The Nigerian Air Force V. Wing Commander T. L. A. Shekete (2002)

LAWGLOBAL HUB Lead Judgment Report

N. TOBI, J.S.C.

Wing Commander T. I. A. Shekete, the respondent in this appeal, was the 4th accused at the General Court Martial, bearing the acronym, GCM. He was arraigned along with eight other Air Force officers on 22nd July, 1996 on seven counts.

The case of the prosecution can be briefly stated. One of the nine officers charged raised requisition for cash in the total sum of N10,000,000.00 (Ten million naira). The sum was withdrawn from the bank account of the appellant. The money was handed over to one of the officers accused along with the respondent. The 6th accused in his written statement admitted receiving the money. He mentioned the various amounts distributed to the officers charged along with him. The officers included the respondent who was alleged to have been given the sum of N500,000.00 (Five hundred thousand naira) out of the N10,000,000.00 In. corroboration of the evidence of the 6th accused, warrant officer Paul Tungan, P.W.4, said that he was given some money by the 6th accused in an envelope to put inside the boot of the respondent’s car.

The respondent, in his written statement (Exhibit 11) denied conspiring with any person to share the N10,000,000.00. He said that during the period, that is around the first week of April, 1996, he was preparing to go to Saudi Arabia to perform the 1996 Hajj and so he seldom went to the office. He said that it was when he reported back to the office because he could not go to Hajj that he learnt about the N10,000,000.00 matter. He denied collecting any part of the alleged N10,000,000.00. The respondent was not found guilty of counts 1 and 2. He was found guilty of counts 3 to 7 and sentenced to a total of 23 years incarceration.

Dissatisfied, Wing Commander Shekete appealed to the Court of Appeal. That court allowed the appeal. The court made the following order in the last paragraph of the judgment:

“On the whole, my conclusion is that this appeal is meritorious. It is allowed. I set aside the judgment appealed against. In its place, I make an order striking out the charge against the appellant … I make an order discharging and acquitting the appellant on the counts brought against him.”

Dissatisfied, the appellant has filed this appeal. Briefs were filed and exchanged. The appellant formulated six issues for determination as follows:

“(i) Whether the applications and/or prayers in the appellant’s motion dated 30th November, 1998 satisfied the condition precedent to the hearing of his appeal against the decision of the General Court Martial as provided under sections 183 and 184 of the Armed Forces Decree, 105 of 1993 (as amended).

(ii) Whether the jurisdiction of the Court of Appeal to hear and determine the appeal against the judgment of the GCM was not ousted by the appellant’s (now respondent) failure to first obtain leave of the Court of Appeal as required under section 183 of the Armed Forces Decree 105 of 1993 (as amended).

(iii) Whether the power to convene a court martial, vested in the persons setout in section 131(1) and (2) of the Armed Forces Decree 105 of 1993 (as amended) cannot be delegated.

(iv) Whether the statement of a person who was not jointly charged with the accused person can rightly qualify as a statement that is subject to the provisions of section 27(3) of the Evidence Act.

(v) Whether the evidence of a person who was not jointly charged with the accused person, and which is against the said accused cannot suffice to secure the conviction of the respondent.

(vi) Whether the burden of establishing or otherwise substantiating the defence raised by the accused persons, who admitted receiving a share of the N10M allegedly stolen from the NAF that they thought it was a “thank you” gift from the retiring Chief of Air Staff was that of the prosecution or that of the accused persons who sought to rely on it or to take umbrage thereunder (like the respondent).

(vii) Whether the respondent (appellant in the court below) had established a credible and valid defence against all the evidence adduced in support of the charges against him before the General Court Martial (GCM).”