CPL. Segun Oladele V. The Nigerian Army (2004)

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PIUS OLAYIWOLA ADEREMI, J.C.A.

The appeal is against the judgment of the General Court Martial delivered on the 22nd of December, 2000 whereby the appellants were convicted and sentenced to terms of imprisonment ranging from life imprisonment to some years of imprisonment. The General Court Martial sat at the Cantonment Officers Mess, Ikeja, Lagos. The said appellants had been court martialed for the following offences the counts of which run into 3(three):

1. Mutiny, punishable under section 52 (2) of the Armed Forces Decree No. 105, 1993 (as amended).

2. Conduct to the prejudice of good order and service, discipline, punishable under section 103(1) of the Armed Forces Decree No. 105, 1993 (as amended).

3. , Disobeying a particular order, punishable under section 56(1) of the Armed Forces Decree No. 105, 1993 (as amended).

Briefly, the facts leading to this appeal are as follows:
The appellants were part of the Nigerian Army personnel serving ECOMOG PEACE KEEPING FORCES in Liberia and Sierra Leone. In the course of their service, they sustained wounds and injuries consequent upon which they were flown back to Nigeria and kept at the Yaba Military Hospital, Lagos where they contended that the medical treatment given to them was inadequate and indeed worsened their already deteriorating health conditions.

They were, therefore, referred to Hassabo International Hospital, Cairo, Egypt for further treatment from specialist doctors. Again they claimed that the medical treatment which they received in Egypt was grossly inadequate and that they were not given their estacode. It was their further contention that they were subjected to untold hardship which prompted them into protesting. Some top senior military army officers amongst them used their position in the military to order the immediate return of the appellants against all medical advice and thereafter ordered that the appellants be arrested, detained and court-martialed; hence the offences charged.

As I have earlier said, they were tried convicted and sentenced after the prosecution had called 9 (nine) witnesses and tendered 32 (thirty-two) exhibits while the accused persons called 10 (ten) witnesses and tendered 18 (eighteen) exhibits.

Being dissatisfied with the judgment of the General Court Martial, the appellants have appealed to this court and have identified four issues for determination; they are in the following terms:
1. Whether the conviction of the appellants by the General Court Martial was not wrong when it held upon the totality of the evidence adduced at the trial that the charges of mutiny, conduct to the prejudice of good order and service discipline and disobeying a particular order have been established against each of the appellants beyond reasonable doubt.
2. Whether from the totality of the evidence and materials placed before the General Court Martial, the prosecution had proved its case beyond reasonable doubt.
3. Whether the General Court Martial or any Court Martial as a court established by a decree and recognized by the Constitution is not expected to write its judgment and make the findings in any case known with reasons adduced to that effect.
4. Whether the Constitutional right of fair hearing of the appellants were not breached by the composition of the General Court Martial and the entire trial.

The respondent, in their brief of argument, expressed their approval of and adoption of the four issues identified by the appellants for determination.

On issue No. 1 the appellants submitted in their brief of argument that no legal reason had been adduced by the prosecution, the respondent, to justify the sustenance of the charges the ingredients of mutiny as contemplated under section 52 (2) of the Armed Forces Decree No. 105 of 1993 or any other offence beyond reasonable doubt and which ingredients were clearly spelt out in section 52 (1) of the Decree were never shown from the records to have reflected the conduct of the appellants.

Indeed, it was their further submission that they lacked the capacity to carry out mutiny given the circumstances of their traveling and the condition of their health. The court martial, it was again argued failed to ascertain critically whether the acts of the accused persons came within the purview of the offences of mutiny, conduct to the prejudice of good order and service discipline and disobeying a particular order. The offences as charged were not proved beyond reasonable doubt, it was again argued adding that the appellants merely demanded for what was due to them, thus the defence of bona fide claim of right would avail them, reliance was placed on the decisions in Amadi v. The State (1993) 8 NWLR (Pt.314) 644; Nwuzoke v. The State (1988) 1 NWLR (Pt.72) 529; Tonga v. COP (2000) 2 NWLR (Pt.645) 485; and Ahmed v. The State (1999) 7 NWLR (Pt.612) 641.

Having failed to establish or show an existing written or oral order which the appellants allegedly disobeyed; it was submitted that no person shall be charged or convicted for an offence which he is incapable of committing at the time it was alleged to have been committed. No reasons were given for the judgment it was again argued; and all defences available to the appellants were never or thoroughly considered; it was finally submitted on this issue that the appeal be allowed. For their part, the respondent have argued that the court martial was right in convicting the appellants going by the evidence adduced.

The trial before a court martial is a jury trial and therefore the court was not bound to give reasons to justify the sentences imposed; Rules 67 of the Rules of Procedure (Army) was cited in support. The duty of the court martial is to comply with section 141 of the Armed Forces Decree No. 105 of 1993 (as amended) and there was compliance, it was submitted. Disobedience or resistance to lawful authority is sufficient to sustain the charge of mutiny.