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State vs. Olatunji

THE STATE

V

SQUADRON LEADER S. I. OLATUNJI

SUPREME COURT OF NIGERIA

IDRIS LEGBO KUTIGI, JSC ( Presided )

UTHMAN MOHAMMED, JSC

UMARU ATU KALGO, JSC ( Read the Lead Judgment )

AKINTOLA OLUFEMI EJIWUNMI, JSC

NIKI TOBI, JSC

SC.206/2001

FRIDAY, 28TH FEBRUARY, 2003

CRIMINAL LAW AND PROCEDURE - Charges - Alteration of a charge or count - Proper approach

CRIMINAL LAW AND PROCEDURE - Charges - Substitution and alteration of - Whether have the same meaning and effect

CRIMINAL LAW AND PROCEDURE - Honest and reasonable belief in existence of circumstances - Whether may exonerate an accused person

CRIMINAL LAW AND PROCEDURE - Prosecution - Whether bound to call a particular number of witnesses to prove a charge

INTERPRETATION OF STATUTE - Statutory provision - How construed

MILITARY LAW - ‘Appropriate superior authority’ - Who is

MILITARY LAW - Firearm - Meaning of

MILITARY LAW - General court martial - Power to convene - Whether may be delegated

MILITARY LAW - General court martial - Where convened without complying with Armed Forces Decree - Effect

MILITARY LAW - General court martial - Who may convene

MILITARY LAW - Service law - Whether the respondent was subject to service law at the time he was arraigned and trial commenced

MILITARY LAW - Service officer - Where ceases to be subject to service law - Whether may continue to be subject to the jurisdiction of the court martial

MILITARY LAW - Serving officer - Where ceases to be subject to service law - Limitation of time within which he may be tried for an offence triable by a court martial

STATUTE - Statutory provision - How construed WORDS AND PHRASES - Firearm - Meaning of

Issues:

1.            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.

2.            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.

3.            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.

4.            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 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.

5.            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 withdrawal and sharing of the N10 million.

6.            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.

7.            Whether or not the Court of Appeal was right to disagree with the decision of the General Court Martial that if AVM Femi John Femi gave the order to withdraw the N10 million, such order would have been illegal.

Facts:

The respondent, a squadron leader was a pay officer in the Nigerian Airforce Headquarters in Lagos. He was charged along with eight other pay officers with 9 counts of conspiracy, stealing, receiving stolen property, illegal possession of firearms and disobedience to standing order. He was arraigned before the General Court Martial on the 26th of July, 1996. The charges against him were read and explained to him and he pleaded not guilty. On the 6th of April, 1996 prosecution applied to withdraw the charges to which the respondent pleaded on the 26th July, 1996 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 GCM proceeded and at the end of it all after the counsel for the prosecution and the defence had addressed the GCM at length, the GCM adjourned for judgment.

On the 21st of October, 1996, the GCM 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 and that court on the 28th of September, 2000 , allowed the appeal, set aside the convictions and sentences by the GCM and discharged and acquitted the respondent.

The prosecution was not satisfied with this decision and it appealed to the Supreme Court.

The Supreme Court considered the provisions of sections 128(1), 131(1)  and (2) of the Armed Forces Decree, 1993 which provide :

“128 (1) The following persons may act as appropriate superior authority in relation to a person charged with an offence, that is

(a)            the commanding officer; and

(b)           any officer of the rank of Brigadier or above or

officer of corresponding rank or those directed to so act under whose command the person is for the time being”.

131         (2)        A General Court Martial may 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 command; or

(e)            A Brigade Commander or corresponding command”.

(3) “The senior officer of a detached unit, establishment or squadron may be authorised by the appropriate superior authority to order a court martial in special circumstances”.