Lt. Commander Ben Ofuani V. The Nigerian Navy & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

The accused was arraigned on a two-count charge before a General Court Martial. The two counts against the appellant on the charge sheet read as follows:-

Charge One

Statement of the offence:-

Sexual relation with service personnel’s spouse contrary to section 79 of the Armed Forces Decree No.105, 1993 Particulars of the offence

In that: Lt. Cdr B. Ofuani did have carnal knowledge of rating’s wife, Mrs. Rosemary Edemumoh wife of CPOG 1 Edemumoh VE x 3315 in Navy Town between 1993-96.

Charge Two

Statement of the offence:- Scandalous conduct contrary to section 91 of the Armed Forces Decree No. 105, 1993.

Particulars of the offence –

In that: Lt. Cdr. B. Ofuani did behave in a scandalous manner unbecoming of the character of an officer and gentleman by having carnal knowledge of a rating’s wife, Mrs. Rosemary Edemumoh, wife of CPOG 1 Edemumoh VE X 3315 in Navy Town between 1993-96.

The accused pleaded not guilty to both counts; Thereafter evidence were led by each party. The court martial, on the 2nd day of May, 1997, at the Western Naval Command Base NNS Olokun, Apapa, Lagos, in a reserved and considered judgment did not find the accused guilty of count one and accordingly discharged and acquitted him. On the second count in the charge, the accused was found guilty and was accordingly convicted. The Naval Board has since confirmed appellant’s conviction by the General Court Martial. The accused before his trial and conviction was an officer of the Nigerian Navy of the rank of Lieutenant Commander. The accused, being dissatisfied or aggrieved, appealed to this court on seven grounds of appeal.

In accordance with the procedure and practice of this court, the accused (hereinafter referred to appellant) filed appellant’s brief. In the appellant’s brief the following seven issues were identified from the seven grounds of appeal contained in the notice of appeal:-

“1. Whether the elements of the second count charged to secure the conviction of the appellant as contained in the judgment was proved beyond reasonable doubt by the prosecution.

2. Whether the appellant could be found guilty of the second count charge without corroboration by any witness, of the act of sexual intercourse and in the absence of the testimony of at least 2 independent witnesses.
3. Whether the appellant’s right to fair hearing was violated by the general conduct of the court martial and by the failure to serve the appellant with a circumstantial letter.
4. Whether the court martial failed to give reasons for its findings in its judgment? If yes, whether this did not lead to a miscarriage of justice against the appellant contrary to section 258 of the 1979 Constitution.
5. Whether the judgment of general court martial is just reasonable and can be supported having regard to the evidence given during the trial.
6. Whether there was any evidence of shock given by either of the children or neighbour so as to justify the general court martial in finding the accused guilty of second count charge.
7. Whether the decision of the general court martial in securing a conviction on the second count is just, having regard to material contradictions in the evidence adduced during trial.”

In the respondent’s brief, two issues were identified as calling for determination having due regard to the appellant’s grounds of appeal. They read as follows:-