Ex-wo Aloysius Idakwo V. Nigerian Army (2003)

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ABUBAKAR ABDUL-KADIR JEGA, J.C.A.

This is an appeal against the judgment of the General Court Martial presided over by Col. P.W. Forteta (Rtd.) and delivered on the 8th October, 1996.

The said General Court Martial on the 8th October, 1996 convicted the appellant of offences under sections 66(a) and 95 of the Armed Forces Decree No. 105 of 1993. On the first charge, he was sentenced to 2 years imprisonment while the second charge attracted 1 year. Both sentences were to run concurrently.

The appellant was on the 24th September, 1996, arraigned before the General Court Martial presided over by Col. P.W. Forteta (Rtd.) on two count charges to wit.
(a) Offences in relation to public/service property punishable under section 66(a) of the Armed Forces Decree No. 105 of 1993 in that he at Lagos between 01 April or 30 April, 1996 fraudulently misapplied flag staff house telephone No. 2633116 in receiving personal fax messages from Israel.

(b) Attempt to commit Military offence punishable under section 95 of the Armed Forces Decree No. 105 of 1993 in that he at Lagos gave a prize list for international calls in respect of telephone lines 2635662, 2637719, 684573 and 2633116 in flag staff house to LCPL.

Sunday Adebiyi for the purposes of commercializing the telephone lines.

The appellant pleaded not guilty to the charges. The prosecution called four witnesses while the appellant gave evidence and tendered one exhibit (exhibit II). At the trial, the Judge Advocate spelt out the ingredients or legal requirements of the two charges. He submitted that the ingredients of the offences were not proved and specifically in respect of the second charge said “the prosecutor did not tender evidence to show that the price list was in respect of the mentioned 5 telephone lines”.

In spite of the well-reasoned opinion of the Judge-Advocate, the General Court Martial without giving reasons for its findings, delivered its judgment, found the appellant guilty and sentenced him to 2 and 1 year respectively in respect of the first and second charges. Being dissatisfied, the appellant with the leave granted by this Honourable Court on 7th November, 2000 has filed a notice of appeal and grounds of appeal dated 16th November, 2000.

Parties have filed and exchanged briefs of arguments. At the hearing of the appeal on the 24th March, 2003, the appellant adopted his brief filed on 5/1/2001 and also the appellant’s reply brief filed on 8/4/2002 and urged the court to set-aside the trial. The respondents adopted their brief filed on 15/02/02 and urged the court to dismiss the appeal. Judgment was reserved on the 22/5/2003. On the 21st May, 2003, the respondent filed a motion on notice pursuant to Order 3 rule 20 of the Court of Appeal Rules and section 16 of the Court of Appeal Act, Cap. 75, LFN, 1990 praying for the following:

a) An order of court arresting the judgment of this Honourable Court in respect of this appeal.

b) An order granting leave for the respondent/applicant to amend the respondent’s brief of argument in respect of this appeal.

c) An order deeming as properly filed and served the amended respondent’s brief of argument filed along on the same date as this application.

d) And such further or other orders as this Honourable Court may deem fit to make in the circumstances.

This motion was taken on 22nd May, 2003 and granted and the respondent amended brief of argument filed on 21/5/2003 was adopted.