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Nigerian Air Force v. Obiosa

NIGERIAN AIR FORCE

V

EX. SQN. LEADER A. OBIOSA

SUPREME COURT OF NIGERIA

IDRIS LEGBO KUTIGI, JSC ( Presided )

UTHMAN MOHAMMED, JSC

UMARU ATU KALGO, JSC

AKINTOLA OLUFEMI EJIWUNMI, JSC ( Read the Lead Judgment )

NIKI TOBI, JSC

SC.361/2001

FRIDAY, 31ST JANUARY, 2003

CRIMINAL LAW AND PROCEDURE - ‘Proof beyond reasonable doubt’ Meaning of

CRIMINAL LAW AND PROCEDURE - Charges - Substitution of charges -  Whether the prosecution of the respondent in the instant case was commenced within the period of 3 months set down by section 169(2) of the Armed Forces Decree in view of the fact that a new charge was substituted for the original charge

CRIMINAL LAW AND PROCEDURE - Charges - Whether court may alter or add to at any time before judgment is given

CRIMINAL LAW AND PROCEDURE - Criminal trial - Burden of proof on prosecution - How discharged

CRIMINAL LAW AND PROCEDURE - Criminal trial - Trial of accused person under the Armed Forces Decree - Duty of court holding

CRIMINAL LAW AND PROCEDURE - Defence - Duty of accused person to call material witness to his defence

EVIDENCE - Judicial notice - Matters which court martial must take judicial notice of

EVIDENCE - Presumption - Evidence withheld by prosecution - Presumption of

EVIDENCE - Proof - Officer serving in the Armed Forces - Proof required to establish that same was engaged in any prohibited activities

EVIDENCE - Proof - Proof beyond reasonable doubt - Meaning of

MILITARY LAW - Appropriate superior authority in relation to a person charged with an offence - Person who qualifies

MILITARY LAW - Armed Forces Decree - Forgery thereunder - Ground for conviction therefor

MILITARY LAW - Armed forces decree - Trial of an accused thereunder Duty of court holding

MILITARY LAW - Court martial - Matters which court martial must take judicial notice of

MILITARY LAW - Erring serving officer of the Armed Forces - Mode of

trial of

MILITARY LAW - General court martial - Scope of power of

MILITARY LAW - General Court Martial - Special court martial -

Composition of

MILITARY LAW - General Court martial - Who may convene

MILITARY LAW - Officer of the Armed Forces - Order of under the Armed Forces Decree - Condition precedent to delegating

MILITARY LAW - Officer serving in the Armed Forces - Proof required to establish that same was engaged in any prohibited activities

MILITARY LAW - Section 169(2) of the Armed Forces Decree - Whether the prosecution of the respondent was commenced within the period of 3 months set down therein in view of the fact that a new charge was substituted for the original charge

MILITARY LAW - Special court martial - Who may convene

WORDS AND PHRASES - ‘Proof beyond reasonable doubt’ - Meaning of

Issues:

1.            Whether the General Court Martial had been properly convened and had the jurisdiction to try the respondent.

2.            Whether the responsibility of assisting the respondent’s defence by calling a witness rested on the prosecution or on the accused.

3.            Whether or not the prosecution had established a case of forgery and stealing against the respondent.

4.            Whether or not the evidence led by the prosecution in respect of the 14th count had been sufficient to ground a conviction.

5.            Whether the Court of Appeal was right in setting aside the order requiring the respondent to pay N137,750,000.00 as restitution.

Facts:

In April 1996, the Chief of Air Staff, Air Vice Marshall Femi John Femi was removed from that Office by the then Federal Military Government and was replaced by AVM Nsikak Eduok. At the time when the changes occurred, one Wing Commander P. E. Iyen was the Director of Finance and Accounting, and would now be referred to simply as (DFA). It would appear, following his assumption of office as the Chief of Air Staff, AVM N. Eduok raised the allegation that some Air Force Officers shared between themselves the sum of N10 million, and that another sum of N48 million was hastily withdrawn from OPS Harmony Account with Central Bank of Nigeria. That sum was allegedly withdrawn for the renovation of the guesthouse of the Chief of Air Staff and also the Air House.

The Chief of Air Staff therefore, then set up a panel to investigate the allegation. As a result, the respondent and eight others were jointly tried, though each accused had his own separate charges levelled against him. At his initial arraignment, the respondent had against him a six-count charge of stealing, receiving stolen property, aiding and abetting services offence, scandalous conduct and disobedience to standing order. In the meantime, the respondent had on the 27th April 1999 been discharged from the Air Force. And on the 6th of August 1996, the six-count charge was amended to a 14count charge as stated above. Though objection was raised to the new set of charges, it was overruled and the respondent pleaded ‘not guilty’ to each of them. Also the objection raised to the jurisdiction of the GCM to try the respondent was raised and overruled. The GCM, after all these preliminaries, then went on to try the respondent upon the charges as laid. At the conclusion of hearing GCM found the respondent guilty. Dissatisfied, respondent appealed to the Court of Appeal which set aside the judgment of the GCM.

The appellant has now appealed to the Supreme Court.