Lt. Commander Steve Obisi Vs Chief Of Naval Staff (2004)

LAWGLOBAL HUB Lead Judgment Report

PATS-ACHOLONU, J.S.C.

The appellant who is equally the cross respondent was charged and tried by a General Court Martial for various offences that violate the spirit of Armed Forces Decree No. 105 of 1993. The charges are that he disobeyed standing orders contrary to section (i) of Decree No. 105 of 1993. And that he engaged in private business and received gratification of N12,000,000.00 from Agric. (Nig.) Ltd.; that contrary to section 91 of the said Decree he donated the sum of N1,000,000.00 to Christ Chapel International Church, Ijora, that he travelled to London without official permission and lodged a sum of 40,000.00pounds with Barclays D/C London situate at 25- 27 Northumberland Avenue, London. He was convicted and sentenced by the General Court Martial, but not satisfied with the judgment of the Court Martial, he appealed to the Court of Appeal. Again before the Court of Appeal, his appeal was dismissed, whereupon he appealed to this court: Two issues were framed by the appellant’s counsel for consideration and they are as follows:

“1. Whether the General Court Martial was competent to try the appellant in view of its composition and the condition precedent to the assumption of its jurisdiction specified in the Armed Forces Decree No. 105 of 1993.

2. Whether the Court of Appeal was right in affirming the conviction of the appellant based mainly on his purported confessional statement when the condition precedent to the admission of the statement viz- a trial within a trial by the Court Martial was not complied with.”

The respondent replicando identified also two issues for determination and they are:

(a). Whether the learned Justices of the Court of Appeal were right in law to have affirmed the conviction of the appellant by the Court Martial.

(b). Whether the composition of the Court Martial without a waiting member at the trial of the appellant by same failed to comply substantial (sic) with the provisions of the Armed Forces Decree No. 105 of 1993 as amended.

The respondent who cross-appealed formulated one issue which is:

“whether the learned Justices of the Court of Appeal were right in law to have failed to make and or reaffirm the consequential orders of refund of various sums of money made against the cross-respondent by the Court Martial having due regard to the circumstances of this case.”

In respect of the first issue in the appellant’s brief the grava-men of his complaint is that the Court Martial that tried him was not duly constituted as prescribed by section 129 and section 133(1) of the Armed Forces Act of 1993, id est; that there was flagrant disregard of the clear provision of the act as some members were not in that court at the hearing of the case against him. The learned counsel for the appellant took a great exception to the fact that in particular there was no waiting member. He fervently argued with gusto and unction that a Court Martial where the waiting member is not present notwithstanding the presence of other members of the panel made up of the President and two or four other members depending whether the Court Martial is a General Court Martial or Special Court Martial, is null and void.

I shall set down the provisions of sections 129 and 133 of the Armed Forces Act of 1993.

Section 129. “There shall be, for the purposes of carrying out the provisions of this Decree, two types of Courts Martial, that is

(a) A General Court Martial consisting of a President and not less than four members, a waiting member, a liaison officer and a Judge Advocate.

(b) A Special Court Martial, consisting of a President and not less than two members, a waiting member, a liaison officer and a Judge Advocate.

133-(1) subject to the provisions of sections 128 and 129 of this Decree, a Court Martial shall be duly constituted if it consists of the President of the Court Martial, not less than two other officers and a waiting member.

The learned counsel for the appellant submitted that in the absence of the waiting member whose presence he vigorously canvassed was pre-eminently necessary and prerequisite for a duly constituted martial court proceeding any purported decision taken by the court is a nullity. He cited Oloriegbe v. Omotesho (1993) 1 NWLR (Pt. 270) 386 at 402 and 409 and also Olatunji v. The State (2000) 12 NWLR (Pt. 680) 182 at 191.

In his submission, this court was referred to Olatunji v. The State (2000) 12NWLR (Pt. 680) 182 on the constitution of the court. Although the above case referred to in this court, is a Court of Appeal decision, I have carefully read the judgment and there is nothing in it in respect of what constitutes a valid Court Martial court. In that case, the appellant was being tried after he had left the military and after the expiration of the statutory period during which he would be tried. Following this statutory provision the Court of Appeal, held as follows:

“Since as at 6th August, 1996 the appellant had been more than three months out of the N.A.F. he had become no longer subject to service law in accordance with section 69(2) of the A.F.D. He could not therefore be tried by that date.”

That case is of no relevance here.

Another case cited by the appellant court to strengthen his case on the unconstitutionality of the Court Martial court is Alhaji Raimi Oloriegbe v. J. A. Omotesho (1993) 1 NWLR (Pt. 270) 386. In that case the Supreme Court was called upon to pronounce on the unconstitutionality of section 63(1) of the High Court Law, Cap. 49, Laws of Northern Nigeria applicable to Kwara State. That case has nothing to do with the unique composition of the Court Martial Court, because in that case referred to, the panel was not properly constituted as there ought to be three members one learned in Islamic or Sharia Law. It is inapplicable. We are here dealing with the unique case of Court Martial court which is peculiar in its character. Let me illustrate. In the case under consideration, the Judge Advocate for example is not a member of the court and cannot be described as such. He is in the nature of a state counsel being a legal officer whose duty it is to prosecute anyone arraigned before the Court Martial court. From the provision of section 129 (supra) his position relative to the strict Constitution of the Court Martial Court is the same as the waiting member.

The question here then is who is a waiting member and what does the term or phrase “waiting member” denote. It is important to stress that there is no distinctive definition of who a waiting member is. However, I would define or describe a waiting member to mean a person who is to perform or stand by to take the place or position of a member of the panel of the court who in stricto sensu for one reason or the other is unable to sit in the panel and has to be substituted by another person already appointed or nominated to be a member in case of any eventuality. He shall be likened to a spare tyre. If he is around he may not be noticed. He is not a member of the panel exercising judicial function. Although this is not necessarily important or relevant for the purposes of establishing the importance or otherwise of the waiting member in relation to the construction of what is a valid Court Martial court, Black’s Law Dictionary describes the term “Judge Advocate” in American parlance as a principal legal adviser on the staff of a military commander … or more broadly to any officer in the Judge Advocate General Corps or Department of one of the US Armed Forces. Webster’s 20th Century Dictionary describes a Judge Advocate “as a military legal officer, especially an officer designated to act as prosecutor at a Court Martial” He is not a member of the court but he must be present to do his work to prosecute the alleged offender. The term “liaison officer” as used in the Act means nothing more than an officer in military office whose duty is merely to co-ordinate or ensure proper co-ordination of activities, a sort of intercommunicating officer. He is not a member of the trial court. These officers are mentioned together along with a waiting member. They are necessary adjuncts meant to situate the Court Martial in its proper con of the military. For the purpose of the proceedings and trials in Court Martial cases, they are not members of the panel. It is stretching the interpretation to be accorded to section 129 too far I believe, to state or insinuate that because the liaison officer who is not involved in the trial or prosecuting of a case cannot be located by the appellant therefore the trial was a nullity and the court should so hold. The same applies to the position of a waiting member.

The term “waiting” derived from the verb wait is used adjectively in the statute and in the con it is referred to, denotes that no place is available right now for the officer so waiting but when the condition is ripe for the waiting process to cease, then the officer so waiting may then become a member. Consider for example the everyday occurrence of people waiting for a bus or at a doctor’s clinic. A person continues to wait until the happening of an event. Having discussed this matter forensically, I hold that the waiting officer is not a member of the court and that his not being seen by the appellant or his counsel in the court hall since he does not sit on the panel cannot make the decision of the court null and void. Therefore the 1st issue as canvassed by the appellant that the trial and the subsequent decision of the Court Martial court are irregularly conducted does not hold, and I find no fault in its proceedings.

Two other points allied to the complaint of the appellant about alleged irregularity of the trial which he said was a nullity are;

(1) That the accused i.e. the appellant was not given an opportunity to object to any member he considered undesirable as prescribed by section 137 of the Act to wit that “an accused about to be tried by a Court Martial shall be entitled to object …

(2) Allied to this complaint is the point taken that no oath was taken as provided by the law, and that being the case the trial should be voided.

In the appellants’ counsel’s submission it is evident that he strongly believed in the accuracy of the transcript of the trial as espoused by his counsel. Given that situation, there is no where in the record where he protested either to non presence of the waiting member or he objected to any member’s presence or evinced an intention that he could or might possibly object to the membership of whoever might be the waiting member. He was aided in his case by a counsel of his choice who should have advised him of his rights. The only inference is that he chose to waive these rights. Further to these his counsel argued that no oath was taken by the members before the commencement of the trial of the appellant. He referred to Rossek v. A.C.B. Ltd. (1993) 8 NWLR (pt. 312) 382 at 488 as applicable. With greatest respect to the view held by the learned counsel, that case does not apply here in that I do not find anything impracticable, bootless or even torperscent to describe the trial as falling within the orbit of what was enunciated in Rossek v. A. C.B. Ltd. (supra) by Bello, C.J.N. I have carefully read the proceedings from day one of the trial of the appellant. I would like to state the full remark of the President of that Court Martial Court at the beginning of the trial.

“Judge Advocate let us commence with the other case of Lt. Col. St. Obisi”

The impression gained is that there was a previous hearing of a case before the trial of the appellant. To my mind it cannot be said to be the proper interpretation of the Act that regardless of the number of cases the panel might have tried on that day, the members should swear on oath in respect of every trial of any case on that day. Admitted that section 137 made provision for the members to swear before the trial it is my opinion and I hold that where the court had heard several trials previous or preceding the one for which the appellant had complained of on oath taking, the inference is that the court might have taken the oath previous to the new trial. Besides I do not see any objection to the commencement of the trial without an oath being taken. This is not a question of having waived his right but not objecting so as to indicate a protest of violation of the spirit of the Act. My view is premised on the possibility that hitherto the court had taken the oath during the time of the trial of the first case or cases. If no oath was taken I wonder why the appellant did not protest. In a situation like this where possibly the court is left in doubt as to speculate to the true situations of matters, the party raising the objection would fail where he fails to satisfactorily convince- the court of the state of affairs of the trial.

The 2nd issue is as to whether the Court of Appeal should have affirmed the judgment of the Court Martial Court on a purported confessional statement when a trial within a trial by the Court Martial was not complied with. In the course of the proceedings, the appellant said that the investigating officer used a “subtle approach” to get an admission from him. In the con the word “subtle” was used, the message sought to be conveyed is that illegal and perhaps prohibitive method to effect confession from him which he euphemistically described as subtle was employed. If the investigating officer intimidated the appellant to make a confessional statement the appellant had the right to tell the court what happened i.e. how he was forced to make and sign a statement he later disclaimed. For a literate engineer not to be able to describe graphically and with certainty how he was made to make an admission that sought to incriminate him but rather relied on equivocation and invocation of expression of doubtful meaning and connotation thereby indulging in double talk is to say the least trifling with his defence and burying his defence on words that convey no meaning to the court. The appellant insinuated and construed the expression “subtle” there to mean use of coercive force. Well it is important for one to understand the meaning of the words. The word subtle is defined in Oxford Advance Learners Dictionary to mean not very noticeable or obvious, behaving in a clever way, using indirect method to achieve an aim. What is the complaint of the appellant to the so-called subtle method used. Let me set down part of the questions and answers in respect of the subtle methods used as contained in the record.

“Tell this court if that statement you made was yours and if it was made voluntarily

Witness (Accused)

It was not voluntarily because that situation I was, it was humiliating I was so confused. I even went to the next office to ask what I have done. The D.N.F. ran and rushed me out of the office.”

That answer was about the voluntariness or otherwise of the statement credited to him. The appellant did not expatiate on what he referred to as humiliating circumstance. How can any court worth its salt construe an equivocation to mean coercion. There would be need for a trial within a trial where the appellant can clearly demonstrate by the nature of the language he used to express his ordeal that the statement credited to him was obtained by force, trick or non- recognizable legal ways. In the absence of that it will be idle for this court to forage out in an attempt to be considered to have done its duties magnificently and according to its calling.

This issue collapses on its body.

The cross-appeal is to the effect that the lower court failed to make and or reaffirm the consequential orders of refund of the various moneys allegedly made away with by the appellant/cross-respondent having been found guilty.

I note that the lower court was obviously silent on the issue of making an order of restitution and in that case failed or refused to make any order to that effect. The cross-respondent on his own part referred this court to the opinion of the lower court in respect of the sentences. The court below had stated this:

“The sentences are far in excess of what the law under which the three – court charge was laid stipulates. They must be reduced in conformity with the law.”

This remark by the lower court arose when it was considering the complaint of the alleged excess of sentences.

It is difficult for me to construe this statement to mean that the order of refund made by the Court Martial forms part of the expression of the sentence being excessive. When an issue is before an appellant court unless it is abandoned, it must be pronounced upon by the court. Now as the lower court has failed to pronounce on the issue of refund does this court have the jurisdiction to make an order to that effect. The appellant was convicted under a Federal law. The issue of restitution of property stolen is reflected or provided in section 270 of the Criminal Procedure Act, which is a Federal law.

Section 270(1) states:-

“Where any person is convicted of having stolen or having received stolen property, the court convicting him may order that such property or part thereof be restored to the person who appears to be the owner thereof either on payment or without payment by the owner to the person in whose possession such property or a part thereof then is of any such named in such order.”

I have carefully examined the provision of section 270 of the Criminal Procedure Act which is a Federal law and I find it hard to pigeon hole the conviction of the appellant on this section as the conviction does not appear on the surface of it to relate theft or allied offences. The conviction seems centered on purely military offences even though there is an insinuation implicit in the conviction which tends to show that the appellants’ honesty is in doubt, but essentially he was not convicted of stealing. In the circumstance, the relief sought in the cross-appeal cannot be upheld or acceded to. Accordingly the cross-appeal fails and is dismissed.

On the whole the main appeal fails and is dismissed; the cross-appeal also is dismissed, and the order of the Court Martial with respect to the issue of restitution is set aside.

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SC.157/2002