Staff Sergeant Bamiji Aderoju V. The Nigerian Army (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment)

The Appellant Staff Sergeant Bamiji Aderoju was a soldier in the service of the Respondent, the Nigerian Army. In July 1995, while serving in the 2nd Mechanized Division Ibadan, the appellant was moved to Liberia as part of the Nigerian military contingent in the ECOWAS Monitoring Group (ECOMOG). While in Liberia, he was deployed as a clerk in charge of distribution of petroleum products. Sometime in 1996, the Appellant and others were alleged to be involved in illegal sale of petroleum Oil and lubricants (POL) products that was placed in their charge.

The then Commander of the Nigerian Contingent of ECOMOG Brigadier General A. O. Mohammed convened a General Court Martial (GCM) to try the appellant and others allegedly involved in the illegal sale of POL products vide a convening order with Reference number NIGCON/ECOMOG/68/A of 4/11/96.

The Appellant was tried on a two count charge as follows:

(a) “CHARGE 1

(1) STATEMENT OF OFFENCE:Â Â Offence in Relation to Service Property, punishable under Section 66 (a) of the Armed Forces Decree 1993.

(2) PARTICULARS OF OFFENCE:Â Â In that he at Monrovia Liberia on or about July 1996 involved himself in the illegal sale of POL products

(b) CHARGE 2

(1) STATEMENT OF OFFENCE:Â Â Conduct to Prejudice of Service Discipline punishable under Section 103 (1) of the Armed Forces Decree 1993.

(2) PARTICULARS OF OFFENCE:Â Â In that he at Monrovia Liberia on or about July 1996 prejudiced military disciplinary by abusing his position of holding the keys to the POL point to tamper with POL products left in his charge.”

The prosecution called 3 witnesses while the Appellant testified on his own behalf and called no other witness. At the close of the defence case, one other witness was called at the instance of the GCM. Eight Exhibits were tendered by the Prosecution and admitted as Exhibits A1 to Exhibit A8. The General Court martial (GCM) found the Appellant guilty as charged on count 1 and sentenced him to two years imprisonment.

He was found not guilty on court 2 and was discharged and acquitted on that count. The Appellant dissatisfied with the conviction but after serving his sentence, with the leave of the Court filed a notice of appeal on 28/12/06 with six grounds of appeal, out of which four issues were distilled for determination. The issues are as follows:

1. Whether the joint trial of the accused persons that were separately charged before the General Court Martial in this case occasioned a miscarriage of justice against the Appellant.
2. Whether a sentence can be passed on an accused person without conviction ground on a judgment properly written before such conviction.
3. Whether Exhibit A7 (the confessional statement of the Appellant) was properly received in evidence. If the answer is in the negative, did the wrongful admission of Exhibit A7 lead to a miscarriage of justice?
4. Whether in the circumstances of this case, the guilt of the Appellant in respect of the first count charge was proved beyond reasonable doubt.

The Respondent in his brief of argument adopted the issues formulated by the Appellant. The appeal came up for hearing on 21/01/13 during which the parties adopted and relied on their respective briefs of argument.

On issue No 1, learned counsel for the Appellant, Olusina Osunlakin Esq., submitted that the Appellant and three other accused persons who were separately charged were jointly tried by the General Court Martial and that the joint trial occasioned a miscarriage of justice. Counsel further submitted that two out of the four witnesses who testified at the trial were accused persons listed as such in the convening order and that they are tainted witnesses with their own purposes to serve. Counsel contended that their evidence required corroboration or at least ought to have been treated with caution. Counsel further contended that since the evidence of each witness required corroboration they could not corroborate each other. Counsel cited and relied on the following cases: STATE VS. ONYEUKWU (2004) All Federation Weekly Law Reports Part 221 Page 1288; MBENU VS. THE STATE (1988) 3 NWLR Pt. 84 615 at Page 626 Paragraph H ; EMORDI VS. THE STATE (2000) 8 NWLR Part 670 Page 604; OJO & ANOTHER VS. ANIBIRE & OTHERS (2004) All F.W.L.R. Part 214 Page 176 paragraphs F – G; THE STATE VS. AJIE (2000) F.W.L.R. Part 16 Page 2831.