State V. Sqn. Leader O.t. Onyeukwu (2004)

LAWGLOBAL HUB Lead Judgment Report

UWAIFO, J.S.C.

When this case came on for hearing on 29 April, 2004, this court was initially faced with two appeals. One is the appeal filed by the State against the judgment of the Court of Appeal, Lagos Division, given on 22 June, 2000 allowing the appeal and discharging and acquitting the present respondent. Sqn. Ldr. O. T. Onyeukwu, on all the seven counts upon which he had been convicted by the General Court Martial (the GCM) together with the order for restitution as confirmed by the confirming authority. The other was the cross-appeal by the said Sqn. Ldr.

In the course of argument, the cross-appeal was abandoned and withdrawn by Alhaji Adetola-Kaseem SAN. He conceded that there was no grievance expressed by the cross-appellant against the judgment of the court below on which to base the cross-appeal. The cross-appeal was accordingly dismissed. In regard to the appeal, the state, as the appellant, raised six issues for determination as follows:-

“(i) Whether the power to convene a General Court Martial, vested in the persons set out in section 131(1) and (2) of the Armed Forces Decrees, 105 of 1993 (as amended) cannot be delegated

(ii) Whether the Learned Justices of the Court of Appeal were right in holding (as they did) that the joint trial procedure adopted by the General Court Martial was a curious procedure which occasioned improprieties and unfairness and therefore vitiated the trial of the respondent.

(iii) Whether on a charge of conspiracy the provisions of section 27(3) of the Evidence Act can be applicable having regard to the section 11 of the Evidence Act.

(iv) Whether the Court of Appeal was right in holding that the evidence before the GCM was insufficient to have secured the respondent’s conviction under count 3.

(v) Whether the statement of a person who was not jointly charged with the respondent and which said statement is against the respondent cannot suffice to secure his conviction.

(vi) Whether the learned Justice of the Court of Appeal were right in setting aside the conviction of and discharging and acquitting the respondent in respect of counts five, six and seven having regard to the evidence adduced before the GCM.”

The respondent in reliance on the grounds of appeal filed by the appellant set down five issues for determination. Some of them are reasonably similar to those of the appellant. Having regard to the arguments canvassed, it seems to me that the second issue raised by both parties has deserved my closest attention. That issue deals with the consequence of trying separate indictments jointly, as was done in this case. I shall adopt the issues raised by the appellant for the purposes of deciding this appeal. I would like to draw attention to the recent decisions of this court arising from the very judgment of the court below which is also the subject of appeal now. These cases are reported as The Nigerian Air Force v. Ex- Wing Conunander L.D. James (2002) 18 NWLR (Pt. 798) 295; Nigerian Air Force v. Ex. Squadron Leader A. Obiosa (2003) 4 NWLR (Pt. 810) 233; 4 NWLR (Pt. 810) 233; The State v. Squadron Leader S. I. Olatunji (2003) 14 NWLR (Pt. 839) 138.

The respondent was charged alone in an indictment containing 9 counts stated as follows:

“1ST CHARGE CIVIL OFFENCE CONTRARY TO SEC. 114 OF THE ARMED FORCES DECREE, 1993 THAT IS TO SAY,CONSPIRACY TO DEFRAUD CONTRARY TO SEC. 422 OF THE CRIMINAL CODE IN THAT HE

Together with Gp Capt. RM Tinglocha (NAF/493), Wg Cdr. MB Togunloju (NAF/839), Wg Cdr. LD James (NAF.909), Wg Cdr. TLA Shekete (NAF/l040), Sqn. Ldr. M.O. Kamldeen (NAF/843) and Sqn Ldr. S.l. Olatunji (NAF/1217) at HQ NAF DFA/HQ PAG, Lagos between 1-4 Apr. 96 conspired to defraud the Nigerian Air Force.

2ND CHARGE STEALING CONTRARY TO SECT 66(a) OF THE ARMED FORCES DECREE, 1993.