Major Bello M. Magaji Vs The Nigerian Army (2008)

LAWGLOBAL HUB Lead Judgment Report

NIKI TOBI, J.S.C

This appeal involves the beastly, barbaric and bizarre offence of sodomy; a more common place name is homosexual or homosexuality. It is against the appellant, former Major Bello Magaji. He wore Staff No. N/6604 in the Army.

The victims are Emmanuel Enega (PW1), Joseph Unigbe (PW2), Mohammed Abubakar and Isaac John. Emmanuel Enega was 17 when he gave evidence before the General Court Martial. He was a student of the Army Cantonment Boys Secondary School, Ojo. Augustine Oscar Ayewa was the errand boy of Major Magaji. He made the first contacts. He contacted Joseph Unigbe for the business. Joseph called Ayewa, Oscar, and so I will call him Oscar too. Oscar told Joseph to have his bath as he wanted him to go out with him. Joseph needed the company of his friend Emmanuel and he asked him to join in the outing. There are two Josephs, Joseph, the Prosecution Witness No. 2 and Joseph, one of the errand boys of Magaji.

The common evidence of Emmanuel and Joseph is that they were asked to drink a bottle each of small stout which intoxicated them. It was in their state of intoxication that the appellant performed the dirty act of sodomy on Emmanuel, and others.

Perhaps it is better to hear from the mouths of Emmanuel and Joseph to appreciate the ordeal or pain they went through. Emmanuel as PW1, said in his evidence in-chief at pages 23 and 24 of the Record, and I will quote the evidence in very large parts:

“When I went inside, I saw Joseph with Oga Magaji. Then Oga asked me my name, then I told him my Joseph (sic) said yes so he asked Joseph if he knew me and Joseph said yes so he said I should go inside and sit down. Then when we went inside, I saw Mohammed and he said it has been long he was inside, he overslept. Then I asked Joseph the time they came there. Joseph said it has been long, that Mohammed took a bottle of Gulder that’s why he went asleep. By then, Sam came in, brought a bottle of small stout and gave me to drink, but I said I didn’t want to drink because I was not used to it, but he said if I don’t drink it I wouldn’t work for Oga, he will not accept me. Then he opened the small stout for me. I took a little out of it and it was bitter, I couldn’t take it, so I gave it to Joseph Unigbe who took the rest. After 5 minutes my eyes were turning me Joseph said me and Mohammed should go inside the bedroom to take a bath so that our eyes will stop turning us we accepted took our bath and when we wanted to put our cloths on, Joseph brought out one Army singlet, shirt and nicker, and a night gown and he said we should put them on we asked him why. He said we could not go home that patrol will hold us, that we had to sleep till the following day so we accepted and put them on. Then he showed us the guest room that we should go inside that that is where we were going to sleep. All of us went inside the guest room, suddenly, Joseph went outside saying he was going to collect something from the sitting room. When he went out, just immediately he went out then Maj. Magaji came inside the room. When he came inside, because I and Mohammed were sleeping on the bed he sat on the bed and asked us what we were discussing, we said nothing. It was then he removed his singlet and removed Mohammed’s own and started romancing Mohammed’s body and used my hand and put it on his tommy and said that I should be romancing his tommy. After that he off his nicker and off Mohammed’s nicker and he sexed Mohammed through the anus. Then Mohammed shouted that this wasn’t what Joseph told him that he was coming to do there. Then Oga stood up and Mohammed went out. Before Mohammed went out, he told Mohammed to bring a white container. When Mohammed brought the container the container was filled with cream, so he used the cream to rob our pains; I and Mohammed and then Mohammed went out then Oga wanted to use me too. He turned me upside down and used his penis and put it into my anus then, I shouted that I can’t take it that is not what Joseph told me too then he said I should go out.”

Joseph, in his evidence in-chief, said at page 28 of the record:

“There was a day, it was on a Friday evening, I was standing in my area, then Oscar called me and said that I should go and take bathe that he will take me to somewhere. I thought that it was joking matter because I use to fear that boy before, but I took my bathe. After taking my bathe, he gave me transport fare to go to camp 1, at the officers’ mess. He said he was coming to meet me there. He told me that he was taking me there to go and do a contract of ridges not knowing that he was taking me there to go and do another thing when we enter Maj. Magaji’s house, they gave me small stout to drink. I said no that I have not tried it before. They said I should try it that it is only a bottle of small stout. When I drank it, it was bitter so I told them I can’t finish it but they urged me to finish it. After finished drinking my eyes started turning me. Then the officer told me to go into his bedroom and lie down so that my eyes will steady. I went inside and lay on the bed. In the night the officer came into the room and started romancing my body so I was thinking within me, ah, this man is a senior officer, how can he be doing a thing like this but I was afraid to speak out so he told me to lie down on the floor and turn my back, then I refused I told him I can’t do that, so he brought a container of cream and said I should be robbing the cream on his penis. After sometime, I told him I had to be going because it was getting late in the night. He said I shouldn’t worry that I should go and bath. After my bath he gave me N1500.00k and said I should give Oscar N500.00k for bringing me. Then when I came out I gave Oscar N500.00k and it remained N1000.00k. Out of the N1000.00k Oscar collected N100.00k and it remained N900.00k. From the N900.00k, I bought things paid small small credit I was owing and bought school uniform for myself.”

The following evidence came out under cross-examination of Joseph at page 29 of the record:

“Ques: Wait, you said you were sleeping and Mohammed came and woke you up that he has finished the job

Ans: Yes sir.

Ques: What job did he tell you that he has finished

Ans: He said that the man has already sexed them.

Ques: What do you mean by sex them What did he say