Wing Commander T. A. L. Shekete V. The Nigerian Air Force (2007)
LawGlobal-Hub Lead Judgment Report
ADAMU, J.C.A.
This is an appeal against the judgment of the General Court Martial (GCM) convened by the Chief of Air Staff delivered on 21/10/96. In the said judgments the appellant who was jointly charged and tried along with nine other officers was found guilty and convicted on five (5) of the seven counts with which he was charged while he was found not guilty (and discharged) on the remaining two (2) counts of the charges. The appellant was sentenced to 23 years imprisonment and ordered in addition to pay the sum of N4,630,000.00 (Four million, six hundred and thirty thousand Naira only) as restitution to the Nigerian Air Force (the respondent herein). The sentence was confirmed by the Chief of Air Staff who reduced the terms to four (4) years imprisonment while leaving intact the amount of restitution to be paid by the said appellant. Being dissatisfied with his conviction sentence and the order of restitution against him, the appellant appealed against them in this court.
In his notice of appeal filed on 15/5/03 with the leave of this court, the appellant filed twenty (20) grounds of appeal with their particulars (except the general omnibus ground) see the notice of appeal and the grounds reproduced at the beginning of the appellant’s brief (at pages 1- 3 thereof). From his twenty (20) grounds of appeal, the appellant formulated five (5) issues for determination. The five issues are as follows:-
“Issues for determination
(1) Whether the convening of the General Court Martial, the preparation and signing of the charge sheet, the confirmation and promulgation of the findings and sentences passed on the appellant by the aforesaid General Court Martial and the issuance of exhibit Q by one and the same person to wit AVM N. E. Eduok, the then Chief of Air Staff did not breach the appellant’s right to fair hearing under section 33 (I) of the 1979 Constitution which was the applicable Law to this case as well as Article 7 (1) (d) of the African Chm1er on Human and Peoples’ Rights, Cap. 10, Laws of the Federation of Nigeria, LFN, 1990. (Grounds 1, 2, 6, 7 and 18).
(2) Whether the order of the General Court Martial that the appellant shall pay the sum of four million, six hundred and thiry thousand Naira only (N4,630,000.00k) as restitution to the Nigerian Air Force when no such money was found in possession of the appellant nor was any property of the appellant traceable to the alleged stolen money and the confirmation of the said award by the Chief of Air Staff (CAS) are in consonance with S. 118(1)(j) and 174(4) of the Armed Forces Act, 2004 and if not whether the award can stand. (Ground 8).
(3) Whether the joinder and trial of counts 6 and 7 on one hand and the joinder and trial of counts 6 and 7 with other counts in the charge sheet were valid and proper in law when the said counts 6 and 7 were not committed in the same course and/or the same transactions and/or with the said other counts. (Grounds 14 and 16)
(4) Whether the offence of forgery was proved against the appellant at the trial. (Ground 13).
(5) Whether the prosecution proved all or any of the counts against the appellant as required by law having regard to the oral and documentary evidence adduced and accepted at the trial. Grounds 12, 15, 19 and 20).”
In the respondent’s brief, the above issues of the appellant’s are adopted even though they are condensed into the following three (3) issues as reformulated (in capital) in the said respondent’s brief.
“Issues for determination
(1) Whether the convening and proceedings of the General Court Martial constituted a breach of the appellant’s right to fair hearing.
(2) Whether the prosecution proved its case against the appellant and whether the order of restitution made against the appellant was properly made.
(3) Whether the joinder and trial or counts 6 and 7 on one hand and the joinder and trial of counts 6 and 7 with other counts on the charge sheet were valid and proper -in law when the said counts 6 and 7 were not committed in the same course and/or the same transaction and/or with the said other counts.”
The appellant also filed a reply brief dated and filed on 26/9/06 in which he replied to some new points of law raised from the submission contained in the respondent’s briefs of argument. The submission in all the briefs on above stated issues have been duly considered for the purpose of this judgment. From the above five issues as set out in the appellant’s briefs of argument, it is clear that issues 4 and 5 which are bordered on the proof of the offence of forgery on the one hand and proof of any of the criminal counts against the appellant on the other hand are repetitious in their nature as they are both challenging the decision of the GCM based on its conclusion that the offences (or counts) on which the appellant was convicted (including forgery) were proved by the prosecution. They (i.e. the 2 issues) can therefore be merged together as is rightly done in the respondent’s brief under the 2nd issue thereof. I will therefore adopt the respondent’s approach by merging the appellant’s issues 4 and 5 and treating them as one issue. Consequently, the appellant issues when narrowed down or merged as suggested will be four (4) in number instead of five (5). I will therefore treat ordeal with them as such.
The learned counsel for the appellant’s lengthy submission under issue 1 of his brief (which runs through pages 18 – 28 thereof) is premised on the fact that the issuance of the convening order, the preparation and signing of the charge sheet as well as the confirmation of the sentence passed on the appellant was done by one and the same person to wit Flight Officer Ajobena for and on behalf of the CAS. This is said to be done in breach of the appellant’s right to fair hearing as guaranteed under section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979 (now corresponding with section 36(1) of the 1999 Constitution). The convening order (exhibit AI) and its annexture (to wit delegation of power or authority to sign it on Air Commander Ajobena for CAS) are both reproduced in the brief. The unilateral action of the same officer and convener of the GCM is also said to be in breach of Article 7(1)(d) of the African Charter on Human and Peoples Rights (Cap 10), LFN, 1990 as well as the age-long principle of natural justice “that a man shall not be a Judge in his own cause” or case as expressed in the Latin maxim “nemo judex in causa sua”.
In another leg of the appellant’s submission under the issue, it is argued that the preparation and signing of the charge sheet was not done by an appropriate officer of the unit of the accused person as prescribed under section 181 (1) and 126(1), (2) and (4) of Armed Forces Act, 2004; as well as under the Rules of Procedure (Air Force).
1972 made thereunder – See also Decree No. 105 of 1993; Edet v. Chief of Air Staff (1994) 2 NWLR (Pt. 324) 41 at 65 – 66; Mohammed v. Kano N.A. (1968) 1 All NLR 424 at 427; Legal Practitioner Disciplinary Committee v. Fawehinmi (1985) 7 SC 178 at 192. (1981) 2 NWLR (Pt. 7) 300; and Oyelade v. Araoye and Anor (1967) 1 All NLR 321 at 328 cited and relied upon by the appellant on the above submission.
Furthermore, the appellant’s brief refers to a certain letter (exhibit Q) emanating from the CAS (the Convening Officer) to the Chief Superintendent of Prison, which is described in the brief as amounting to an unlawful command influence as it predetermined the guilt of the appellant. However, in the said brief, the appellant concedes that this court had held the same letter as otherwise on the ground that it was not addressed to any of the members of the GCM in Squadron Leader O. T Onyenkwu v. The State (2000) 12 NWLR (Pt. 681) 256 which is a separate appeal by another officer who was one of the co-accused and jointly tried with the appellant. The appellant however described the decision in Onyenkwu’s case (supra) as per incuriam relying on the forcing authorities in United States “.
Schulz 23 CMR 853 (CMA at 1957) and a book titled “Military Justice Trial Procedure” (published by the Headquarters, USA Department of the Army in April, 1978. The appellant finally urges this court under his 1st issue (as above discussed) to hold that the provision of sections 131, 148(3) and 152(1) of the Armed Forces Decree (now Act) No. 105 of 1993; which vested in the same person the power to convene the GCM and to confirm their decision are inconsistent with the provision of section 33(1) of the 1979 Constitution (now section 36(1) of the 1999 Constitution. The acts of the convening officer under the above provision of the Act No. 105 of 1993) also violate the provision of the African Charter on Human and Peoples’ Right and the above constitutional provision.
Consequently, we are urged by the appellant to resolve issue I in his favour and to declare his trial by the GCM as null and void.
The above submissions of the appellant under his first issue (issue No.1) correspond with and are replied to in the respondent’s 1st issue (issue one). In the said issue, the respondent submits that by convening the GCM signing the charge sheets and confirming the sentence and finding against the appellant, the CAS who did or combined all the above acts did not constitute himself into a complainant, a prosecutor or a Judge in his own case. It is argued that the CAS did not preside over or sit as a member of the GCM.
Neither did he give evidence (as a witness) or sent any influential letter or document to the GCM after convening it. An analogy is made with prosecution process in the State or Federal Government which also appoint Judges and Magistrates and its officials from the Police and the Ministry of Justice who conduct the prosecution of the criminal offences on behalf of the State or Federal Government are not strictly regarded as such with the effect that the Government on whose behalf they act is not treated as responsible for their actions in the preparation of the charges or prosecution of the offenders. In other words, if the appellant’s view or theory is adopted, it would mean that the prosecution of criminal offences which are conducted by State or Federal officials on behalf of the Government will also have the effect of making the said Governments as unilaterally involved in the preparation of charges, appointing the prosecuting officers and generally undertaking the prosecution, conviction and sentencing the offenders all by itself thereby constituting itself into a complainant, a prosecutor and a Judge in its own cause. The fallacy of the appellant’s view or submission to the same effect is pointed out in the respondent’s brief by reference to the trial or prosecution of robbery cases under the Robbery and Firearms (Special Provisions) Act, Cap. R II, LFN, 2004 under which the Governor similarly confirms the findings and sentence passed by the Tribunal (see section 1(3) thereof. It is said by the respondent that it is ridiculous to regard such a process and acts in the prosecution of offenders as unconstitutional or as constituting any breach of fair hearing or natural justice. The case law authorities cited by the appellant namely Mohammed v. Kano N.A. (supra) and Legal Practitioners Disciplinary Committee v. Fawehinmi (supra) are consequently described by the respondent as irrelevant to the present case and are therefore distinguishable because the CAS in the present case merely convened the GCM and signed the charge sheet as he was required to do under the relevant law but he did not participate in the proceedings of the said GCM either as a witness or as a prosecutor.
The action of the CAS in the present case is said to be proper and was in accordance with section 131(c) Armed Forces Decree (now Act, supra). Reference is also made in this regard to the form of the charge sheet as illustrated in the 2nd Schedule to the Air Force Rules of procedure 1972 which shows that the charge sheet is required to be signed by the officer who convenes the GCM.
In another arm of the respondent’s submissions under the 1st issue, it is argued that the appellant concedes that the action of the CAS were done, or are covered, under section 152 of the Armed Forces Act (supra) as held in the decision of this Court in Sqdin. Ldr. C O. T Onyenkwu v. The State (supra) and it is submitted that the appellant’s argument that the provision of the section had later been found to be unconstitutional and repealed in the subsequent Act should not affect the legality of the acts carried out or undertaken under the said Act before its repeal. Reference is made on the submission to sections 6(1)(a)-(e) and 37 of the Interpretation Act (Cap. 123), LFN, 2004 which provide that the repeal of an enactment or Act shall not affect its previous operation or anything duly done under the said enactment or Act. On the effect of exhibit Q which is said by the appellant’s to constitute an “unlawful command influence,- the respondent submits that the said document had been held to be otherwise by this court ii Sqdm. Ldr. Onyenkwu’s case (supra) as it was not directed or addressed to the members of the General Court Martial but to the Prison Officials whose duty was merely to keep custody of the appellant along with others pending their trial by the said GCM. This court is therefore urged to hold that exhibit Q was not an unlawful command influence as wrongly asserted by the appellant and as held in Onyenkwu’s case (supra). On the reference made by the appellant to the footnotes under section 123 of Decree No. 105 of 1993 (as amended) and rule 14 of the Rules of Procedure (Air Force), 1972, the respondent’s reply is that the said footnotes are regarded as not forming or being part of the enactments as provided under section 3 of the Interpretation Act (Cap. 123) LFN (supra).
In another dimension of its submission, the respondent refers to sections 167 and 168 of Criminal Procedure Act both of which provide that an objection to any formal defect in a charge shall be taken by an accused person immediately the charge is read over to him and not later and a judgment obtained shall not be reviewed on account of any objection which if taken when the charge was read or during the trial may lead to an amendment of the defect in the charge by the court. It is submitted that the appellant’s objection against the charge sheet in the present case is too late in the day and was an issue or question not raised or canvassed at the trial GCM.
Finally the book on the United State Military rules of procedure cited by the appellant is said to be inapplicable in the instant case where the procedure is regulated under the statutory rules as contained in the Armed Forces Act (supra) and the Rules of Procedure (Air Force), 1972 (supra). This court is finally urged by the respondent to hold that the appellant’s right to fair hearing was not breached or contravened in the present case.
In the appellant’s reply brief filed in response to the above points arising from the respondent’s brief on the 1st issue, there is a vehement and meticulous effort by the learned counsel for the said appellant to debunk the respondent’s submission on the new points so raised. On the analogy between the criminal procedure in the State High Court or the robbery Tribunals drawn by the respondent, the appellant argues that the two systems or procedures cannot be compared or equated as the State High Courts and their procedural rules are enshrined in the Constitution while those in the GCM are made in the Armed Forces Act (supra) and the Rules of Procedure, 1972 (supra) both of which are the products of undemocratic military dictatorship which was itself unconstitutional for being inconsistent with the constitutional provision – see section 6(1)-(5) of the 1999 Constitution; Akinwale v. Nigerian Army (2001) 16 NWLR (Pt. 738) 109; Yekini v. Nigerian Army (2002) 11 NWLR (Pt. 777) 127 at 143; and Ayankpele v. The Nigerian Army (2000) 13 NWLR (Pt. 684) 209 at 224 (per Aderemi, JCA as he then was) cited in support of the above argument. On the respondent’s attempt to distinguish the authorities of Mohammed v. Kano N.A. (supra) and L.PD.C. v. Fawehinmi (supra) the appellant’s reply thereto is based on the fact that the said respondent has admitted that it was the same person (i.e. the CAS) who acted as both the prosecutor and the Judge (or witness) in the present case and it is submitted that the circumstances are the same as in the two cases cited by the appellant. We are urged to hold that by his series of acts in the trial of the appellant, the CAS who prepared the charge sheet, constituted the members of the GCM and, after their findings and sentence on the appellant, confirmed the same had constituted himself as both the prosecutor and the Judge in the same cause and acted in breach of section 36(1) of the 1999 Constitution and 7(1) of the African Charter of Human and Peoples’ Rights (supra). His action and the proceedings of the GCM should consequently be declared as unconstitutional and void to the extent of its inconsistency with the said constitutional provision (see section 1(3) of the Constitution (supra).13 On the respondent’s arguments relating to exhibit Q. the appellant’s reply is that the said respondent, who asserted that some pages of the record were deliberately omitted or obliterated by the appellant to cover up that it was tendered by or at his instance, was free and at liberty under the rules of practice of this court, to compile any additional documents it may desire as part of the record of proceedings. Consequently, the said respondent who alleges the missing pages of pm1 of the record should have applied to add them in proof of its assertion. its failure to do so is therefore fatal to the said assertion. Even if the said exhibit Q was actually tendered by the appellant, there is nothing in law to prevent its being used or relied upon by the court in the proceeding. See Torti v. Ukpabi (1984) 1 SCNLR 214 cited in support of the appellant’s above submission. It is also submitted that the provision of the Criminal Procedure Act cited by the respondent are inapplicable to the proceedings before the court martial (in the instant case) as held by this court and the Supreme Court in Komonibo v. Nigerian Army (2002) 6 NWLR (Pt.762) 94; Obasanjo v. Yusuf (2004) 9 NWLR (Pt. 877) 144; and Nneji v. Chukwu (1988) 3 NWLR (Pt. 81) 184 at 204. Also the provision of the Interpretation Act (supra) cited and relied upon by the respondent are themselves said to be inconsistent with the Constitution and therefore inapplicable as they are affected by the rule on the inconsistency of any law with the constitutional provision (as provided in section 1(3) of the 1999 Constitution). Finally this court is urged in the reply brief to resolve issue No.1 in favour of the appellant.
After due consideration of the above submissions in all the briefs on the 1st issue the crucial question that arises from the submissions is whether under the circumstance of the present case the appellant’s right to fair hearing had been infringed by the trial G.C.M. The first point to address on the question is the appellant’s consistent assertion that the CAS who convened the said G.C.M., prepared the charge sheet and confirmed the conviction and sentence passed on the appellant by the said GCM had thereby constituted himself into a prosecutor, a Judge or a witness in the same cause contrary to the rule or doctrine of fair hearing or fair trial (both term being regarded as the same and interchangeable). This point raises a fundamental and constitutional question the determination of which is capable of rendering the proceedings of the G.C.M. null and void if found to be conducted in breach of the fundamental right of fair hearing. The rule or concept of fair hearing which is rooted or bears its origin to the common law doctrine of natural justice (under its twin pillars) is also enshrined in the Constitution of the Federal Republic of Nigeria, 1999 (section 36 thereof) under Chapter IV dealing with fundamental rights. In the present case, the appellant’s attack against the proceedings of the GCM is predicated on the second pillar of the rule (or doctrine) of fair hearing namely that the convening authority (i.e. the CAS) was not impartial in the sense that by his series of actions in the proceedings, he appears or is seen to be a Judge in his own cause contrary to the second arm of the rule as expressed in the Latin maxim; nemo judex in causa sua. Both aspect of the rules or doctrines of natural justice have been codified in section 36 of the 1999 Constitution (supra). For the purpose of the appellant’s complaint under the 1st issue, the relevant provision applicable to the present case is as contained in subsection (4) of section 36 which provides as follows:-
“( 4) whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal.”
The above provision is usually read together with section 6 of the Constitution (supra) which vests judicial powers on the superior courts (of records) established under the Constitution as well as other courts established or authorized by law to exercise jurisdiction (at first instance or on appeal) on matters to which the National Assembly has power to legislate (see section 6(4) of the Constitution (supra). Because of the importance of the above provision based on the concept of fair hearing and natural justice, the courts have been observing it religiously and strictly so that the proceeding or decision of any court or tribunal or other administrative bodies charged with the performance of a judicial or quasi-judicial function and which acted in violation of the rules of fair hearing is liable to have its said decision or proceedings declared null and void on an appeal or review. In other words, whenever there is a breach or denial of fair hearing in any proceeding, the entire proceedings are or will be declared a nullity by the court and the party affected by such a proceeding will be entitled ex debito justitiae to have it set aside – see Bakoshi v. Chief of Naval Staff (2004) 15 NWLR (Pt. 896) 268 at 293; Dawodu v. Ologundudu (1986) 4 NWLR (Pt. 33) 104; Ogundoyin v. Adeyemi (2001) 13 NWLR (Pt. 730) 403; Fawehinmi v. LPDC (1985) 2 NWLR (Pt.7) 300; and Anyankpele v. The Nigerian Army (2000) 13 NWLR (Pt. 684) 209 at 224 – 225. In the instant case, the appellant’s complain on the breach of the second rule of fair hearing against him is premised on the likelihood of bias or prejudice or partiality against him in his trial which is said to be dominated by the CAS who convened the GCM prepared the charge sheet and at end of the
trial confirmed the conviction and sentence passed on the appellant by the said GCM. It is necessary in order to resolve this complain to look into the law regulating the issuance of the covering order of the Court Martial and the confirmation of its decision in order to see whether or not the CAS acted in accordance with the law under section 131(2) of the Armed Forces Decree (or Act) No. 105 of 1993, which was applicable to the present case. It is trite that under the above provision, a GCM may be convened by:-
“(a) the President, or
(b) the Chief of Defence Staff; or
(c) the Service Chiefs; or
(d) a General Officer Commanding or corresponding command”
See – Obiosa v. Nigerian Air Force (2000) 12 NWLR (Pt. 680) 112 at 121; Onyenkwu v. State (2000) 12 NWLR (Pt. 681) 256 at 266; and Shekete v. The Nigerian Air Force (2000) FWLR (Pt. 29) 2438 at 2451; (2000) 15 NWLR (Pt. 692) 868.
Furthermore, and by virtue of section 152(2) of the Armed Forces Act (supra), some officers are specifically excluded from confirming the finding and sentence of a Court Martial. These include
“(a) an officer who was a member of the Court Martial; or
(b) person who as the commanding officer of the accused, investigated the allegation against him or who is for the time being the commanding officer of the accused; or
(c) a person who, as appropriate superior authority investigated the allegations against the accused”
From the foregoing provision, the C.AS who is qualified as a Service Chief was empowered by the law to convene the GCM as he did in the present case and as there was nothing precluding or excluding him from confirming its decision, his actions under the circumstances were lawful and were permitted or covered by the law as it then stood (i.e. the Armed Force Act No. 105 of (1993).The facts of the present case are therefore different from those in all the cases cited and relied upon by the appellant in that the actions of the CAS complained against were permitted by the law and that the said CAS did not do anything apart from the issuance of the convening order (in exhibit A1) and the confirmation of the decision of the Court Martial. In other words, the situation or circumstance in the present case are in sharp contrast with those in Fawehinmi P. LSPDC (supra) where the Attorney-General who constituted the Disciplinary Committee to try the accused also participated as a member of the same committee. Nor was it similar to the case of Bakoshi P. Chief of Naval Staff (supra) where the President of the GCM dominated the hearing in a way or manner, which made him to have descended into the arena as if the battle was between himself and the accused person or the defence counsel. See also Civil Service Commission v. Buzugbe (1984) 7 SC 19.
It is trite that the test for fair hearing is based on the impression of a reasonable person who was present and witnessed the hearing or proceeding whether from his observation, justice has been done in the case. In the instant case, the CAS who did not participate actively or otherwise in the proceedings of the GCM nor attempted to influence it cannot be said to be biased or partial against the appellant. It should also be noted that the appellant’s attack in the instant case is not directed against the proceedings of the Court Martial or what transpired thereat but rather on the authority that merely constituted it and confirmed its decision. Unlike the case of Mohammed v. Kano N.A. (supra) there is no justifiable allegation or accusation, by the appellant of any bias, against the CAS for taking any action or step to prevent the appellant from making his representation before the confirmation – see Gami v. Nigerian Army (Unrep.) CA/L/276/98 of 29/1/2001.
On the effect of exhibit Q (the CAS’s letter) which has been described as an unlawful command influence, I am unable to agree with or accept the appellant’s submission which concedes that this court has held similar letter to be otherwise in the case of Onyenkwu’s v. The State (supra) which was a sister appeal with the present case and arising from the same incidence. I also agree with the respondent that the forcing authorities cited by the appellant in his submission on the said letter are not relevant or apposite to the present case and being merely permissive can only be resorted to in the absence or Nigerian case law or statutory authorities. The reason given by this court in Onyenkwu’s case (supra) for its refusal to accept exhibit Q as an unlawful command influence to wit that it was not directed or addressed to the Court Martial or any of its members is unassailable and cannot be faulted. This court is consequently bound by that decision. Thus the decision in that case was not per incuriam as wrongly asserted by the appellant.
The next point to consider is whether or not the provision of the Armed Force Act (No.1 05) of 1993 (as amended), which vested both the power to convene the GCM and the power to confirm its decision on one and the same person or officer, was inconsistent with the provision of section 36 of the 1999 Constitution (supra).
On this point, I am of the humble view that the GCM also has its basis from the constitutional provision cited by the appellant himself and therefore not inconsistent with both the 1979 and 1999 Constitutions (supra) as wrongly asserted by the said appellant. It is pertinent to point out in this regard that the Armed Forces Act (No. 105) of 1993 is a legislation validly enacted by the National Assembly to, inter alia, establish and regulate the GCM which can as such be regarded as “such other courts as may be authorized by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws” as provided in section 6(5)(j) of the 1999 Constitution. Moreover, by section 315(1) of the 1999 Constitution (supra) it is expressly provided that as an Act of the National Assembly and therefore an existing law (e.g. the Armed Forces Act No. 105 of 1993) should continue to have effect and be deemed as a law validly made by the National Assembly until it is amended or modified. Before it is amended it will be read with such modification to bring it into conformity with the Constitution. All the above aspects or provisions of the Constitution show that the Armed Forces Act (supra) has its basis and owes its origin from the provision of the Constitution as an existing law (i.e. Federal Law) and it is saved or deemed as such by virtue of section 315(1)(a) of the 1999 Constitution. It should therefore be applied with such modification to bring it into conformity with the said Constitution.
It is trite that in determining whether an Act or a statute is inconsistent with the constitutional provision the court considers the following factors or question:-
(a) whether the Act is an existing law.
(b) if it is an existing law does it take effect as a Federal or State legislation.
(c) if it is a Federal Legislation has the National Assembly power to enact such an Act?
See A-G., Benue State v. Ogun (1983) 4 NCLR 213; A-G., Ogun State v. A-G., Federation (1982) 1-2 SC 13; Balewa v. Doherty (1963) 1 WLR 949; and Togun v. Oputa (No.2) (2001) 16 NWLR (Pt. 740) 597. The mere fact that the provision of section 152(1) of the Act was later amended or repealed by another Act namely, the Armed Forces (Amendment) Act No. 15 of 1997, which now makes a different confirming authority does not necessarily mean that the former provision was inconsistent with the Constitution as asserted by the appellant. This is because the appellant himself conceded that the amendment so made in 1997 did not cure the defect (or inconsistency) in the present case. In any case, it is the duty of the court to apply or interpret the law as it is. It is outside the province or duty of the court to amend the law, that duty is within the arena of the legislature rather than the courts which are duty bound to apply the law made by the said legislature (until it is repealed or amended) no matter how harsh or absurd or contrary to common sense such law may be or result into. See Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116; Madu v. N.U.P (2001) 16 NWLR (Pt. 739) 346 at 361. It is therefore with due respect to the learned counsel for the appellant to point out that the judgment of this court in Anyanpele v. Nigerian Army (supra) at page 224 of the report (Per Aderemi, JCA, as he then was) which is cited or quoted and relied upon by the said counsel in the reply brief is not directly apposite or relevant to the appellant’s submission which is misconceived. It is pertinent to observe that in the above cited case, even though His Lordship made a remarkable remark, which was quoted in the report as a notable pronouncement, on the section 131(1) of the Armed Forces Act (supra), the said remarks were predicated on the need to observe the principle of fair hearing and the impartiality of the adjudicating body or tribunal. There is nowhere in the remark or in the judgment in which the inconsistency of the said provision with the provision of the Constitution was considered, as that was not an issue canvassed before the court. In the present case, the appellant (in his briefs) has not only canvassed the issue of inconsistency of sections 131, 148 and 152 of the Act with the constitutional provision (in section 36 of the Constitution and Article 701 of the African Charter on Human and Peoples Rights (supra) but has even gone further to urge this court to hold so. See page 27 of his main brief. I do not think that this court has power to make such a holding or declaration without a reference from the lower court in accordance with section 295 of the 1999 Constitution (supra) as it involves the interpretation of the Constitution rather than by merely raising it in the appellant’s brief as done in this case – see Togun v. Oputa (No. 1) (2001) 16 NWLR (Pt. 740) 577 at 591 – 592. It is also a fresh point or issue not canvassed or raised at the trial GCM.
It must be pointed out as rightly submitted by the respondent that most of the appellant’s complain under his 1st issue were not raised or canvassed before the trial GCM but he only raised them for the first time and as fresh issues or points in his present appeal before this court. These issues or points include his objection to the charges the inconsistency of the Act with the Constitution; the effect of exhibit Q as an “unlawful command influence”, as well as his objection against the convening order of the GCM (exhibit A 1). It is trite that where a party wishes to raise and argue any fresh issue in an appeal, which was not raised or canvassed at the lower court, he must seek for and obtain the leave of the appellate court before he can validly do so. The only exception to this rule against fresh issues without leave is where the issue is or relates to the question of jurisdiction which can be raised at any stage even for the first time without leave. Where leave is required and has not been sought or obtained as in the present case, the issue (or point) so raised will be regarded as incompetent and either struck out or discountenanced see Obiakor v. State (2002) 10 NWLR (Pt. 776) 612; Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192; Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 172 at 190; and Okenwa v. Military Governor, Imo State (1996) 39 LRCN 1161 at 1175. I therefore, agree with the respondent’s submission based on section 167 of the Criminal Procedure Act that the appellant’s objection against the charges should have been made or taken at the trial court immediately the said charges were read over to him and he was required to make a plea but not as a fresh issue in this appeal and without the requisite leave of this court. If the appellant’s objection against the charges was raised at the GCM it could have resulted into an amendment to the said charge. It is also trite that a defect in the charge or count as alleged in the instant case does not vitiate a trial except where such a defect or defects occasioned a miscarriage of justice. See Ogenyi v. IGP, Ijoma v. Queen (962) 2 SCNLR 157 and Osondi v. FRN (2000) 12 NWLR (Pt. 682) 483 at 505. I therefore disagree with the appellant argument that the rules or provisions of Criminal Procedure Act (supra) and the Interpretation Act (supra) are not applicable in this case. It is my view that the rules of criminal procedure as contained in the Act (supra) originated from and are an enactment or codification of the rules of practice in criminal trials, which are of general application to all criminal proceedings. Consequently where the Armed Forces Act (supra) or the Rules of Procedure (supra) are silent on the procedure in a criminal trial, recourse can be made to the rules applicable under the CPA (except where there is an express exclusion or exception). In the instant case, the appellant did not point out any statutory exception on the application of the said rules made in the Act (supra). In the case of the Interpretation Act (supra) it is (like the Evidence Act) also an existing law and of general application in all proceedings in Nigeria (whether criminal or civil). This is why the 1999 Constitution itself has made a saving provision for all existing laws, offices, courts and authorities in sections 315 and 316.
Thus under the two sections all existing laws or legislation are deemed to have been validly made under the 1999 Constitution by the appropriate authorities until they are amended or repealed and
all the courts, offices, and authorities shall also be similarly deemed to perform their functions under the Constitution until they are expressly vacated or replaced by the appropriate authority.
Consequently there is no law or rules preventing the GCM from applying the CPA or the Interpretation Act to the proceedings of the General Court Martial except where they are expressly excluded by the Act or where there are alternative rules made in the said Act or in the Rules of Procedure (supra). Moreover, the provision of the Interpretation Act (in section 6 thereof) complained against by the appellant is a mere restatement or reenactment of the above cited constitutional provision saving all valid acts or functions made or offices enjoyed under the existing law before it is repealed or amended. Thus any thing done under the Armed Forces Act (supra) before its amendment is saved in accordance with the provision of section 6 of the interpretation Act. While I agree with the appellant that the analogy drawn by in the respondent’s brief between the position of tile convener of the GGM and the current judicial system in Nigeria Linder the CPA and Armed Forces Decree is not appropriate and is therefore farfetched. I am however, of the view that even if that wrong analogy is disregarded the position will still remain as discussed above that the CAS’s action or series of actions complained against were validly done under the Armed Forces Act (supra) which was then an existing law and the subsequent amendment of that Act or the repeal of its provision will not render null or void, any action validly carried out by the convener of the GCM before the amendment or repeal. In my view, a better analogy can be preferred by reference to the position of the law under the CPA (or CPC) under which the holding of a Preliminary Inquiry (PI) by a Magistrate was permitted before the subsequent repeal of the procedure where the same Magistrate performed a preliminary inquiry or investigation before he frames a charge against an accused person who will also stand trial on the same charges before him. The fact that the procedure on P1 has been repealed does not mean that all what has been done before the repeal are rendered a nullity or void. It will be very absurd and will lead to an awkward result to hold, as the appellant wants us to do in the present case, that all the P1 proceedings conducted before the repeal were a nullity and to discharge and acquit all those validly convicted on P1 under the CPA before the said repeal. It is pertinent to state here that in the sister case of James v. Nigerian Air Force (2000) 13 NWLR (Pt. 684) 406 at 420 and Ogunloju v. The State (unreported) appeal No. CA/L/253/98 of 22/6/2000, where this court declared the proceedings of the GCM under a similar scenario as null and void, what informed the decision of this court in those cases was the fact of delegation of the powers of the CAS as the legal repository of the power to convene the GCM on another officer having no such power under the Act (namely Air Commander F. O. Ajobena – Director of Personnel) and who purportedly acted on behalf Go the CAS even though there was a subsequence letter of ratification by the said CAS (exhibit AI) as in the present case – See also Obiosa v. NAF (2000) 12 NWLR (Pt. 680) 112. It is however important to note that in the present case, the ground on which the appellant wants us to declare the proceedings of the GCM, null and void which is different from that in the two cases cited above, is because there was a breach of the appellant’s right to fair hearing and that the procedure under the old law which has been repealed is inconstant with the constitutional provisions on fair hearing, making the unrepealed or unamended Armed Forces Act (supra) as null and void. It is pertinent here to refer to the respondent’s opening statement in its submission under issue one where it is stated “it is not in dispute that the GCM was convened by the CAS.” This point has not been denied or refuted in the appellant’s reply brief in which it is conceded that it was the CAS who convened the GCM and did the other acts complained of – see paragraphs 2.02 and 2.03 at page 2 of the reply brief. Consequently, the appellant in the present case did not canvass or address the issue on whether the CAS can validly delegate his powers of convening the GCM or signing of the charge sheet as was done in the above-cited cases, which are therefore not relevant or apposite on the point. It is trite that the duty or function of any court as an impartial umpire is to limit itself to the cases or issues made or canvassed by the parties before it. The court does not and cannot descend into the arena and prop up a party’s flagging case or reach a decision on any matter or issue on any evidence or point that is not properly placed or canvassed before it by the disputing paties. Consequently in the present case, since the parties are in agreement or mutual concession that it was the CAS who convened the GCM, signed the charge sheet and confirmed the conviction and sentence passed on the appellant by the GCM, I will confine myself only to that point so canvassed and I will not embark on any inquiry as to whether the alleged act of the CAS were done on his behalf by another officer or whether statutory powers under the Act can be delegated to any other officer – see Ibrahim Chida & Ors. v. Military Administrator, Kogi State (2000) 12 NWLR (Pt.680) 24 at 43; Registered Trustees of PPFN v. Shogbola (2004) 11 NWLR (Pt. 883) 1at 21; Olusanya v. Olusanya (1983) SC 41; (1983) I SCNLR 134; Oshodi v. Ejifumi (2000) 13 NWLR (Pt. 684) 298 at 332; Ayankpele v. Nigerian Army (supra) at pg. 221 of the report); Opayemi v. State (1985) 2 NWLR (Pt. 5) 101, and Ezeanya v. Okeke (1995) 4 NWLR (Pt. 388) 142 at 170. The doctrine or concept of fair hearing or fair trial (as it is also called) under its twin pillars has been described as a doctrine of substance and not a technical one. It is therefore, a practical rule and a question of fact. Thus the test for it is said to be the impression of a reasonable person who has been present throughout the proceedings or trial whether from his observation, justice has been done. This accords with the legal adage that justice must not only be done but must be seen to have been done – see Mohammed v. Kano N.A. (1968) 1All NLR 422; Adegun v. A.-G .. Oyo State (1987) 12 SC 118; (1987) 2 NWLR (Pt. 56) 197.
Thus the concept or doctrine of fair hearing is not based on an imaginary preposition of the counsel of the party who complains against ‘its breach. It entails the observance of its twin pillars in accordance with the rules as codified in section 36 of the 1999 Constitution (supra), during the course of the trial (whether civil or criminal) in such a way that an impartial observer leaving the court room will have the impression or belief that the said trial has been balanced and fair to both sides of the dispute – see Kim v. State (1992) 4
NWLR (Pt. 233) 17; and Buzu v. Garabi (2000) 13 NWLR (Pt.684) 228 at 238.From the above description of fair hearing (or natural justice), it is a practical doctrine of substance, which is easily seen by any reasonable person who either witnessed the proceedings or has the privilege of going through the record of the court or tribunal. It is therefore not a matter that can be inferred through the use of technical rules or principle. Thus mere irregularity, error or failure to observe strictly the technical Rules of Procedure should not be the basis for the court to declare the whole proceedings of the court or tribunal as invalid or null and void ostensibly under any guise (including alleged breach of fair hearing). Thus the object of an appellate court dealing with such a situation is to ensure that substantial justice was done by the trial court. In the instant case, the trial GCM (from its record) has done substantial justice to the appellant who did not show any prejudice that he suffered during the proceedings or accused any of its members of bias. Therefore, the alleged irregularities or errors in the composition or in the drafting of charges and the confirmation of the GCM’s sentence and conviction by the same person (empowered to do so under the law) should not be allowed to vitiate its proceedings which was conducted in substantial compliance with the law and principles of fair hearing. It is also trite that a party who acquiesced and did not complain against an improper or erroneous procedure without any protest will not be allowed or permitted to complain on appeal – see Rossek v. ACB Ltd. (1993) 8 NWLR (Pt. 312) 382; Okegbu v. State (1979) 11 SC 1; Ekwere v. State (1981) 9 SC4; and Obisi v. Chief of Naval Staff (2004) 11 NWLR (Pt. 885) 482. In the later case, the Supreme Court (Per Musdapher, JSC at pages 513 -514) made the following pronouncement:
“It is contended by the learned counsel for the appellant, that the absence of the waiting member in the instant case rendered the court martial incompetent to try the appellant. I do not agree, I think the learned counsel has taken the matter too far. The non-appointment of a waiting member is a mere irregularity which did not affect the real composition of the Court Martial. Mere technical error by the convening authority which did not prejudice the appellant should not be the basis for which this court should declare the proceedings before the general court martial invalid… ”
(Italics for emphasis)
In the present case the appellant’s complain against the breach of his right to fair hearing is also based, inter alia, on the improper composition of the GCM by CAS as well as other technical issues (as discussed above). Consequently his complain under the 1st issue is not real but a mere sham or a ruse based on technicality, which should be abhorred. The alleged errors did not lead or amount to a miscarriage of justice. There is nothing this court can do against the Armed Forces Act (supra) which conferred power or the CAS (as a Service Chief) to perform the function vested on him by the said Act and notwithstanding its repeal, the function lawfully carried out under it were perfectly valid. Issue 1 of the appellant must consequently be resolved against the said appellant.
The 2nd issue of the appellant is against the order of restitution payment of N1,850,000.00 (One million, eight hundred and fifty thousand Naira only) and interest thereto amounting to N4,630,00.00 (Four million, six hundred and thil1y thousand Naira only) made by the GCM against him having regard to the provision of section 118(1)(j) and S. 174(4) of the Armed Forces Act, 2004. The main plank of the appellant’s submission under the issue is that by awarding interest on the sum for which the appellant was convicted of stealing, the GCM had exceeded its jurisdiction under section 118(1)(j) and S. 174( 1) and (7) of the 2004 Act (supra) which only give it the power to make a restitution order but does no empower it to award any interest. It is the duty of every court or tribunal to exercise its jurisdiction in accordance with the law or statute or the Constitution, which creates it and confer jurisdiction on it – See Fawehinmi v. Akilu (1989) 3 NWLR (Pt. 112) 643 at 652; Oyakhire v. Umar (1998) 3 NWLR (Pt. 542) 438 at 442 and Onyenkwu v. The State (supra) cited in support of the above submission. On the award
of the substantive restitution of N 1.850m it is also said to be without any basis from the evidence before the court and therefore unlawful – See Carlen v. University of Jos (1994) I NWLR (Pt. 323) 631; and Jahilchi & Ors v. Zaria N.A. (1963) All NLR (reprint) 533 cited in support of the submission.
Finally, the appellant urges this court to apply the principle enunciated in Onyenkwu’s v. case (supra) by this court and to hold that since no money was found in possession of the appellant an order of restitution cannot be validly made against him.
In the respondent’s brief, it is stated that the order of restitution was based on the evidence of PW4 Paul Tungo and Sqdll1. Leader Olatunji (co-accused) who both gave evidence of how they gave various sums of money to the appellant from the stolen N10m (Ten million Naira). These witnesses were not cross-examined and their evidence is said to be unchallenged. On the evidence of Sqdnr. Leader Olatunji, which is conceded to be requiring corroboration as the evidence of an accomplice or a co-accused it is stated in the respondent’s brief that the said evidence was in fact corroborated by PW4. – See section 178(1) of the Evidence Act, Nwaeze v. The State (1996) 2 NWLR (Pt. 428) 15; and Nwambe v. The State (1995) 3 NWLR (Pt. 384) 385 cited in support of the above submission. Finally, the respondent urges this court to hold that the order of restitution against the appellant was properly made by the GCM.
In the reply brief, under the 2nd issue, it is stated that the evidence of Sqdnr. Leader Olatunji was vehemently contradicted by the appellant who denied the charges or allegation made against him. Thus the burden of proving the allegation had then shifted on the prosecution under section 138(1) of the Evidence Act to prove the allegation beyond reasonable doubt. This court is also referred to the case of the State v. Sqdin. Leader Onyenkwu (2004) 11 NWLR (Pt. 893) 340 where the Supreme Court held the evidence of those witnesses as lacking in corroboration or probative value that no reasonable tribunal would convict on it – See also Ebri v. State (2004) 11 NWLR (Pt. 885) 589; and Onuchukwu v. State (1995) 5 NWLR (Pt. 547) 576 cited on the above submission. Finally, the appellant in his reply brief urges this court to hold that the prosecution failed to prove its case against the appellant beyond reasonable doubt.
After due consideration of the above submission on the 2nd issue, I am inclined to agree with the appellant that the award of interest on the amount of restitution made against the appellant by the GCM has no legal basis both in law and under the Act which only allows it in section 118(i) and (j) and 174(1) and (7) to make an order of restitution. Even the main order of restitution of N1.850m has been held by this court as erroneously made by the GCM because the appellant was not found in possession of the said amount and the award was made on speculation See Onyenkwu v. State (2000) (supra). Moreover on appeal to the Supreme Court, the apex court held that the evidence of PW4 and that of the Sqdin Leader Olatunji who was a co-accused and therefore an accomplice was unreliable and lacking in corroboration for which no reasonable tribunal can rely and convict an accused person. – See State v. Sqdin. Leader Onyenkwu (2004) 12 NWLR (Pt.893) 340. I also agree with the appellant’s submission based on the apex court’s view that where a discredited evidence of some witness is used to discharge and acquit some accused person in a joint trial, the same evidence cannot be used to convict some other accused person facing the same or similar charges. – See Ebri v. State (2004) 1 NWLR (Pt. 885) 589 at 612. In both the cases of Shekete v. NAF (2000) FWLR (Pt. 29) 2438 at 2450; (2000) 15 NWLR (Pt. 692) 868 and James v. NAF (2000) 13 NWLR (Pt. 684) 406 at 424, this court per Oguntade JCA, (as he then was) held that the mere fact that forms C06 and C02 of a company called Wolad Farm Nigeria Limited was found in possession of the appellant (the same appellant in the present case) is not a conclusive proof that the said company was incorporated and has been transacting business or that it was established or funded from the stolen money.
On my above consideration of the appellant’s 2nd issue, the said issue and it’s related grounds of appeal must be resolved in favour of the appellant and against the respondent.
Under issue No.3, the appellant’s main contention is against the joinder and trial of counts 6 and 7 with other charges against the appellant. It is argued that the said counts (6 and 7) were not committed or allege to have been committed by the appellant in the same cause or transaction giving rise to the other counts. It was in the course of investigation of the allegation relating to other counts that the house of the appellant was searched and some incorporation documents were found together with another letter which appeared to have been forged whereupon the appellant, was additionally charged with the offences under counts 6 and 7 for engaging in private business and forgery. It is pointed out in the brief that the offence under counts 6 and 7 occurred some eight or more years (i.e. in 1988) prior to or before the offences in other counts, which occurred in 1996. It is submitted that because of this long gap or period between the two sets of offences there was no nexus or proximity to link them or to justify the joint trial against the appellant under the same charge sheet. This joinder is said to be contrary to rule 14(1) of the Rules of Procedure (Air Force), 1972, which was applicable in the trial before the GCM in the present case. (See rule 14(1) supra and section 181 (1) of the Armed Forces Act, 2004; and Ludlow v. Metropolitan Police Commissioner (1970) 1 All ER 567 cited in support of the submission. It is stated in the brief that the joinder of charges, which were not committed in a series of offences and were not of similar character with other counts amounted to a mistrial -see State v. Sqdin. Leader Onyenkwu (2004) 14 NWLR (Pt. 893) 340 where the Supreme Court held so (per Uwaifo, JSC).
Consequently, the appellant’s possession of the said incorporation forms per se is not sufficient to warrant the conviction of the appellant for the offence of engaging in private business. It is to be noted that the respondent in its brief has conceded that the evidence of PW4 and Sqdin. Leader Olatunji required corroboration under section 178 of the Evidence Act. Even though the Evidence
Act does not specifically provide for a number of witnesses required to establish guilt or secure a conviction, it is trite that the courts are very weary and cautious in dealing with an uncorroborated evidence of a co-accused or an accomplice as in the instant case – See James v. NAF (supra), Abacha v. State (2002) 11 NWLR (Pt. 779) 437 at 499; Onyegbu v. State (1995) 4 NWLR (Pt. 391) 510 at 529 – 530; Alonge v. IGP (1959) SCNLR 576; and R v. Campbell (1956) 40 CR. APP. REP 56 at 102. Both the witnesses called by the prosecution in the instant case are accomplices.
Let me make a passing comment here on the evidence of PW4 Paul Tungo who testified that he was given some amount of money in an envelop which he was asked to put in the appellant’s vehicle and he did so. This evidence in my view raises many questions which were unanswered and is not sufficient to prove the offence of receiving stolen property against the appellant, who did not actually receive the said envelop or the money (which was not specified in term of its value or denomination nor tendered in evidence) from the witness. The said witness is also an accomplice even if believed.
The evidence of an accomplice cannot be used or relied upon to corroborate the evidence of another accomplice – See section 178 of the Evidence Act (supra) and the GCM did not warn itself on its reliance on the testimonies of its two witness in proof of the charge of receiving stolen property.
On my above consideration of the appellant’s 2nd issue, the said issue and it’s related grounds of appeal must be resolved in favour of the appellant and against the respondent.
Under issue No.3, the appellant’s main contention is against the joinder and trial of counts 6 and 7 with other charges against the appellant. It is argued that the said counts (6 and 7) were not committed or allege to have been committed by the appellant in the same cause or transaction giving rise to the other counts. It was in the course of investigation of the allegation relating to other counts that the house of the appellant was searched and some incorporation documents were found together with another letter which appeared to have been forged whereupon the appellant, was additionally charged with the offences under counts 6 and 7 for engaging in Private business and forgery. It is pointed out in the brief that the offence under counts 6 and 7 occurred some eight or more years (i.e. in 1988) prior to or before the offences in other counts, which occurred in 1996. It is submitted that because of this long gap or period between the two sets of offences there was no nexus or proximity to link them or to justify the joint trial against the appellant under the same charge sheet. This joinder is said to be contrary to rule 14(1) of the Rules of Procedure (Air Force), 1972, which was applicable in the trial before the GCM in the present case. (See rule 14(1) supra and section 181(1) of the Armed Forces Act, 2004; and Ludlow v. Metropolitan Police Commissioner (1970) 1 All ER 567 cited in support of the submission. It is stated in the brief that the joinder of charges, which were not committed in a series of offences and were not of similar character with other counts amounted to a mistrial see State v. Sqdin. Leader Onyenkwu (2004) 14 NWLR (Pt. 893) 340 where the Supreme Court held so (per Uwaifo, JSC). Under another arm of the appellant’s submission on issue No. 3, it is submitted that the appellant is entitled to an acquittal because the prosecution failed to prove the offences under counts 6 and 7 beyond reasonable doubt as required by law. It is pointed out that in proof of the charge of forgery under count 6, the prosecution sought to tender (through PW 12) the carbon copy of the letter alleged to have been forged which was rejected by the GCM (see the address at p. 444 of the record). It is submitted that a court or tribunal only bases its judgment on the evidence before it and not otherwise – see Carlen v. University of Jos (supra). On the 7th count, it is argued that the mere fact that form C06 and C02 (exhibit 47 A and 47B) on the incorporation of a company were found in possession of the appellant does not show or prove that the appellant was in a private business, it is submitted that in a criminal trial, it is the duty of the precaution to prove all the ingredients of the offence(s) charged beyond reasonable doubt. Reference is made in the brief to section 169( 1) of the Armed Forces Decree 105 of 1993 (as amended), which limits the time for the trial of offences by a Court Martial as 3 years of the commission of the alleged offence. It is therefore, argued that the offence, in counts 6 and 7 which occurred in 1988 but were filed in 1996 (i.e. 8 years after) were statute-barred. Moreover the phrase “engaging in private business in relation to count 7 has been defined by the Supreme Court to mean full participation or employment in a business venture – See NAF v. Ex Sqdin. Leader A. Obiosa (2003) 4 NWLR (Pt. 810) 233. Finally this court is urged by the appellant to resolve issue No.3 in favour of the appellant. In the respondent brief under the issue on review, the submission are hinged on the provisions of sections 167 and 168 of the Criminal Procedure Act which provide that any objection to a charge for any defect on its face shall be made or taken immediately after the charge has been read to the accused person and that no judgment shall be reversed on the ground of any objection which if made after the charge was read over might have been amended by the trial court. It is submitted that the appellant’s objection, which was not made or taken timeously as per the above provision of CPA cannot render the proceedings of the GCM a nullity. The respondent finally urges this court to hold so.
In his reply brief, the appellant submits that by virtue of section 181 (1) of the Armed Forces Act (supra) it is the Rules of Procedure (Air Force) rather than the CPA that are applicable to the proceedings in or before the GCM. The respondent submissions based on the provisions of sections 167 and 168 of the CPA are consequently said to be misconceived.
From the above submission in all briefs on the 3rd issue, the first point to note is that the respondent’s submission are very shallow and scanty as they do not address or answer all the points canvassed by the appellant. More importantly is the respondent’s failure to answer the important question raised on whether or not the prosecution had proved the charges on counts 6 and 7 against the appellant. However, the submission by the said respondent based on the provisions of sections 167 and 168 of the Criminal Procedure Act (supra) to the effect that the appellant’s objection against the charges or their joinder should have been raised timeously at the stage when the charges were read to the appellant or during the trial in unassailable and there is no misconception on it as asserted in the appellant’s reply brief. I have stated above that the provisions of the CPA are of general application in every criminal trial and are therefore applicable to trials before the Court Martial and other Tribunals.
The Supreme Court and this court in their determination of the appeals before them in cases that came before them by individual accused persons who were jointly tried along with the present appellant applied the provisions of the CPA. There are also other cases of the Court Martial where the provision of the CC and CPA were applied by the said Courts – See Bakoshi v. Chief of Naval Staff (2004) 15 NWLR (Pt. 896) 268 at 291 -292; Onyenkwu v. State (supra), Obisi v. Chief of Naval Staff (supra) cited by the appellant himself and State v. Onyenkwu (2004) Supra.
Thus, unless in cases where there is a specific provision in the law or statute regulating proceedings of a tribunal (or the GCM in the present case) and expressly excluding the application of the provision of other regular laws of general nature or their application to such proceedings, such regular or general rules (e.g. of evidence, interpretation or procedure) can be resorted to by the courts. The appellant has not pointed out any provision of the Armed Forces Act (supra) which specifically prohibits the application of the provision of the CPC to the proceedings in the GCM apm1 from section 181(1) thereof which merely states that the Rules of Procedure (Air Force) shall apply to the proceedings of the GCM. Moreover, the decision of this court in Komonibo v. Nigerian Army (2002) 6 NWLR (Pt. 762), quoted in the appellant’s brief (which did not go on appeal to the Supreme Court) and which decided that the CPC and CPA cannot be applied to the proceedings before the GCM cannot be an authority on the point because it has been overtaken by the above cited precedents of the Supreme Court where the said provision of the CPA were applied by the apex court in the determination of appeals originating from the decisions of the GCM. Thus the effect of those subsequent decisions of the apex court means that it has departed from its earlier decision or stand in Nneji v. Chukwu (1988) 3 NWLR (Pt. 81) 184 at 204. Consequently, it is now settled that both this court and the Supreme Court can resort to and apply the provision of the CPA in the determination of the appeals to them from the decision by or originating from the proceedings of the GCM unless where the AFA (or AFD) expressly prohibit them from doing so. In the instant case, the appellant has failed to show any specific provision making such a prohibition. I therefore, accept the respondent’s submission based on sections 167 and 168 of the CPA that the appellant should have raised his objection against the charges or the joint trial or (or joinder of) the charges soon after they were read over to him before his plea was taken or in the course of the proceedings before the GCM. This was the position endorsed or approved by the Supreme Court in its decision in State v. Onyenkwu (supra) which is a sister case to the present case and which arose from the same incident (per Uwaifo, JSC) at pages 363 – 364 of the report (supra). His Lordship held thus:
“the appellant in this case had the options to object to the joint trial of the separate indictments. He did not. Section 168 of the CPA, as I understand it, expected him to do so. The said section says that if he failed to do so at the appropriate time, the judgment given against him can not be reversed merely because the separate indictments were jointly tried”.
See also Obisi v. Chief of Naval Staff (supra) at p. 502 of the report. The above pronouncement by the apex court aptly applies to the present case and permits the application of the CPA to the proceedings of the GCM and its judgment, which should not be reversed merely on the technical grounds relating to the charges or their joinder by the GCM. I am bound to make the same holding in the present case.
I have stated at the beginning of my consideration of the pm1ies submission under the 3rd issue that I am not impressed by the scanty or shabby treatment of the issue in the respondent’s brief in which the question of proof of the offence under counts 6 and 7 is left unanswered. It is my humble view that the respondent by its failure to address the point in its brief should be held to have conceded to the appellant’s submissions under the said issue or point as it has no answer to them. Consequently and without much ado, I will accept the appellant’s submission under the said issue on the burden of proof on the prosecution to establish the offences under counts 6 and 7, which it failed to prove beyond reasonable doubt against the appellant in the instant case. My stand also tallies with the decision in Onyenkwu’s case (supra) where the apex court interpreted the phrase “beyond reasonable doubt and upheld the holding of this court (per Oguntade, JCA, as he then was) that the conviction of the appellant on charges, similar to counts 6 and 7 by the GCM was unjustified. I also hold so in the present case. Issue 3 of the appellant’s brief as it relates to the proof of the offences under the said counts must therefore be resolved in favour of the appellant.
The appellant grounds of appeal to which the said issue relates also succeed.
Issues 4 and 5, as I have earlier stated, are similar in nature as they are both challenging or questioning the proof beyond reasonable doubt of the offence of forgery (on the one hand), and other offences (or other counts) with which the appellant was charged on the other hand. Going by the appellant’s preamble under issue 4, the question raised under that issue has already been resolved in my treatment of issue No.3 above as it relates to the proof of the offence of forgery under count 6. It is therefore unnecessary to repeat or revisit the issue that has already been resolved in this judgment. Consequently, I will follow the appellant’s style by adopting my resolution (or decision) under issue No.3 to apply in issue 4. As regards issue No. 5 of the appellant, that has also not been replied to by the respondent whose brief only stops or ends at issue No.3. In order to resolve issue 5 therefore and in line with my earlier holding under issue No. 3 on effect of the failure of the respondent to address or proffer an answer to the appellant’s submission, I will also without any difficulty, endorse the appellant’s submissions and the authorities cited under the said issue No.5 which have thus been impliedly conceded to by the respondent. In the result, I hereby answer the question raised under the said issue in the negative and also resolve it in favour of the appellant.
Finally on my resolution of only the first issue against the appellant and the remaining four issues (issues 2 – 5) in his favour, his appeal has succeeded and should be allowed. It is accordingly hereby allowed. The conviction and sentence of the appellant by the GCM sitting at Lagos in its decision of 21/10/96. which was confirmed by the CAS on 30/4/97 together with the order on payment of restitution (and interest thereof) against the appellant are hereby set aside and quashed.
The said appellant is accordingly hereby discharged and acquitted. Appeal is allowed.
Other Citations: (2007)LCN/2490(CA)
