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Lt. F.O. Odunlami Vs The Nigerian Navy (2013) LLJR-SC

Lt. F.O. Odunlami Vs The Nigerian Navy (2013)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

On the 27th day of January, 2006 the appellant, a lieutenant in the Nigerian Navy was arraigned on an amended three count charge before a General Court Martial. The three count amended charge read:

COUNT ONE

STATEMENT OF OFFENCE

Murder contrary to section 106 of the Armed Forces Act, Cap. A. 20 Laws of the Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE

That you Lt. F.O. Odunlami NN/2121, on or about the 25th day of July, 2005 at Alausa, Ikeja, Lagos within the jurisdiction of this Court Martial, shot and killed one Peter Edeh (deceased) with a service pistol without any justification or excuse and in a manner intended to cause death or grievous bodily harm committed an offence.

COUNT TWO

STATEMENT OF OFFENCE

Loss of service property contrary to section 68 (1) (a) of the Armed Forces Act Cap A20 Laws of the Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE

That you Lt. F.O. Odunlami NN/2121, on or about the 25th day of July, 2005 at Alausa, Ikeja, Lagos within the jurisdiction of this Court Martial, loss (sic) 4 rounds of 9mm live ammunition being service property issued and entrusted to your care and thereby committed an offence.

COUNT THREE

STATEMENT OF OFFENCE

Conduct to the prejudice of service discipline section 103 (i) AFA 105 of the Armed Force Act Cap A. 20 Laws of the Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE

That you Lt. F.O. Odunlami NN/2121, on or about the 25th day of July, 2005 at Alausa, Ikeja, Lagos within the jurisdiction of this Court Martial, were illegally in possession of 4 Rounds of ammunition which was known to you as not being the service property officially entrusted to your care and thereby committed an offence.

The accused/appellant entered not guilty pleas to the three count amended charge. Trial ran from the 27th day of January 2000 to the 27th day of July, 2006. Nine witnesses gave evidence for the prosecution (respondent), and twenty-two items were admitted as exhibits (exhibits A – X). The appellant gave evidence, called four witnesses in defence and tendered one exhibit. At the close of the case the Court Martial studied the final addresses of counsel and the judge Advocate, and then proceeded to find the appellant guilty on counts 1 and 2, and not guilty on count 3. The Court Martial sentence ran thus:

“Count one, manslaughter – imprisonment for life. Count Two, loss of service property – dismissal from the service of the Nigerian Navy.”

The sentences were to run concurrently.

Not satisfied with the judgment, the appellant lodged an appeal. The appeal was heard by the Lagos Division of the Court of Appeal. In a considered judgment delivered on the 31st of January, 2011 the appeal was dismissed. On count 1 the Court of Appeal found the appellant guilty reasoning as follows”

“…It’s not in doubt, that from the totality of the evidence adduced at the trial, most especially that of the PW4 and the post mortem examination report exhibit T, there is every cogent reason for me to uphold the finding of the trial court to the effect that the appellant killed the deceased in the heat of passion caused by sudden provocation and before there is time for his passion to cool. Most undoubtedly, the alleged inconsistencies inherent in the evidence of PW4 were in my view, not sufficiently material, thus incapable of rendering the said evidence unreliable. And I so hold…”

And on count 2 the Court of Appeal said:

“…Out of the 8 rounds of the ammunition signed for and collected by the appellant, only three rounds of the ammunition had been returned along with the service pistol to the Navy… the fact that the service pistol and three of the eight rounds of ammunition were recovered is not a sufficient ground to absolve the appellant of culpability for losing the service property in question…”

On this reasoning the Court of Appeal confirmed the judgment of the General Court Martial. This appeal is against that judgment.

In accordance with Rules of this court briefs were filed and exchanged by counsel. The appellant’s brief was filed on the 22nd day of November 2011, while the respondents brief was deemed duly filed on the 14th day of March 2013.

Learned counsel for the appellant, Mr. A. J. Owonikoko SAN formulated three issues from his 10 grounds Notice of Appeal. They are:

ISSUE ONE

Whether the learned justices of the Court of Appeal rightly dismissed the appellant’s pleas of self-defence, instead of death by provocation relied upon by the trial court Martial.

ISSUE TWO

Whether Court of Appeal righty upheld the General Court Martial decision on loss of service property in spite of the evidence on record, by speculating on what might have happened which prosecution failed to prove.

ISSUE THREE

Whether the appellant was afforded fair hearing by the learned justices of the Court of Appeal who based their judgment on personal sentiments and extraneous conclusions (including allusions to findings of the General Court Martial which were not appealed against) and thereby refused to quash the conviction nor reduce the sentence.

Learned counsel for the respondent, Mr. A.C. Igboekwe, also formulated three issues for determination:

ISSUE ONE

Whether from the facts and circumstances of this case, the Court of Appeal was right in holding, that the defence of self-defence did not avail the appellant.

ISSUE TWO

Whether from the facts and circumstances of this case, the Court of Appeal was right in upholding the decision of the General Court Martial on the loss of service property.

ISSUE THREE

Whether from the facts and circumstances of this case, the Court of Appeal was right in refusing, to quash the conviction and also refusing to reduce the sentence on the appellant by the General Court Martial.

Issues one and two formulated by both sides ask the same questions, and the questions cover counts one and two, the counts on which the appellant was found guilty and sentenced.

Issues one and two formulated by learned counsel for the respondent is better couched and is preferred. Issue three formulated by the appellant would be taken along with the two issues formulated by the respondent.

At the hearing, of the appeal on the 14th day of March 2013 learned counsel for the appellant, My. A.J. Owonikoko SAN adopted the appellants brief filed on the 22nd of November, 2011 and in amplification observed that the appellant’s defence is self defence and not provocation, invented by the Tribunal. He further observed that vital witness was not called and PW4’s evidence and Medical Report are contradictory. Reliance was placed on Oseni v. State 2012 37 WRN p.1

State v. Isah 2012 16 NWLR pt. 1327 p. 613

On issue 2 he observed that losing service pistol is not a strict liability offence. Relying on section 68 (2) of Arms Forces Act he submitted that the evidence reveals preserving and not loosing service pistol, contending that there was doubt between Police and Navy on the loss of the gun and it should be resolved in favour of the appellant.

Finally on issue 3 he observed that the confirming authority has no power to increase punishment contending that they can only reduce it. He urged this court to acquit the appellant. Reference was made to section 105 of Armed Forces Act.

Learned counsel for the respondent, Mr. A. Igboekwe adopted his brief deemed filed on 14th March 2013. On issue one he submitted that self defence does not avail the appellant.

On issue three he observed that the sentence for manslaughter is life imprisonment, contending, that any officer that is convicted loses his rank etc. Relying on Josiah v. State 1985 1 NWLR pt. 1 p. 125 he urged this court to dismiss the appeal.

THE FACTS

On the 25th day of July, 2005 at about 6p.m., the appellant while returning from the Lagos State Secretariat on his way to Apapa was hit at the rear of his Mercedes Benz Car Reg No AR 374 SMK by a commercial Motor cyclist (in local parlance called OKADA) ridden by Mr. Peter Ede (deceased).

The appellant alighted from his car, noticing that he was a military officer Mr. Peter Ede knelt down and started pleading for forgiveness. Rather than accede to Mr. Peter Ede’s begging and pleading the appellant brought out his service pistol and shot him in the mouth. He died on the spot. All hell was let loose as passers-by descended on the appellant and gave him the beating of his life. In the process his car was set ablaze. He was rescued from the angry mob by Policemen from the Alausa Police Station. The investigation Police officers aptly summed up the events of the 25th day of July, 2005 that led to the death of Mr. Peter Ede thus:

See also  State V. Ahmed (2020) LLJR-SC

It is unfortunate that this young officer allowed his temperament to push him into this messy situation. Investigation so far conducted has shown that it was a simple traffic matter, which the officer mismanaged.

It cannot be better put. That is precisely what happened. I shall now address the issues which both courts below found do not avail the appellant.

ISSUE ONE

Whether from the facts and circumstances of this case, the Court of Appeal was right in holding that the defence of sell defence did not avail the appellant.

The Court of Appeal observed that the case of the appellant is/was predicated upon the claim of sell defence.

The appellant said.

“I shot my assailant to sale (sic) my life and the service pistol. I consciously took the decision to safe (sic) my life.”

The Court said:

I am unable to appreciate let alone uphold the appellant’s purported defence that he shot the deceased to purposely save his own life. I am of the view that the evidence of PW4 the pillion rider to the deceased, to the effect that the appellant shot the deceased in the mouth was cogent and rather credible. In the circumstance I would want to believe that the trial Court Martial was absolutely right when it rejected the appellant’s defence of self defence as an afterthought and the figment of his own imagination.”

And with that the Court of Appeal found count 1 which covers issue 1 proved, learned counsel for the appellant observed that the evidence of PW4 relied on by the court to convict the appellant was unreliable as it was inconsistent, and contradicted evidence of the other prosecution witnesses. He further observed that the other undisputed eye witness, Sgt Richard Ugbekile who ought to have given evidence was not called” Relying on

Omogodo v. State (1981) NSCC p.119

State v. Ajie (2000) 11 NWLR pt. 678 p. 434

He urged this court to sustain the plea of self defence, and return a verdict of discharge on the merit instead of conviction of manslaughter.

Learned counsel for the respondent observed that having not satisfied all the four conditions that must co-exist, the defence of self defence is inapplicable. Reliance was placed on

Gabriel v. State (1989) 5 NWLR pt. 122 p. 457

Ahmed v. State (2001) 8 NWLR pt. 746 p. 622

Apugo v. State (2006) 15 NWLR pt. 1002 p. 227

Further, observing that the Court of Appeal was right in holding that the defence of self defence did not avail the appellant, he urged this court to resolve this issue in favour of the respondent.

On the issue of self defence the Court Martial said:

“The court considered very seriously the defence of self-defence put forward by the accused. The court also voted what amounts to self-defence as espoused by both parties and confirmed by the judge advocate in his advice, the court however, did not agree with the story of the accused that the deceased and the other imaginary person whom he claimed ran away. We do not believe that he was being dragged out of the car by any of the two persons he affirmed were unarmed in broad daylight in the centre of Ikeja when there was no hold-up, according to him. We rather believe the story of PW4 and conclude that the accused story of being attacked was at best an afterthought and the figment of his imagination. The accused’s life was at no time threatened nor was he in any danger before the unfortunate shooting. We therefore, hold that the defence of self-defence will not avail him.”

Agreeing with the above the Court of Appeal said:

“In the circumstances, I would want to believe that the trial court martial was absolutely right when it rejected the appellant’s defence of self-defence…”

The burden of proof of provocation and self-defence lies on the accused person see

Gabriel v. State (1989) col. 22 NSCC pt. 111 p. 349

By section 286 of the Criminal Code when a person is unlawfully assaulted and he did not provoke the assault the law expects him to defend himself. He is expected to use such force on his assailant as would be reasonable to make an effective defence. For example if A slaps B and B defends himself by shooting A with a gun, that would be a disproportionate response to an unprovoked assault. The defence must not be intended to cause death or grievous harm. Self defence can only be considered if there was an unlawful assault that was not provoked by the accused person.

When on the evidence led the court is satisfied that at the time the accused person killed the deceased there was reasonable apprehension of death or grievous harm and by defending himself death of the deceased resulted, his defence of self defence would succeed and he would be entitled to an acquittal. The onus is on the prosecution to satisfy the court that the defence of sell defence is not available to the accused Person.

In our adversary system the prosecution is expected to prove its case beyond reasonable doubt and the defence is under no obligation to assist the prosecution to discharge that onus. The defence is to remain silent, but when the prosecution closes its case it becomes important that the accused person defends himself more so when the prosecution has established that the accused/appellant killed the deceased.

In his testimony in court (pages 586 to 589 of the Record of Appeal) the appellant did not say anything to establish the fact that he was provoked before he shot Peter Edeh (deceased) or that he shot the deceased in self defence. The prosecution thus had no obligation to disprove a defence that was never raised. The evidence led by the prosecution is one way. The appellant did not kill Peter Edeh in self defence, neither was his death as a result of the appellant being provoked. The findings of the Court Martial affirmed by the Court of Appeal were correct.

ISSUE TWO

Whether from the facts and circumstances of this case the Court of Appeal was right in upholding the decision of the General Court Martial on the loss of service property.

Learned counsel for the appellant observed that the misuse of service property is not the same thing as loss of service property. Relying on Kalu v. Nig Army (2010) 4 NWLR pt. 1185 p.433. He further observed that an appeal was allowed against conviction by the Court of Appeal on similar loss of property of the Nigeria Army. He submitted that the appellant handed over the pistol to the police contending, that, that act cannot be regarded as an intentional loss, rather it amounts to intentional preservation of property. He urged the court to resolve this issue in favour of the appellant.

Learned counsel for the respondent observed that the appellant signed for, and was given a pistol No. M479946 and eight rounds of ammunition by PW2, the Armoury attendant, further observing that when they were returned four rounds of ammunition were unaccounted for. He submitted that since the appellant was unable to account for four rounds of ammunition he was liable under section 68 (1) (a) of the Armed Forces Act. He urged this court to hold that the Court of Appeal was right in upholding the decision of the Court Martial on the loss of service property.

Section 68 (1) (a) of the Armed Forces Act states that:

A person subject to service law under this Act who loses a public or service property of which he has the charge or which forms part of the property of which he has the charge or which has been entrusted to his care is guilty of an offence under this section and liable, on conviction by a court martial to imprisonment for a term not exceeding two years or any less punishment provided by this Act.”

To succeed in a charge under section 68 (1) (a) supra the onus is on the prosecution to prove beyond reasonable doubt that:

(a) the accused is subject to service law

(b) the accused had charge of or was in care of the service property.

(c) the said service property is lost.

(d) the accused intentionally lost the items.

(e) the accused has no defence in law or facts.

The appellant signed for and was duly issued by PW2, Ibrahim Saliu, the Armoury attendant, a service pistol with Reg. No. M479946 and eight rounds of 9mm live ammunitions. Finding the appellant guilty of count 2 the Court Martial said:

See also  James Odunayo V. The State (1972) LLJR-SC

“But the court believed that the accused handed over only three rounds and one expended shell which the Police eventually returned to the Nigerian Navy and admitted before this court as Exhibit C and G respectively. He must therefore, account for those missing bullets. The court therefore unanimously finds him guilty of count 2.”

The reasoning of the Court of Appeal runs thus:

“…In the instant case, out of the 8 rounds of the ammunition signed for and collected by the appellant, only three rounds of ammunition have been returned along with the service pistol to the Navy … the fact that the service pistol and three of the eight rounds of ammunition were recovered is not sufficient ground to absolve the appellant of culpability for losing the service property in question.”

The appellant is a lieutenant in the Nigerian Navy and so is subject to service law. He had charge of or care of a service pistol and eight rounds of ammunition. Four of the bullets (ammunition) were never returned to the Navy. Finding the appellant guilty on counts 2 the court martial reasoned as follow:

“…The question that agitated the minds of the court is will a reasonable Naval Officer in the station of life of the accused surrender the gun with which he had killed an assailant to an unknown police officer. The court does not agree with this, because a trained officer remains and dies with his gun…”

I find this reasoning very instructive. In his extra judicial statement the appellant said he suspected the deceased was an Armed Robber. I also ask the question. Would a reasonable Naval Officer surrender his gun he used to kill an Armed Robber to an unknown Police Officer, bearing in mind that a trained officer dies with his gun. The answer is an emphatic No. For the four bullets not unaccounted for, the prosecution has proved beyond reasonable doubt the offence under section 68(1)(a) of the Armed Forces Act.

Section 68(1)(a) of the Armed Forces Act creates a strict liability offence. That is to say a crime that does not require proof of mens rea, e.g. traffic offence. Once a serving office of the Nigerian armed forces is given arms he is expected to guard them jealously and return them when due or demanded, or explain to the satisfaction of the appropriate authorities where the arms are. Failure to give proper account of the arms entrusted to a serving officer makes such an officer liable under section 68(1)(a) of the Armed Force Act.

On the 25th day of July, 2005, the appellant was given a service pistol and eight rounds of ammunition by PW2, the officer in-charge of the Armoury. After the unbelievable behaviour of the appellant, killing a defenceless civilian, he was unable to account for four rounds of ammunition. The offence created in section 68(1)(a) of the Armed Forces Act is in the circumstances proved beyond reasonable doubt.

Learned counsel for the appellant relied on Kalu v. Nigerian Army 2010 4 NWLR Pt.1185 p.433 to support his submissions that the facts therein are on similar loss of property of the Nigerian Army. The facts in Kalu v. Nigerian Army (supra) are very different from the facts in this case. In Kalu’s case ammunitions were kept in an Army State. Other items were also kept in the same store and Lieutenant Colonel E.M. Kalu was not the only officer who had keys to the store. That is to say he did not have exclusive control of the store. Now, some items were missing, he was convicted by the Court Martial. I sat on the panel of the Court of Appeal that reversed the judgment of the Court Martial.

We reasoned, Dongban-Mensen, JCA delivering the leading judgment that:

“… the appellant ought to be given the benefit of the doubt as it was never established that the appellant was responsible for the loose and porous control of the store…”

In this case the appellant had exclusive control and possession of the arms given to him, he alone only is accountable for its loss. Kalu v. Nig. Army supra is irrelevant in determining the guilt of the appellant for the loss of service property. In the circumstance the decision of the General Court Martial on the loss of service property is correct.

ISSUE THREE

Whether the appellant was afforded fair hearing by the learned justices of the Court of Appeal who based their judgment on personal sentiments and extraneous conclusions (including allusions to findings of the General Court Martial which were not appealed against) and thereby refused to quash the conviction nor reduce the sentence.

Under this issue the sub-issues addressed by learned counsel for the appellant are:

(a) appellants right to fair hearing

(b) contradictions in evidence of prosecution witnesses.

(c) Excessive prison sentence.

On (a) learned counsel for the appellant observed that after the decision of the Court Martial had been confirmed the appellant was not given the Record of proceedings in time to enable him appeal for review of the findings, contending that this amounted to denial of fair hearing.

Learned counsel for the respondent observed that the appellant lost the first opportunity to petition the confirming authority as required under sections 149, 150(1) and 151 of the Armed Forces Act due to the non availability of the records but that by section 154(6) of the Armed Forces Act he had a second opportunity to but chose not to avail himself of the second chance for review of his sentence, contending that in the circumstances he was not denied fair hearing. Reliance was placed on Akingbade v. African Paints (Nig.) Ltd. (2008) 10 NWLR Pt. 1096 p.570.

Audi alteram partem means hear the other side. It is a maxim denoting basic fairness and a canon of natural justice. Once it can be shown that a party was given an opportunity of being heard but he refused to avail himself of the opportunity he cannot be heard to complain that he was not given a fair hearing.

By the provisions of section 149 of the Armed Forces Act after sentence by a court marital the accused person had three months to appeal to the confirming authority for a review of the sentence. According to learned counsel for the respondent if the accused/appellant fails to appeal for a review of his conviction and sentence, he still has a second opportunity as provided by section 154(6) of the Armed Forces Act. An examination of section 154(6) of the Armed Forces Act is important. Section 154(6) states that:

“(6) If an appeal or application for leave to appeal is lodged with the Registrar of the Court of Appeal under the provisions of Part XVI of this act so much of subsection (2) of this section as requires the review of a finding or sentence against which a petition has been presented shall thereupon cease to apply to the finding to which the appeal or application for leave to appeal relates and to the sentence passed in consequence of that finding.”

Section 154(6) and Part XVI of the Armed Forces Act does not afford the accused/appellant a second opportunity to petition for a review of his conviction and sentence, but it affords the convict an opportunity to appeal to the Court of Appeal and thereafter to the Supreme Court. Since the appellant was not denied an opportunity to appeal and he appealed he was not denied fair hearing.

On (b) learned counsel for the appellant observed that while PW4 on whose evidence the conviction of the appellant was anchored said the deceased was shot twice, the Post-mortem Report disproved two shots contending, that the court below substituted its own findings. He submitted that the lower court resorted to guesswork and prejudicial speculation to fill the yawning gaps in the prosecution’s case and make up for the patent deficit of proof beyond reasonable doubt.

Learned counsel for the respondent observed that PW4 was an eyewitness who the court martial evaluated his evidence and found it credible, contending that since the court martial had the opportunity of watching his demeanour, an appeal court should not interfere. Concluding he observed that the inconsistencies are not fundamental to lead to a miscarriage of justice.

Evidence contradicts another evidence when it says the opposite of what the other evidence say on a material point. The contradictions must be fundamental and substantial before it can affect the prosecution’s case. Discrepancies on the other hand are minor differences in details and these are allowed in proceedings. See

Adele v. State (1995) 2 NWLR Pt. 377 p. 269

Kwaghshie v. State (1995) 3 NWLR Pt. 386 P.651.

If a witness gives evidence on oath which contradicts his previous statement in writing his evidence should be treated as unreliable. See

See also  Francis Adesina Ayanwale V. Olumuyiwa Olumide Odusami (2011) LLJR-SC

Onubogu v. State 1974 P. SC P.358

On the other hand minor discrepancies between previous written statement and subsequent testimony on oath do not in any way affect the credibility of the witness. If in my view there are no discrepancies there would be strong inference or suspicion that the witness has been tutored.

On this issue the Court Martial said:

“In the instant case, the court believes that that there were no material contradictions in the evidence of PW4 to render same unreliable. The minor inaccuracies of PW4 in that momentary confused situation as to the rank of the accused, colour of his case and insignificant difference in time, in our view does not go to the writ of the charge of murder in this instance case

And the Court of Appeal

“…the alleged inconsistencies inherent in the evidence of PW4 were in my view not sufficiently material, thus incapable of rendering the said evidence unreliable. And I so hold…..”

PW4 gave evidence on oath that the appellant shot Peter Edeh (deceased). This fact was never denied by the appellant. In fact the appellant agreed that he shot the deceased and the deceased was not armed. The post-mortem report also confirms that Peter Edeh died of gunshot wounds. Whether he was shot once or twice fades into insignificance as to the cause of death in the light of the appellant’s admission that he shot the deceased. PW4’s evidence contained some minor inconsistencies that do not amount to contradictions. The evidence of PW4 was corroborated by the post-mortem report, in that the deceased died from gunshot wounds. Where documentary evidence (post-mortem report) supports oral testimony (PW4’s testimony) oral testimony becomes more credible. This is premised on the position of the law that documentary evidence serves as a hanger from which to assess oral testimony. See

Kindley v. M.G. Gongola State (1988) 2 NWLR Pt. 77 p.473

Omoregbe v. Lawani (1980) 3-4 SC P.117

To my mind there are no contradictions in the evidence of the prosecution witnesses. The evidence of PW4 (eye-witness) is very compelling and as quite rightly pointed out by the courts below there were inaccuracies in the evidence of PW4 which only amount to minor discrepancies.

(c) Excessive Prison Sentence.

Learned counsel for the appellant observed that Count Two carries a maximum sentence of two years but that on this count the appellant was dismissed from service and the Navy Board added to his punishment by stripping him of his rank and depriving him of his entitlements. He contended that there are additional punishments. Referring to section 151(3) of the Armed Forces Act, he submitted that the Navy Board cannot increase the sentence except the original sentence was invalid.

Relying on Thomas v. State 1994 4 NWLR Pt. 337 p.129

He observed that this court has the power to reduce the sentence.

Learned counsel for the respondent observed that the appellant was convicted for manslaughter under section 105 of the Armed Forces Act, contending that a convict faces life imprisonment without an option of fine. He submitted that dismissal from service does not amount to an excessive sentence.

Thomas v. State 1994 4 NWLR Pt.337 P.129 was relied on by learned counsel for the appellant to justify a reduction in sentence. In Thomas v. State (supra) Mr. Thomas was charged for murder in a regular court. He was convicted for manslaughter and sentenced to 10 years in prison. The sentence was reduced on appeal. The maximum conviction for manslaughter in a regular court is life imprisonment, but the trial judge has discretion. He can sentence a convict for manslaughter, to pay a fine or even to prison for a few days. Is the case the same with a person subject to Military Law

The appellant was charged with Murder contrary to section 106 of the Armed Forces Act, but found guilty of manslaughter under section 105 of the Armed Forces Act. Section 105 states that:

“105. A person subject to service law under this Act who-

(a) unlawfully kills another person in such circumstances as not to constitute murder, or

(b) with intent to kill or do some grievous harm to another person, unlawfully kills that person in the heat of passion caused by sudden provocation and before there is time for his passion to cool is guilty of manslaughter and liable, on conviction by a court – martial to imprisonment for life.

Under the Penal Code (Sections 222, and 224), and the Criminal Code (Sections 317 and 325) a person convicted for manslaughter shall be punished with imprisonment for life or any less term or with fine or with both. It is clear that a trial judge has the discretion when sentence is considered. But under section 105 of the Armed Forces Act the trial judge has no discretion but to sentence the appellant to life imprisonment. That is the correct sentence under section 105 of the Armed Force Act.

Before I conclude this judgment I must comment on the defence of provocation and not calling a vital witness. Section 264 of the Criminal Code is relevant in considering section 518 of the Criminal Code and so they should be read together. When an accused person relies on provocation as his defence the court must consider the force or weapon used in relation to the provocation received to see if it was disproportionate, or reasonable. If the reaction of the accused to the provocation was disproportionate the defence of provocation fails. If on the other hand his response was reasonable the defence of provocation is sustained. Reasonableness or disproportionate response by the accused is a decision for the judge to make.

Once the defence of provocation is sustained in a charge for murder, the accused would be found guilty of manslaughter and the judge has a discretion to impose sentence bearing in mind that the maximum sentence is life. On the facts, a defence of provocation could be considered but it does not avail the appellant. See

Stephen v. State (1986) 5 NWLR pt. 46 p. 978

Ukwunnenyi v. State (1989) 4 NWLR pt. 114 p. 131

Furthermore the evidence of the Court Martial reads:

Count 1 – imprisonment for life

Count 2 – dismissal from the service of the Nigerian Navy

The confirming authority confirmed the sentence of life imprisonment and dismissal from the service of the Nigerian Navy. It further stripped the appellant of his rank and directed that he was not entitled to his financial entitlements. Was this sentence excessive Dismissal means rejection, discarding. Once an officer is sentenced to life imprisonment and dismissed from the services of the Armed Forces it would be naive of him to expect to be entitled to his entitlements. Dismissal and forfeiture of entitlement go together.

The well laid down position of the law is that this court will not interfere with concurrent findings of the courts below except where the findings are perverse, or not supported by credible evidence, or where miscarriage of justice has occurred. See

Ibodo v Enarofia (1980) 5 – 7 SC p.42

Ebba v. Ogodo (1984) 1 SCNLR p.372

This is so since the trial court had the opportunity to hear, see and examine the demeanour of the witnesses. An appellate court does not have the opportunity of hearing and seeing the demeanour of witnesses and so should be slow to disturb the findings of the trial court. See further

Popoola v. Adeyemo (1992) 6 NWLR pt. 257 p. 1

My lords, the General Court Martial found that the appellant shot and killed Mr. Peter Edeh in the evening of the – 25th day of July 2005. It was further found that the appellant was assigned a pistol and eight round of ammunition but was unable to account for four rounds of ammunition. These are concurrent findings by the court below that have been scrupulously examined by this court and found to be true and correct, ascertained by credible and compelling evidence. In the circumstances the said facts affirmed by the Court of Appeal would not be disturbed by this court.

The Court Marital did not believe the appellants narration of events, and I agree with both courts below that the appellant’s narration of events was wrong. The Mob that descended on the appellant was attracted to the scene when the appellant shot the deceased.

This appeal has no merit. It is hereby dismissed.


SC.328/2011

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