Akinlade V. State (2022)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This appeal is against the judgment of the Court of Appeal, Ibadan Division delivered on 8th June, 2010 wherein the lower Court affirmed the judgment of the General Court Martial which convicted and sentenced the appellant to terms of imprisonment. The Appellant was the 1st accused at the trial General Court Martial convened by the General Officer Commanding 2nd Mechanized Division, Nigerian Army, Benin wherein the Appellant was charged with three other accused persons on a four count charge. A summary of the facts leading to this appeal may be stated as hereunder.

The Appellant was one of the four military officers alleged to have aided some civilians in transporting weeds suspected to be Indian Hemp in an Army truck, having collected the sum of N28,000.00 (Twenty-eight thousand naira) from the civilians for that purpose.

The military truck was intercepted by the police and arrested along with two civilians and two military officers conveying the said weeds. The arrested men made statements to the police before the appellant came and secured the bail of the two military officers. Subsequently, the General Officer commanding 2nd Mechanized Division of the Nigerian Army, Benin Division, convened a General Court Martial and charged the Appellant alongside three other military officers for disobedience to a Standing Order, Official Corruption, permitting improper carriage of goods in a military vehicle and agreeing to improper carriage of persons in a military vehicle.

The Appellant pleaded not guilty to these four count charges. The prosecution called five witnesses in proof of the charge, two of whom were the civilians caught alongside the two military officers. The other three witnesses were the police officers who investigated the matter. The Appellant testified on his own behalf as DW4.

The General Court Martial convicted the Appellant on all the four count charges and sentenced him to terms of imprisonment which were to run concurrently. The General Officer Commanding 2nd Mechanized division of the Nigerian Army, Benin Division, confirmed the conviction and sentence and the Appellant was imprisoned. Appellant’s appeal to the Court of Appeal was dismissed on 8th June, 2010.

The Appellant, not satisfied with the stance of the Court below, has further appealed to this Court. He filed Notice of Appeal on 7th July, 2010 with three grounds of appeal. However, by an amended Notice of Appeal dated 8th November, 2010, the appellant increased the grounds to four out of which he has distilled three issues for the determination of this appeal.

On 21st October, 2021 when this appeal was heard, the learned counsel for the Appellant, Taiwo Abe, Esq who settled the appellant’s brief of argument was absent, though the appellant was served with hearing notice. By the rules of this Court, the appeal was deemed argued having regard to the age of the appeal. The said brief was filed on 24th July, 2015. The three issues distilled in the Appellant’s brief are as follows:-

1. Whether the Court of Appeal was correct to hold that the prosecution proved its case beyond reasonable doubt against the Appellant in the face of the obvious contradictions in the testimonies of the prosecution witnesses and doubts raised in favour of the Appellant.
2. Whether the Court of Appeal was correct in holding that the Appellant was part and parcel of the whole deal of using Army truck to carry improper goods and persons because there was no proper rebuttal of evidence that the Appellant collected N28,000.00 (Twenty-eight thousand naira) from one Mr. Oloko for the illegality when the only evidence to that effect was the testimony of PW1 (Mr. Oloko) which was firmly denied by the Appellant.
3. Whether the Court of Appeal was correct in affirming the conviction of the Appellant when the Appellant was not afforded fair trial when he was denied his request of calling two material witnesses in his defence before the General Court Martial and when the Judge Advocate abdicated his statutory role of advising the General Court Martial to partake in the trial and conviction of the Appellant.

Learned counsel for the Respondent, Etukwu Onah, Esq., who filed Respondent’s brief of argument on 10th June, 2020 but deemed filed on 21st October, 2021, adopted the said brief and urged the Court to dismiss the appeal. Two issues are formulated for determination thus:-

1. Was the Court of Appeal right in affirming the conviction and sentence of the Appellant by the General Court Martial based on the fact that the prosecution had proved its case beyond reasonable Court (sic) and there were no material contradictions in the evidence of the prosecution witnesses to set aside the Appellant’s conviction?
2. Was the Court of Appeal right to hold that the Appellant was not denied fair hearing throughout his trial, conviction and sentence by the General Court Martial.

From the facts of this case, the judgment of the Court below appealed against and the grounds of appeal in the amended Notice of Appeal, it seems to me that the two issues donated by the Respondent are enough to appropriately dispose of this appeal. This means that Appellant’s issues one and two shall be taken together with Respondent’s issue one while Appellant’s issue three shall be determined alone with Respondent’s issue number two. I shall proceed to resolve the issues in that order accordingly.

ISSUES ONE AND TWO

In arguing issue one, the learned counsel for the Appellant submitted that it was not proper for the Court below to hold that the contradictions in the testimonies of prosecution witnesses were not material enough as to warrant setting aside the conviction of the Appellant. According to him, PW3 – PW5 testified before the trial General Court Martial that statements obtained without coercion from DW1 and DW2 confirmed that DW1 and DW2 were on official road test when they decided to help out two civilians they saw on the road. That these testimonies are clearly in contradiction with the subsequent testimony of DW2 in the trial General Court Martial which subsequent testimony sought to indict the Appellant. He stressed that in considering what constitutes material contradiction, recourse must be had to the nature of the charge against the Appellant and the ingredients required for proof of such charge, relying on the case of Ibe v The State (1992) 23 NSCC (pt. 2) 205.

Learned counsel further submitted that a cursory examination of the facts of this case will reveal that the basic ingredient which the prosecution is required to establish against the appellant to sustain all the charges against him is that the Appellant was aware and in fact, gave authority to DW2 – DW4 to carry unauthorized goods and civilians in an Army truck. He contended that the contradictions were material and since they were not clarified, the testimonies of prosecution witnesses ought to have been discountenanced, referring to Mbenu v The State (1988) 2 NSCC 232, Aruna v The State (1990) 21 NSCC (pt 3) 295, Kalu v The State (1998) 3 NSCC page 2.

On issue 2, learned counsel submitted that the prosecution called only one witness (PW1) in proof of the appellant’s alleged collection of the sum of N28,000.00 from Mr. Oloko who was also the PW1 for the illegal use of the Army truck. That even though, PW1 further stated that there was a witness to the transaction, one Mr. Efe, at no point was the said Mr. Efe called or explanation given as to why he was not called. He submitted that the Court below failed to attach any evidential value to the denial of the Appellant to the receipt of the N28,000.00. He opined that this is against the decision of this Court in Uche – Williams v The State (1992) 3 NSCC, page 209 which held that any defence to which an accused person is entitled to, should be considered however stupid or unreasonable, for what it is worth.