Colonel David Gabriel Akono V. The Nigerian Army (2000)

LawGlobal-Hub Lead Judgment Report

IGE, J.C.A. 

This is a case tried by the General Court Martial. This appeal is against the judgment of a General Court Martial convened on 17th day of January, 1997 by a convening order.

The appellant was arraigned on a 3 count charge namely:-

“a. Charge 1: Conduct to the prejudice of service discipline contrary to s. 103(1) of the AFD 105 of 1993. The particulars of this charge are that he on or about October 1996 in a memo sent to the COA(A) dated 28 October, 1996 lied about the position of his transaction with Chief E. Igbokwe, a conduct prejudicial to service discipline.

b. Charge 2: Conduct to the prejudice of service discipline contrary to s. 103(1) of the AFD 105 of 1993. The particulars of the charge are that he on or about October 1996 wrote a letter to one Chief E. Igbokwe, contents of which portrayed the NA in bad light, a conduct prejudicial to service discipline.

c. Charge 3: Scandalous conduct of an officer contrary to s. 91 of the AFD 105 of 1993. The particulars of this offence are that he between 1992-1996 got involved in a monetary transaction with one Chief E. Igbokwe in a scandalous manner unbecoming of the character of an officer and a gentleman.”

The appellant pleaded not guilty to all the charges. The case proceeded to trial and the prosecutor did not call a single witness to give sworn evidence in the witness box. All they did was to summon one Mwo Musa Abiri, a chief clerk, to tender 1 Exhibit with 27 pages. The chief clerk had custody of the documents and tendered them under the provisions of section 193 of Evidence Act of 1990. The accused gave evidence and called no witnesses.

After listening to the addresses of the prosecutor and that of the accused’s counsel the Judge Advocate, Major S. M. Okeke of the Lagos Garrison Command summed up the case and the General Court Martial found the appellant guilty on 1st and 2nd charges and discharged and acquitted him on the 3rd charge. For the 1st charge accused got a reduction to Lt. Col. with 4 years seniority in rank and for the 2nd charge accused was sentenced to 2 years imprisonment.

The appellant was dissatisfied with this judgment and appealed to AFDAC known as the Armed Forces Disciplinary Appeal Committee. Before the appeal could be heard by AFDAC its functions and powers were transferred to the Court of Appeal by virtue of the Armed Forces (Amendment) Decree No. 15 of 1997.

The appellant in his amended notice of appeal has filed six grounds of appeal and has formulated 4 issues for determination. The 4 issues read thus I quote:-

“1. Whether the General Court Marital was right by admitting in evidence documents referred to as Exhibit 1 which said documents were tendered by a person who was only invited to produce the said documents pursuant to sections 192 and 193 of the Evidence Act, Cap. 112, LFN 1990 and who was never referred to and called as a witness and consequently not sworn.

2. Whether the General Court Martial was right in overruling the objection raised by the defence counsel as to the relevancy and admissibility of Exhibit 1 when in fact the proper foundation was not laid before same was wrongly admitted in evidence.
3. Whether from the general circumstances and facts of the entire case the General Court Martial (GCM) was not in error in violating the appellant’s constitutionally guaranteed right to fair hearing under section 33 of the amended 1979 Constitution and the principles of natural justice by failing to afford the appellant an opportunity to cross-examine the complainant and even the Chief of Administration (Army), COA (A) as to the authenticity of the facts contained in Exhibit 1, upon which facts the GCM solely relied in convicting the appellant.
4. Whether the General Court Martial (GCM) was validly constituted regarding the qualification of its members in the manner prescribed by section 133 of the Armed Forces Decree No. 105 of 1993 (as amended) so as to vest the said GCM with the requisite jurisdiction and competence to try the appellant.”

The respondent though served with a copy of appellant’s brief has filed no respondent’s brief. There is therefore no issues formulated by the respondent. This appeal will therefore be considered on the issues formulated by the appellant.

Now to the first issue. In view of the fact that Exhibit 1 is the main contention involved in both issues 1 & 2, I shall treat the two issues together. The appellant’s counsel submitted that the prosecutor did not call a single witness to prove the charges against the accused. All the prosecutor did was to summon a witness to produce some documents (Exhibit 1) in accordance with sections 192 and 193 of the Evidence Act, Cap. 112, of the 1990 Laws.

According to the appellant, the position of the law is stated in the case of Famakinwa v. Unibadan v.& anor. (1992) 7 NWLR (Pt.255) 608 where a subpoena ad testificandum is described as follows:-

“A subpoena ad testificandum is a technical and descriptive term for the ordinary subpoena. It simply means subpoena to testify. A person summoned under this subpoena is a witness in the true sense of the word. He must go into the witness box and testify upon oath or affirmation and is liable to be cross-examined.”

Let us see what the Evidence Act has to say about a witness called only to produce the documents in his custody. Sections 192 and 193 of the Evidence Act provide thus, I quote:

“192. Any person, whether a party or not, in a cause may be summoned to produce a document without being summoned to give evidence, and if he cause such document to be produced in court the court may dispense with his personal attendance.

193. A person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness.”

The chief clerk, Mwo Musa Abiri was merely called to produce the documents in Exhibit 1 and cannot be referred to as a witness for the prosecution. He was neither sworn nor allowed to be cross-examined by the accused or his counsel. Upon a careful perusal of the proceedings which transpired before the Court Martial on 27th January, 1997: pages 16-18 of the records show that it was a question and answer procedure between 63 NA Mwo Musa Abiri and the prosecutor. The prosecutor after a series of questions and answers sought to tender the documents, Exhibit 1. The defence objected to the tendering of the documents but he was over-ruled. The President gave the following rulings:-

“Gentlemen, I have listened to both parties. In my opening remark on Friday, I did say while abundant privilege will be given to ensure fairness and justice. We will not allow too much of technicalities to bug us down. In view of that, a certified copy of document titled Discipline officer COL DG Akono is accepted in evidence and accepted as exhibit 1.”

From this point, the President took over the job of the prosecutor after taking permission of the court by directing how Musa Abiri as to how he should read the contents of Exhibit 1 to enable the court to follow the trend. The prosecutor finally ended the prosecution’s case on page 18 thus:-

“With due respect Mr. President sir, that is the end of the prosecution case.”

There is no doubt whatsoever that the prosecution in this case relied heavily on Exhibit 1 to secure a conviction of the accused for the 3 Charges levied against him. What is to be considered under the first 2 issues is whether Exhibit 1 is an admissible document and whether Mwo Musa Abiri can be considered a witness for the prosecution in this case in view of the format of his evidence and the fact that he was never sworn on oath.

I have no reason to disagree with the view held by my learned brother Salami JCA, in the case of Famakinwa v. Unibadan & Anor. (1992) 7 NWLR (Pt.255) 608 at 624 when he opined thus re a witness served with a subpoena duces tecum. He stated thus:

“A person who brings forward a document cannot be said to have given it in evidence not to talk of his having capacity to give or tender it in evidence particularly when the person served with subpoena duces tecum has the option or liberty to cause it to be produced in court through any other person of his choice. It is therefore, my firm view that section 192 merely authorises a subpoena duces tecum to be issued to a person to deliver to the court a document either personally or through any other person he may consider suitable for the assignment.”

In the instant case, Mwo Musa Abiri 63 NA was called by the prosecution as a custodian of document to tender some documents in the case of NA against Col. DG Akono. The document brought to court was tendered as Exhibit 1 which consisted of several letters written by various people including AHQ, COAS and one Chief Osifa Igbokwe, Barrister Nwangwu and Akono himself among others. It is true that the witness Mwo Musa Abiri can produce the documents Exhibit 1 under section 192 of Evidence Act. But the prosecutor did not call him as a real witness to be sworn and cross-examined as provided for under section 193 of the same Evidence Act. It is my view that the witness was not only incompetent to tender the document, Exhibit 1 but the documents in Exhibit 1 were wrongly admitted by the General Court Martial. For Mwo Musa Abiri to be a competent witness to tender those documents he must be sworn by taking an oath or affirmation and he must be available for cross-examination by the accused.

This procedure was not followed in this case, hence Exhibit 1 should not have been received in evidence and made to form part of the records of proceedings. The General Court Martial was in great and grave error in admitting in evidence documents (Exhibit 1) tendered by a person who was not called as a witness neither was he sworn before the court as a witness. The entire documents consisting Exhibit 1 should therefore be expunged from the court record.

The Constitution of Nigeria 1999, section 33 provides for fair trial of anybody accused of a crime. This has been denied the accused person in this case hence there is a miscarriage of justice. Pages 16-18 of the records of proceedings are invalid and are therefore expunged from the records. See the case of Rtd Col. Umar Mohammed v. Nigerian Army (1998) 7 NWLR (Pt.557) 232. Another point that vitiates the proceedings in this case re Exhibit 1 was the interference of the President of the General Court Martial on page 17 of the proceedings. He decided to direct the witness (unsworn) as to how he should read Exhibit 1 to the court so that the court can follow the trend. This in my view shows the President descending into the arena to aid in prosecuting the accused. This is most unfair especially when the accused had no opportunity to cross-examine the witness.

The General Court Martial in convicting the accused on charges 1 & 2 has relied heavily on Exhibit 1 which document has been rendered inadmissible.

Another stigma attached to Exhibit 1 is that almost all the documents contained therein are photocopies and no proper foundation was laid as required by the Evidence Act before admitting them in evidence.

When Exhibit 1 is removed from the records the prosecution is left with no iota of evidence on record to sustain the charges against the accused. As a matter of fact the accused ought to have been discharged after the prosecution closed its case.

The prosecuting counsel delivered a powerful address to the Court and the learned Judge Advocate also did his best to make a good summary of the entire case in his address to the General Court Martial. I am afraid the purpose of an address is not to establish a case against an accused. Addresses of counsel in a case are designed to assist the court. Cases are usually decided on credible evidence, hence no amount of brilliance in a final address can make up for the lack of evidence to prove and establish a case. See the case of Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt.67) 787. The most important thing in a case is for the court to evolve a resolution of the point in issue by the argument or submission not the mere appraisal of counsel’s argument.

In this case, the prosecution has failed to establish the case against the accused in charges 1 and 2 beyond all reasonable doubt, hence no address can bridge the gap. Issues 1 and 2 are hereby resolved in favour of the accused/appellant.

Now to issue 3. This deals with the question of whether the General Court Martial was not in error in violating the appellant’s constitutional right to fair hearing under section 33 of the 1979 Constitution and the principle of natural justice by failing to afford the appellant an opportunity to cross-examine the complainant and even the chief of administration Army COA as to the authenticity of the facts contained in Exhibit 1.

The right to fair hearing is entrenched in both the 1979 Constitution and the 1999 Constitution. Section 33(1),(4) and (5) of the 1979 Constitution are in pari materia with sections 36(1), (4), (5) and (6) of the 1999 Constitution. It provides thus:-

“36.(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal.

(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.

(6) Every person who is charged with a criminal offence shall be entitled to:-

(a) be informed promptly in the language that he understands and in detail of the nature of the offence;

(b) be given adequate time and facilities for the preparation of his defence;

(c) defend himself in person or by legal practitioners of his own choice;

(d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution; and

(e) have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”

The above quoted sections of the Constitution provide for the rights of a party or an accused to a fair hearing in both civil and criminal cases. The terms fair trial and fair hearing are one and the same thing. The expression fair hearing in section 36(1) of the 1999 Constitution means the trial of a case or conduct of proceedings according to all relevant rules for ensuring justice. In the instant case, no sworn witness was called by the prosecution to enable the accused or his counsel to cross-examine the said witness. Exhibit 1 has been ruled to be inadmissible, hence there is nothing on record in proof of the offences charged in charges 1 and 2. Assuming without conceding that Exhibit 1 was properly and validly admitted, the accused was not given an opportunity to cross-examine writers of the various letters contained in Exhibit 1. In the first case, the so called witness who tendered the Exhibit 1 is not the writer of the various letters written by the different people. For example, the chief complainant in the case Chief Igbokwe was never called as a witness by the prosecution. It was the loan granted by the chief to the accused that triggered off the offences alleged in charges 1 and 2. Charge 1 reads as follows:-

“a. Conduct to the prejudice of service discipline contrary to section 103(1) AFD 1993 in that he on or about October 1996 in a memo sent to the Chief of Administration (Army) dated 28th October, 1996 lied about the position of his transaction with Chief S. Igbokwe, a conduct prejudicial to service discipline;

b. Charge 2 – Conduct to the prejudice of service discipline contrary to section 103(1) AFD 1993 in that he on or about October 1996 wrote a letter to one Chief E. Igbokwe contents of which portrayed the Nigerian Army in a bad light; a conduct prejudicial to service discipline.”

The prosecution did not call Chief Igbokwe whose name rang the bell throughout the alleged charges against the accused. The prosecution did not call as a witness the Chief of Administration (Army) to whom the accused was alleged to have sent a memo dated 28th October, 1996.

It is trite law that to gain a conviction and sentence against the appellant, the prosecution must prove beyond all reasonable doubt the elements of the offence charged. In this case, to sustain a charge under section 103(1) of the AFD – Armed Forces Decree No. 105 of 1993 the prosecution must prove the following ingredients:-

1. That the appellant is subject to service law;
2. That the appellant was involved in a conduct;
3. That the conduct of the appellant was prejudicial to good order and service discipline.

The appellant has contended that the prosecution failed to call a very vital witness to prove the 2nd and 3rd ingredients of the offences in charges 1 and 2. I quite agree with the submission of the appellant’s counsel that failure to call the complainant in this case is bound to affect the case of the prosecution. It seems to me that Chief E. Igbokwe is a very vital and material witness in this case and his evidence would have helped to arrive at a just determination of the entire case.

In the case of The State v. Nnolim & Anor. (1994) 5 NWLR (Pt.345) 394 a vital witness has been described to be a witness whose evidence may determine a case one way or the other. Failure to call a vital witness by the prosecution is fatal to the prosecution’s case. In this case, failure of the prosecution to call Chief Igbokwe as a witness is fatal to the case of the prosecution against the accused/appellant in charges 1 and 2.

The General Court Martial has based its conviction of the appellant on charges 1and 2 primarily on the unsworn documentary evidence of the complainant. This is very wrong in law and has occasioned a substantial miscarriage of justice. The conviction should not be allowed to stand. The General Court Martial like any other court or tribunal established by law for the determination of civil rights and obligations has a duty of fairness in the proceedings before it.

I have noted earlier on in this judgment the attitude of the President of the Court Martial proceedings as recorded on page 17 where he descended into the arena by taking over the duty of the prosecutor in giving directions to the unsworn witness as to how to read a document. This is an evidence of likelihood of bias and is bound to affect the right of the accused to a fair hearing. An accused person is presumed innocent until the contrary is proved beyond reasonable doubt by the prosecution. I concede the right of a Judge to ask any question in the course of proceedings by virtue of section 222 of the Evidence Act, Cap. 62 1990 Laws of Nigeria. But this liberty is limited by the duty of fairness charged upon the Judge. Where the Judge or President as in this case manifests a bias by taking over the duty of the prosecutor, the accused cannot be said to have had a fair trial:- see the case of Obadara v. President Ibadan West District Grade B Customary Court (1965) NMLR 39; Omoniyi v. Central Schools Board (1988) 4 NWLR (pt.89) 448; and Okoduwa v. The State (1988) 2 NWLR (pt.76) 333.

In the light of the above, issue 3 is also decided in favour of the appellant.

With regard to issue 4 which queries the validity of the composition of the General Court Martial as prescribed under section 133 of AFD No. 105 of 1993 (as amended), I would have said the issue is a non sequitor in view of the fact that the appellant did not object to being tried by the President and other members of the tribunal- Court Martial. But since the composition of the Court Martial touches upon the issue of jurisdiction, the fourth issue becomes relevant and can be raised at any time.

It is a competent court that can have jurisdiction over the trial of a case before it. A court is competent, if it is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other. The subject matter of the case must be within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. The case must come before the court initiated by due process of law and upon fulfillment of any condition precedent in the exercise of its jurisdiction.

Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to the adjudication. See Bairamian FJ, as he then was, in the case of Madukolu & Ors. v. Johnson Nkemdilim (1962) 2 SCNLR 341, (1962) 1 All NLR (Pt.4) 587.

For the purpose of this trial by the General Court Martial, section 133(3) of Decree No. 105 of 1993 (as amended) provides thus:-

“3. The President of a Court Martial shall be appointed by order of the convening officer and shall not be under the rank of Major or corresponding rank, unless in the opinion of the convening officer, a Major or an officer of corresponding rank, having suitable qualifications is not, with due regard to the public service, available, so however that:-

(a) the President of a Court Martial shall not be under the rank of a Captain or a corresponding rank; and

(b) where an officer is to be tried, the president shall be above or of the same or equivalent rank and seniority of the accused and the members thereof shall be of the same but not below the rank and seniority of the accused.”

Upon a careful perusal of each of the members of the Court Martial in this case both the Colonels and Lt. Colonels are junior in seniority and rank to the accused/appellant. Any member who is junior in rank to the accused stands disqualified to be a member of the Court Martial that tried the accused.

However, section 133(7) of the Decree provides as follows:-

“(7) If a Court Martial is to be convened at a place where, in the opinion of the convening officer, the necessary number of officers having suitable qualifications is not available to form the Court Martial and cannot be made available with due regard to the circumstances, the convening officer may, with the consent of the proper superior authority appoint any service officer as President of the Court Martial in lieu of, or as any other member of the court in lieu of, or in addition to any service officer or officers.”

In the instant case, the appellant was tried at the Lagos garrison where there are many officers of senior and corresponding ranks as the appellant, but the convening officer chose service officers of junior ranks to the appellant. This provision of the law is spelt out in mandatory terms in order to maintain strict discipline in the Armed Forces. The officer under trial must be tried by his own peers.

Failure to find suitable service officers to constitute the General Court Martial, section 133(7) empowers the convening officer to choose men of the required rank from the Air Force or Naval Commands in Lagos with the consent of the proper superior authority.

This was not done in this case by the convening officer, hence I hold that the Court Martial as composed in this case lacked jurisdiction to try the appellant. The trial is therefore a nullity.

It is my view that which ever angle one looks at this trial by the General Court Martial, this appeal must succeed. There has been a very serious miscarriage of justice which has vitiated the conviction of the appellant on the first and second charges. The verdicts of guilty on charges 1 and 2 are perverse and should be quashed.

On a final analysis, I would allow the appeal, quash the convictions and sentences passed on the appellant in charges 1 and 2. In substitute thereof is a verdict of not guilty on each of the 2 charge & upon which the appellant had been found guilty. I therefore discharge and acquit the appellant accordingly on charges 1 and 2.

The decision of the General Court Martial delivered on 17th January, 1997 is hereby set aside in its entirety. If the appellant is still in prison serving term he should be released from prison custody forthwith.

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Other Citations: (2000)LCN/0878(CA)