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State v. Onyeukwu

THE STATE

V

SQN. LEADER O. T. ONYEUKWU

SUPREME COURT OF NIGERIA

IDRIS LEGBO KUTIGI, JSC ( Presided )

SYLVESTER UMARU ONU, JSC

ALOYSIUS IYORGYER KATSINA-ALU, JSC

UMARU ATU KALGO, JSC

SAMSON ODEMWINGIE UWAIFO, JSC ( Read the Lead Judgment )

DAHIRU MUSDAPHER, JSC

IGNATIUS CHUKWUDI PATS-ACHOLONU, JSC

SC.77/2001

FIRDAY, 22ND JULY, 2004

CRIMINAL LAW AND PROCEDURE - Co-accused’s evidence - When uncorroborated - Worth of

CRIMINAL LAW AND PROCEDURE - Joint trial of separate indictments - Judgment resulting thereby - Complaint against - Whether judgment will be reversed merely because the separate indictments were jointly tried

CRIMINAL LAW AND PROCEDURE - Joint trial of separate indictments -  Responsibility of accused persons to object thereto soon after the charge had been read over to the accused or during the progress of trial pursuant to section 168, Criminal Procedure Act

CRIMINAL LAW AND PROCEDURE - Joint trial of separate indictments - Statutory permission for under section 155 of the Criminal Procedure Act - Whether joint trial of separate indictments raises

a technical or jurisdictional issue

CRIMINAL LAW AND PROCEDURE - Joint trial of separate indictments -  Advantage of

CRIMINAL LAW AND PROCEDURE - Joint trial of separate indictments - Judgment entered in the proceedings where accused persons did not object to the joint trial of the separate indictments Whether will still be reversed

CRIMINAL LAW AND PROCEDURE - Joint trial of separate indictments -  Whether renders proceedings a nullity or a mere irregularity

CRIMINAL LAW AND PROCEDURE - Proof beyond all reasonable doubt - Meaning of

CRIMINAL LAW AND PROCEDURE - Proof of case beyond reasonable doubt - Failure of by prosecution against respondent in instant case

CRIMINAL LAW AND PROCEDURE - Separate trial of separate indictments - Demerit of

EVIDENCE - Co-accused’s evidence - When uncorroborated -  Worth of

EVIDENCE - Proof beyond all reasonable doubt - Meaning of

INTERPRETATION - Criminal Procedure Act, section 155 - Phrase: ‘they may be charged and tried together or separately’ Implication of

JURISPRUDENCE - Joint trial of separate indictments - Question whether same amounts to nullity - Reference relevant Nigerian statutory and case laws as well as English and American authorities in relation thereto - Judicial interpretation and usefulness thereof

MILITARY LAW - Court Martial - Competency of appropriate superior authority to authorise relevant senior officer to order court martial - Section 131(3) of the Armed Forces Decree No. 105 of 1993

STATUTE - Criminal Procedure Act, section 155 - Phrase: ‘They may be charged and tried together or separately’ - Implication of

WORDS AND PHRASES - ‘Proof beyond all reasonable doubt’ -

Meaning of

Issues:

1.              Whether the power to convene a General Court Martial, vested in the persons set out in section 131(1) and (2) of the Armed Forces Decree, 105 of 1993 (as amended) cannot be delegated?

2.              Whether the learned Justices of the Court of Appeal were

right in holding (as they did) that the joint trial procedure adopted by the General Court Martial was a curious procedure which occasioned improprieties and unfairness and therefore vitiated the trial of the respondent.

3.              Whether on a charge of conspiracy the provisions of section 27(3)  of the Evidence Act can be applicable having regard to section 11 of the Evidence Act.

4.              Whether the Court of Appeal was right in holding that the evidence before the GCM was insufficient to have secured the respondent’s conviction under count 3.

5.              Whether the statement of a person who was not jointly charged with the respondent and which said statement is against the respondent cannot suffice to secure his conviction.

6.              Whether the learned Justices of the Court of Appeal were right in setting aside the conviction of and discharging and acquitting the respondent in respect of counts five, six and seven having regard to the evidence adduced before the GCM.

Facts:

The respondent was charged in an indictment containing nine (9) counts relating to conspiracy to defraud the Nigerian Air Force, stealing, receiving stolen property, conspiracy to commit official corruption, illegal possession of fire arms, disobedience to standing orders amongst others. There were eight (8) other separate indictments brought against different individuals. Those indictments were consolidated with the respondent’s indictment and a joint trial of all nine (9) accused was conducted by the General Court Martial (GCM) held at Ikeja, Lagos.

On 21st October 1996, the GCM found the respondent guilty on seven (7)  counts and convicted him accordingly. He was sentenced to a total of  13 years imprisonment on the seven counts. The sentences in counts 2, 3, 5 and 9 were to run consecutively. The respondent was in addition ordered to pay by way of restitution the sum of N900,000 together with interest put at N1,350,000 totalling N2,250,000. The confirming authority confirmed the convictions, sentences and order of the GCM.

The respondent appealed against the decision of the GCM to the Court of Appeal which, on 22 June 2000, allowed the appeal, set aside same and discharged and acquitted the respondent.

The Court of Appeal, in its decision, observed, in respect of the complaint that the GCM had no jurisdiction to have tried jointly nine persons who were separately charged, that “what happened in the instant case is to say the least scandalous and a clear travesty of justice. It is clear departure from all known practices and procedures governing criminal trials”. It further held that the trial of the respondent, by virtue of the separate indictments having been tried jointly, was a nullity.

The Supreme Court considered the provisions of sections 155 and 168(c)  of the Criminal Procedure Act. They provide thus :

“155 When more persons than one are accused of the same offence or of different offences committed in the same transaction or when a person is accused of committing an offence and another of abetting or being accessory to or attempting to commit such offence or when a person is accused of any offence of theft, criminal misappropriation, criminal breach of trust and another of receiving or retaining or assisting in the disposal or concealment of the subject matter of such offence, they may be charged and tried together or separately as the court thinks fit”.

“168. No judgment shall be stayed or reversed on the ground of any objection which if stated after the charge was read over to the accused or during the progress of the trial might have been amended by the court nor -

...

(c) because of any objection which might have been stated as a ground of challenge of any juror, nor for any informality in swearing a juror or witness or any of them.”

Section 131(3) of the Armed Forces Decree No. 105 of 1993 was also considered. It provides -

“(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.”

Rule 16(1) of the Rules of Procedure (Air Force) 1972 was considered. It provides:

“Any number of accused may be charged in the same chargesheet with offences alleged to have been committed by them separately if the acts on which the charges are founded are so connected that it is in the interest of justice that they be tried together.”