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Kigbu v. Nigerian Army

LT. I.O. KIGBU

V

THE NIGERIAN ARMY

COURT OF APPEAL

( LAGOS DIVISION )

JAMES OGENYI OGEBE JCA (Presided)

DALHATU ADAMU JCA (Read the Lead Judgment)

SULEIMAN GALADIMA JCA

CA/L/211/01

THURSDAY, 29TH APRIL, 2004

APPEAL - Issues for determination - Formulation of more than one issue from a ground of appeal - Impropriety of

APPEAL - Issues for determination - Need to be predicated or related to grounds of appeal - where does not - Effect

APPEAL - Rules of court - Attitude of appeal courts to cases decided without strict compliance with procedural rules

COURT - Appeal courts - Attitude of to cases decided without strict compliance with procedural rules

COURT - Technicalities - Attitude of court thereto

CRIMINAL LAW AND PROCEDURE - Arraignment - Essential requirements of a valid arraignment

CRIMINAL LAW AND PROCEDURE - Arraignment - Essentials of a valid arraignment as stipulated by section 215 Criminal Procedure Law, 1994 Laws of the Lagos State - Failure of strict compliance with -  Consequence of

CRIMINAL LAW AND PROCEDURE - Arraignment - Presumption of regularity in respect of until proved otherwise

CRIMINAL LAW AND PROCEDURE - Plea of an accused person Requirements of a valid plea - Failure to comply therewith Section 215 of Criminal Procedure Law

CRIMINAL LAW AND PROCEDURE - Section 215 Criminal Procedure Law, 1994 - Purport of

CRIMINAL LAW AND PROCEDURE - Section 215 Criminal Procedure Law, Laws of Lagos State, 1994 - Application of to criminal trials - When becomes applicable

PRACTICE AND PROCEDURE - Rules of court - Strict compliance with - Lack of - Attitude of appeal courts to cases decided without strict compliance with procedural rules

STATUTE - Criminal Procedure Law, Cap. 33, Laws of Lagos State,

1994, section 215 thereof - Applicability of to criminal trials When becomes applicable

STATUTE - Criminal Procedure Law, Cap. 33, Laws of Lagos State, 1994 , section 215 thereof - Purport of

STATUTE - Criminal Procedure Law, Cap. 33, Laws of Lagos State, 1994 , section 215 thereof - Essentials of a valid arraignment as stipulated therein - Failure to comply strictly with - Consequence of

Issues:

1.              Whether it is proper for the accused’s counsel to substitute the accused for the purpose of changing his plea from not guilty to guilty and whether the change of plea as aforesaid is in total conformity with the law.

2.              Whether the non-review of facts by the prosecution is not fatal to the case of the prosecution.

3.              Whether from all surrounding circumstances and from the record of proceedings the accused person was afforded a fair trial as enshrined under the Constitution.


Facts:

The appellant, who was an Army Officer attached to Abati Barracks Headquarters, Nigerian Army Band as a finance officer was accused of conspiring with others and stealing the sum of N27.8 million (twenty seven million, eight hundred thousand naira), property of the Federal Government of Nigeria, an offence he was said to have committed at Lagos, between April and May, 1994.

He was arraigned and charged before the General Court Martial convened by Brigadier General P. N. Aziza at the Lagos Garrison Command which commenced on the 11th of September, 1996. On the two-count charge of conspiracy and stealing contrary to section 422 of the Criminal Code and punishable under sections 66(a) and 114 of the Armed Forces Decree No. 105  of 1993, he initially pleaded not guilty at his arraignment, but later changed his plea to guilty. This subsequent change of plea was effected by the learned counsel representing the appellant before the General Court Martial after conferring with the appellant.

Upon the change of plea, the General Court Martial proceeded to convict the appellant who was sentenced to 2 years on the first count and seven years on the second count, the sentences were to run concurrently. The convening officer on confirmation of the sentences against the appellant reduced the second sentence from seven to five years.

After serving his five year term of imprisonment at the Abeokuta Maximum Security Prison on 13th January, 2002, the appellant who was dissatisfied with his conviction and sentence by the General Court Martial appealed against its decision.