Sgt. Asanu Samual & Ors. V. Nigerian Army (2006)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

The Appellants were soldiers serving with 322 Filed Artillery Regiment, Benin City, and were deployed to the NNPC Depot, Benin City, for security services. At about 0800 hours on the 25th of August 1995, one L/Cpl Macaulay Ezekiel, who was also posted to the Depot, threatened to “fire” Lt. Eze S. Ibelegbu if the Officer did not return the jerry can of kerosene seized from him. At about 1300 hours of that same day, the said L/Cpl Macaulay actually carried out his threat and shot and killed the said Officer who was their overall commander. The Appellants who were allegedly aware of L/Cpl Macaulay’s intention did nothing to prevent the commission of the offence and on the 4th of September 1995, they were arraigned before a General Court Martial, convened by Brigadier General Patrick Newton Aziza, General Officer Commanding 2 Mechanized Division, Nigerian Army and charged as follows-

“Statement of Offence – Conduct to the Prejudice of Military Discipline punishable under Section 103(1) of the Armed Forces Decree 1993.

Particulars of Offence – In that you at NNPC Depot Benin City on or about 25 1330A Aug 1995 were told of the intention and plan of 79NA/6005 L/Cpl Macaulay to kill late Lt ES Ibelegbu (N/0599) should the said late Officer fail to return the seized soldier’s jerry can of kerosene but neglected to prevent L/Cpl Macaulay Ezekiel from committing the offence”.

The Appellants pleaded not guilty to the Charge and to prove the allegation, the Prosecution called four witnesses, including L/Cpl Macaulay who testified as PW1 that he told the 1st Appellant in the presence of the other Appellants that he will “fire” the late officer if the officer did not return his 20 litre jerry can of kerosene which the officer was reported to have seized. The defence called only the 4 Appellants who denied the allegation and claimed that L/Cpl Macaulay was only using the allegation “to defend himself”. After hearing evidence, addresses of counsel and the summing-up of the Judge-Advocate, the General Court Martial found the Appellants guilty. The 1st, 2nd, & 3rd Appellants were dismissed from the Nigerian Army, and the 4th Appellant was sentenced to 2 years imprisonment with hard labour. The findings and sentence of the General Court Martial were confirmed by the same Brigadier General Patrick Newton Aziza DSS PSC(+) mni, who had convened the Court. Dissatisfied with the decision, the Appellants filed an Appeal in this Court. Briefs of Argument were duly filed, and in the Appellants’ brief prepared by N.O.O. Oke, Esq., three Issues for Determination were formulated as follows –

1. Whether from the totality of the evidence adduced at the trial the Prosecution had sufficiently proved beyond reasonable doubt the guilt of the Appellants to justify their conviction and dismissal from service of the Respondent.
2. Whether the action of the Appellants before and/or during the commission of the alleged offence amounts to negligence prejudicial to good order and service discipline.
3. Whether the trial and conviction of the Appellants was not a truncation of their constitutional right of fair hearing having regard to the composition, appointment of counsel and confirmation of sentence passed on the Appellants.

The Respondent adopted the above Issues in its brief prepared by Mrs. B. H. Oniyangi. In my view, Issues 1 & 2 covers similar complaints; I will therefore merge both and resolve them together. The Appellants submitted that the onus was on the Prosecution to prove the allegation beyond reasonable doubt and any doubts must be resolved in their favour, citing Section 138 of the Evidence Act, Adun v. Osunde (2003) 16 NWLR (Pt. 847) 643 @ 670, Okonji v. State (1987) 1 NWLR (Pt. 52) 659, Yekini v. Nigerian Army (2002) 11 NWLR (Pt. 777) 127 @ 141, State v. Dr. Miutairu Kura (1975) 5 UILR 8 @ 10, & Bakare v. State (1987) 1 NWLR (Pt. 52) 579 @ 588.

The Court was referred to Section 103 of the Armed Forces Act which reads-

“A person subject to service law under this Act who is guilty of a conduct or neglect to the prejudice of good order and service discipline is guilty of an offence under this section and liable, on conviction by a Court Martial to imprisonment for a term not exceeding two years or any less punishment provided by this Act.”

In effect, to sustain the charge, the Prosecution must prove the following –

1. That the Appellants are persons subject to service law;
2. That the alleged conduct or neglect was prejudicial to good order and capable of causing injury to the good discipline of the Nigerian Army;
3. That the action is blame worthy and illegal; and that
4. The Appellants must have committed an act amounting to negligence.

The Appellants conceded that they were subject to service law at the time the offence was committed but argued that no evidence was led to establish that their action was prejudicial to good order and service discipline or that it violated any known law and/or procedure of the Nigerian Army. Furthermore, that there is nothing on the record to show that there was another superior officer in the Depot to whom the Appellants could have reported the threat. It was further submitted that there were a lot of material contradictions in the evidence of PW1, PW2 & PW4 as to who was present at the scene of the crime, and since the contradictions are material to the case of the Prosecution, the doubts created there-from should be resolved in favour of the Appellants, citing Ikemson v. State (1989) 1 CLRN 1, Gbasouzor v. The Nigerian Army (2000) 2 CLRN 230 @ 241, Akpabio v. State (1994) 7 NWLR (pt 359) 635, & Ikem V. State (1985) 1 NWLR (pt 2) 378 at 386.

As to whether the Appellants’ action amounted to “negligence prejudicial to good order and service discipline”, the Appellants argued in the negative. Their position is that it is on record that the 1st – 3rd Appellants were not around at the time of the shooting, while the effort of the 4th Appellant to rescue the life of the deceased proved abortive. It is their contention that the Appellants’ defence that they were having lunch when the incident occurred raised a defence of alibi, which was not investigated and failure to investigate or call witnesses to contradict the assertion is fatal to the Prosecution’s case. This Court was urged to discharge and acquit the Appellants on this ground on the authority of Okosi v. State (1989) 1 CLRN 29 @ 42.

It was further submitted, citing Ogunsi v. State (1994) 1 NWLR (pt. 322) 584 @ 592, Lori v. State (1980) 8-11 SC 81, Aigbadion V. State (2000) 7 NWLR (pt 666) 686 @ 705, that the Prosecution relied on circumstantial evidence, which the Supreme Court has held must be “so cogent and compelling that it unequivocally points to only one conclusion – the guilt of the accused”, which it was argued is lacking in this case. Furthermore, that the Appellants were arrested, arraigned and tried on the basis of suspicion, which is a clear misconception of the law by the trial Court Martial because it is trite law that suspicion no matter how grave cannot ground a conviction, citing Aigbadion v. State (supra). This Court was therefore urged to resolve this issue in favour of the Appellants on the ground that there was no cogent and compelling evidence before the trial Court Martial to show that the Appellants’ conduct was prejudicial to good order and service discipline.

The Respondent however submitted that the Prosecution proved the allegation beyond reasonable doubt; that the evidence before the trial Court Martial showed that they acquiesced to the killing by omitting to take the necessary action and should have been so charged under Section 7(b) of the Criminal Code, and Section 114 of the Armed Forces Decree (AFD) No. 105, 1993 (as amended); and the fact that they were not present when L/Cpl Macaulay fired the officer is irrelevant since it was clear from the evidence of L/Cpl Macaulay as PW1 that from the time he made his threat in the presence of the Appellants to the time he carried it out in the afternoon, the Appellants did nothing to prevent the occurrence. This Court was also urged to disregard their argument that there were no other superior officers to report to, since the threat was made to the 1st Appellant – a senior non-commissioned officer, who did not have to wait for the late officer to come before he could have disarmed the L/Cpl and place him under close arrest as provided under Section 121 (1) (4) of the AFD (as amended). Furthermore, that the 4th Appellant, simply walked away when the officer arrived in the afternoon and as the assailant stood up to confront the deceased, and this was immediately after he conversed with L/Cpl Macaulay in their dialect.

It was further submitted, citing Effiong v. State (1998) 14 NWLR (pt.584) 181 SC that these omissions by the Appellants were criminal and proved fatal for the deceased who was trying to enforce discipline. It is the Respondent’s contention on Issue 2 that the thrust of the charge against the Appellants contemplates two time frames – an earlier time when the threat was uttered and a later time when the threat was carried out, and the fact that the Appellants did nothing to either advice, disarm or report L/Cpl Macaulay to the late officer amounted to neglect, which is criminal and blame worthy, and in this case led to the untimely death of Lt. Ibelegbu. This Court was therefore urged to hold that the evidence of L/Cpl Macaulay as PW1 was direct and positive as to what he uttered and the failure of the Appellants to prevent him from carrying out his threat makes them guilty as charged. Now, the Appellants pleaded not guilty to the charge against them and subsequently denied the allegation in its entirety in their evidence as DW1-4. The onus, as counsel rightly submitted, was therefore on the Prosecution to prove beyond reasonable doubt that the Appellants were told of the intention and plan of L/Cpl Macaulay to kill the late officer but neglected to prevent him from committing the offence. To this end, the Prosecution called as its star witness, the said L/Cpl Macaulay, who had fired and killed the late officer. Relevant excerpts from his evidence as PW1, reads as follows-