Rear Admiral Francis Eche Agbiti V. The Nigerian Navy (2007)

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PAUL ADAMU GALINJE, J.C.A.

This is an appeal against the decision of the General Court Martial (hereinafter to be referred to as the lower Court) sitting at Lagos.

The Appellant, who was a Rear Admiral in the Nigerian Navy was jointly charged along with two other officers of the Navy for the offence of conspiracy to commit felony contrary to Section 114 (1) of the Armed Forces Act, Cap A20 of the Laws of the Federation of Nigeria 2004. Thereafter he was charged and tried individually on a five counts charge of conduct to the prejudice of service discipline and alteration of service document contrary to section 103 (1) and 90 (b) of the Armed Forces Act, Cap A20, Laws of the Federation of Nigeria 2004.

The Appellant pleaded not guilty to all the counts. The matter was then set down for trial. At the end of trial, in which both the prosecution and the defence called witnesses, the lower Court, in a reserved and considered judgment which was delivered on the 5th January 2005 discharged and acquitted the Appellant on count 1. Count 4 was struck out on the ground that it was a repetition of Count 3. The Appellant was found guilty and was accordingly sentenced to dismissal on counts 2, 3 and 6. For Count 5 he was sentenced to a reduction in Rank to Commodore. The sentences were ordered to run concurrently. These sentences were subsequently confirmed by the Navy Board on the 21st day of June 2005 thereby giving effect to the sentences of dismissal and demotion in rank of the Appellant as directed in the judgment of the lower Court.

It is against the judgment and confirmation aforesaid, the Appellant has brought this appeal. His notice of appeal which is dated 4th July 2005 and filed the same day and which was deemed filed by this Court on the 18th day of January 2006 contains eighteen (18) grounds of appeal.

Pursuant to the relevant rules of this Court, parties filed and exchanged briefs of argument. The Appellant’s brief of argument is dated 12th day of April 2006 and filed on the 19th of April 2006. At pages 5-7, of the Appellant’s brief, eight issues were distilled for the purpose of determining this appeal. These issues read as follows: –

“1. Having regard to the clear provisions of section 36 of the Constitution of the Federal Republic of Nigeria 1999, section 137 of the Armed Forces Act, Cap A20 LFN, 2004, Section 133(3) (B) of the same Armed Forces Act, the express wording of the convening order constituting the General Court Martial, Chapter 8 Rule 16 of the Court Martial procedure for Royal Navy BR 11 and the accusation or implication of the convening authority, Vice Admiral Samuel Olajide Afolayan in the disappearance of the MT African Pride, whether or not the entire proceedings before the General Court Martial were/are not a nullity … Grounds 1, 4, and 17.

2. Whether or not the arraignment of the Appellant and the entire proceedings leading to his conviction and sentence are not a nullity on the ground that the conditions precedent to his arraignment, trial and conviction were not complied with. Grounds 5 and 6.
3. Considering the charge sheet as placed before the General Court Martial and the Improper Constitution of the Court, whether or not its proceedings and judgment are not altogether a nullity … Grounds 2, 3 and 7.
4. Having regard to the fact that Appellant was discharged and acquitted on count 1 for the offence of conspiracy in which he faced a joint trial with two other Naval Officers, coupled with the fact that no separate trial for the appellant was conducted, whether or not the General Court Martial was not in grave error to have convicted and sentenced the Appellant under count 2, 3, 5 and 6 on which no separate or additional evidence was given. And/or
5. Whether or not the entire proceedings of the Tribunal do not constitute a nullity by the transplant of the

evidence adduced in proof of count 1 relating to the joint trial to the trial on counts 2, 3, 4, 5 and 6 which relate only to the Appellant … Ground 8.

6. Was the General Court Martial right in convicting and sentencing the Appellant under count 2, 3, 5 and 6 relating to section 103 (1) of the Armed Forces Act when:

i. None of the ingredients of the offences was proved and/or

ii. The ingredients of the said offences were not proved beyond reasonable doubt …. Grounds 9, 10, 11, 12 and 14.

7. In view of the unreliable evidence adduced before the lower Tribunal, coupled with the type of persons or personalities called as witnesses vis-a-vis the evidence of the Appellant, whether or not the conviction of the Appellant was/is not a perversion of justice … Grounds 13, 16 and 18.
8. Whether or not the sentence passed on the Appellant was/is not oppressive, vindictive and unreasonable …. Ground 15.”

For the Respondent, eight issues were also distilled for the determination of this appeal at pages 9-10 of its brief. These issues are reproduced hereunder as follows: –

1. (a) Whether the Appellant was given a fair hearing in the determination of the charges against him in accordance with the Constitution of the Federal Republic of Nigeria and other relevant acts and rules governing the trial of an accused person in a GCM.

(b) Whether the convening officer was in fact implicated and if not or if yes whether that without more is enough to render the GCM decision a nullity given the fact that the said convening officer was only performing his statutory functions and not on trial neither did he sit as president nor a as member of the GCM.

2. Whether the condition precedent to the trial of the Appellant was complied with having regard to the evidence before the GCM.
3. Whether the court was properly constituted.
4. Whether the trial of Appellant for conspiracy was proper and whether his acquittal on conspiracy charge is a bar in law to his conviction on other charges.
5. Whether from the records, there was transplant of evidence before the General Court Martial.
6. Whether counts 2, 3, 5, and 6 was proved in accordance with the appropriate law.
7. Whether the witnesses called by the prosecution can be properly described as tainted, unreliable or accomplices giving the facts and circumstance of the case.
8. Whether or not the sentence passed on the Appellant was excessive.”

The Appellant filed a reply brief dated 9th April 2007

This appeal came up for hearing on the 3rd of October 2007. Chief Wole Olanipekun, learned Senior Counsel for the Appellant adopted the Appellant’s brief of argument and the reply brief and urged the Court to allow the appeal on the ground that what took place at the lower Court was a classical case of mistrial.