The Nigerian Air Force V Ex – Sqn Leader M.O. Kamaldeen (2007)

LAWGLOBAL HUB Lead Judgment Report

DAHIRU MUSDAPHER, J.S.C. 

This is an appeal against the decision of the Court of Appeal, Lagos Division, wherein the Court of Appeal set aside the decision of the General Court Martial (hereinafter referred to simply as GCM) whereby the respondent, Squadron Leader M.O. Kamaldeen was arraigned before the GCM on an 11 count charge. He was tried along with eight other Air force officers and was found guilty on 10 of the 11 counts of the aforesaid charge. He was sentenced to a total of 35years imprisonment. There was also an order to pay N2,375,000.00 to the Nigerian Air Force as compensation. Dissatisfied with his conviction and sentences, the respondent who was the 5th accused before the GCM, appealed to the Court of Appeal. After its considerations of all the issues raised for the determination of the appeal, the Court of Appeal set aside the decision of the GCM and proceeded to discharge and acquit the respondent on all the counts preferred against him before the GCM. The appellant, the Nigerian Air Force, felt unhappy with the situation and has now appealed to this court on an Amended Notice of Appeal containing 7 grounds of appeal. Before the consideration of the Grounds of Appeal and the issues distilled therefrom for the determination of the appeal, it is necessary at this stage to set out the back ground facts. The respondent was a Squadron Leader with the Nigerian Air Force [NAF] and he was attached to pay an accounting group in the Directorate of Finance and Account [DAF] as a cashier. The case against him was that sometimes on or about April, 1996, he in concert with 8 other officers of the Nigerian Air Force conspired to use their positions to defraud the NAF.

In particular, the respondent was stated to have used his position as a cashier in the PAG, to procure and facilitate the forgery and issuance of cheque No.15499 by which the sum of N10,000,000.00 was withdrawn from NAF bank account and distributed among himself and his co-conspirators. He was also stated to have knowingly uttered the forged documents [Forms 1487, Exhibit 9A – C] upon which the cheque was issued. He was accordingly charged and arraigned before the GCM on an 11 count charge of conspiracy, stealing, receiving stolen property, forgery, disobedience to standing orders etc. In his defence, the respondent testified that he was a subordinate officer who merely acted on the directives passed to him by superior officers. He therefore claimed the defence of justification. He stated further that he did not raise Exhibits 9A, – 9C, but merely certified that the documents passed through the proper channels. He accordingly claimed ignorance of the fraud. He further claimed that if at all an offence or offences have been committed in the transaction, there was nothing to link him with culpability for the commissions thereof. As mentioned above, the GCM found the respondent guilty and sentenced him to terms of imprisonment and also ordered him to refund the Nigerian Air Force certain amount of Money. In its consideration of the appeal before it by the respondent, the Court of Appeal considered the following issues:-

“1. Whether the Court Martial is competent to assume jurisdiction as it did in trying and convicting the appellant when it was not properly convened in accordance with Section 131 of the Armed Forces Decree, 1993.

2. Whether the appellant was afforded a fair-hearing.
3. Whether having regards to the evidence before the court, the prosecution had proved their case against the appellant beyond reasonable doubt in respect of the 10 counts for which the appellant was convicted.
4. Whether in view of the dissimi-larities of the elements of charges 3, 4 and 5, the Court Martial was right in convicting and sentencing the appellant on the alternative charges.
5. Whether in view of Exhibits 1, 2 and 3H the Court Martial was right in making an order of restitution of N2,375,000.00. 6. Whether the sentences handed down on the appellant were justified and reasonable taking into consideration the entire trial and the evidence before it.”

In its judgment delivered on the 31/7/2001, the Court of Appeal allowed in its entirety the appeal of the respondent. On the point of jurisdiction, it held that the GCM lacked jurisdiction ab initio to try the respondent as it was irregularly convened since it was convened by an officer lacking in the requisite authority to constitute it. According to the court, the Chief of Air Staff is not empowered to delegate the power to constitute the Court Martial. Counts 1 and 2 of the charges were dismissed on the grounds of no proper proof. The respondent was also discharged and acquitted on counts 3, 4 and 5 on the grounds of the provisions of sections 103 and 142(a) of the aforesaid Armed Forces Decree 1996. On the 6th count, the respondent was also acquitted on the ground that there was no evidence of forgery. Counts 7, 8, 9 were also dismissed for lack of evidence. The court also held that there was no basis for the order of restitution and set it aside. Now, in his brief for the appellant, the learned counsel has identified formulated and submitted 7 issues arising for the determination of the appeal.

The issues are:-

“1. Whether the Court of Appeal was right in holding that the GCM lacked the jurisdiction to adjudicate over and try the respondent for the offences.

2. Assuming [without conceding] that the Court of Appeal was right in holding that the GCM lacked jurisdiction to hear the case, was the Court of Appeal right in ordering an acquittal of the respondent for which offences the respondent was charged?
3. Whether the burden of proof was properly placed upon the appellant to prove that the outgoing Chief of Air Staff [CAS] did not authorize the withdrawal of N10m belonging to the Nigeria Air Force, whether to be used as welfare gifts or at all.
4. Whether the Court of Appeal was right in holding that the GCM was wrong to have substituted the offences in counts 3, 4 and 5 with the offence of conduct to the prejudice of service discipline under section 103[1] of the Decree, and then proceeding to convict the respondent therefore.
5. Whether their Lordships of the Court of Appeal were right in their conclusion that there is no evidence that cheque No.15499 was either uttered or forged, merely because the appropriate signatories had appended their signatures thereto.
6. Whether Exhibits 9A, 9B and 9C were forged or uttered for which reason the respondent should be made a party and found to have committed an offence under section 112 of the Decree.
7. Whether the Court of Appeal was right in setting aside the orders of restitution made against the respondent to pay back the sum of N2,375,000.00 or other.”

The learned counsel for the respondent on the other hand has identified, formulated and submitted three issues arising for the determination of the appeal.

The issues are:

“1. Whether the Court of Appeal was not right having regard to the circumstances, in holding that the GCM lacked jurisdiction to try the respondent and thereby made an order of acquittal in favour of the respondent

2. Whether the Court of Appeal was not right to have placed the burden of dislodging the evidence of the respondent on the instruction of the outgoing CAS on the withdrawal of the N10,000,000.00 on prosecution.
3. Whether the Court of Appeal was not right in setting aside the conviction of the respondent on counts 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 on which he was convicted by the GCM and in setting aside the order of restitution of N2,375,000.00 made against the respondent by the GCM?

In my consideration of this appeal, I will adopt the issues as formulated by the appellant as they are apt and adequately cover the grounds of appeal. Issue one and two together It is firstly submitted that the Court of Appeal was in error to have held that section 131 (2) of the Armed Forces Decree 1993 (as amended) (hereinafter referred to as the Decree) did not give the Chief of Air Staff the power to delegate the authority to any person to convene the General Court Martial [GCM]. The Court therefore erroneously held that the GCM as convened ab initio lacked jurisdiction to entertain the indictment preferred against the respondent and the other Air Force Officers charged along with him. It is argued that by the provisions of section 31 (3) it is provided that “the senior officer of a detached unit or squadron may be authorized by the appropriate superior authority to order a Court Martial in special circumstances”.

The Court of Appeal noted that the GCM in the instant case was convened by the then Director of Personnel of the Nigeria Air Force, Air Commodore Ajobena. There was unchallenged evidence that the power to convene the GCM was delegated to Air Commodore Ajobena by the Chief of Air Staff [CAS]. Indeed Exhibit A1, the instrument by which the delegation of authority was made was confirmed by CAS. The Court of Appeal noted this in its judgment. It is further argued that by section 131(3) CAS was qualified as an appropriate authority. It is again submitted that if the court below considered the import of sections 131(3) and 128(1), they would have found that the GCM had the necessary jurisdiction to adjudicate on the matter. It is further argued that this court decided the same issue in the case of Nigeria Airforce v. James [2002] 18 NWLR (Pt. 798) 295 at 318; (2003) 2 SCM 145; Nigeria Airforce v. Obiosa [2003] NWLR (Pt. 810), 233, (2003) 3 SCM 113 . PAGE| 5 On the secondary issue 2 whether the lower court was right or wrong in discharging and acquitting the respondent, when the Court held that the GCM had no jurisdiction to try the respondent and the other Air force officers.

It is submitted that the lower court was in error to have entered a verdict of acquittal on the respondent. It is argued that it is only when there is a proper trial on the merits that a verdict of acquittal may be entered. Learned Counsel referred to R. v. Hodge 6 NLR 56. See also Nigeria Airforce v. Wing Commander Iyen. Unreported decision of this court in suit No. SC. 217/2000, delivered 28/1/2005, (reported (2005) SCM. The learned counsel for the respondent on the other hand argued that, the convening order with which the respondent herein was tried along with others, was signed by Air Commodore F.O. Ajobena who was purporting to act for the Chief of Air Staff [CAS]. The letter of Chief of Staff purporting to delegate the authority was written 14 days after GCM had commenced sitting. It is argued that by Section 131(2) of the Decree, the GCM was irregularly convened and consequently it had no jurisdiction to try the respondent. It is submitted that the provisions of Section 131 are clear and unambiguous and there was no power reserved for the designated officers to delegate the power to convene a court martial. It is again submitted that the power to delegate can only be exercised if there are special circumstances and in the instant case there were no special circumstances which would have warranted the Chief of Air Staff to have delegated his power to convene the GCM. The letter written by the Chief of Air Staff purportedly delegating his authority to convene the GCM was written 14 days after the convening of the GCM and did not state any special circumstances warranting the delegation of the power to convene. It is further argued that the cases of Nigeria Airforce v. James and Obiosa’s case supra are distinguishable from the present case in that in those cases, the officers concerned were no more in the force when the GCM was convened. It is submitted that in these two cases Sections 168 and 169 of the Armed Forces Decree applied. It is finally submitted that section 128 (2)(1) referred to by the appellant is not relevant to the issue of convening a GCM and is therefore inapplicable. On the issue of order of acquittal made by the Court of Appeal, it is submitted that the case of R v. Hodge supra was quoted out of context and the issue of the invocation of the plea of autrefois acquit is not the issue here and under the peculiar fact and circumstances of the case the order of acquittal made in the instant case was proper and did not lead to any miscarriage of justice. Now, in the case of Obiosa supra, this court per Ejiwunmi, JSC at page 268 has decided this issue thus:

“I must point out that the case was concerned with whether the General Court Martial was properly convened. I do not therefore consider that it is helpful to refer to how a Special Court Martial could be convened and by whom. And on this point I need not say anymore. However, what is relevant for consideration in this appeal is whether Air Commodore F.O. Ajobena was properly delegated to convene the General Court Martial that tried the respondent. It is clear that following the convening of the General Court Martial, and it had started sitting, the Chief of Air Staff, AVM N.E. Eduok authorized the holding of the General Court Martial with this Letter admitted in evidence with exhibit A.I. It reads: