Wing Commander T. L. A. Shekete V. The Nigerian Air Force (2000)
LawGlobal-Hub Lead Judgment Report
OGUNTADE, J.C.A.
The appellant, Wing Commander T. L. A. Shekete was arraigned on 22nd July, 1996 along with eight other Air force Officers before a General Court Martial. In the charge against the appellant there were seven counts. He was found not guilty on the 1st and 2nd counts of the charge but guilty on the others and sent to various terms of imprisonment. Dissatisfied with his conviction and sentence the appellant has brought this appeal on ten grounds.
In the appellant’s brief filed, the issues for determination were formulated as follows:-
“(i) Whether there were material conflict/contradictions and inconsistencies in the prosecution case and if there were, was the GCM right in picking those ultimately that favoured their verdict (on the side of the prosecution)?.
(ii) Whether based on the evidence before the General Court Martial, the conviction of the appellant on all grounds relating to receiving stolen property is not perverse and unmaintainable?.
(iii) Whether the GCM (trial Court) adequately considered the defence of the appellant or at all?.
(iv) Whether without proferring any reason, the GCM was right in ignoring the submissions of the judge advocate and thereby convicting the appellant against sound legal and factual reasons exposed before the Court?.
(v) Based on the GCM obvious lack of consideration for the case of the defence and legal submissions at the address stage and disregard for the Judge Advocate’s submission, the GCM could be said to have acted and exercised their discretion judicially and judiciously?.
(vi) Whether in the circumstances of this case and in particular having regard to the principles of fair hearing, the GCM was right in convicting the appellant for forgery when the purported forged document was rejected in evidence at the trial and no evidence was called in proof of the charge?.
(vii) Whether the mere signing of Form C06 and Form C02 is a sufficient proof of engaging in private business?.
(viii) Whether there was sufficient proof before the GCM to-warrant a finding of guilt on ground of disobedience to standing orders when the existence of such orders was not proved and the knowledge of the standing order was denied by even prosecution witnesses and the appellants?.”
The respondent formulated the issues for determination thus:
“(1) Whether in the light of prepondence of evidence both oral and documentary placed before the General Court Martial, the prosecution can be said to have proved the charges preferred/against the 4th appellant beyond reasonable doubt and whether the judgment of the General Court Martial can be supported having regard to the evidence adduced and accepted at the trials by the General Court Martial?.
(2) Whether in the light of other evidences oral and documentary the principle of fair hearing was breached by the General Court Martial in convicting the appellant?.
(3) Whether the General Court Martial under the existing law is bound to give reason when announcing its finding or writing its judgment.
(4) Whether the General Court Martial is right in taking judicial notice of an order that is subsisting even if it was not proved by the parties?.”
I start a consideration of the issues in this judgment by making some observations which I consider important. I observed earlier in the judgment that the appellant was tried along with eight other airforce officers. Each of the accused before the General Court Martial (hereinafter abbreviated as GCM) was separately charged. Regrettably however, all of them were tried together. Some of them had made statements before their arraignment in the course of investigation that suggested that some funds belonging to the Nigerian Air Force (hereinafter abbreviated as NAF) were shared between the accused persons. It was not shown that such statements were made in the presence of some of the accused implicated them. The result is that these accused persons were not shown to have adopted or admitted the contents of the statements by such other accused persons. Section 27(3) of the Evidence Act provides that:-
“Where more than one person are charged jointly with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court or jury where the trial is one with a jury shall not take such statement into consideration as against such other persons in whose presence, it was made unless he adopted the said statement by words or conduct.”
In this judgment therefore, I must rely only on such statements by the other persons implicating the appellant only to the extent that the appellant adopted the contents of the statements by these other accused persons.
Further, the GCM did not state specifically the aspects of the case of the prosecution and defence which it accepted or rejected. The result is that the evidential basis for the conclusions reached by the GCM could not be ascertained.
It is not a disrespect to the GCM to say that the judgment before me on appeal is superficial and in many ways lacking in the quality that a judgment of any tribunal trying a criminal case must possess. When it is realised that the decisions of a court Martial are appealable, it cannot amount to asking too much from the GCM to state specifically the facts relied upon in coming to its decision. It is these facts and the reasoning upon them which an appellate court must consider in determining whether or not the GCM had been right in its approach to the case and the conclusion arrived at.
Speaking broadly, the case of the prosecution before the GCM against the accused persons including the appellant, who was the 4th accused may be stated as follows:-
The accused persons from the Ikeja PAG office of the Nigerian Air Force made a cash requisition on the standard airforce forms. The purposes for which the cash requisition was made were stated on the requisite forms tendered in evidence as exhibits 2 to 6. The forms approved for the purposes stated thereon by the headquarters of the N.A.F. This was on Form 1487 serial numbers 0907,0908, and 0909 tendered as exhibits 9A, 9B and 9C respectively. It was alleged that sum of N10 Million released to the Ikeja PAG office of the NAF by the NAF headquarters rather than being used for the purposes stated in the forms which requisitioned the funds was shared amongst some airforce officers including the appellant and the eight other accused persons. The amount given to the appellant as his share of the money was N500,000.00. This, basically was the story leading to the trial of the appellant, as the 4th accused and the eight airforce officers before the GCM.
The evidence against the appellant in the whole affair was in specific. In Exhibit 13, the statement made by the 6th accused, in the course of investigation the 6th accused Sq., Leader Olatunji alleged that a sum of N500,000.00 was given to the appellant as his share of the N10m. The 4th and 12 prosecution witnesses were the only persons who gave some evidence against the appellant.
The offences alleged against the appellant read thus:-
1st charge Civil Offence Contrary to Sec. 114 of the Armed Forces Decree, 1993 that is to say, conspiracy to defraud contrary to Sec. 422 of The Criminal Code
IN THAT HE
Together with Gp Capt. RM Tinglocha (NF/493). Wg Cdr MB Togunloju (NF/839), Wg Cdr LD James (NAF/909), Sqn Ldr MO Kamaldeen (NAF/843), Sqn Ldr SI Olatunji (NAF/1217) and Sqn Ldr OT Onyeukwu (NAF/1708) at HQ NAFDFA/HQ PAG, Lagos between 1-4 Apr. 96 conspired to defraud the Nigerian Air Force.
2nd charge Stealing Contrary to Sec. 66(a) of the Armed Forces Decree, 1993
IN THAT HE
Together with Gp Capt. RM Tinglocha (NAF/493), WG Cdr MB Togunloju (NAF/839), Wg Cdr LD James (NAF/909, Sqn Ldr MO Kamaldeen (NAF/843), Sqn Ldr SI Olatunji (NAF/1217) and Sqn Ldr OT Onyeukwu (NAF/1708) at Lagos on or about 2 Apr. 96 stole the sum of N10m property of the Nigerian Air Force
(Alternative Receiving stolen property contrary to 2nd charge) Sec. 66 (1) of the Armed Forces Decree, 1993
IN THAT HE
At Lagos on or about 2 Apr. 96 received the sum of N0.6m being part of N10m stolen from
Legal in Confidence
the Nigerian Air Force knowing or having reason to believe same to have been stolen.
3rd charge Receiving stolen property contrary to Sec. 66(b) of the Armed Forces Decree, 1993
IN THAT HE
at Lagos in Jan., 96 received the sum of N450,000.00 knowing or having reason to believe same to have been stolen 4th charge Receiving stolen property contrary to Sec. 66(b) of The Armed Forces Decree, 1993
IN THAT HE
at Lagos in Feb., 96 received the sum of N450,000.00 knowing or having reason to believe same to have been stolen.
5th charge Receiving stolen property contrary to Sec. 66(b) of The Armed Forces Decree, 1993
IN THAT HE
at Lagos in Mar. 96 received the sum of N450,000.00 knowing or having reason to believe same to have been stolen.
6th charge Forgery contrary to Sec.112(c) of the Armed Forces Decree 105, 1993 IN THAT HE
At Lagos on or about 19 Apr. 96 forged a letter to one Mr. H. Eze.
Legal in Confidence
7th charge Disobedience to standing orders contrary to Section 57(1) of the Armed Forces Decree 105, 1993
IN THAT HE
At Lagos on or about Apr., 96 engaged in private business which contravened administrative instructions S/No 3 dated Feb. 76, an order known to him or which might reasonably be expected to know.”
Now in the course of investigation, warrant officer Paul Tungen who testified as P.W. 4 before the GCM had made a statement in the summary of evidence (abbreviated as SOE). In his statement which was tendered before the GCM as Exhibit 29, P.W. 4 had stated that the paymaster Sqn. Ldr Olatunji (6th accused) gave him (i.e. P.W 4) some money in an envelope to put in the boot of the appellant’s car. P.W. 4 found the booth open. He did not know how much was contained in the envelope which was put in the boot of appellant’s car in February, 1996.
Before the GCM, P.W. 4 was cross-examined as to the contents of his statement Exhibit 29. He said that he did not see the appellant count the money and he P.W4 had not opened the envelope P.W 4 had not also seen the appellant drive the car away.
Now in his statement Exhibit 13, the 6th accused said that a sum of N500,000.00 was given to the 4th appellant out of the N10m which was to be shared amongst airforce officers in the Pay and Accounting Group (PAG) on the orders of the retiring Chief of Air Force.
In his statement Exhibit 11, the 4th appellant wrote:-
“On the alleged N10m approved by the HQ NAF around the first week of April, I did not conspire with any body to share the money. During the first week of April, I was preparing to go to Saudi Arabia to perform 1996 Hajj. My Conadr Cr. Cap. Tinglochs gave me permission to pursue my Visa and the requirements for the Hajj. I seldom went to the office during that time. It was when I reported back to the office when I could not go to Hajj that I learnt about the N10m I did not collect any money from the alleged N10m.
The evidence of P.W.4 that he deposited an unknown sum of money in an envelope in the boot of the 4th appellant’s car is very unsatisfactory. What kind of envelope would accommodate N500,000.00 in N20 notes? In any case, if the money was put into an unlocked car boot, was there not the possibility that any other person could have taken the money from the boot since there was no evidence that any person was watching over the car. The 6th accused who said in his statement that he gave the appellant N500,000.00 did not given evidence that he handed over the money to the 4th appellant through any medium other than P.W 4. The 4th appellant did not in his statement Exhibit 11 admit that he received N500,000.00 out of the N10m allegedly stolen. Neither did he admit to the same in his testimony before the GCM. And as I have said earlier, whatever the 6th accused had said in his statement Exhibit 13 could not be used against the 4th appellant since the latter had not adopted the contents of Exhibit 13.
The result is that there was no evidence worth relying upon to show that the 4th appellant received the sum of N500,000.00 from the N10m which was alleged to have been stolen.
In its judgment concerning the 4th appellant, the GCM concluded thus:”
Accused No.4:
Charge 1, conspiracy to defraud, Not guilty.
Charge 2, stealing, 29.
Receiving 2 years imprisonment. Charge 3
Receiving 2 years imprisonment. Charge 5
Receiving 2 years imprisonment. Charge 6,
Forgery 21 years imprisonment. Charge 7
Illegal business, 2 years imprisonment.
You are to serve 23 years. Charges 3
and 6 to run consecutively. Others to run concurrently; no recommendation for mercies. Sit down.”
The GCM found the 4th appellant not guilty of the 1st and 2nd counts. However, the 4th appellant was found guilty of receiving stolen money under counts 2 to 5 of the charge. There was, as I said, no satisfactory evidence to support these counts.
It is settled law that the guilt of an accused must be proved beyond reasonable doubt before conviction can ensue. R. v. Basil Ranger Lawrence (1932) 11 NLR 6 at 7; R. v. Anr Nwokarafor and Ors. (1944) 10 WACA 221. With respect, the GCM was in error to have found the 4th appellant guilty on counts 2 to 5 of the charge sheet. The appellant ought to have been discharged and acquitted on these counts. The GCM also found the 4th appellant guilty on the 6th count which alleged that the appellant on or about 19 April, 1996 forged a letter to one Mr. H. Eze. The purpose sought to be achieved by the appellant in writing the alleged forged letter was not stated. How was anybody or Mr. Eze deceived by the said letter? There was a complete blank on the point. Perhaps the more important aspect of this court is that the GCM did not allow the letter in evidence. At pages 121 of the record, the relevant court notes read:-
“Prosecution: Wg Cdr. Baba Adamu, is that all you recovered in respect of Wg. Cdr. Shekete?
P.W. 12: No
Prosecution: What other things?
P.W 12: I have a letter, carbon copy of a letter, the original of which was collected by one Chinedu. Listen, the letter was written to Mr. Eze. The corporate address on top of the headed paper is 2nd Avenue, House 54, Festac Town, reference No WF0/124.
Defence: Objection my lord
President: Objection upheld, counsel to lay proper foundation and tender that document as evidence if he so wishes.”
Thus, the letter which was the foundation of the 6th count was not received in evidence on the first attempt to tender it. It was not subsequently tendered in evidence. The prosecution appreciated the dilemma in which it was as regard the proof of the 6th count of forgery. At page 425 of volume 4 of the record of proceedings, the prosecuting counsel observed.
“A1. The 4th accused is charged with forgery contrary to Sec. 112(c) of the Armed Forces Decree. My Lords, the sole evidence of this is a document which was rejected wrongly with due respect by this Honourable General Court Martial. Since that document was also marked rejected, it is not part of the records of the court. If necessary, it may become useful on appeal.
A2. We feel tempted to alternatively ask the court to convict the accused on Exhibit 77 which he signed – a personal referenced letter – For Chief of Air Staff. This the court can do even if he is not charged under section 142 of the AFD and the time would have elapsed under AFD. He can be conveniently convicted under S. 467 of the Criminal Code which carries lesser punishments. However, in view of the face saving and gracious intervention of this Honourable General Court martial, the prosecution will leave the matter to be decided by court.”
There is no doubt that the letter alleged to have been forged by the 4th appellant never formed a part of the evidence before the lower Court. The prosecution counsel was therefore wrong to have urged the GCM to act on evidence not properly before it. It is an elementary principle of justice that a court or tribunal cannot rely in its judgment upon evidence not before it. The GCM was Clearly in error to have convicted the appellant on a count not supported by any evidence. The 4th appellant ought to have been discharged and acquitted on-the 6th count.
Finally is the 7th count which alleged that the appellant engaged in private business. The evidence in support of this count was that Forms C.06 and statement of share capital under the companies Decree were found in the course of investigation with the appellant. The forms were tendered in evidence as exhibits 47A and 47B and related to a limited liability called Wolad Farms Nigeria Ltd. The appellant agreed that he signed the forms for and on behalf of his wife. Whether or not the appellant had been truthful as to his evidence that he signed exhibits 47A and 47B on behalf of his wife, the question is, could the mere possession of these two forms amount to engagement in private business? The two forms were some of the papers to be filed with the Registrar of Companies when a limited liability company was to be formed.
There was no evidence that Wolads Farms Nig. Ltd. was subsequently incorporated. There was no evidence that an account was opened anywhere by the company. There was no evidence that the company had transacted any business with anybody. Certainly, it takes more than the possession of incorporation papers, to be in private business. The evidence in support of this court was clearly insufficient to warrant the conviction of the appellant. At the highest the possession by the appellant of exhibits 47A and 47B would only be preparatory steps by the appellant to doing a private business at a future date. The appellant ought not to have been found guilty on this count.
Another aspect of the case against the appellant needs be briefly examined. I said earlier that the case of the prosecution was that the accused persons including the appellant had shared amongst themselves the sum of N10m which had been approved for the PAG, Airforce Ikeja for some stated purposes. The defence of the accused persons who admitted that they received a share of this money was that the retiring Chief of Air Staff had made an order that the amount be shared amongst the airforce officers in the PAG, NAF as welfare gift. It was, according to the said accused persons, the former Chief of Air Staff’s way of saying thank you for a loyal service to his officers and that such gift was not uncommon in the armed forces.
The prosecution did not call the retired Chief of Air Staff to testify that he did not give such an order. It seems to me that if indeed, the order was given by the retired Chief of Air Staff that the N10m be shared, it would be a perfect defence to the allegation that accused persons concerned stole the money. The 4th appellant would therefore have been placed to take umbrage under the defence plea that even if indeed he received the amounts stated on counts 2, 3 and 4, the N10m was not stolen; and inferentially that it could not have been an offence to have received a part of it.
There is also the very important angle to the matter which relates to the constitution of the General Court Martial. Section 131(2) of the AFD, 1993 provides that a General court Marital could be convened by:
“(a). The President; or
(b). The Chief of Defence Staff; or
(c). The Service Chiefs; or
(d). a General Officer Commanding; or Corresponding Commands; or
(e). a Brigade Commander or Corresponding command.”
Contrary to the above however, the General Court Martial in this case was convened by one Air Commodore F. O. Ajobena who purported to do so on behalf of the Chief of Air Staff. On 6 August, 1996, some 14 days after the GCM had been convened, the Chief of Air Staff wrote a letter as an attachment to the convening order stating that he had verbally authorised Air Cdr. Ajobena to sign the convening order. A close perusal of Section 131 of the AFD, 1993 reveals that it was not the intendment of the law that the authority to convene a GCM be delegatable. The authority is vested only in the holders of the stated offices. There was therefore no power or authority vested in Air Cdr. Ajobena to sign the convening order. The order was a nullity. The trial and judgment founded on it are nullities: See Okafor v. State (1976)5 SC 13; Onwuka v. State (1970) 1 All NLR 159 at 163; Queen v. Owoh (1962) 1 All NLR 659 at 661-662; Awobotu v. State (1976) 5 S.C. 49 at 70 and the unreported judgment of this court in CA/L/293/98.
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. Had I been able to hold that the convening order was validly issued, I would have come to the conclusion that the guilt of the appellant was not established as required by law. I make an order discharging and acquitting the appellant on the counts brought against him.
Other Citations: (2000)LCN/0890(CA)