of the Nigerian Navy within Nigerian territorial waters to suddenly disappear, speaks volume of the lapse of security at our boarders. Men whose duty it is to take care of these boarders must take responsibility for such lapses. The prosecution has proved beyond reasonable doubt that the Appellant’s handling of the issues concerning the vessel, MT African Pride is prejudicial to the service discipline and the lower Court was therefore right to have found him guilty of the offence as charged. On the argument of the learned Senior counsel for the Appellant that the failure of the Chief of Naval Staff as a witness was fatal to the prosecution’s case, I wish to state here that the prosecution is not under any obligation to call a host of witnesses to establish its case, if it is satisfied that the witness it has called are sufficient to establish its case.

See Usufu v. The State (2007) 3 NWLR (pt. 1020) 94; Alor v. The State (1998) 1 ACLR 658. This issue is therefore resolved in favour of the Respondent and the grounds of appeal upon which it is distilled are hereby dismissed.

Learned Senior counsel for the Appellant argued issue 7 under five sub-issues as follows: –

1. Summary of Evidence of Baje and others.
2. Confession of Prosecution witness to commitment of the same crime.
3. Evidence of Appellant.
4. Reliance or Evidence of tainted witness accomplices.
5. No consideration of Appellant’s defence at all.

In arguing this issue under the five headings above, learned Senior counsel referred extensively to the evidence adduced by the prosecution witnesses and the Appellant and submitted that Baje and West are, accomplices who should have been charged for the crime for which the Appellant was convicted. In a further argument, learned senior counsel submitted that Baje and West are tainted witnesses and the lower Court was wrong in placing reliance on their evidence. Learned Senior counsel went on to submit that the Appellant’s defence was not considered by the lower Court in the passage of its judgment.

In a further submission, learned senior counsel submitted that the evidence of Mr. Richard Ezike Nwanner an expert witness who testified that in the process of scanning any document, such document can be doctored to get any desired result and that the possibility of that exist in this case in respect of exhibit E was not impugned, contradicted nor challenged by the prosecution as such the lower Court was bound to accept and act on such evidence. In aid learned Senior counsel cited Seismograph Services Ltd. V. Onokposa (1972) 1 ANLR (Pt. 1) 343; Seismograph Services Ltd. V. Akporuoro (1974) 6 SC 119; Akusobi V. Obiuechie (2001) 2 NWLR (Pt. 857) 355; Osun State Government V. Dalami (Nig) Ltd (2003) 7 NWLR (Pt. 818) 72.

On evaluation of evidence, learned Senior Counsel submitted that the primary duty of any Court or Tribunal is to evaluate evidence placed before it before arriving at a conclusion. According to the learned Senior counsel, where a trial Court fails to do so, the Court of Appeal can intervene and evaluate or re-evaluate the evidence. In support of this position of the law, Learned Senior counsel cited Yekini v. Nigerian Army (Supra), Idakwo v. Nigerian Army (2004) 2 NWLR (Pt. 859) 249; Oladele v. Nigerian Army (2004) 6 NWLR (Pt. 868) 166 at 182-183; Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 at 531.

Learned Senior Counsel in a further submission made reference to S. 245 of the Criminal Procedure Act and contended that the section which stipulates the requirement of a valid judgment is mandatory and leaves no room for any discretion. In aid thereof, the authorities in Bahoshi v. Chief of Naval Staff (2004) 15 NWLR (Pt. 869) 268 at 291-292; Unakalamba v. Police (1958) 3 FSC 7; Tsalibawa v. Habiba (1991) 2 NWLR (Pt. 174) 401 at 475-477 were cited.

Finally Learned Senior Counsel submitted that a situation where the Chief of Naval Staff did not come to give evidence, Section 149 (d) of the Evidence Act should be invoked against the prosecution that the evidence of the Chief of Naval Staff has been withheld because if given, it would have been unfavourable to the prosecution. On this learned senior counsel placed reliance on Onah v. State (1985) NWLR (Pt. 12)236.

In conclusion learned Senior Counsel urged this court to resolve this salient issue in favour of the Appellant, and allow the appeal.

Before I go on to consider the submissions of the learned Senior counsel herein and to find out whether the Respondent has adequately answered the questions so raised, I wish to comment briefly on the way and manner the Appellant’s brief of argument is written.

Learned Senior counsel in his reply brief which is unpaged, criticized the Respondent’s brief for not meeting the standard of brief writing as set out under Order 6 Rule 3 (5) and Order 6 Rule 4 (2) of the Court of Appeal Rules 2002 and page 37 paragraph 56 of Hon. Justice Niki Tobi’s book, “The brief System in Nigerian Courts”. According to the Learned Senior Counsel briefs need not set out or summaries judgments of the lower Court not contain an account of the proceedings below or of the facts of the case. What the Learned Senior Counsel is quarreling against in the Appellant’s reply brief is precisely what the Appellant’s brief contains. Apart from long narration of facts of the case the Appellant abandoned the issue so formulated and argued the appeal under five different issues. This is not right. Order 6 Rule 3 (5) provides as follows:-

“(5) Except to such extent as may be necessary to the development of the argument, briefs need set out or summarise judgments of the lower courts, not set out statutory provisions, or contain an account of the proceedings below or of the facts of the case.”

This is the Appellant’s appeal. It is the Appellant’s appeal that will fail if proper steps are not taken to present before this Court, proper documents for the hearing of the appeal. The Appellant should be worried about his brief instead of dissipating energy and time in attacking the Respondent’s brief. Even if the Respondent files no brief, the Appellant’s duty to satisfy this Court that his grounds of appeal are capable of sustaining the appeal will not be diminished any way.

Although the Appellant’s brief with respect to this issue has not been presented in accordance with the rules of this Court, I will nonetheless consider the issues raised therein, since this is a criminal appeal.

In treating the submission of learned senior counsel on whether Baje and West are accomplices and tainted witnesses, I will want to state clearly at this stage that this is an appellate Court. For this reason it hears appeal on matters which are tried and decisions rendered therein in the various Courts that are enumerated under Section 240 of the Constitution of the Federal Republic of Nigeria 1999. Any party that wishes to raise fresh issues before this Court must obtain the leave of this Court to do so. See Jatau v. Ahmed (2003) 4 NWLR (Pt. 811) 498; Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) 166; Ti’za v. Begha (2005) 5 SC (Pt 11) 1.

Commodore Baje and West were neither declared accomplices or tainted witnesses nor was there a prayer to so declare them as such and such prayer was refused by the lower Court. The question as to whether they should have been tried for the offences for which the Appellant is convicted is speculative and unfounded. This Court cannot rely on speculation no matter how strong, to reach a verdict. I hold therefore that the question of whether some witnesses are accomplices and tainted witnesses is without basis in this appeal.

Learned Senior Counsel raised the issue of non-evaluation of the pieces of evidence that were placed before the lower Court. On this I wish to state clearly that the appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of the trial Court and this Court would only interfere with the performance of that exercise if the trial Court had made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusion from accepted or proved facts which those facts do not support. See Sogunro v. Yeku (2003) 12 NWLR (Pt. 835) 644; Osolu v Osolu (2003) 11 NWLR (Pt. 832) 608; Cappa & D’Alberto Ltd Akintilo (2003) 9 NWLR (Pt. 824) 49; Sokwo v. Kpongbo (2003) 2 NWLR (pt. 803) 111; Fashanu v. Adekoya (1974) 1 All NLR (Pt. 1) 35.

I have stated elsewhere in this judgment that members of the Armed Forces constitute an occupational group with its distinct laws, substantive or procedural. The operational law that provides for legitimacy, structure and discipline in the Armed Forces is the Armed Forces Act 2004. This law provides for a Court Martial to try those who break the law. A distinct procedure of trial, where after the conclusion of evidence and addresses of counsel on both sides, a Judge Advocate summarizes the case for the parties and directs

the martial on the applicable law and the voting procedure is provided for by the rules of the Court Martial. Clearly this procedure is not applicable in the ordinary civil Courts where evidence on both sides must be evaluated by the judge or judges that heard the case. The procedure adopted in this case by the lower Court in finding and sentence is consistent with Section 141 of the Armed Forces Act 2004. I therefore agree with Asemota Esq. of counsel that the Court Martial operate a criminal procedure akin to a jury trial which permits the announcement of finding and sentence by the president of the Court Martial after the summary of evidence by the Judge Advocate. I therefore find nothing wrong with the judgment of the lower Court.

The reference to S. 149 (d) of the Evidence Act with respect to the Chief of Naval Staffs failure to appear in Court to give evidence is a wrong perception of the meaning of the Section aforesaid. S. 149 (d) of the Evidence Act provides as follows: –

“149 The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume-

(d) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”

This section of the Evidence Act deals with documentary evidence and has nothing to do with the calling of witness. The Chief of Naval Staff not being a document does not come within the meaning of the section aforesaid.

For evidence which could be and is not produced would if produced, be unfavourble to the person who withholds it. For a document to come within this section the contents must have been known to the person

withholding it. In the instant appeal, what the Chief of Naval Staff could have said in Court was not known, to the prosecution, as such the presumption under S. 149 (d) of the Evidence Act is in applicable.

Finally on this issue, I agree that the proceedings in the National Assembly were not evidence before the lower Court. They are extraneous to the proceedings of the lower Court, as such the lower Court was right when, it did not act on the volumes of the proceedings of the National Assembly which were tendered before it.

This issue is therefore resolved in favour of the Respondent and the grounds upon which it is distilled are accordingly dismissed.

The Appellant’s 8th and final issue for the determination of this appeal complained against the sentences passed on him by the lower Court.

Chief Olanipekun, learned Senior counsel for the Appellant submitted that the sentences of dismissal from the Armed Forces and reduction in rank amounted to double punishment. Learned senior counsel submitted that the sentences are prohibitive and excessive and run against the natural course of things and events.

In a further argument, learned senior counsel submitted that where a sentencing language in a statue is specific, the sentencing Court has no discretion to exercise any power contrary to that sentencing language. In aid Learned Senior counsel cited Isang v. State (1996) 9 NWLR (pt. 473) 458 at 471; Isaku v. State (1986) 1 NWLR (pt. 17) 516 at 53; Lortim v. State. (1997) 2 NWLR (Pt. 490) 711 at 733.

Finally on this issue, Learned Senior counsel submitted that the law specifically enjoins the lower Court to pass a lesser sentence than is provided for and the lower Court’s sentence is arbitrary and no reason was given for the sentence. Learned senior counsel cited the case of Obisi v. Chief of Naval Staff (2004) 11 NWLR (Pt. 855) 482 at 498 where the punishment imposed by the General Court Martial was drastically reduced. Having read the submission of the learned Senior counsel, the impression he has created is that the sentence of dismissal and reduction in rank are far more excessive than the sentence of two years imprisonment which is the maximum punishment for the offence under S. 103 (1) and 90 (b) of the Armed Forces Act respectively.

The offences under Section 103 (1) are punishable on conviction by a Court Martial to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

Section 118 of the Armed Forces Act provides as follows:-

“The punishment which may be awarded to an officer by sentence of a Court Martial under this Act are those set out in the following scale, that is-

(a) death

(b) imprisonment

(c) dismissal with disgrace and dishonour

(d) dismissal from the Armed Forces

(e) reduction in rank

(f) forfeiture of security in the rank

(g) a fine of a sum not exceeding the equivalent of 3 months’ pay

(h) severe reprimand or reprimand

(i) admonition

(j) forfeiture where the offence is found,

xxxxxxx”

From the scale of punishment under Section 118 of the Armed Forces Act, dismissal from the Armed Forces and reduction in rank are offences far less than imprisonment. I therefore agree with Asemota Esq. that there was nothing oppressive in the sentences imposed on the Appellant. The case of Obisi v. CNS (Supra) which was cited and relied upon by the Appellant is distinguishable from the instant appeal.

In that case the Appellant was convicted and sentenced to 5 years imprisonment by the Court Martial, contrary to the maximum of two years imprisonment which was prescribed for the offence by the Armed Forces Act. On appeal, the sentence was reduced to two years imprisonment as prescribed by the law. Surely the sentence of five years was excessive.

Section 103 (1) and 90 (b) of the Armed Forces Act give the lower Court the discretion to impose any less punishment provided by this Act. The lower Court rightly exercised its discretion when it imposed less

punishments that are provided by the two sections aforesaid. Where a trial Court exercises its discretion bonafide uninfluenced by irrelevant considerations and not arbitrarily or illegally, an appellate Court will not interfere with the exercise of that discretion. See Udensi v. Odusote (2003) 6 NWLR (Pt. 817) 545.

Generally in determining the particular sentence to be imposed, the Court shall consider the nature and circumstances of the offence and the need for the sentence imposed. The history of this case shows that the security of the nation was breached, when a ship arrested within the territorial waters of the Nation got missing while it was in the custody of the men whose responsibility it is to defend the Federal Republic of Nigeria by land, sea and air. The shame and embarrassment that enveloped the country was clearly reported at page 8 of the Daily Sun, of Monday August 16, 2004 as follows: –

“In a commando styled operation that lasted for just 10 minutes, some foreigners whose vessel was being

detained by the Nigerian authorities on Wednesday invaded the country’s territorial waters and forcefully

removed the vessel from the custody of the Nigerian Navy. Identified as the MT African Pride the retrieval, which occurred Wednesday night jolted the Navy which could not provide any answer.”

Clearly the report here depicts our navy, as a force that is incapable of defending the territory of this country. For the breach of the security of this country tougher sanctions were required, but the lower Court was lenient enough to have just removed the men whose conduct constituted a breach to that security from the Navy. I believe this was just the natural course to take when the Appellant and others were found culpable.

I find no merit in the argument canvassed herein by the Appellant.

Accordingly this issue is resolved in favour of the Respondent and the grounds upon which it was formulated are hereby dismissed.

Having resolved all the issues in this appeal in favour of the Respondent, this appeal ought to be and it is accordingly dismissed. The decision of the lower Court is hereby affirmed.

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Other Citations: (2007)LCN/2578(CA)