S/sgt Godwin Imhanria & Ors V. Nigerian Army (2007)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

The appellants and two other soldiers serving with the 2 Mechanized Division of the Nigerian Army, Ibadan, were arraigned before the General Court Martial convened by Maj-Gen F. A. Mujakperuo on a two count charge of conspiracy to steal and the stealing of service property consisting of 264 metal panels and 12 wires. They were alleged to have stolen the said items from shed 6 “at Ibadan on or about 312100A Oct 97 while on guard duty at COD MT & Tech”.

They pleaded not guilty to the charge and the prosecution called three witnesses to prove its case. PW1 is Pte Umaru Isah who testified that on the night in question 5 civilians came to their duty post with torchlight and the 3rd appellant who is his Guard Commander went up to talk to them. The 1st, 2nd & 3rd appellants asked the civilians to go inside the Guardroom. The 2nd appellant later took the civilians to shed 6, which he had opened. After about ten minutes, the civilians went back to the guardroom and the 3rd appellant asked PW1 to “go and sit down at Abule road”, and if he sees anybody coming, he should tell the person to go back. PW1 obeyed and later saw a car coming to the main depot. As the 3rd appellant halted the car with their A.O, Capt. Akanni inside, the civilians and the 2nd appellant ran away.

The Capt came out; inspected all the sheds and saw that shed 6 was opened. Thereafter, another car came in and PW1 assisted in loading the stolen items.

Ismaila Yusuf, a commercial driver testified as PW2 that he was hired by one Ibo man who handed him over to the 4th appellant when they entered the barracks, and the 4th appellant took them to where they loaded “iron and barbed wire” onto his vehicle. However, it started raining and “the motor spoiled”, so they slept there and were later arrested by a patrol team. PW3 is the conductor, Everest Adagbo, and he corroborated the evidence of PW2. At the close of the case for the prosecution, the defence made a no-case submission contending inter alia that since the 264 metal panels and 12 wires allegedly stolen was not in evidence; the appellants had no case to answer. The Judge-Advocate in his advice on no-case submission referred the General Court Martial to “paragraph 36(b) of chapter 5 MML” and summed-up that –

“Absence of real evidence in Military Law does not nullify the substance of the entire case so long as oral evidence has been led, which point to the existence of the real evidence somewhere”.

In its ruling on the no-case submission, the General Court Martial held, thus –

“…We are satisfied that in the charge of conspiracy, evidence of acts done by one conspirator if it is of a common design may be inferred against all other alleged conspirator. We are also satisfied that the absence of real evidence before us i.e. metal pallets and wires is not necessarily fatal when oral evidence has been led that such items indeed exist and that that said items were moved from shed 6 of COD MT & Tech on the right in question. We are therefore satisfied that there are grounds to proceed with the case. the defence is therefore called to open their case. (Italics mine).

The defence however elected not to call any evidence and rested their case on that of the prosecution. The General Court Martial thereafter visited the locus in quo where it called two witnesses, and recalled PW1 who identified metal pallets and wire in the QM store as the things he carried to the car. The prosecution and defence then made their closing addresses and after the summing up by the Judge-Advocate, the General Court Martial closed to deliberate on their findings, which turned out to be a verdict of guilt for the appellants, who were dismissed from the regiment and also sentenced to six months imprisonment. The other two soldiers were discharged and acquitted. Dissatisfied with the decision of the General Court Martial, the appellants have appealed to this court with a notice of appeal containing 4 grounds of appeal, and briefs of arguments were duly filed in line with the rules.

In the appellants’ brief prepared by N. O. O. Oke, Esq., the following 4 issues were formulated as arising for determination in this appeal-

(i) Whether the General Court Martial was right in holding that the failure of the prosecution to produce and tender in court as exhibit of the real evidence (metal pallets and wires) was not fatal to the prosecution case.

(ii) Whether the failure by the prosecution to call a material witness (Captain Akanni) was not fatal to the prosecution’s case.

(iii) Whether from the general circumstances and facts of the entire case the General Court Martial was not in error in violating the appellants’ constitutionally guaranteed right to fair hearing under section 33 of the Amended 1979 Constitution and the principles of natural justice by conducting the prosecution’s case.

(iv) Whether the General Court Martial properly evaluated the evidence led by the prosecution.