Sgt. Asanu Samual & Ors. V. Nigerian Army (2006)
LawGlobal-Hub Lead Judgment Report
AMINA ADAMU AUGIE, J.C.A.
The Appellants were soldiers serving with 322 Filed Artillery Regiment, Benin City, and were deployed to the NNPC Depot, Benin City, for security services. At about 0800 hours on the 25th of August 1995, one L/Cpl Macaulay Ezekiel, who was also posted to the Depot, threatened to “fire” Lt. Eze S. Ibelegbu if the Officer did not return the jerry can of kerosene seized from him. At about 1300 hours of that same day, the said L/Cpl Macaulay actually carried out his threat and shot and killed the said Officer who was their overall commander. The Appellants who were allegedly aware of L/Cpl Macaulay’s intention did nothing to prevent the commission of the offence and on the 4th of September 1995, they were arraigned before a General Court Martial, convened by Brigadier General Patrick Newton Aziza, General Officer Commanding 2 Mechanized Division, Nigerian Army and charged as follows-
“Statement of Offence – Conduct to the Prejudice of Military Discipline punishable under Section 103(1) of the Armed Forces Decree 1993.
Particulars of Offence – In that you at NNPC Depot Benin City on or about 25 1330A Aug 1995 were told of the intention and plan of 79NA/6005 L/Cpl Macaulay to kill late Lt ES Ibelegbu (N/0599) should the said late Officer fail to return the seized soldier’s jerry can of kerosene but neglected to prevent L/Cpl Macaulay Ezekiel from committing the offence”.
The Appellants pleaded not guilty to the Charge and to prove the allegation, the Prosecution called four witnesses, including L/Cpl Macaulay who testified as PW1 that he told the 1st Appellant in the presence of the other Appellants that he will “fire” the late officer if the officer did not return his 20 litre jerry can of kerosene which the officer was reported to have seized. The defence called only the 4 Appellants who denied the allegation and claimed that L/Cpl Macaulay was only using the allegation “to defend himself”. After hearing evidence, addresses of counsel and the summing-up of the Judge-Advocate, the General Court Martial found the Appellants guilty. The 1st, 2nd, & 3rd Appellants were dismissed from the Nigerian Army, and the 4th Appellant was sentenced to 2 years imprisonment with hard labour. The findings and sentence of the General Court Martial were confirmed by the same Brigadier General Patrick Newton Aziza DSS PSC(+) mni, who had convened the Court. Dissatisfied with the decision, the Appellants filed an Appeal in this Court. Briefs of Argument were duly filed, and in the Appellants’ brief prepared by N.O.O. Oke, Esq., three Issues for Determination were formulated as follows –
- Whether from the totality of the evidence adduced at the trial the Prosecution had sufficiently proved beyond reasonable doubt the guilt of the Appellants to justify their conviction and dismissal from service of the Respondent.
- Whether the action of the Appellants before and/or during the commission of the alleged offence amounts to negligence prejudicial to good order and service discipline.
- Whether the trial and conviction of the Appellants was not a truncation of their constitutional right of fair hearing having regard to the composition, appointment of counsel and confirmation of sentence passed on the Appellants.
The Respondent adopted the above Issues in its brief prepared by Mrs. B. H. Oniyangi. In my view, Issues 1 & 2 covers similar complaints; I will therefore merge both and resolve them together. The Appellants submitted that the onus was on the Prosecution to prove the allegation beyond reasonable doubt and any doubts must be resolved in their favour, citing Section 138 of the Evidence Act, Adun v. Osunde (2003) 16 NWLR (Pt. 847) 643 @ 670, Okonji v. State (1987) 1 NWLR (Pt. 52) 659, Yekini v. Nigerian Army (2002) 11 NWLR (Pt. 777) 127 @ 141, State v. Dr. Miutairu Kura (1975) 5 UILR 8 @ 10, & Bakare v. State (1987) 1 NWLR (Pt. 52) 579 @ 588.
The Court was referred to Section 103 of the Armed Forces Act which reads-
“A person subject to service law under this Act who is guilty of a conduct or neglect to the prejudice of good order and service discipline 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 provided by this Act.”
In effect, to sustain the charge, the Prosecution must prove the following –
- That the Appellants are persons subject to service law;
- That the alleged conduct or neglect was prejudicial to good order and capable of causing injury to the good discipline of the Nigerian Army;
- That the action is blame worthy and illegal; and that
- The Appellants must have committed an act amounting to negligence.
The Appellants conceded that they were subject to service law at the time the offence was committed but argued that no evidence was led to establish that their action was prejudicial to good order and service discipline or that it violated any known law and/or procedure of the Nigerian Army. Furthermore, that there is nothing on the record to show that there was another superior officer in the Depot to whom the Appellants could have reported the threat. It was further submitted that there were a lot of material contradictions in the evidence of PW1, PW2 & PW4 as to who was present at the scene of the crime, and since the contradictions are material to the case of the Prosecution, the doubts created there-from should be resolved in favour of the Appellants, citing Ikemson v. State (1989) 1 CLRN 1, Gbasouzor v. The Nigerian Army (2000) 2 CLRN 230 @ 241, Akpabio v. State (1994) 7 NWLR (pt 359) 635, & Ikem V. State (1985) 1 NWLR (pt 2) 378 at 386.
As to whether the Appellants’ action amounted to “negligence prejudicial to good order and service discipline”, the Appellants argued in the negative. Their position is that it is on record that the 1st – 3rd Appellants were not around at the time of the shooting, while the effort of the 4th Appellant to rescue the life of the deceased proved abortive. It is their contention that the Appellants’ defence that they were having lunch when the incident occurred raised a defence of alibi, which was not investigated and failure to investigate or call witnesses to contradict the assertion is fatal to the Prosecution’s case. This Court was urged to discharge and acquit the Appellants on this ground on the authority of Okosi v. State (1989) 1 CLRN 29 @ 42.
It was further submitted, citing Ogunsi v. State (1994) 1 NWLR (pt. 322) 584 @ 592, Lori v. State (1980) 8-11 SC 81, Aigbadion V. State (2000) 7 NWLR (pt 666) 686 @ 705, that the Prosecution relied on circumstantial evidence, which the Supreme Court has held must be “so cogent and compelling that it unequivocally points to only one conclusion – the guilt of the accused”, which it was argued is lacking in this case. Furthermore, that the Appellants were arrested, arraigned and tried on the basis of suspicion, which is a clear misconception of the law by the trial Court Martial because it is trite law that suspicion no matter how grave cannot ground a conviction, citing Aigbadion v. State (supra). This Court was therefore urged to resolve this issue in favour of the Appellants on the ground that there was no cogent and compelling evidence before the trial Court Martial to show that the Appellants’ conduct was prejudicial to good order and service discipline.
The Respondent however submitted that the Prosecution proved the allegation beyond reasonable doubt; that the evidence before the trial Court Martial showed that they acquiesced to the killing by omitting to take the necessary action and should have been so charged under Section 7(b) of the Criminal Code, and Section 114 of the Armed Forces Decree (AFD) No. 105, 1993 (as amended); and the fact that they were not present when L/Cpl Macaulay fired the officer is irrelevant since it was clear from the evidence of L/Cpl Macaulay as PW1 that from the time he made his threat in the presence of the Appellants to the time he carried it out in the afternoon, the Appellants did nothing to prevent the occurrence. This Court was also urged to disregard their argument that there were no other superior officers to report to, since the threat was made to the 1st Appellant – a senior non-commissioned officer, who did not have to wait for the late officer to come before he could have disarmed the L/Cpl and place him under close arrest as provided under Section 121 (1) (4) of the AFD (as amended). Furthermore, that the 4th Appellant, simply walked away when the officer arrived in the afternoon and as the assailant stood up to confront the deceased, and this was immediately after he conversed with L/Cpl Macaulay in their dialect.
It was further submitted, citing Effiong v. State (1998) 14 NWLR (pt.584) 181 SC that these omissions by the Appellants were criminal and proved fatal for the deceased who was trying to enforce discipline. It is the Respondent’s contention on Issue 2 that the thrust of the charge against the Appellants contemplates two time frames – an earlier time when the threat was uttered and a later time when the threat was carried out, and the fact that the Appellants did nothing to either advice, disarm or report L/Cpl Macaulay to the late officer amounted to neglect, which is criminal and blame worthy, and in this case led to the untimely death of Lt. Ibelegbu. This Court was therefore urged to hold that the evidence of L/Cpl Macaulay as PW1 was direct and positive as to what he uttered and the failure of the Appellants to prevent him from carrying out his threat makes them guilty as charged. Now, the Appellants pleaded not guilty to the charge against them and subsequently denied the allegation in its entirety in their evidence as DW1-4. The onus, as counsel rightly submitted, was therefore on the Prosecution to prove beyond reasonable doubt that the Appellants were told of the intention and plan of L/Cpl Macaulay to kill the late officer but neglected to prevent him from committing the offence. To this end, the Prosecution called as its star witness, the said L/Cpl Macaulay, who had fired and killed the late officer. Relevant excerpts from his evidence as PW1, reads as follows-
“PW1: – – In the morning of 25th after we have bath finish because normally when we bath, we come out to the main gate – –
Prosecution: After taking your bath, what time was that?
PW1: Between 7 and 8 and we come to the main gate.
Prosecution – What happened?
PW1: All of us were in the main gate. They are the Guard Commander, Sgt. Asanu (1st Appellant), Cpl Ganiyu (2nd Appellant), Gnr Edet (4th Appellant) and Jubril – I do not see him that time.
Prosecution: So Cpl Ganiyu (2nd Appellant) was there?
PW1: Yes sir he was there, the only person I do not remember whether he was there was Jubril.
Prosecution: So what happened?
PW1: My Sgt was about deploying us when I told him that this kerosene should be returned to me. The Sgt replied that it is the officer that seized my kerosene. He has no power to retrieve it and that he thinks he is my friend I should go and meet him.
Prosecution: After the Sgt told you that he is your friend, what did you tell him?
PW1: I do not say anything, being my language brother I went to his house and meet him. A lady working at NNPC was there. Then I started speaking in my language, then he asked me to walk out. I walked out and told my Guard Commander what the officer said.
Prosecution: Are you saying that in the morning the officer was in the Depot and you went to meet him?
PW1: Yes sir he was in the Depot.
Prosecution: What happened next?
PW1: I met my Sgt and told him what the officer said. He told me that since the officer has refused what do you want me to do. I told him that if the officer refused giving me this kerosene, I would fired (sic) him.
Prosecution: I want you to repeat it that when you are telling Sgt Asanu that you will fire the officer, who were there that time?
PW1: All these people were there, they never move that time. Albert was also there. They have never deployed anyone of us and this time around Jubril has bathed finish when I returned to them the officer’s reply. Then he tell us where we were going (sic) officer refused to give me my kerosene that he has already break my jerry can before. I will fire him it was Cpl Ganiyu (2nd Appellant) that told me that why are you saying you are going to fire somebody because of 20 litres of kerosene for I kneel down that time (sic). He pulled me up.
Prosecution: From this 3 people with Albert as well as Jubril who were also present when you said you said you were going to the officer thereafter, what happened?
PW1: After that we were redeployed – – after break we normally come to the gate. Then Cpl asked me to go to the main gate to bring draught to play. I said I am not going to the gate to bring draught but to see whether the officer is around to give me my kerosene.
Prosecution: At the time you were going was your officer at the gate?
PW1: He was not there.
Prosecution: You are actually going there to wait for the officer?
PW1: I had to wait by then it was only my Guard Commander Sgt Asanu (1st Appellant), Gnr Edet (4th Appellant), and the Police Inspector (PW4).
Prosecution: You sat with them?
PW1: Yes sir.
Prosecution: This Inspector of Police was it the one called Mathew Obi?
PW1: Yes sir?
Prosecution: So what happened?
PW1: The Inspector sat on one bench the other people sat in another bench, it was after one O’clock when we sat down before the officer drove in. Then he packed his car.
Prosecution: Is Gnr Edet and Asanu all knew (sic) what you said you were going to do? Can you tell the Court whether he was aware of what you said you were going to do?
PW1: He was not aware. When the officer drove in I sat down expecting that the Guard Commander would go and ask the officer about the kerosene, but he did nothing.
Prosecution: Who was this Sgt?
PW1: It was Sgt Asanu (1st Appellant), I expected him to go for me.
After waiting and the Sgt made no move, now the officer comes out of his car. I told him that I have been trying to get only 10 litres. I beg him to give me the kerosene. The officer said that I continue worrying him with the kerosene matter, he would deal with me. Then it was I corked my rifle. The Sgt was not there with his rifle by the time. I corked my rifle. He went in probably to bring his rifle.
Prosecution: After the officer said that he would deal with you, was Edet there? Where was Edet that time?
PW1: Edet (4th Appellant) was sitting on the bench there too.
Prosecution: What was Edet carrying?
PW1: He was carrying a rifle.
Prosecution: At the time he came out or before he came out, tell the Court what happened?
PW1: Before the Sgt (1st Appellant) came out, I have fired the officer.
His replies to questions put to him by the Defence counsel reads as follows –
Defence: On the 25 Aug do you (sic) tell them that you are going to kill the Lt. Eze? Do you tell them that you are going to kill the officer?
PW1: I do not tell them, but I told them I am going to fire the officer.
Defence: Was there any meeting between you and the accused to kill the officer?
PW1: No sir.
Defence: Was there any advice from these soldiers as to the killing?
PW1: When I told them I was going to fire him, there was no advice.
Maybe they thought I am joking.
Defence: It means there was no advice from them?
PW1: It was when I knelt down as I said. It was Cpl Ganiyu (2nd Appellant) who hold me that I should stand up, why should I kill somebody because of kerosene.
I have set out the evidence of L/Cpl Macaulay in some detail because I agree with the Appellants that his evidence should have been treated with considerable caution because he was a witness who had his own purpose to serve, and this marks him out as a “tainted witness” – a term the Supreme Court held is confined to “one who is either an accomplice or who by the evidence he gives, either for the Prosecution or Defence, may and could be regarded as having some purpose of his own to serve” – see Adetola v. State (1992) 4 NWLR (pt 235) 267 Sc:, Ogunlana v. State (1995) 5 NWLR (pt. 395) 266 SC & Okoro v. State (1998) 14 NWLR (584) 181 SC.
It is also well settled that in cases where a person may be regarded as having some purpose of his own to serve, the warning against uncorroborated evidence should be given – see Okolo & ors v. State (1974) NSCC (Vol. 9) 119 & Idahosa & ors v. R. (1965) NMLR 85, where the Supreme Court held that the evidence of two witnesses for the Crown in a murder case who were charged on a separate charge with the murder of the deceased were clearly interested persons who might have some purpose of their own to serve, and their evidence “ought to be regarded with considerable caution, and the trial Court should have been wary in reaching a verdict of guilty on the uncorroborated evidence of such witnesses”. In this case, L/Cpl Macaulay was the one who “fired” and killed the late officer, and as much this Court cannot speculate as to whether he was telling the truth or not, one thing is clear, he knew even as he was testifying that day that he would pay the ultimate price and would also lose his life for killing the late officer because of a 20 litre jerry can of kerosene that had been seized from him by the officer.
It is a very unfortunate incident, but the fact still remains that before the Appellants were roped in and dismissed from service because L/Cpl Macaulay said he told them of his intention before he killed the officer there must have been some other evidence no matter how small to corroborate his testimony. Once again, I agree with the Appellants that there was no such corroborative evidence before the trial Court Martial. PW2, Bombardier Danlami Allah-Kyauta, merely testified that he was having lunch when he heard a gunshot and ran to the gate where he saw “Lt. Eze down and saw L/Cpl Macaulay on the hun-guard position”. His evidence would have been relevant if it was L/Cpl Macaulay that was standing trial for killing the late officer, but it is of no use in this case because the charge against the Appellants is that L/Cpl Macaulay told them about his “intention and plan to kill” the late officer and they did nothing to prevent him from carrying it out. Michael Ochefu, a Youth Corper at the NNPC Depot, testified as PW3 that he was in the canteen with his friends when they heard gunshots and alerted the only soldier there who ran out. The soldier’s name, he said, “is man must wack called Yinusa”.
The Appellants submitted, and I quite agree, that the evidence of PW3 should be discountenanced because he did not claim to have knowledge of what transpired before, during and after the shooting, and what is more, he did not mention any of the names of the Appellants. None of the Appellants is “called Yinusa” and there was no evidence before the trial Court Martial to link any of them with the nickname “man must wack”. The evidence of PW3 is therefore worthless and of no evidential value. Before I deal with the evidence of PW4, I must point out that the Judgment of the trial Court Martial is very bare. There are no reasons given for its decision. The record indicates that “the Court closed to deliberate on their finding (s)” and merely returned to pronounce the Appellants guilty as charged, without more. This tendency by trial Court Martial to deliver Judgment without specifying the reasons for their decision has been deplored by this Court in a number of cases -see Ayankpele v. Nigerian Army (2000) 13 NWLR (pt. 684) 209, Oladele v. Nigerian Army (2004) 6 NWLR (pt. 868) 166, Yakubu V. Chief of Naval Staff (2004) 1 NWLR (pt. 853) 94, where Thomas, JCAstated as follows-
“Section 141 of Decree 105 of 1999 as amended has in fact enjoined the Court Martial to make a finding on each charge before pronouncement. It did not say that the Court Martial is not bound to give reasons or not bound to make findings – – – Court Martial is a creation of the Constitution and therefore being a court of record is bound to give reasons for its decision or finding or Judgment’.
However, there are other decisions of this Court wherein it was held that a trial Court Martial is not obliged to give reasons in pronouncing its verdict – see Komonibo v. Nigerian Army (2002) 6 NWLR (Pt. 762) 95 & Magaji v. Nigerian Army (2004) 16 NWLR (pt 899) 222, where Galadima, JCA said –
“By its very nature, a Court Martial being akin to a jury trial has no compelling duty under the law to be detailed in its Judgment in the manner of regular civil Courts. – – I do not think that in the absence of an elaborate, detailed written Judgment by the Court Martial, as contended by the Appellant in this appeal, that alone should be the ground to set aside the Judgment of the Court”.
Until the Supreme Court takes a definite stand on the issue, I will steer a middle course in this appeal; lament the absence of reasons for its findings in the Judgment of the trial Court Martial, and at the same time hold that the absence of reasons is not enough to set aside the Judgment of the Court.
PW4 is Mathew Obi, a Police Inspector, who testified that he was at the Main Gate with L/Cpl Macaulay and the 4th Appellant. He further stated as follows:
“The two of them were speaking in their native language Calabar language which I do not understand, shortly after the late Lt. Eze drove in his car and parked first in front of where we are sitting. Before he packed Edet (4th Appellant) stood up and left the main gate’.
The record of L/Cpl Macaulay’s evidence on the 4th Appellant reads as follows-
“PW1: When I fired the first round, the officer ran, Edet (.4th Appellant) was running after me also. Before he reached me I had already fired the two rounds then dropped my rifle.
Prosecution: You said you were running, how do you know that Edet was running after you?
PW1: It was when I turned back after firing the three rounds that he held me in the shirt.
Prosecution: Would it not surprise you that when all these actions were taken, Edet said he was not around. He was sent away by the officer?
PW1: It would surprise me, for Edet (4th Appellant) was there.”
The 4th Appellant testified as DW3 that he was discussing something about “a driver who gave a dud cheque” with L/Cpl Macaulay in their language when the late officer arrived, and that PW4 was lying as he did not leave the place. Under cross-examination he was shown his earlier statement and replied –
“Prosecution: Gnr Edet you told this Court that you are an Assistant Pastor in your Church and that you do not tell lies. From what I have read in this Exhibit A4, when the gun shot was heard, you were not at your duty point. You said you went to collect food being sent by Sgt Asanu, is It?
DW3: I have collected the food down before.
Prosecution: You have just told the Court another version on what took place. You said in Court that you were seated at your duty post, you did not leave the place and that at that point in time Lt. Eze arrived. L/Cpl Macaulay went to him to discuss with the late officer and that you heard a gun shot.”
The Prosecution submitted as follows in its address to the trial Court Martial –
“The evidence of PW1 was not controverted by the Defence. All the defence did was to merely deny this fact. Therefore, the evidence of PW1 must be taken as the truth and proof of this element of the offence. Furthermore, the evidence of PW4, Inspector Mathew Obi clearly shows that the 4th accused Gnr Edet Ekong knew of PW1′ intention and plan of killing Lt. Ibelegbu. This could be discerned from the way the 4th accused walked away from the Main Gate as the late officer was parking his car obviously to enable L/Cpl Macaulay execute his plan undisturbed. Earlier PW1 and the 4th accused had discussed extensively in Ibibio at the Main Gate before the arrival of the late officer. DW3, Gnr Edet admitted that PW1 was not on duty with him at the Main Gate but came there from his own beat.
We urge your lordship not to believe the late story of DW3 about a tanker driver and cheque as the subject discussed between him and PW1 but hold that the discussion was actually on L/Cpl Macaulay’s plan to kill the late officer, hence they discussed in Ibibio, a language understood by them all. The 4th accused has been proved by the Prosecution as a non-repentant liar in the following particulars (numbered a. – h.)”. We urge the Court to disbelieve the entire testimony of the 4th accused in Court and to hold that he is a witness of untruth who is ever ready to create different situation only to deny them sooner that later as the truth emerges”.
The trial Court Martial may not have given reasons for its verdict but it is obvious that it was swayed by the arguments in the Prosecutions address, because at the end of the day the 4th Appellant was singled out for special punishment and was sentenced the 2 years imprisonment with hard labour. Sadly, however, every point made by the Prosecution only succeeded in misleading the trial Court Martial, and led to a grievous miscarriage of justice.
To start with, it is not for the Defence to “controvert” the evidence of PW1. The word “controvert” has no place in criminal proceedings, it belongs in the realm of civil proceedings where cases are decided on the balance of probabilities or preponderance of evidence. In a criminal trial, an accused person does not have to utter a word. The duty is on the Prosecution to prove the charge against the accused person beyond reasonable doubt – see Williams v. State (1992) 8 NWLR (pt. 261) 515, Igabele v. State (2006) 6 NWLR (pt 975) 100 SC, & Kim v. State (1992) 4 NWLR (pt 233) 12.
The question in a criminal case is whether there is evidence of such a quality on every material ingredient or issue in the case that it ought to be believed. If there is and it is believed by the trial Judge, that is the end of the matter, provided it is manifest on the record that the trial Judge has given due consideration to the evidence by and on behalf of the defence – see Ibrahim v. State (1991) 4 NWLR (pt 186) 399 SC & State v. Onyeukwu (2004) 14 NWLR (pt. 893) 340 where Pats-Acholunu, JSCwarned as follows –
“Care must be taken that the Court should not be bamboozled into taking a course of action that produces a miscarriage of justice. In a criminal case, every item of evidence must be scrupulously examined, analyzed and weighed to assess the substantiality of the testimony and statements proffered and made” (Italics mine).
Secondly, the submission that the 4th Appellant knew about L/Cpl Macaulay’s intention to kill the late officer because “they had discussed extensively in Ibibio” is nothing but speculation grounded on suspicion, and it is trite law that suspicion, however strong, does not constitute proof of a criminal offence – see Nsofor v. State (2004) 18 NWLR (905) 292 SC & Yekini v. Nigerian Army (2002) 11 NWLR (pt. 777) 127, where Aderemi, JCA held as follows-
“It is the cardinal duty of a trial Court to perceive and evaluate the evidence placed before it before arriving at a conclusion. A dereliction of this fundamental duty is fatal to whatever conclusion the trial Court may reach. I have examined the whole of the evidence before the Military Court Martial, it is devoid of value. The conviction appears to be founded on suspicion or a state of conjecture. I need to add that mere circumstances of suspicion are never sufficient to justify a conviction. Indeed, suspicion, no matter how strong, can never take the place of legal proof” (Italics mine). In this case, no one understood what the 4th Appellant and L/Cpl Macaulay were discussing in Ibibio, and L/Cpl Macaulay testified that he did not have a meeting with the Appellants before he killed the late officer. As he put it – “When I told them I am going to fire him, there was no advice. Maybe they thought I was joking”. There was no therefore no iota of evidence to support the Prosecution’s assertion that the 4th Appellant’s discussion with L/Cpl Macaulay in Ibibio was about the L/Cpl’s “intention and plan” to kill the late officer, which is why the 4th Appellant “walked away from the Main Gate as the late officer was parking his car obviously to enable L/Cpl Macaulay execute his plan undisturbed”. In other words, the argument the trial Court Martial obviously bought was nothing more than speculation, and it is trite law that a Court’s findings must be supported by concrete and real evidence and not speculation – see Millar v. State (2005) 8 NWLR (pt 927) 236 & Ahmed v. State (2001) 18 NWLR(pt. 746) 622 where Ayoola, JSC said-
“Our criminal justice system loses its essential requirement of proof by evidence beyond reasonable doubt if persons accused of crime are convicted on mere suspicion or mere speculation, however intelligent that may be notwithstanding the inadequacy of evidence. Whatever the reason for the inadequacy of evidence or absence of essential evidence may be it is immaterial to the duty of the Court not to convict an accused of an offence not proved by evidence” (Italics mine).
Finally, on the faulty arguments presented to the trial Court Martial by the Prosecution, the mere fact that an accused person has lied is not proof that he is guilty, and it is certainly not evidence of the commission of any offence – see Haruna & Anor v. The Police (1967) NMLR 145 wherein it was observed that “although a man may lie because he is guilty, he may just as well lie because he is stupid or afraid or both and whether he is guilty or not”. See also Durwode v. State (2000) 2 NWLR (pt. 645) 392; Isibor v. State (2002) 3 NWLR (pt.754) 250, Agbo v. State (2006) 6 NWLR (pt. 977) 545 SC, Ogidi v. State (2005) 5 NWLR (pt. 918) 286 SC & Okpere v. State (1971) 1 All NLR 1 @ 5 where Coker, JSC observed as follows –
“It has never been the law that the mere fact that a person told lies is by itself sufficient to convict him of an offence unconnected with mendacity nor does the fact that an accused person has told lies relieve the Prosecution of its duty of proving the guilt of the accused of the offence charged beyond reasonable doubts.”(Italics mine).
In effect, it was certainly wrong of the Prosecution in this case to argue that the 4th Appellant was guilty of the offence charged because it had proved that he was a “non-repentant liar” and the trial Court Martial therefore erred in allowing itself to be swayed by such a misleading argument to convict him. The onus was on the Prosecution to prove the case against the Appellants beyond reasonable doubt, and the issue of whether the 4th Appellant was a liar or not, had no relevance to the question the Court Martial had to answer – did the Prosecution discharge that burden, enough to justify a conviction? And the answer is obviously – No. The evidence before the trial Court Martial merely raised doubts as to whether the 4th Appellant was at the scene or not. L/Cpl Macaulay said the 4th Appellant was there and even ran after him as he was firing at the late officer. PW4 said the 4th Appellant stood up and left the Main Gate when the late officer arrived. The 4th Appellant testified that he was there. The Prosecution showed him an earlier statement where he said he was not there when the shooting took place. In all this, it was not for the 4th Appellant to prove his innocence by clearing up the contradictions, it was for the Prosecution to provide cogent reasons for the inconsistencies in its evidence, or else, the law says it will be resolved in favour of the Appellants.
Two equally convincing possibilities were presented before the trial Court Martial and the 4th Appellant is a central figure in both – L/Cpl Macaulay corroborated his evidence as DW3 that he was there, and PW4 confirmed his earlier statement to the Board (Exhibit A4) that he was not there. Obviously, the Prosecution did not prove its case beyond reasonable doubt, and the doubts raised must be resolved in favour of the 4th Appellant – see Aiguoreghian v. State (2004) 3 NWLR (pt. 860) 367 SC(where it was held-
“There now exists a body of corpus juris to the effect that a reasonable doubt as to the guilt arises if anyone or more of the circumstances proved are inconsistent with guilt and at the same time may be inconsistent with innocence. Thus, if two possibilities can be inferred from or are equally compatible with the evidence given, neither one can be said to have been proved. – – – In such a case, such testimony or testimonies will definitely not support a Judgment in favour of the proponent” (Italics mine)
At the end of the day, even the evidence of PW4 did not corroborate that of L/Cpl Macaulay in any material particular, which in simple language means that the Prosecution failed to prove the allegation against all the Appellants beyond reasonable doubt, and the trial Court Martial erred in convicting them. Issues 1 & 2 are therefore resolved in their favour. The 3rd Issue concerns the complaint that it was the same Brigadier General P. N. Aziza, who convened the General Court Martial that also confirmed their sentence. Not much need be said on that, suffice it to say that I agree with the Appellants that this is sufficient reason to set aside the conviction – see Akinwale v. Nigerian Army (2001) 16 NWLR (pt. 738) 109 & Majekodunmi v. Nigerian Army (2002) 16 NWLR (pt. 794) 451. The end result of the foregoing is that the appeal succeeds and is allowed. The conviction of the Appellants and the sentence passed by the trial Court Martial are set side, and in its stead I enter a verdict of discharge and acquittal for the Appellants.
Other Citations: (2006)LCN/2138(CA)
