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Chief of Air Staff vs. Iyen

THE CHIEF OF AIR STAFF

THE AIR COUNCIL

MINISTRY OF DEFENCE

ATTORNEY-GENERAL OF THE FEDERATION

V

WING COMMANDER P. E. IYEN

SUPREME COURT OF NIGERIA

SYLVESTER UMARU ONU JSC ( Presided )

AKINTOLA OLUFEMI EJIWUNMI JSC (Read the Lead Judgment)

NIKI TOBI JSC

DAHIRU MUSDAPHER JSC

DENNIS ONYEJIFE EDOZIE JSC

SC. 217/2002

FRIDAY, 28TH JANUARY, 2005

APPEAL - Grounds of appeal - Nature of - Whether of facts, mixed law and fact or simply of law - Determinants of

CRIMINAL LAW AND PROCEDURE  ‘Discharge’ and ‘acquittal’ - Meanings of - How courts ascertain which of the orders to make

CRIMINAL LAW AND PROCEDURE - ‘Discharge’ and ‘discharge and acquitted’ - Orders of - Distinction between

CRIMINAL LAW AND PROCEDURE - Autrefois acquit or autrefois convict - Pleas of - Effect of as rules against double jeopardy When can be successfully pleaded

CRIMINAL LAW AND PROCEDURE - Criminal proceedings - Presence of accused person at his trial - Necessity of - When may be absent

CRIMINAL LAW AND PROCEDURE - Criminal proceedings - Trial of accused person in absentia - Impropriety of - Effect of as a negation of fair trial

CRIMINAL LAW AND PROCEDURE - Trial - Presence of accused person at his trial - Necessity of - When may be absent

CRIMINAL LAW AND PROCEDURE - Trial of accused person in absentia - Impropriety of - Effect of as a negation of fair trial

EVIDENCE - Witnesses - Credit-worthiness of - Effect of lapse of time on

JUDGMENT AND ORDERS - Order of retrial - Guiding principles in making of

JUDGMENT AND ORDERS - Verdict on cases - Need to give in relation to the specific facts before the court

MILITARY LAW - Court martial - Charges brought before a court martial -  Sustainance of in a civil court - What must be proved

NOTABLE PRONOUNCEMENT - Litigation - Role of as a tool of fairness in the adjudicatory system

WORDS AND PHRASES - ‘Discharge’ and ‘acquittal’ - Meanings of How courts ascertain which of the orders to make

WORDS AND PHRASES - ‘Discharge’ and ‘discharge and acquitted’ -

Orders of - Distinction between

Issue:

Whether having held that the General Court Martial proceedings were a nullity and that it was as if the respondent was never tried, the proper order for the court to make was an order of discharge and not an order of acquittal.

Facts:

The respondent, a Wing Commander in the Nigerian Air Force attached to its Pay and Accounting Group was, along with nine other officers of the Nigerian Air Force also attached to the Pay and Accounting Group, arraigned before the General Court Martial (GCM) on charges of committing fraud, stealing, corruption and conspiracy to commit several civil offences. When the GCM was convened for the trial of the ten accused officers, the respondent was not present. The GCM went on with the trial of the nine officers physically present before the court, and they were each found guilty and convicted accordingly. Thereafter, the GCM proceeded with the trial of the respondent in absentia. No oral evidence was called by the prosecutor in support of his case, but with the consent of the court pursuant to section 34 of the Evidence Act, the statements of the seven witnesses who testified at the earlier trial of the other officers were tendered; and on the basis of this evidence, the court found the accused guilty. He was convicted of eleven of the twelve count charge levelled against him, and sentenced to a total of 51 years imprisonment. A restitution order was also made against him in respect of his properties and other personal assets to the tune of N34,125,000.00.

Dissatisfied with the judgment of the GCM, he appealed to the Court of Appeal. The court allowed the appeal, set aside the judgment of the GCM and ordered that the respondent be discharged and acquitted. It is against this judgment that the appellants have appealed to the Supreme Court.