The State V. Squadron Leader S.I. Olatunji (2003)

LAWGLOBAL HUB Lead Judgment Report

A. KALGO, J.S.C.

The respondent was a Squadron Leader in the Nigerian Air Force Headquarters in Lagos. His force No. was NAF/1217. He was one of the nine pay officers of the Pay and Accounting Group (PAG) under the Directorate of Finance and Accounts (DFA) of the Nigerian Air Force, Lagos. All the nine pay officers including the respondent were charged with various criminal offences and were tried and convicted by a General Court Martial (GCM) and sentenced to various terms of imprisonment. The respondent was the 6th accused before the G.C.M., and was charged with nine counts of conspiracy, stealing, receiving stolen property, illegal possession of firearms and disobedience to standing order. He, with other eight officers, were arraigned before the G.C.M. on the 26th of July, 1996. The charges against him were read and explained to him and he pleaded not guilty. The case was then adjourned to 6th August, 1996 for hearing.

On the 6th of August, 1996, the prosecution applied to withdraw the charges to which the respondent pleaded on the 26th of July and substituted them with another 9 count charges. The respondent did not raise any objection to the application and it was granted as prayed. The new charges were then read and explained to the respondent and he pleaded not guilty to all of them one by one. The trial before G.C.M. proceeded and at the end of it all after the counsel for the prosecution and the defence addressed the G.C.M. at length, the G.C.M. adjourned for judgment.

On the 21st of October, 1996, the G.C.M. in a unanimous decision, found the respondent guilty of all the charges against him, convicted him and sentenced him to a total of 45 years imprisonment. The respondent appealed to the Court of Appeal against the said decision and that court on the 28th of September, 2000, allowed the appeal, set aside the convictions and sentences by the G.C.M. and discharged and acquitted the respondent.

The prosecution was not satisfied with this decision and it appealed to this court on 7 grounds of appeal.

The facts giving rise to this case are not very complicated. The respondent was the paymaster HQ of the P.A.G. at the material time. His duty then was to pay all bills referred to him and take instructions from commander P.A.G. for all payments approved by the commander. On 3rd of April, 1996, the cashier brought to him the sum of N10 Million cash with a list of names sent by commander PA.G. On seeing the list, he asked the cashier to explain to him what the money was meant for. The cashier told him to ask the commander for full instructions. He did and the commander told him that the money was for welfare gift given to the listed officers by the Chief of Air Staff to be shared N6 Million for HQ, P.A.G. and N4 Million for HQ NAP. The respondent belonged to the headquarter P.A.G. and when the money was shared he collected N600,000.00 for himself. Wing Commander Iyen was the Ag. Director of Finance and Accounts at the material time and was alleged to have given the instructions for the money sharing.

The respondent was also alleged to be involved in illegally sharing Nigerian Air Force money monthly with other officers. After his arrest and in the course of investigation the respondent was found to be in unlawful possession of firearms. He was also alleged to have acquired shares in a company called Sifor Nigeria Limited thereby engaging in private business in disobedience to the Nigerian Air Force standing orders. These gave rise to the seven counts charge made against the respondent and tried in the General Court Martial.

In this court, the appellant and the respondent filed their respective briefs of argument and exchanged them between themselves. The appellant, in its brief, formulated 7 issues for the determination of this court in this appeal. They are:-

“i) Whether or not the Chief of Air Staff can legally delegate the power vested in him to convene a General Court Martial under section 131(2) of the Armed Forces Decree, 1993.

(ii) Whether or not the respondent was a person subject to service law as at the 6th of August, 1996 such that the General Court Martial would have had jurisdiction to try him for the offences for which he was charged before the said Court Martial.

(iii) Whether or not the Court of Appeal was right in its decision that in order to show a hand grenade is a firearm under section 2 of the Fire Arms Act, Cap. 142, Laws of the Federation, the prosecution ought to have called expert evidence to prove that fact.

(iv) Whether or not the respondent’s evidence that he acted in the belief that the Chief of Air Staff gave order for the withdrawal and sharing of the N10 Million naira was sufficient to negative the mental element of the offence of stealing without considering if such belief was reasonable in all the circumstances of the case and if the other requirements of section 25 of the Criminal Code were satisfied.

(v) Whether or not the prosecution was obliged by law to call the retired Chief of Air Staff as a witness to disprove that the retired Chief of Air Staff gave order for the 157 withdrawal and sharing of the N10 million naira.

(vi) Whether or not the Court of Appeal was right in its view that the grounds upon which the General Court Martial held that AVM Femi John Femi was not material to the case were wrong and had no support in the evidence led.