The Chief Of Air Staff & Ors V. Wing Commander P. E. Iyen (2005)

LAWGLOBAL HUB Lead Judgment Report

A.O. EJIWUNMI, JSC

The question that calls for determination in this appeal falls within a very narrow compass. And it is whether a person whose trial was a nullity should be discharged or discharged and acquitted for the offences for which he was tried and convicted. The facts relevant to the appeal are straightforward and may be put thus:- The respondent who was a Wing commander in the Nigerian Air Force was attached to its Pay Accounting Group until the month of April 1996. Before then, it was discovered that with ten other officers of the Nigerian Air Force and all attached to the Pay Accounting Group were involved with fraudulent offences which included stealing, corruption and conspiracy to commit several civil offences. As a result of this discovery, the ten officers were arraigned before the General Court Martial (GCM). But when the court was convened for the trial of the ten officers, the respondent was not present. The General Court Martial then carried out the trial of the remaining nine accused persons who were physically present before the Court. The nine officers so tried were each found guilty and convicted accordingly.

That done, the General Court Martial then proceeded with the trial of the respondent in his absence on a 12 count charge laid against him before that court. The offences disclosed in the charge include, stealing, conspiracy to defraud, forgery and altering forged documents, receiving stolen property. For the purposes of this trial, the prosecutor did not call any oral evidence in support of his case. Rather with the consent of the court pursuant to the provisions of section 34 of the Evidence Act, he merely tendered the statements of all the seven witnesses who testified at the earlier trial conducted by the General Court Martial, at the end of which the nine other accused persons were convicted. On the basis of that kind of evidence, and with the respondent who was never before that court, the court found him guilty and was convicted of eleven of the 12-count charge levelled against him. Following that conviction, he was sentenced to a total of 51 years imprisonment. A restitution order was also made against him in respect of his properties and other personal assets to the value of about N34, 125,000.00.

As the respondent was not satisfied with the judgment of the General Court Martial, he appealed to the Court below. That Court, after due consideration of the arguments advanced before it, allowed the respondent’s appeal and set aside the judgment of the General Court Martial. The Court below further ordered that the respondent be discharged and acquitted. It is against that judgment of the Court below that the appellants have appealed to this Court. Pursuant thereto, the appellants through their counsel, filed one ground of appeal, which reads thus: –

“The learned Justices of the Court of Appeal erred in law when while setting aside the judgment of the General Court Martial they discharged and acquitted the respondent.”

In accordance with the rules of this Court, the parties thereafter filed and exchanged their respective briefs of argument. For the appellants, the only issue identified for the determination of the appeal was:

“Whether having held that the General Court Martial proceedings were a nullity and that it was as if the respondent was never tried, the proper order for the Court to make was an order of Discharge and not an order of Acquittal.”

The first reaction of the respondent to the appeal was to file a notice of preliminary objection against the sole ground of appeal filed for the appellants. His learned counsel, A. I. Idigbe S.A.N., thereafter also filed a respondent’s brief. In the brief; two issues were raised which included the ground raised in the notice of preliminary objection. The issues so raised are as follows: –

“2.1 Whether in the circumstances of this case the Court of Appeal was right in discharging and acquitting the respondent and not ordering a retrial.

2.2 Whether the appellants require leave to file their sole ground of appeal being ground of mixed law and fact.”

It is manifest from a perusal of the issues set for the determination of the appeal that both parties are agreed that the main issue for the determination of this appeal is as to, whether the respondent should have been discharged and acquitted by the Court below. But before considering the arguments of counsel on this issue, I need to determine first whether there is merit in the preliminary objection raised by the respondent against the appeal.

In urging that the preliminary objection be upheld, it is the contention of learned Senior Counsel for the respondent that appellants’ ground of appeal was merely christened a ground of law when in actual fact, it consists of mixed law and facts. It is therefore his submission that it must be borne in mind that the decision whether a ground of appeal raised a question of law alone or of facts of mixed law and facts does not depend on the label given to it by the appellants. In other words, it is the submission of learned counsel that each ground of appeal must be determined solely upon what is alleged therein and no reliance ought to be placed by the court on the description given to it by the appellant. And in support, reference was made to such cases as Ojemien V. Momodu II (1993) 1 S.C.N.L.R. 18. Nwadike V. Ibekwe (1987) 4 N.W.L.R. (pt.67) 718, Adili V. State (1989) 2 N.W.L.R. (pt.103) 305, Shanu V. Afribank (2000) 10-11 S.C.1. Now, on the basis of the above submissions, it is the contention of learned counsel for the respondent that with regard to the appellants’ ground of appeal, the question that falls to be determined is whether the respondent ought to have been “discharged’ or acquitted involves a consideration of the facts of the case, the ground of appeal filed for the appellant cannot and ought not be regarded as a question of law.

For the appellants, an appellants’ reply brief was filed to deal with the arguments raised by the respondent in the preliminary objection against their ground of appeal. The said reply brief was adopted by their counsel and reliance placed thereon for that purpose during the hearing of the appeal. The main thrust of the argument of learned counsel for the appellants in their brief and her oral submissions to this court is that the alleged ground of appeal is a ground of law and urged the court to uphold it as one. The argument of counsel in respect of the preliminary objection against the ground of appeal, clearly depends on whether the said ground of appeal is indeed a ground of law. The question so raised is not novel as several decisions of this court have given the principles that should guide a court in its quest for the proper determination of whether a ground of appeal is a ground of law, a ground of mixed law and facts or simply, a ground of fact. In this regard, I refer to the decision of this court in Shanu V. Afribank (2000) 13 N.W.L.R. (pt.684) 392; (2000) 10-11 S.C. 1 and at page 9 where reference was made to Ogbechie & Ors V. Onochie & Ors (1986) Vol. 7 N.S.C.C. 443 part of the judgment of Eso, JSC, at pp 445 – 6 where he said thus: –

“…. what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law, or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law, where however the grounds are such that would question the evaluation of facts by the lower tribunal before the application of the law, that would amount to question of mixed law and fact.”