Brigadier General James Omebije Abdullahi V. The Nigerian Army & Ors. (2009)

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AYOBODE O. LOKULO-SODIPE, J.C.A.

This appeal is against the judgment of the General Court Martial, sitting at the Army Headquarters Garrison, Abuja delivered on 30th August, 2005. The judgment of the General Court Martial (hereinafter simply referred to as “GCM”) was confirmed on 5th April, 2006 by the Confirming Authority and the terms of the confirmation were conveyed to the Appellant by a letter dated 7th April, 2006.

The facts of the case are that pursuant to a Charge Sheet dated July, 2005 and signed by one Colonel M.B. Adamu, a six count charge was preferred against the Appellant. Four of the six counts alleged that the Appellant stole diverse sums of Service/Public property being those of the Nigerian Armed Forces. Each of the four counts of stealing was said to be contrary to Section 66(a) of the AFA, Cap. A20, Laws of the Federation of Nigeria 2004. In the remaining two counts, the Appellant was alleged to have made false official document; and also to have engaged in conduct to the prejudice of good order and service discipline contrary to Sections 90(a) and 103(1) respectively of the AFA Cap. A20, Laws of the Federation of Nigeria 2004. The Appellant pleaded not guilty to each of the six counts preferred against him. The prosecution called ten witnesses and tendered several documents which upon their admission in evidence were marked as Exhibits P1-P20.

After the prosecution closed its case, the Appellant made a no case submission to which the prosecution duly replied. The GCM overruled the no case submission made by the Appellant and thereafter called upon him to open his defence.

The Appellant alone testified in his own behalf, he called no other witness. The Appellant closed his case after he had been cross examined and re-examined.

One Group captain Akpofure was called as a “Court Witness” (CW1) and both the prosecution and Appellant’s counsel addressed the GCM after they had both cross-examined the said Court Witness. This witness was led in evidence by the Judge Advocate. The Judge Advocate also summed up the case for the GCM by reviewing the facts and evidence of witnesses, and gave direction to the GCM on the law and procedure applicable to the case.

The GCM in its judgment delivered on 30/8/2005 found the Appellant guilty on each of the four counts of stealing and the count of conduct to the prejudice of good order and service discipline. The Appellant was found not guilty on the count of making false official document and consequently discharged and acquitted in respect of the count. The Appellant after a plea in mitigation of sentence was sentenced to 2 years in respect of each of the five counts for which he was found guilty and the terms were to run concurrently. The GCM made an order of forfeiture of Appellant’s building and declared both the sentences passed on the Appellant, as well as the order of forfeiture, subject to confirmation. In accordance with its powers under Section 151(4) & (5) of the AFA, the Army Council at its sitting of 5/4/2006 confirmed the verdict of guilty entered against the Appellant in respect of Counts 1, 2, 3, 4 and 6 respectively. The sentence of 2 years imprisonment passed in respect of each of the said counts was reduced to 1 year and to take effect from 30/9/2005 and to run concurrently. The Appellant was ordered to refund N33,500,000.00 only to the Nigerian Army within 30 days with effect from the date of the confirmation of the decision of the GCM failing which his personal property is to be confiscated to recover the said amount.

The Appellant being dissatisfied with the judgment of the GCM as confirmed; sought for the leave of this Court to appeal against the same. Leave in this regard was duly granted on 8th June, 2006 and the Appellant filed his Notice of Appeal on 15th June, 2006. The Notice of Appeal contains five (5) grounds of appeal. The grounds of appeal of appeal, shorn of their particulars, read thus:-

“GROUND 1

The judgment of the General Court Martial delivered on 30/8/05 and confirmed on 5/04/06 is altogether unreasonable, unwarranted and cannot be supported having regard to the evidence.

GROUND 2

The General Court Martial erred in law when it found the Appellant guilty and convicted him for the 4 counts charge of Stealing and one count charge of Conduct prejudicial to good order and service discipline contrary to Section 66(a) and 103(1) of the Armed Forces Act 2004 respectively, whereas the prosecution failed to establish by evidence beyond reasonable doubt, the existence of the ingredients of the said offences and this has caused injustice to the Appellant.

GROUND 3

The judgment of the General Court Martial was a nullity in that, it failed to contain the necessary requirements or elements of a good judgment and consequently, all the findings of guilt by the Court against the Appellant for the 4 counts charge of Stealing and one count charge of Conduct prejudicial to Good Order and Service discipline contrary to Sections 66(a) and 103(1) of the Armed Forces Act, are perverse.