The Nigerian Air Force V. Ex-wing Commander L.d. James (2002)

LAWGLOBAL HUB Lead Judgment Report

U. ONU, J.S.C

This appeal concern in the main, the interpretation of how and when a General Court Martial (GCM for short), is constituted in the trial of criminal offences under the Armed Forces Decree No. 105 of 1993 (as amended) vis-a-vis the trial of and concerning members of the Armed Forces for criminal offences under our criminal law and the concomitant jurisdiction, and competence thereof.

It emanates from the Court of Appeal, Lagos Division and is sequel to the trial of the respondent who was 1st accused and one of nine pay officers who held financial appointment at the headquarters of the Pay and Accounting Group (PAG for short) and Directorate of Finance and Accounts (DFA) of the Nigerian Air Force (NAF). In a joint trial which was commenced on 26th July, 1996 by the GCM aforementioned convened pursuant to a convening order signed by one Air Commodore F. O. Ajobena, a Director of Personnel (DOP) who purported to act on behalf of the Chief of Air Staff (CAS), was premised on 12 counts of conspiracy, stealing, receiving stolen property,aiding and abetting, forgery, illegal possession of firearms and disobedience to standing order.

In the judgment delivered by the GCM on 21st October, 1996 the respondent was convicted and sentenced to 50 years imprisonment. He was, in addition, ordered by the GCM to refund the sum of N4,402,500.00 with interest as restitution for the various offences committed by him.

Dissatisfied with the said judgment, the respondent appealed to the court below which in its judgment on the 28th September, 2000 hereinbefore referred to, allowed the appeal, set aside the judgment of the GCM and made an order discharging and acquitting the respondent on all the counts brought against him.

The facts of the case may be briefly stated as follows:

The respondent was one of nine pay officers who held financial appointment at the Headquarters of the Pay and Accounting Group (PAG) and Directorate of Finance and Accounts (DFA) of the Nigerian Air Force (NAF) both in Lagos. It was the prosecution’s case that up to April, 1996, all the 9 pay officers, respondent inclusive, either jointly or severally conspired, stole, and accepted large sums of money to the tune of N63 Million (Sixty-three million naira) belonging to the Nigerian Air Force (NAF). It was also alleged by the prosecution that one of the officers accused along with the respondent raised requisitions for cash to wit: exhibits 9A – 9C to the tune of N10,000,000.00 (Ten million naira). The respondent was staff officer 1 (SO1) Finance at the Headquarters NAF DFA with the responsibility of recommending payments of money and it was he who recommended exhibits 9A – 9C for payment. These requisitions, it was shown, were raised and approved for “short payment of salary,” “T5/Packing” and “printing of forms and repairs of Addressograph Machines” and the amount therefrom was withdrawn from the bank account of the Nigerian Air Force and eventually shared between the officers including the respondent herein whose share was to the tune of N750,000.00.

In his written statement exhibit 10, the respondent’s defence was that he recommended exhibits 9A-9C on the instructions of Wing Commander Iyen in spite of his search for further clarifications. The respondent’s explanation thereupon to Wing Commander Iyen some two days later, was how he (respondent) was accused of having recommended the forms for payment that the outgoing CAS had approved the expenditure of Ten million naira to these officers including himself as a welfare gift. That he (respondent) was further accused of being in illegal possession of one Sundance Industries Valencia CA USA Pistol with live ammunitions (exhibit 19) and one Anti Riot Irritant Grenade. It was further stated that in his statement (exhibit 10 supra), he (respondent) acknowledged by endorsing thereon that these firearms were indeed found in his house at No.3 Sawyer Street, Anthony Village, Lagos. Also, that he (respondent), conspired with Squadron Leader Yakassai (7th accused before the GCM) to defraud the NAF on about October 1985. The prosecution in proof of this tendered a letter found at the respondent’s house and written by the said Yakassai to him (respondent) vide exhibit 17 which showed that figures meant for a certain purpose were inflated. Whilst Squadron Leader Yakassai was shown as having collected N1.5 Million being part of the difference of the inflated amount, the respondent herein received N5,022.20 for “travelling claim”.

The respondent was further accused of engaging in private business contrary to section 57 of the Armed Forces Decree (AFD) No. 105 of 1993. In its quest to prove this, the prosecution tendered form CAC 10, forms of annual return of a company having a share capital dated 30th June, 1995 depicting respondent as a shareholder holding 54,000 shares in Excel Insurance Brokers. A further allegation was to the effect that sums of money were being shared on a monthly basis between December 1995 and March 1996 and that the respondent was accused of receiving the sum of NI20,000.00 in December 1995 out of these sums. The prosecution relied on the evidence, amongst others, of PW 12 to prove this. The respondent, also based on his statement exhibit 10 and exhibit 61, was accused of procuring sums totaling about N85,000.00 in order to corrupt officials of the Federal Ministry of Finance, Abuja and the Auditor General of the Federation.

On the 27th of April, 1996 the respondent was discharged from the NAF (see exhibits 66A – 67) and on 26th July, 1996 the respondent along with the 8 other persons, was arraigned before the GCM where he was charged with 5 counts of stealing, corrupt enrichment, unlawful possession of a pistol and disobedience to standing orders i.e. engaging in private business.

On the 6th of August, 1996 the five counts above mentioned were substituted with twelve counts of the various offences hereinbefore referred to in this judgment.

Be it noted firstly, that Air Commodore Ajobena earlier referred to signed the convening order for the GCM under the authority of the CAS vide exhibit AI. Secondly, the GCM conducted a joint trial of all 9 accused persons, the respondent inclusive, as provided under section 132(1) of the Armed Forces Decree No. 105 of 1993. A total of twenty-seven witnesses were called consisting of fourteen for the prosecution, twelve for the defence and one by the court.

In its judgment delivered on 27th September, 1996 and confirmed on the 21st October, 1996, the GCM found that the prosecution proved its case beyond reasonable doubt and found the respondent guilty on all twelve counts as charged and sentenced him to 50 years imprisonment. In respect of the 9th and 10th counts for unlawful possession of firearms, the respondent was sentenced to 15 years imprisonment though the recommendation award was eventually reduced to 10 years.

The Court of Appeal (hereinafter in this judgment referred to as the court below) in its own judgment declared the orders made by the GCM as nullities (and in the absence of jurisdiction) on the following grounds: