Capt. B. O. Akanni V. The Nigerian Army & Anor (2016)

LawGlobal-Hub Lead Judgment Report

YARGATA BYENCHIT NIMPAR, J.C.A.

This is an appeal against the conviction and sentence handed down to the Appellant by the General Court Martial sitting in Ibadan and convened to try the Appellant on a two count charge thus:
a. COUNT ONE:
Conspiracy to steal contrary to S. 518(b) of the Criminal Code and punishable under S. 114(1) AFD1993.
Particulars of the offence:
In that you at Ibadan on or about 312100 A Oct 97 at COD MT & TECH conspired with your subordinate soldiers to steal quantity 264 metal panels and quantity 12 wires from shed 6.
b. COUNT TWO:
Offence in relation to service property punishable under S. 66(a) AFD 1993.
Particulars of the Offence:
In that you at Ibadan on or about 3121004 Oct 97 at COD MT & TECH connived with your subordinates soldiers to steal quantity 264 metal panels and quantity 12 wires from shed 6.

The brief facts are that the Appellant a commissioned officer of the Nigerian Army with the rank of Captain was the Administrative officer at the 2 Mech Div. Ibadan when an incident of theft was carried out. Particularly, the theft of metal

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panels and wire rolls which were removed from the stores on the 31st October, 1997 by some soldiers and civilians. The Appellant being the officer in charge was indicted and tried by the General Court Martial. Three witnesses testified on each side after which the General Court Martial found him guilty of the first count while discharging him on the second count. The Appellant dissatisfied with the sentence filed a Notice of appeal on the 27/03/15 setting out 8 grounds of appeal.

The Appellant filed his Appellant’s Brief on the 12/5/15 settled by Akin Kejawa and a reply to the Respondents’ brief on 18/5/16. The Respondents’ Brief settled by Toyin Bashorun dated 6th May, 2016 was filed on the 6/5/16.

The Appellant distilled 5 issues for determination as follows:
1. Whether in trying the Appellant the Court Martial lacked jurisdiction to do in addition to breaching his right to fair hearing.
2. Whether having regard to the oral and documentary evidence before the Court, the prosecution proved its case against the Appellant as required by law.
3. Whether the Court Martial was correct in law to convict the appellant on the offence of

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conspiracy when he was discharged and acquitted on the substantive offence.
4. Whether the judgment of the Court Martial is valid and competent when it failed, refused/ or neglected to evaluate the evidence before it.
5. Whether the sentence of reduction in rank from Captain to 2/Lt. imposed on the appellant upon conviction on one offence, is not excessive and oppressive in violation of S.118(4) of the Armed Forces Decree 105 of 1993 (as amended) under which the Appellant was tried.

The Respondents in their brief adopted the issues formulated issues distilled by the Appellant for determination. The court shall also adopt the said issues and they shall be taken together.

The Appellant began its arguments under issue 1 by stating the importance and principles of jurisdiction. The Appellant went further to state that there is no evidence in the record of appeal to show that the allegation against the Appellant was investigated by his commanding officer in the manner as prescribed under the Armed Forces Decree and this failure deprived the Court martial jurisdiction to hear the matter, relying on MADUKOLU & ORS V NKEMDILIM (1962) 1 ALL NLR

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(REPRINT) 581. He submitted that the Appellant was denied a right to fair hearing by reason of the fact that the members of the Court martial that tried him had foreknowledge of the facts constituting the offence against him, being that the witnesses who testified against the Appellant had been previously tried by the same Court martial on the same offences and facts on which the Appellant was tried and convicted, referred to the case of S/SGT GODWIN IMHANRIA v NIGERIAN ARMY (2007) 14 NWLR (Pt.1053) 76. That irrespective of the fact that the Court martial is an executive Court, it is bound not to go against the principle of independence and impartiality and that a party complaining of a breach of his right to fair hearing need not prove a particular injury as the breach itself is the injury. He relied on the cases of OSAWEN v ASUEN (1992) 4 NWLR (PT.235) 291, WAEC V AKINKUNMI (2002) 7 NWLR (PT.776) 327, UMAR V ONWUDINE (2002) 10 NWLR (PT.774) 129 in proof of his submissions.

?The Appellant also submitted that the prosecution failed to prove its case against the Appellant as required by law, that the extra judicial statement and evidence in chief by PW2 are