Wing Commander T. A. L. Shekete V. The Nigerian Air Force (2007)

LawGlobal-Hub Lead Judgment Report

ADAMU, J.C.A.

This is an appeal against the judgment of the General Court Martial (GCM) convened by the Chief of Air Staff delivered on 21/10/96. In the said judgments the appellant who was jointly charged and tried along with nine other officers was found guilty and convicted on five (5) of the seven counts with which he was charged while he was found not guilty (and discharged) on the remaining two (2) counts of the charges. The appellant was sentenced to 23 years imprisonment and ordered in addition to pay the sum of N4,630,000.00 (Four million, six hundred and thirty thousand Naira only) as restitution to the Nigerian Air Force (the respondent herein). The sentence was confirmed by the Chief of Air Staff who reduced the terms to four (4) years imprisonment while leaving intact the amount of restitution to be paid by the said appellant. Being dissatisfied with his conviction sentence and the order of restitution against him, the appellant appealed against them in this court.

In his notice of appeal filed on 15/5/03 with the leave of this court, the appellant filed twenty (20) grounds of appeal with their particulars (except the general omnibus ground) see the notice of appeal and the grounds reproduced at the beginning of the appellant’s brief (at pages 1- 3 thereof). From his twenty (20) grounds of appeal, the appellant formulated five (5) issues for determination. The five issues are as follows:-

“Issues for determination

(1) Whether the convening of the General Court Martial, the preparation and signing of the charge sheet, the confirmation and promulgation of the findings and sentences passed on the appellant by the aforesaid General Court Martial and the issuance of exhibit Q by one and the same person to wit AVM N. E. Eduok, the then Chief of Air Staff did not breach the appellant’s right to fair hearing under section 33 (I) of the 1979 Constitution which was the applicable Law to this case as well as Article 7 (1) (d) of the African Chm1er on Human and Peoples’ Rights, Cap. 10, Laws of the Federation of Nigeria, LFN, 1990. (Grounds 1, 2, 6, 7 and 18).

(2) Whether the order of the General Court Martial that the appellant shall pay the sum of four million, six hundred and thiry thousand Naira only (N4,630,000.00k) as restitution to the Nigerian Air Force when no such money was found in possession of the appellant nor was any property of the appellant traceable to the alleged stolen money and the confirmation of the said award by the Chief of Air Staff (CAS) are in consonance with S. 118(1)(j) and 174(4) of the Armed Forces Act, 2004 and if not whether the award can stand. (Ground 8).

(3) Whether the joinder and trial of counts 6 and 7 on one hand and the joinder and trial of counts 6 and 7 with other counts in the charge sheet were valid and proper in law when the said counts 6 and 7 were not committed in the same course and/or the same transactions and/or with the said other counts. (Grounds 14 and 16)

(4) Whether the offence of forgery was proved against the appellant at the trial. (Ground 13).

(5) Whether the prosecution proved all or any of the counts against the appellant as required by law having regard to the oral and documentary evidence adduced and accepted at the trial. Grounds 12, 15, 19 and 20).”

In the respondent’s brief, the above issues of the appellant’s are adopted even though they are condensed into the following three (3) issues as reformulated (in capital) in the said respondent’s brief.

“Issues for determination

(1) Whether the convening and proceedings of the General Court Martial constituted a breach of the appellant’s right to fair hearing.

(2) Whether the prosecution proved its case against the appellant and whether the order of restitution made against the appellant was properly made.

(3) Whether the joinder and trial or counts 6 and 7 on one hand and the joinder and trial of counts 6 and 7 with other counts on the charge sheet were valid and proper -in law when the said counts 6 and 7 were not committed in the same course and/or the same transaction and/or with the said other counts.”