Captain Gnh Asake V. The Nigerian Army Council & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

FABIYI, J.C.A.

This is an appeal against the decision of the Military Court convened by Brig. Gen. G. O. Abbe, the then GOC 2 Mech. Division, Nigerian Army pursuant to the powers conferred on him under the Military Court (Special Powers) Decree No. 23 of 1984. The court, presided over by Lt. Col. B. B. Usoro, handed out its decision on 4th July, 1994.

The appellant was arraigned before the Military Court on a single count charge which reads as follows:

“Statement of offence: Conduct to the prejudice of military discipline under section 71 of the NA Act, 1960 (Revised).

Particulars of offence: In that he at Monrovia, Liberia on or about November 91 while on OP Liberty borrowed the sum of $300 US from 79NA/12140 L. Cpl. Yau Suleiman and failed to pay back the said money, a conduct prejudicial to good order and military discipline.”

The appellant was duly arraigned by the Military Court and he pleaded not guilty to the charge. The prosecution, in a bid to prove their case, called Col. B. A. Jinadu who was the Commanding Officer (C. O.) of the Battalion in which the incident allegedly happened. Put succinctly, the case of the prosecution was that while the appellant was a member of the Nigerian contingent on Operation Liberty to Liberia in 1991, he borrowed the sum of US $300 from L. Cp1. Yau Suleiman who was also a member of the contingent. The above stated Col. B. A. Jinadu was the sole witness for the prosecution. As P.W.1, he maintained that though the issue happened in Liberia, as the Commanding Officer of the appellant, he only got to know about it on their return to Nigeria when he had an interview with L. Cpl. Yau Suleiman based on a letter for redress of an injustice written by him. The letter written by L. Cp1. Yau Suleiman was not tendered before the Military Court.

P.W.1 said he listened to the complaint of L. Cpl. Yau Suleiman who claimed that the appellant borrowed the stated sum of US $300 from him in Liberia. The appellant was asked to state his own side of the matter. He denied borrowing the said amount from the complainant initially but later said the money was meant for a transaction which turned out to be a failure. P.W.1 said he told the appellant that he was wrong and that as far as he was concerned, the appellant was owing the soldier. P.W.1 said the appellant agreed to pay back the money in Naira in the presence of his Adjutant, Capt. Nnadi and RSM W01 Idrisu. P.W.1 said that he maintained that there was no problem as far as the appellant was going to pay the boy back, there will be no trouble. PW.1 said his Adjutant told him that the appellant went and gave the boy N500.00 and he told the Adjutant to keep the record of how he was paying the boy. PW.1 left the matter at that position and left the unit on posting.

P.W.1’s statement, made under caution was admitted as exhibit ‘A’. Under cross-examination, he said it was correct that he used ‘executive action with fiat’ to order the appellant to pay the soldier.

The appellant herein, as an accused before the Military Court, did not adduce any evidence thereat. In effect, he rested his case on that of the prosecution.

The Military Court was properly addressed by both counsel for the parties. Thereafter, the Judge Advocate gave his ‘sum-up’ in the case. To the best of his ability he made his views on the applicable law and procedure known to the Military Court with a view to assisting it to arrive at a just decision.

The Military Court made its findings which, in substance, led to the conclusion that the appellant improperly ‘borrowed’ the said sum of US $300 from L. Cp1. Yau Suleiman. The Military Court however observed that the evidence as to whether the said money has been fully paid back to the soldier is inconclusive. It was found unsafe to conclude that the said amount still remains unpaid.

The Military Court at that point then made what it called ‘special findings’ which reads as follows on page 79 of the record of appeal “4. Capt. Asake you are found guilty of the only charge before the court with the exception of the words ‘and failed to pay back the said money’. The charge for which you are now convicted reads as follows:

(a) Statement of offence: Remains the same.

(b) Particulars of offence: In that he at Monrovia, Liberia on or about Nov. 91 while on Operation Liberty borrowed the sum of $300 (US Dollars), from 79NA/12140 L. Cp1. Yau Suleiman, a conduct prejudicial to good order and military discipline.”