Commander Steve Obisi V. Chief of Naval Staff (2001)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A.

The appellant, a commissioned officer in the Nigerian Navy was appointed the Military Assistant to the Military Administrator of Imo State of Nigeria between December, 1993 and November, 1994 and was later appointed Assistant Weapons Officer on board NNS Aradu. He was by virtue of his appointment, subject to service law under the Armed Forces Decree No. 105 of 1993 as amended. He was arrested on the 25th of May 1996 and interrogated by way of investigation by the Director of Naval Intelligence, Cdr. U. J. Egbele.

Following the investigation, he was arraigned before a Court Martial on 19th December, 1996 on a three-count charge viz:

1. Disobedience to standing orders contrary to section 57(1) of Decree No. 105 of 1993. Did disobey standing orders on the Code of Conduct in that he engaged in private business on or about 6th March, 1996 thereby receiving the sum of N12,000,000.00 only as gratification from Agric. Consult (Nig.) Ltd. of Plot 182 kofo Abayomi Street, Victoria Island being part of the proceeds realised from the sale of power plant generators belonging to the Imo State Government of Nigeria?
2. Scandalous conduct contrary to section 91 of Decree No. 105 of 1993. The accused did behave in a scandalous manner unbecoming of an officer and a gentleman on or about the 11th of March, 1996 when he donated N1,000,000.00 with Wema Bank Cheque No.603899 to Christ Chapel International Churches Ijora which is beyond his legitimate income.
3. Conduct to the prejudice of good order and discipline contrary to section 103 of Decree No. 105 of 1993.

The accused officer acted in a manner prejudicial to good order and service discipline on or about 22nd April, 1996 when he travelled out of Nigeria to London in United Kingdom without official permission and as well as lodging with Barclays Bank of London the sum of $40,000.00 only in fixed deposits.

The appellant pleaded not guilty to all the charges. The prosecution called three witnesses, tendered 17 documents tendered as exhibits “A” to “Q”. The appellant gave evidence in his own defence and tendered four exhibits which were admitted as exhibits “R” to “U”. He called no witness. The 1st PW called by the prosecution Cdr. U.J. Egbele, the Director of Naval Intelligence testifying said that the appellant engaged in private business as a Naval Officer in that he travelled to London without prior authorisation and opened a fixed deposit account at the Barclays Bank of England. He was also said to have donated N1 million to his Church in Lagos. When confronted with these allegations, he said the appellant denied them but initially refused to make a written statement. He (appellant) however volunteered a written statement following what he called the subtle approach he (witness) used. That written statement was tendered as exhibit C. Other items which were recovered from the residence of the appellant during a search were tendered as exhibits A, B, D and Q. PW2 Mrs. G. O. Solanke, the Branch Manager of Wema Bank Iponri Branch Lagos, on her brief evidence said that the appellant lodged in his account with the bank a total sum of N12 million. Mr. Olayinka Oladitan, the PW3 a solicitor to Agro Consult (Nig.) Ltd a company which bought the generators from the Imo State Government, said he carried out the instructions of his client by paying the cheque of N12 million into the appellant’s account. He would not know what the money was meant for. The appellant in denying the allegations stated that on the instructions of Rear Admiral Eyitayo he took certain people (whose names he failed to mention) to Owerri who had manifested interest in purchasing some plant generators property of the Imo State Government. He said he assisted one Mr. Gullati to secure a loan of N6 million at the rate of 100% interest from one Mr. Tony Kweagan (both persons were not called as defence witnesses). Within three months, he continued, Mr. Gullati refunded the loan of N6 million plus the accruing interest which translated to N6 million, totally N12 million to Kweagan. He claimed he was given N3 million as a gift by Mr. Kweagan out of which he donated N1 million to his Church. He changed the remaining N9 million into pounds sterling and paid some to Mr. Kweagan in London. He denied traveling to London but admitted that he opened a bank account in England and this he claimed he did from Nigeria. It was his evidence that he lost his passport and reported the loss to the Police. He denied making the statement contained on exhibit C. He also denied the allegation that he was engaged in private business. At the close of the defence, addresses of the prosecution, defence and Judge Advocate were taken.

The lower court, the Court Martial found the appellant guilty as charged. He was accordingly convicted and sentenced to various terms of imprisonment.

Being dissatisfied the appellant has appealed against the conviction and sentence.

The notice of appeal carries ten grounds. The appellant has distilled four issues from the said grounds of appeal and they are as follows:-

(1) Whether the prosecution proved the 3 count charge against the appellant beyond reasonable doubt.

(2) Whether the Court Martial was right in shifting the burden of proof to the appellant.

(3) Whether the defence of the appellant was properly considered by the Court Martial.

(4) Whether the Court Martial was not biased against the appellant.

On his part, the respondent identified two issues for determination and they are in the following terms:-

(1) Whether or not there was sufficient evidence before the Court Martial at the trial of the appellant upon which he was convicted.