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Nigerian Air Force v. James

THE NIGERIAN AIR FORCE

V

EX-WING COMMANDER L.D. JAMES

SUPREME COURT OF NIGERIA

IDRIS LEGBO KUTIGI, JSC ( Presided )

UTHMAN MOHAMMED, JSC

SYLVESTER UMARU ONU, JSC ( Read the Lead Judgment )

UMARU ATU KALGO, JSC

AKINTOLA OLUFEMI EJIWUNMI, JSC

SC.363/2001

THURSDAY, 12TH DECEMBER, 2002

COURT - Adjudicating authority of court or tribunal - Importance of jurisdiction thereto

COURT - Issue not previously raised - Whether court can consider suo motu

CRIMINAL LAW AND PROCEDURE - Charge - Amendment of a charge -

Effect thereof

CRIMINAL LAW AND PROCEDURE - Charge - Duty imposed by law when altered

CRIMINAL LAW AND PROCEDURE - Charge - How amended

CRIMINAL LAW AND PROCEDURE - Conspiracy - Whether proved beyond reasonable doubt in this case

CRIMINAL LAW AND PROCEDURE - Criminal trial - Exception to the law creating the offence with which an accused is charged - Burden on accused to prove existence of circumstances bringing his case thereunder

CRIMINAL LAW AND PROCEDURE - Forgery - Whether established in this case

EVIDENCE - Burden of proof - Exception to the law creating the offence with which an accused is charge - Burden of proof of existence of circumstances bringing his case within - On whom lies

EVIDENCE - Presumption - Presumption of regularity of official act - When applicable

JURISDICTION - Adjudicating authority of court or tribunal - Importance of jurisdiction thereto

MILITARY LAW - A military ruler making gift in the ‘IBB spirit’ - Illegality of

MILITARY LAW - General Court Martial - An appropriate superior authority in relation to a person charged with an offence - Who qualifies as - Section 128(1) of the Armed Forces Decree of 1993

MILITARY LAW - General Court Martial - Power to convene - On whom lies - Section 131(2) of the Armed Forces Decree No. 105 of 1993

MILITARY LAW - General Court Martial - Power to convene - Whether can be delegated - Section 131(3) of the Armed Forces Decree of 1993

MILITARY LAW - Restitution - Person against whom restitution is invoked

MILITARY LAW - Section 168(1) and 169(2) of the Armed Forces Decree No. 105 of 1993 - Purport of

STATUTE - Section 168(1) and 169(2) of the Armed Forces Decree No. 105  of 1993 - Purport of

Issues:

1.            Whether the Court of Appeal was right in holding that the General Court Martial lacked jurisdiction to adjudicate or try the respondent before it (GCM).

2.            Whether the Court of Appeal was right in holding that there was no evidence in proof of counts 1 to 5 of the charges brought against the respondent.

3.            Whether the burden rested on the prosecution to call Wg. Cdr. Iyen and the retired Chief of Air Staff as witnesses in order to prove that the said Chief of Air Staff had or had not made the order that the sum of N10 Million belonging to the Nigeria Air Force be withdrawn and expended by the accused persons, respondent  inclusive, as a welfare gift.

4.            Whether the Court of Appeal was right in holding that there was insufficient evidence to ground a conviction against the respondent in respect of counts 7 and 8.

5.            Was the Court of Appeal right in discharging and acquitting the respondent on all counts against him after having found that:

a.              The respondent was correctly found guilty for unlawful possession of Fire Arms and

b.             The proceedings of the General Court Martial were a nullity in the absence of jurisdiction?

6.            Having regard to the fact that the respondent was sentenced to 15  years imprisonment on counts 9 and 10, was the Court of Appeal right in discharging and acquitting the respondent of these same counts he had served “some years” in prison?

7.            Was the Court of Appeal right in discharging and acquitting the respondent on count 12 on the ground that the offence committed more than 11 (Eleven) years ago was unsupported by any evidence?

8.            Whether the Court of Appeal was right in setting aside the orders of restitution made against the respondent to pay the sum of N4,402,500.00.

Facts:

Respondent, ex-wing commander L.O. James was one of the 9 pay officers who held financial appointment at the headquarters of the pay and Accounting Group and Director of Finance and Accounts of the Nigeria

Airforce. In a joint trial which was commenced on 26th July, 1996 by the GCM 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), 12 counts of conspiracy, Stealing, Receiving Stolen Property, Aiding and Abetting, Forgery, Illegal Possession of Forearms and Disobedience to Standing Orders were levelled against the respondent.

In the judgment delivered by General Court Martial (GCM) on 21st October, 1996 the respondent was convicted and sentenced to 50 years imprisonment on all the 12 counts. He was in addition, ordered by the

GCM to refund the sum of N4,402.500.00 with interest as restitution for the various offence committed by him while in respect of the 9th and 10th counts for unlawful possession of firearms, he was sentenced to 15 years.

Dissatisfied with the said judgment, the respondent appealed to the Court of Appeal which declared the judgment made by the GCM a nullity, 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. On counts 9 and 10, the Court of Appeal held inter alia that the respondent was correctly found guilty for unlawful possession of firearms but held that since it had earlier found that the GCM lacked jurisdiction to adjudicate on the matter any order made is a nullity. The appellant was dissatisfied and therefore filed this appeal to the Supreme Court.

The Supreme Court considered section 131(3), 128(1), 168(1) and 169(2)  of the Armed Forces Decree No. 105 of 1993 which provides thus :

“168(1 ) Subject to the provisions of section 169 of this Decree where an offence under this Decree triable by a court martial has been committed or is reasonably suspected of having been committed by a person, while subject to service law under this Decree, then in relation to that offence he shall be treated, for the purposes of the provisions of this Decree relating to arrest, keeping in custody, investigation of charge, trial and punishment by a court martial (including confirmation, review and reconsideration) and execution of sentences, as continuing to be subject to service law under this Decree notwithstanding his ceasing at any time to be so subject.” and

“169(2) A person shall not be triable by virtue of subsection (1) of section 168 of this Decree unless his trial is begun within three months after he ceases to be subject to service law under this Decree or the trial is for a civil offence committed outside Nigeria and the AttorneyGeneral of the Federation consent to the trial, but this subsection shall not apply to the offences of mutiny, failure to suppress mutiny and desertion under this Decree.” (Italics is mine for emphasis)