Nigerian Army Vs Major Jacob Iyela (2008) LLJR-SC

Nigerian Army Vs Major Jacob Iyela (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

Ans: He said the man give him a cream to rub on his penis and put his penis in his anus to sex him.

Ques: What do you mean sex him

Ans: He put a cream in his penis and put in his anus.

Ques: And did what

Ans: And sleep with him.

Ques: What do you mean sleep with him

Ans: Sex him.”

The General Court Martial convicted the appellant and sentenced him to seven years. His appeal to the Court of Appeal was dismissed. He has come to the Supreme Court. Briefs were filed and exchanged. Appellant formulated five issues for determination:

“1. Whether the Court Martial convened by Brigadier-General P. N. Aziza was competent, having regards to the fact that there was no prior investigation of the charge against the appellant in the manner prescribed by law and that the appellant was not under his command. (GROUNDS 1 & 2).

2. Whether the lower court was right when it held that the prosecution witnesses testified on oath. (GROUNDS 3 & 4). .
3. Whether the lower court was right when it upheld the conviction of the Appellant for the offence of sodomy as created under Section 81(1)(a) of the Decree. (GROUNDS 5, 6 & 7).
4. Whether the lower court was right when it upheld the admissibility of the purported statement of the appellant which was alleged to have been obtained under Duress and was tendered from the bar. (GROUNDS 8 & 9).
5. Whether having regard to the Records of Proceedings of the Court Martial the lower court was right when it came to the conclusion that the Appellant was given a fair hearing. (GROUNDS 10, 11 & 12.)”

The respondent adopted the above five issues.

Learned counsel for the appellant, Mr. Robert Clarke, Senior Advocate of Nigeria, citing Madukolu v. Nkemdilim (1962) 1 All NLR 587,(1962) 2 SCNLR 341 submitted on Issue No.1 that the Court Martial convened by Brigadier-General P. N. Aziza for the trial of the appellant lacked competence and therefore had no jurisdiction, as there was no prior investigation of the charge against him in the manner prescribed by law. He referred to sections 123 and 124 of the Armed Forces Decree, 1993 and the cases of Agusiobo v. Onyekwelu (2003) 14 NWLR (Pt. 839) 34; Kallamu v. Gurin (2003) 16 NWLR (Pt. 847) 493; Eimskip Ltd. v. Exquisite Ind. Ltd. (2003) 4 NWLR (Pt. 809) 88; N.A.F. v. Obiosa (2003) 1 SCNJ 343 and Emuze v. Vice-Chancellor, University of Benin (2002) 10 NWLR (Pt. 828) 378 on the use of the word “shall” and jurisdiction of the court.

He submitted on Issue No. 2 that the Court of Appeal was wrong in holding that the prosecution witnesses testified on oath. He contended that the reproduction of FORM D2 without more is no proof that the prosecution witnesses were duly sworn, as the Form was not completed with relevant information and particulars as to the names of the witnesses, and whether they were sworn on the Holy Bible or the Holy Quoran. He submitted that the findings of the Court of Appeal are perverse. He cited section 138(2) and (5) of the Decree and Agusiobo v. Onyekwelu (supra); Kallamu v. Gurin (supra); Eimskip Ltd. v. Exquisite Ind. Ltd. (supra); Ojong v. Duke (2002) 14 NWLR (Pt. 841) 581 and Owoyemi v. Adekoya (2003) 18 NWLR (Pt. 852) 307.

On Issue NO.3, learned Senior Advocate submitted that the Court of Appeal was not right in upholding the conviction of the appellant, for the offence of sodomy. He contended that the offence was not proved by the prosecution. Pointing out that Mohammed Abubakar and Isaac. Jonah did not testify at the trial, learned Senior Advocate argued that the charge ought to have failed in the General Court Martial. He cited The Criminal Law and Procedure of the Six Southern States of Nigeria paragraphs 1685, page 633, sections 81 and 214 of the Decree, section 179(5) of the Evidence Act and the following cases: Okoyomon v. The State (1973) 8 NSCC 9;(1973) 1 SC 21; N.A.F. v. Obiosa (2003) 4 NWLR (Pt. 870) 233 and Alaukwu v. State (1956-84) Vol. 10 Digest of Supreme Court Cases 63.

On Issue No.4, learned Senior Advocate submitted that the Court of Appeal was wrong in upholding the decision of the General Court Martial admitting the pre-trial statement of the appellant, Exhibit 1. He urged the court not to attach any evidential weight to the exhibit. He cited sections 192 and 193 of the Evidence Act and the following cases: Famakinwa v. Unibadan (1992) 7 NWLR (pt 255) 608; Anatogu v. Iweka (1995) 8 NWLR (Pt 415) 547; Iyanda v. Laniba (2003) 8 NWLR (Pt 810) 267; Edoha v. Attorney-General. Akwa Ibom State (1996) 1 NWLR (Pt 425) 488); Ajayi v. Fisher (1956) 1 NSCC 82,(1956) 1 SCNLR 279 and Trade Bank Plc v. Chami (2003) 13 NWLR (Pt. 836) 158.

Learned Senior Advocate submitted on Issue No. 5 that the Court of Appeal was wrong in holding that the appellant was given a fair hearing by the Court Martial. Citing Garba v. Universitv of Maiduguri (1986) 1 NSCC Vol. 17 page 245;(1986) 1 NWLR (Pt.l8) 550; Mohammed Kano NA (1968) 1 All NLR 424; Kotoye v. C.B.N. (1989) 1 NWLR (Pt 98) 419; Unibiz (Nig) Ltd. v. CBC II. Ltd. (2003) 6 NWLR (Pt. 816) 402; Agoju v. Adiche (2003) 2 NWLR (Pt. 805) 509, counsel submitted that the appellant’s right to fair hearing was breached on the following grounds: (i) that the General Court Martial descended into the arena by virtually taking over the case of the prosecution and thereby interfered with the course of the proceedings; (ii) that the General Court Martial in allowing the prosecution to tender Exhibit 1 from the Bar denied the appellant the right of cross-examination; (iii) that the confirmation of the verdict of the General Court Martial only four days thereafter by the confirming officer foreclosed the appellant’s right to petition against the said verdict within the three months period allowed under section 149(1) of the Decree. He urged the court to allow the appeal.

Learned counsel for the respondent, Mallam Jimoh Adamu, Assistant Chief Legal Officer, Federal Ministry of Justice, Abuja, submitted on Issue No.1 that Brigadier-General P. N. Aziza, as Commander, Lagos Garison Command, was qualified to convene the General Court Martial to try the appellant and therefore competent to do so. He cited section 131 of the Armed Forces Decree, 1993 and the case of NAF v. Obiosa 3 MJSC 78;(2003) 4 NWLR

(Pt.8iO) 233. He argued that the case of Madukolu v. Nkemdilim (supra) cited by learned Senior Advocate for the appellant was not applicable. He said that an investigation was duly conducted in the case, thus satisfying the mandatory provision of sections 123, 124, 128 and 131(1)(d) of the Decree.

Taking Issue No.2, learned counsel submitted that the witnesses for the prosecution were all put on oath before they testified in accordance with the Rules of Procedure, 1972. Citing the case of Odu’a Investment Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) 1, learned counsel submitted that courts should not follow technicalities but do justice.

On Issue No.3, learned counsel called in aid the evidence of PW1, PW2 and PW3 and submitted that the prosecution proved penetration. He also cited Oxford Advanced Learners Dictionary for the definition of penetration. He distinguished the case of Okoyomo v. The State (supra) from the facts of this case. He argued that sodomy is not among the offences in which corroboration is required. He relied on the pre-trial statement of the appellant.

Taking Issue No.4, learned counsel submitted that the Court of Appeal was correct in upholding the submission of the respondent on exhibit 1. Assuming, without conceding that exhibit 1 was wrongly admitted, counsel contended that the error by itself cannot ground a reversal of the entire case. He cited Abadom v. State [1997] 1 NWLR 1. Even if exhibit 1 is not acted upon, the appellant did not present any cogent evidence in defence, learned counsel argued.

On Issue No.5, learned counsel submitted that the appellant was given fair hearing. He contended that the questions asked by the court were merely aimed at clearing ambiguities which arose in the course of examination in-chief. He did not see the application of the case of Amachree v. Nigerian Army (2003) 3 NWLR (Pt. 807) 255 cited by counsel for the appellant. He also relied on Rule 56(1) of the Rules of Procedure (Army) 1972. He pointed out that the answers bear no relevance to the case of the prosecution. Counsel argued that the rule of fair hearing is not a technical one which can only be raised where there is genuine and deliberate contravention or denial of the Constitution. He cited Orugbo v. Una (2002) Vol. 12 MJSC 14;(2002) 16 NWLR (Pt. 792) 175. He urged the court to dismiss the appeal.

Let me take the first issue on the alleged failure of the prosecution to investigate the charge against the appellant. Sections 123 and 124 of the Decree are relevant. They provide:

“123 Before an allegation against a person subject to service law under this Decree (in this section referred to as the ‘accused’) that he has committed an offence under a provision of this Decree is further proceeded with, the allegation shall be reported, in the form of a charge, to the commanding officer of the accused and the commanding officer shall investigate the charge in the prescribed manner.

124(1) After investigation, a charge against an officer below the rank of Lieutenant-Colonel or its equivalent or against a warrant or petty officer may, if an authority has power under the provisions of this Part and Part XIII of this Decree to deal with it summarily, be so dealt with by that authority (in this Decree referred to as ‘the appropriate superior authority’) in accordance with those provisions.”

Section 123 provides for an investigation of an offence against a person subject to service law. Section 124(1) provides for dealing with the offence summarily in appropriate cases after investigation. This applies in respect of offences against an officer below the rank of Lieutenant-Colonel or its equivalent or a warrant or petty officer.

In an apparent reaction to the submission of learned Senior Advocate for the appellant, the Court of Appeal said at pages 406 and 407 of the record:

“However, it would appear on a cursory look at the record of proceedings, that the prosecution indeed tendered a detailed report of investigation which the court admitted and marked exhibit 1. The appellant’s case was duly investigated by the General Court Martial.”

I find it difficult to disagree with the Court of Appeal. I have seen Exhibit 1 and I arrive at the same conclusion. In my humble view, the appellant did not show in what way the provisions of sections 123 and 124 were not complied with. Learned counsel relied on the often cited case of Madukolu v. Nkemdilum (supra) on jurisdiction. With respect, the case does not apply. The General Court Martial that convicted the appellant was properly constituted “as regards numbers and qualifications of the members”. No member of the General Court Martial was disqualified. The offence was within the jurisdiction of the General Court Martial. The case came before the General Court Martial by due process of law, and after complying with investigation, a condition precedent to the exercise of the jurisdiction of the General Court Martial. The issue accordingly fails.

The second issue is in respect of taking of oath. The Court of Appeal said at pages 407 and 408 on the issue and I quote the court in extenso:

“The Argument of the Appellant is that his conviction was secured by the lower Court Martial based on the unsworn testimony of the prosecution witnesses. How correct is the Appellant’s Claim I have taken a cursory look at the Record of Proceedings. It indicates that the witnesses were all put on oath before they testified. Rule 92 of the Procedure Rules Military Court Martial Rules, 1972, requires that the Record of proceedings of a Court Martial be recorded in accordance with the appropriate form set out in Schedule 16(6). The Rules provide that the testimony of sworn prosecution witnesses shall be recorded in the following manner:

‘The witnesses for the prosecution are called and…..being duly sworn….”

I agree with the learned Counsel for the Respondent that this format once used as was done in the instant case, it is sufficient proof that the witnesses were duly sworn and it is needless to insist on a verbatim recording of the proceedings whereby, the prosecution witnesses were actually put on oath.

Furthermore, from the record of proceedings on page 15 there are still further indications showing that the prosecution witnesses were put on oath before they testified. ln his opening address the prosecution has this to say:

‘We shall, in establishing the case against the accused as required by section 135 and 156 of the Evidence Act, lead evidence which will consist of documentary evidence and testimony of witness, who will give evidence on oath without wasting much of the Courts’ time..’

Again, on page 29 of the Record of proceedings, the following dialogue took place between the prosecution and PW4:

‘Ques: Now Oscar, remember you are on oath, tell us truthfully, did you see Mohammed Abubakar on that day

Ans: I saw Mohammed Abubakar.

In the light of above opening address and dialogue between the prosecution and PW4, it is clear as day light that the witnesses for the prosecution were duly sworn to testify on oath. I therefore have to resolve this issue against the appellant.”

I am not in a position to improve on the above. The Court of Appeal got the point very well. I have, in obedience to learned Senior Advocate, looked at the Forms he referred to at paragraphs 5-6, page 7 of the brief, and I come to the inescapable conclusion that they do not help the case of the appellant. The General Court Martial, in my view, complied with the provision of section 138 of the Decree. An appellant is bound by the record of appeal. He cannot go outside the record and canvass to an appellate court what he thinks is in favour of his case, which is not in the record. The record clearly shows that the witnesses duly took that oath. The Court of Appeal was very clear on that and I must go along with the court.

That takes me to Issue No. 3 on the proof of the offence of sodomy. Section 81 of the Decree provides in part:

“(1) A person subject to service law under this Decree who (a) has carnal knowledge of a person against the order of nature, or is….guilty of an offence under this section.”

The Armed Forces Decree does not define carnal knowledge. Section 6 of the Criminal Code Act defines carnal knowledge or the term carnal connection. The term implies that the offence, so far as regards that element of it, is complete upon penetration. While carnal knowledge is an old legal euphemism for sexual intercourse with a woman, it acquires a different meaning in section 81. The section 81 meaning comes to light when taken along with the proximate words “against the order of nature”. The order of nature is carnal knowledge with the female sex. Carnal knowledge with the male sex is against the order of nature and here, nature should mean God and not just the generic universe that exists independently of mankind or people. It is possible I am wrong in my superlative extension of the expression. As that will not spoil the merits of the judgment, I live it at that.

Where there is a hole or an opening, there will be the possibility of penetration; penetration being the ability to make a way or way into or through. While the common usage of the word means putting of the male organ into the female sex organ when having sex, it has a more notorious meaning and that is the meaning in section 81.

The natural function of anus is the hole through which solid food waste leaves the bowels and not a penis penetration. That is against the order of nature, and again, that is what section 81 legislates against. I had earlier produced part of the evidence of Emmanuel and Joseph. Emmanuel was a victim of the offence. Let me repeat the exercise but this time limited to a short extract. Emmanuel said at page 24 of the record:

“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 it is not what Joseph told me …”

Joseph in his evidence in-chief and under cross-examination told the General Court Martial that Mohammed told him that “he has finished the job … He said that the man has already sexed him.”

Appellant in his pre-trial statement said:

“… I had some passes with them short of sexual intercourse … they massaged me… I have to state

that on the day in question the massage they did to me included my private parts and I had romances with them. We were naked.”

It is clear from the pre-trial statement of the appellant that he admitted what was convenient for him to admit. He admitted the naked romance which Emmanuel and Joseph confirmed in their evidence. Does the appellant want this court to believe that the whole matter ended in a romance, particularly in the con of a willing Emmanuel The evidence of appellant agrees with that of Joseph as it affects Joseph in the romance. Unlike Emmanuel, Joseph was unwilling and the appellant released him with a gift of N1,500.00.

I should pause here to say that the evidence of Joseph is clear hearsay thought learned Senior Advocate will make the point. I am surprised that he did not. Mohammed woke up Joseph from sleep and told him that “he has finished the job.” That, in my view, is clear hearsay evidence which is inadmissible.

The hearsay evidence of Joseph notwithstanding, the evidence of Emmanuel clearly proves the offence of sodomy. That apart, the evidence of the appellant creates a circumstance which leads to the conclusion that he committed the offence of sodomy. He said he had some passes with the victims. He said they massaged him. He said the massage included his private part, which I identify as the penis. He said he had romances with them naked. Where did all these amorous activities lead the appellant to Should I believe that they did not lead the appellant to commit the offence of sodomy on a willing Emmanuel, I ask again While they may be incapable of rousing the feelings of an ordinary man in the street, they will certainly rouse the feelings of a homosexual or gay sodomite. The available evidence pin down the appellant as one. There is the adage that an ostrich which buries its head in the sand forgets that the rest of the body is exposed to any willing eye to see and watch.

Apart from the direct evidence of Emmanuel, there is enough circumstantial evidence justifying the conviction and sentence of the appellant. After all, a court or tribunal can convict on strong circumstantial evidence which lead to the commission of the offence. See Chewmoh v. State (1986) 2 NWLR (pt. 22) 331; Adio v. State (1986) 2 NWLR (Pt. 24) 581; Ikomi v. State (1986) 3 NWLR (Pt. 28) 340; Iyaro v. State (1988) 1 NWLR (Pt. 69) 256; Ojegbe v. State (1988) 1 NWLR (Pt 71) 414; Atana v. Attorney-General Bendel State (1988) 2 NWLR (Pt. 75) 201; Shazali v. State (1988) 5 NWLR (Pt. 93) 164; Gabriel v. State (1989) 5 NWLR (Pt. 122) 457.

Learned Senior Advocate submitted that as Mohammed Abubakar and Isaac Jonah did not testify at the trial, the allegations against the appellant in respect of them have been abandoned. I do not see how this submission helps the appellant. If an accused person is charged with committing an offence against two or more persons, he could be convicted and sentenced in respect of committing the offence against one person; and the conviction and subsequent sentence stand. Our adjectival law does not require that the prosecution must prove the commission of the offence against all the victims before the accused could be convicted. Sodomy is not one offence where corroboration is statutorily required. Even if it was to be so, the pre-trial statement of the appellant would have gone a long way, if not all the way.

The next issue is in respect of the admissibility of the pre-trial statement. I think I have touched it by the last foregoing sentence. Let me go into it in more detail. Rule 57 of the Rules of Procedure (Army) 1972, MM; 1972 provides that a written statement which is admissible in accordance with the provisions of the Criminal Justice Act, 1967, as modified by the Court Martial Evidence Regulation 1967, shall be handed to the court by the prosecutor or the accused as the case may be, without being produced by a witness.

Learned Senior Advocate would I appear to have forgotten to consider the above rule. If he had done so, he would not have raised the issue.

The impression is given by both counsels that exhibit 1 is a confessional statement. With respect, it is not. A confessional statement unequivocally confesses to the commission of the offence charged. The offence is sodomy. Appellant did not confess in exhibit 1 that he committed the offence. All he said is that he romanced the victims and they romanced him in return. Mere rornance without penetration through the anus is not sodomy. Therefore the issue of voluntariness of exhibit 1 raised by learned Senior Advocate for the appellant and the corresponding submission of counsel for the respondent do not arise. Assuming that I am wrong (and I do not think so) there is clear evidence outside exhibit 1 justifying the conviction and sentence of the appellant. And here, the evidence of Emmanuel readily comes out to the fore.

And that takes me to the last issue on fair hearing. Learned Senior Advocate has seriously canvassed in this court that the appeal should be allowed because the General Court Martial took over the prosecution and thereby interfered with the course of the proceedings. He took time to count the number of questions the General Court Martial asked PW2, PW3 and PW4.

It is straight and strict law that tribunals, or courts of law, by their special place in the adjudicatory process, should not condescend to the nitty-gritty of the dispute or flirt with the evidence in a way to compromise. Its independent and unbiased position in the truth searching process. A tribunal or court is expected to hold the balance in an egalitarian way so that the parties and persons present in court will not accuse the body of bias. This is the real essence of our adversary system of the administration of justice as opposed to the inquisitorial system of the French prototype.

The above position of the law is good as long as it is the general principle of law. For a conduct of a trial tribunal or court to affect its decision in respect of interference, an appellate court must be satisfied that there was bias or likelihood of bias. In considering this, an appellate court will have a very close look at the questions asked by the tribunal or court to see whether they affected the live issues in the dispute and the live issues here mean issues which will inevitably give rise to the decision of the tribunal or court one way or the other. Therefore if a tribunal or court asked, say, a thousand questions, which are peripheral, and in the opinion of an appellate court, do not go to the root and foundation of the matter, it cannot allow an appeal on that ground. In such a situation, an appellate court can only take the conduct of the tribunal or court as noisy and lousy, which has no effect in the conviction.

Emmanuel was the star witness, so to say. He gave evidence as PW1. The court did not ask him any question. Learned Senior Advocate did not say that the court asked Emmanuel any question. He said that the court asked PW2 one question, PW3 fifteen questions and PW4 ten questions. The questions counsel complained of in the brief were mainly on the money appellant gave the victims as they related to the offence of sodomy.

I do not think the evidence of PW2, PW3 and PW4 are that material to the conviction of the appellant. I made the point that the evidence of PW2, as it affects the commission of the offence on Mohammed, is hearsay. PW3 lived with the appellant. PW4 lived at Block 05/14, Ojo Cantonment. They did not give evidence of the commission of the offence of sodomy and so questions heaped on them really go to no issue.

I do not think the issue of fair hearing canvassed by learned Senior Advocate will be of any assistance to the appellant. In the case of Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175 cited by counsel for the respondent, I said at page 211 and 212 of the Report:

“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation, in the interest of fair play and justice. The courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.”

I see no reason to depart from the above. The facts of the case in this appeal do not support the invocation of the principle of fair hearing in favour of the appellant because I do not see where the appellant’s right to fair hearing was violated or contravened.

I think I have taken all the issues raised by learned Senior Advocate. What the appellant decided to do was to dare nature in his craze for immoral amorphous satisfaction. By his conduct, the appellant re-ordered God’s creation. Has he got the power to do that No. No human being, whether in the military or not, has the power to re-order God’s creation. After all, we are not talking of fighting a war. By his conduct, the appellant has brought shame to himself. Although a bit of the dent is on the Army, I am not prepared to hold that Force guilty of the conduct of the appellant. The Army did not ask him to commit this heinous and atrocious offence. He is a terrible criminal. And he is alone, clearly alone.

This case clearly brings to the open the problem of poverty in our society; not just poverty but abject poverty. It is in evidence that the victims were hired by money. Parents should try as much as they can to provide for the needs of their children. And when I say this, I am not unaware or oblivious of the fact that some children are not satisfied even if their parents supply all their needs because of their insatiable growing and glowing gluttony for more and more, like Oliver Twist of literary fame.

In sum, I do not see the slightest merit in this appeal. I dismiss it and affirm the conviction and sentence of the General Court Martial.

SC.159/2006