Colonel David Gabriel Akono V. The Nigerian Army (2000)

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IGE, J.C.A. 

This is a case tried by the General Court Martial. This appeal is against the judgment of a General Court Martial convened on 17th day of January, 1997 by a convening order.

The appellant was arraigned on a 3 count charge namely:-

“a. Charge 1: Conduct to the prejudice of service discipline contrary to s. 103(1) of the AFD 105 of 1993. The particulars of this charge are that he on or about October 1996 in a memo sent to the COA(A) dated 28 October, 1996 lied about the position of his transaction with Chief E. Igbokwe, a conduct prejudicial to service discipline.

b. Charge 2: Conduct to the prejudice of service discipline contrary to s. 103(1) of the AFD 105 of 1993. The particulars of the charge are that he on or about October 1996 wrote a letter to one Chief E. Igbokwe, contents of which portrayed the NA in bad light, a conduct prejudicial to service discipline.

c. Charge 3: Scandalous conduct of an officer contrary to s. 91 of the AFD 105 of 1993. The particulars of this offence are that he between 1992-1996 got involved in a monetary transaction with one Chief E. Igbokwe in a scandalous manner unbecoming of the character of an officer and a gentleman.”

The appellant pleaded not guilty to all the charges. The case proceeded to trial and the prosecutor did not call a single witness to give sworn evidence in the witness box. All they did was to summon one Mwo Musa Abiri, a chief clerk, to tender 1 Exhibit with 27 pages. The chief clerk had custody of the documents and tendered them under the provisions of section 193 of Evidence Act of 1990. The accused gave evidence and called no witnesses.

After listening to the addresses of the prosecutor and that of the accused’s counsel the Judge Advocate, Major S. M. Okeke of the Lagos Garrison Command summed up the case and the General Court Martial found the appellant guilty on 1st and 2nd charges and discharged and acquitted him on the 3rd charge. For the 1st charge accused got a reduction to Lt. Col. with 4 years seniority in rank and for the 2nd charge accused was sentenced to 2 years imprisonment.

The appellant was dissatisfied with this judgment and appealed to AFDAC known as the Armed Forces Disciplinary Appeal Committee. Before the appeal could be heard by AFDAC its functions and powers were transferred to the Court of Appeal by virtue of the Armed Forces (Amendment) Decree No. 15 of 1997.

The appellant in his amended notice of appeal has filed six grounds of appeal and has formulated 4 issues for determination. The 4 issues read thus I quote:-

“1. Whether the General Court Marital was right by admitting in evidence documents referred to as Exhibit 1 which said documents were tendered by a person who was only invited to produce the said documents pursuant to sections 192 and 193 of the Evidence Act, Cap. 112, LFN 1990 and who was never referred to and called as a witness and consequently not sworn.

2. Whether the General Court Martial was right in overruling the objection raised by the defence counsel as to the relevancy and admissibility of Exhibit 1 when in fact the proper foundation was not laid before same was wrongly admitted in evidence.
3. Whether from the general circumstances and facts of the entire case the General Court Martial (GCM) was not in error in violating the appellant’s constitutionally guaranteed right to fair hearing under section 33 of the amended 1979 Constitution and the principles of natural justice by failing to afford the appellant an opportunity to cross-examine the complainant and even the Chief of Administration (Army), COA (A) as to the authenticity of the facts contained in Exhibit 1, upon which facts the GCM solely relied in convicting the appellant.
4. Whether the General Court Martial (GCM) was validly constituted regarding the qualification of its members in the manner prescribed by section 133 of the Armed Forces Decree No. 105 of 1993 (as amended) so as to vest the said GCM with the requisite jurisdiction and competence to try the appellant.”

The respondent though served with a copy of appellant’s brief has filed no respondent’s brief. There is therefore no issues formulated by the respondent. This appeal will therefore be considered on the issues formulated by the appellant.

Now to the first issue. In view of the fact that Exhibit 1 is the main contention involved in both issues 1 & 2, I shall treat the two issues together. The appellant’s counsel submitted that the prosecutor did not call a single witness to prove the charges against the accused. All the prosecutor did was to summon a witness to produce some documents (Exhibit 1) in accordance with sections 192 and 193 of the Evidence Act, Cap. 112, of the 1990 Laws.

According to the appellant, the position of the law is stated in the case of Famakinwa v. Unibadan v.& anor. (1992) 7 NWLR (Pt.255) 608 where a subpoena ad testificandum is described as follows:-