Major T. Akinlade V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of the General Court Martial of the 2nd Mechanised Division of the Nigerian Army delivered on the 18th March 1996 and confirmed by the Appropriate Superior Authority on the 5th April 1996. The Appellant, a Major with the Nigerian Army Corps of Supply and Transport School, Benin was tried along with three others. The charges against him were as follows –

COUNT 1 – Disobedience to standing order contrary to section 57(1) of the Armed Forces Decree 1993 in that he at Benin on or about the 21st November 1995 disobeyed MT Standard Orders by detailing a military vehicle on unauthorized journey.

COUNT 2 – Committing a civil offence contrary to section 114 of the Armed Forces Decree 1993, that is to say Official Corruption contrary to section 98(1)(b) of the Criminal Code, in that he at Benin on or about the 21st November 1995 did corruptly enrich himself by agreeing to receive the sum of N28,000.00 from one Mr. Lawrence Oloko in relation to matters connected with the affairs of the Nigerian Army being a government department in which he serves as a public officer that is to say the use of Army Steyr Truck No: NA 911909.

COUNT 3 – Permitting improper carriage of goods in a military vehicle contrary to section 74(a) of the Armed Forces Decree 1993 in that he at Benin on or about the 21st November 1995 did permit the use of a military vehicle No. NA 911909 (Steyr Truck) for the carriage of 140 bags of weeds suspected to be Indian hemp intended for disposal by way of trade without lawful authority.

COUNT 4 – Agreeing to improper carriage of persons in a military vehicle contrary to section 74(c) of the Armed Forces Decree 1993 in that he at Benin on or about the 21st November 1995 did agree to carry one Mr. Lawrence Oloko and Sunday Ivie persons not being his immediate dependants or members of the Armed Forces in a Military vehicle No. NA 911909. He was convicted after trial on each of the four counts to the following terms of imprisonment –

COUNT 1 – 2 yrs imprisonment

COUNT 2 – 5 yrs imprisonment

COUNT 3 – 2 yrs imprisonment

COUNT 4 – 2 yrs imprisonment.

Although Appellant has finished serving his jail term he nevertheless appealed against his conviction and sentence by his Notice of Appeal dated the 16th October 2000 and filed on the 17th October 2000, grounds to which are reproduced from pages 114-116 of the Record of Appeal as follows –

1. The Court-martial erred in law in convicting the Appellant when the counts as charged disclose no offence(s) under the relevant laws.
2. The Court-martial erred in law in trying and convicting the Appellant when it had no jurisdiction to do so by virtue of S.33(12) of the 1979 Constitution.
3. The Court-martial erred in law in convicting the Appellant on the uncorroborated evidence of the prosecution witnesses.
4. The judge-advocate misdirected the Court-martial in law as regards the uncorroborated evidence adduced against the Appellant in his summing up.
5. The Court-martial erred in law in convicting the Appellant when the prosecution failed to prove its case against the Appellant beyond reasonable doubt as required under S. 138(1) Evidence Act.
6. The Court-martial erred in law in failing to take a plead of the Appellant upon the amendment of the charge.
7. The trial of the Appellant is a negation of the principles of natural justice in that the judge-advocate sat as a judge in his own case.
8. The judgment of the Court is perverse, unreasonable and unwarranted and cannot be supported having regard to the evidence before the court-martial.

From the eight grounds contained in the Notice of Appeal, the Appellant has formulated the following issues for determination by this Court viz –

(i) Whether the General Court Martial had the jurisdiction to entertain and convict the accused/Appellant for an “offence” which was not criminalized under the order which was allegedly breached.

This issue is said to be formulated from grounds 1 & 2 of the Notice & Grounds of Appeal.