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In The Supreme Court of
On Friday, the 7th day of March
2008
Before Their Lordships
S.C. 204/2004
Between
And
Judgement of the Court
Delivered by
Niki
Tobi, JSC
This appeal involves the
beastly, barbaric and bizarre offence of sodomy. A more common place name is
homosexual or homosexuality. It is against the appellant, former Major Bello
Magaji. He wore Staff No.
N/6604 in the Army.
The victims are Emmanuel
Enega (PW1), Joseph
Unigbe (PW2),
Mohammed Abubakar and Isaac John. Emmanuel
Enega was 17 when he gave evidence before the
General Court Martial. He was a student of the
The common evidence of
Emmanuel and Joseph is that they were asked to drink a bottle each of small
stout which intoxicated them; it was in their state of intoxication that the
appellant performed the dirty act of sodomy on Emmanuel, and others.
Perhaps it is better to hear
from the mouths of Emmanuel and Joseph to appreciate the ordeal or pain they
went through. Emmanuel as PW1, said in his evidence in-chief at pages 23 and
24 of the Record, and I will quote the evidence in very large parts:
"When I went inside, I saw
Joseph with Oga Magaji.
Then Oga asked me my name, and then I told him
my Joseph (sic) said yes so he asked Joseph if he knew me and Joseph said
yes so he said I should go inside and sit down. Then when we went inside, I
saw Mohammed and he said it has been long he was inside, he overslept. Then
I asked Joseph the time they came there. Joseph said it has been long, that
Mohammed took a bottle of Gulder that's why he
went asleep. By then, Sam came in, brought a bottle of small stout and gave
me to drink, but I said I didn't want to drink because I was not used to it,
but he said if I don't drink it I wouldn't work for Oga,
he will not accept me. Then he opened the small stout for me. I took a
little out of it and it was bitter, I couldn't take it, so I gave it to
Joseph Unigbe who took the rest. After 5 minutes
my eyes were turning me Joseph said me and Mohammed should go inside the
bedroom to take a bath so that our eyes will stop turning us we accepted
took our bath and when we wanted to put our cloths on, Joseph brought out
one Army singlet, shirt and nicker, and a night
gown and he said we should put them on we asked him why. He said we could
not go home that patrol will hold us, that we had to sleep till the
following day so we accepted and put them on. Then he showed us the guest
room that we should go inside that that is where we were going to sleep. All
of us went inside the guest room, suddenly, Joseph went outside saying he
was going to collect something from the sitting room. When he went out, just
immediately he went out then Maj. Magaji came
inside the room. When he came inside, because I and Mohammed were sleeping
on the bed he sat on the bed and asked us what we were discussing, we said
nothing. It was then he removed his singlet and removed Mohammed's own and
started romancing Mohammed's body and used my hand and put it on his
tommy and said that I should be romancing his
tommy, After that he off his
nicker and off Mohammed's
nicker and he sexed Mohammed through the anus. Then Mohammed shouted
that this wasn't what Joseph told him that he was coming to do there. Then
Oga stood up and Mohammed went out. Before
Mohammed went out, he told Mohammed to bring a white container. When
Mohammed brought the container the container was filled with cream, so he
used the cream to rob our pains; I and Mohammed and then Mohammed went out
then Oga wanted to use me too. He turned me
upside down and used his penis and put it into my anus then, I shouted that
I can't take it that is not what Joseph told me too then he said I should go
out."
Joseph, in his evidence
in-chief, said at page 28 of the Record:
"There was a day, it was on a
Friday evening, I was standing in my area, then Oscar called me and said
that I should go and take bathe that he will take me to somewhere. I thought
that it was joking matter because I use to fear that boy before, but I took
my bathe. After taking my bathe, he gave me transport fare to go to camp 1,
at the offrs' mess. He said he was coming to
meet me there. He told me that he, was taking me
there to go and do a contract of ridges not knowing that he was taking me
there to go and do another thing when we enter Maj.
Magaji's house, they gave me small stout to drink. I said no that I
have not tried it before. They said I should try it that it is only a bottle
of small stout. When I drank it, it was bitter so I told them I can't finish
it but they urged me to finish it. After finished
drinking my eyes started turning me. Then the
offr told me to go into his bedroom and lie down so that my eyes will
steady. I went inside and lay on the bed. In the night the
offr came into the room and started romancing my
body so I was thinking within me, ah, this man is a senior
offr, how can he be doing a thing like this but
I was afraid to speak out so he told me to lie down on the floor and turn my
back, then I refused I told him I can't do that, so he brought a container
of cream and said I should be robbing the cream on his penis. After
sometime, I told him I had to be going because it was getting late in the
night. He said I shouldn't worry that I should go and bath. After my bath he
gave me
The following evidence came
out under cross-examination of Joseph at page 29 of the Record:
"Ques:
Wait, you said you were sleeping and Mohammed came and woke you up
that he has finished the job?
Ans:
Yes sir.
Ques:
What job did he tell you that he has finished?
Ans:
He said that the man has already sexed them.
Ques:
What do you mean by sex them?
What did he say?
Ans:
He said the man give him a cream to rub on his penis and put
his penis in his anus to sex him
Ques:
What do you mean sex him?
Ans:
He put a cream in his penis and put in his anus.
Ques:
And did what?
Ans:
And sleep with him
Ques:
What do you mean sleep with him?
Ans:
Sex him."
The General Court Martial
convicted the appellant and sentenced him to seven years. His appeal to the
Court of Appeal was dismissed. He has come to the Supreme Court. Briefs were
filed and exchanged. Appellant formulated five issues for determination:
"1.
Whether the Court Martial convened by Brigadier-General P. N. Aziza
was competent, having regards to the fact that there was no prior
investigation of the charge against the Appellant in the manner prescribed
by law and that the Appellant was not under his command (Grounds 1&2).
2.
Whether the lower court was right when it held that the prosecution
witnesses testified on oath (Grounds
3&4).
3.
Whether the lower court was right when (upheld the conviction of the
Appellant for the offence of sodomy as created under Section 81(1) (a) of
the Decree (Grounds 5, 6 &7).
4.
Whether the lower court was right when it upheld the admissibility of
the purported statement of the Appellant which was alleged to have been
obtained under Duress and was tendered from the bar. (Grounds 8
&. 9).
5.
Whether having regard to the Records of Proceedings of the Court
Martial the lower court was right when it came to the conclusion that the
Appellant was given a fair hearing (Grounds 10, 11 & 12.) ''
The respondent adopted the
above five issues.
Learned counsel for the
appellant, Mr. Robert Clarke, Senior Advocate of
He submitted on Issue No.
2 that the Court of Appeal was wrong in holding that the prosecution
witnesses testified on oath. He contended that the reproduction of Form
D2 without more is no proof that the prosecution
witnesses were duly sworn, as the Form was not completed with relevant
information and particulars as to the names of the witnesses, and whether
they were sworn on the Holy Bible or the Holy Quoran.
He submitted that the findings of the Court of Appeal are perverse. He cited
section 138(2) and (5) of the
Decree and
Agusiobo
v. Onvekwelu (supra);
Kallamu v. Gurin (supra);
Eimskip Ltd, v. Exquisite Ind. Ltd, (supra);
Ojong v. Duke (2002) 14 NWLR (Pt. 841) 581 and
Owoyemiv.
Adekoya (2003) 18
NWLR (Pt. 852) 307.
On Issue No. 3, learned
Senior Advocate submitted that the Court of Appeal was not right in
upholding the conviction of the appellant, for the offence of sodomy. He
contended that the offence was not proved by the prosecution. Pointing out
that Mohammed Abubakar and Isaac
Jonah, did not testify at the trial, learned
Senior Advocate argued that the charge ought to have failed in the General
Court Martial. He cited The Criminal
Law and Procedure of the Six Southern States of
On Issue No. 4, learned
Senior Advocate submitted that the Court of Appeal was wrong in upholding
the decision of the General Court Martial admitting the pre-trial statement
of the appellant, Exhibit 1.
He urged the court not to attach any evidential weight to the
exhibit. He cited sections 192 and 193 of the Evidence Act and the following
cases: Famakinwa
v. Unibadan (1992) 7 NWLR
(Pt. 255) 608;
Anatogu
v. Iweka (1995) 8 NWLR
(Pt. 415) 547;
Iyanda
v. Laniba (2003) 8 NWLR
(Pt. 810) 267;
Edoha
v. Attorney-General, Akwa
Ibom Slate (1996) 1 NWLR (Pt. 425) 488);
Ajayi
v. Fisher (1956) 1 NSCC 82 and
Trade Bank Pic v. Charmi
(2003) 13 NWLR (Pt. 836) 158.
Learned Senior Advocate
submitted on Issue No. 5 that the Court of Appeal was wrong in
holding that the appellant was given a fair hearing by the Court Martial.
Citing Garba
v. University of Maiduguri (1986)
1 NSCC Vol 17 page
245; Mohammed Kano NA (1968) 1 All NLR 424;
Kotoye v. CBN
(1989) 1 NWLR (Pt. 98) 419;
Unibiz
(Nig) Ltd, v. CBC I. Ltd. (2003) 6 NWLR (Pt. 816) 402;
Agoju
v. Adiche (2003) 2 NWLR
(Pt. 805) 509, counsel submitted that the appellant's right to fair
hearing was breached on the following grounds:
(i)
that the General Court Martial descended into the arena by virtually
taking over the case of the prosecution and thereby interfered with the
course of the proceedings;
(ii)
that the General Court Martial in allowing the prosecution to tender
Exhibit 1 from the Bar denied the appellant the right of cross-examination;
(iii)
that the confirmation of the verdict of
the General Court Martial only four days thereafter by the confirming
officer foreclosed the appellant's right to petition against the said
verdict within the three months period allowed under section 149(1) of the
Decree.
He urged the court to allow
the appeal.
Learned counsel for the
respondent, Mallam Jimoh
Adamu, Assistant Chief Legal Officer, Federal
Ministry of Justice,
Taking Issue No 2,
learned counsel submitted that the witnesses for the prosecution were all
put on oath before they testified in accordance with the Rules of Procedure,
1972. Citing the case of
Odu’a
investment Co. Ltd, v. Talabi (1997) 10
NWLR (Pt. 523) 1, learned counsel submitted
that courts should not follow technicalities but do justice.
On Issue No. 3, learned
counsel called in aid the evidence of PW1, PW2 and PW3 and submitted that
the prosecution proved penetration. He also cited Oxford Advanced Learners
Dictionary for the definition of penetration. He distinguished the case of
Taking Issue No. 4,
learned counsel submitted that the Court of Appeal was correct in upholding
the submission of the respondent on Exhibit 1. Assuming, without
conceding that Exhibit 1 was wrongly admitted, counsel contended that
the error by itself cannot ground a reversal of the entire case. He cited
Abadom
v. State (1997) 1 NWLR 1, Even if Exhibit 1 is not acted upon,
the appellant did not present any cogent evidence in defence, learned
counsel argued.
On Issue No. 5, learned
counsel submitted that the appellant was given fair hearing. He contended
that the questions asked by the court were merely aimed at clearing
ambiguities which arose in the course of examination in-chief He did not see
the application of the case of
Amachree
v. Nigerian Army (2003) 3 NWLR (Pt. 807) 255 cited by counsel for the
appellant. He also relied on Rule
56(1) of the Rules of Procedure
(Army) 1972. He pointed out that the answers bear no relevance to the
case of the prosecution. Counsel argued that the rule of fair hearing is not
a technical one which can only be raised where there is genuine and
deliberate contravention or denial of the Constitution. He cited
Onigbo
v. Una (2002) Vol. 12 MJSC 14 He urged the
court to dismiss the appeal.
Let me take the first issue on
the alleged failure of the prosecution to investigate the charge against the
appellant. Sections 123 and 124 of the Decree are relevant. They provide:
"123.
Before an allegation against a person subject to service law under
this Decree (in this section referred to as the 'accused') that he has
committed an offence under a provision of this Decree is further proceeded
with, the allegation shall be reported, in the form of a charge, to the
commanding officer of the accused and the commanding officer shall
investigate the charge in the prescribed manner.
124
(1)
After investigation, a charge against an officer below the rank of
Lieutenant-Colonel or its equivalent or against a warrant or petty officer
may, if an authority has power under the provisions of this Part and Part
XIII of this Decree to deal with it summarily, be so dealt with by that
authority (in this Decree referred to as 'the appropriate superior
authority’) in accordance with those provisions."
Section 123 provides for an
investigation of an offence against a person subject to service law. Section
124(1) provides for dealing with the offence summarily in appropriate cases
after investigation. This applies in respect of offences against an officer
below the rank of Lieutenant-Colonel or its equivalent or
a warrant or petty officer.
In an apparent reaction to the
submission of learned Senior Advocate for the appellant, the Court of Appeal
said at pages 406 and 407 of the Record:
"However, it would appear on a
cursory look at the Record of Proceedings, that the prosecution indeed
tendered a detailed report of investigation which the court admitted and
marked Exhibit 1. The
Appellant's case was duly investigated by the General Court Martial."
I find it difficult to
disagree with the Court of Appeal. I have seen Exhibit 1 and I arrive at the
same conclusion. In my humble view, the appellant did not show in what way
the provisions of sections 123 and 124 were not complied with. Learned
counsel relied on the often cited case of
Madukolu v. Nkemdilim
(supra) on jurisdiction. With respect, the case does not apply. The
General Court Martial that convicted the appellant was properly constituted
"as regards numbers and qualifications of the members". No member of the
General Court Martial was disqualified. The offence was within the
jurisdiction of the General Court Martial. The case came before the General
Court Martial by due process of law, and after complying with investigation,
a condition precedent to the exercise of the jurisdiction of the General
Court Martial. The issue accordingly fails.
The second issue is in respect
of taking of oath The Court of Appeal said at pages 407 and 408 on the issue
and I quote the court in externso:
"The Argument of the Appellant
is that his conviction was secured by the lower Court Martial based on the
unsworn testimony of the prosecution witnesses. How correct is the
Appellant's Claim? I have taken a cursory look at the Record of Proceedings.
It indicates that the witnesses were all put on oath before they testified.
Rule 92 of the
Procedure Rules Military Court Martial Rules, 1972, requires that the
Record of proceedings of a Court Martial be recorded in accordance with the
appropriate form set out in Schedule 16(6). The Rules provide that the
testimony of sworn prosecution witnesses shall be recorded in the following
manner:
The witnesses for the
prosecution are called and
......... being
duly sworn......."
I agree with the learned
Counsel for the Respondent that this format once used as was done in the
instant case; it is sufficient proof that the witnesses were duly sworn and
it is needless to insist on a verbatim recording of the proceedings whereby,
the prosecution witnesses were actually put on oath.
Furthermore, from the record
of proceedings on page 15 there are still further indications showing that
the prosecution witnesses were put on oath before they testified. In his
opening address the prosecution has this to say;
'We shall, in establishing the
case against the accused as required by
S.135
and 156 of the Evidence Act, lead evidence which will consist of
documentary evidence and testimony of witness, who will give evidence on
oath without wasting much of the Courts' time ...'
Again, on page 29 of the
Record of proceedings, the following dialogue took place between the
prosecutions and PW4:
'Ques:
Now Oscar, remember you are on oath, tell us truthfully, did you see
Mohammed Abubakar on that day?
Ans:
I saw Mohammed Abubakar.'
In the light of above opening
address and dialogue between the prosecution and PW4, it is clear as day
light that the witnesses for the prosecution were duly sworn to testify on
oath. I therefore have to resolve this issue against the Appellant."
I am not in a position to
improve on the above. The Court of Appeal got the point very well. I have,
in obedience to learned Senior Advocate, looked at the Forms he referred to
at paragraphs 5-6, page 7 of the brief, and I come to the inescapable
conclusion that they do not help the case of the appellant. The General
Court Martial, in my view, complied with the provision of section 138 of the
Decree. An appellant is bound by the Record of Appeal. He cannot go outside
the Record and canvass lo an appellate court what he thinks is in favour of
his case, which is not in the Record. The Record clearly shows that the
witnesses duly took that oath. The Court of Appeal was very clear on that
and I must go along with the court.
That takes me to Issue No. 3
on the proof of the offence of sodomy. Section 81 of the Decree provides in
part;
“against
the order of nature, or ...... is guilty of an offence under this section”
The Armed Forces Decree does
not define carnal knowledge. Section
6 of the Criminal Code Act defines carnal knowledge or the term carnal
connection. The term implies that the offence, so far as regards that
element of it, is complete upon penetration. While carnal knowledge is an
old legal euphemism for sexual intercourse with a woman, it acquires a
different meaning in section 81. The section 81 meaning comes to light when
taken along with the proximate words "against the order of nature". The
order of nature is carnal knowledge with the female sex. Carnal knowledge
with the male sex is against the order of nature and here, nature should
mean God and not just the generic universe that exists independently of
mankind or people. It is possible I am wrong in my superlative extension of
the expression. As that will not spoil the merits of the judgment, I live it
at that.
Where there is a hole or an
opening, there will be the possibility of penetration; penetration being the
ability to make a way or way into or through. While the common usage of the
word means putting of the male organ into the female sex organ when having
sex, it has a more notorious meaning and that is the meaning in section 81.
The natural function of anus
is the hole through which solid food waste leaves the bowels and not a penis
penetration. That is against the order of nature, and again, that is what
section 81 legislates against. I had earlier produced part of the evidence
of Emmanuel and Joseph. Emmanuel was a victim of the offence. Let me repeat
the exercise but this time limited to a short extract. Emmanuel said at page
24 of the Record:
"He turned me upside down and
used his penis and put it into my anus then, I shouted that I can't take it
that it is not what Joseph told me ....."
Joseph in his evidence
in-chief and under cross-examination told the General Court Martial that
Mohammed told him that
"he
has finished the job. He said that the man has already sexed him."
Appellant in his pre-trial
statement said:
"... I had some passes with
them short of sexual intercourse ... they massaged me. I have to state that
on the day in question the massage they did to me included my private parts
and I had romances with them. We were naked."
It is clear from the pre-trial
statement of the appellant that he admitted what was convenient for him to
admit. He admitted the naked romance which Emmanuel and Joseph confirmed in
their evidence. Does the appellant want this court to believe that the whole
matter ended in a romance, particularly in the context of a willing
Emmanuel? The evidence of appellant agrees with that of Joseph as it affects
Joseph in the romance. Unlike Emmanuel, Joseph was unwilling and the
appellant released him with a gift of
I should pause here to say
that the evidence of Joseph is clear hearsay. I thought learned Senior
Advocate will make the point. I am surprised that he did not. Mohammed woke
up Joseph from sleep and told him that "he has finished the job.”
That, in my view, is clear hearsay evidence which is inadmissible.
The hearsay evidence of Joseph
notwithstanding, the evidence of Emmanuel clearly proves the offence of
sodomy. That apart, the evidence of the appellant creates a circumstance
which leads to the conclusion that he committed the offence of sodomy. He
said he "had some passes with" the victims. He said they massaged him. He
said the massage included his private part, which I identify as the penis.
He said he had romances with them naked. Where did all these amorous
activities lead the appellant to? Should I believe that they did not lead
the appellant to commit the offence of sodomy on a willing Emmanuel, I ask
again"? While they may be incapable of rousing the feelings of an ordinary
man in the street, they will certainly rouse the feelings of a homosexual or
gay sodomite. The available evidence pin down the
appellant as one. There is the adage that an ostrich which buries its
head in the sand forgets that the rest of the body is exposed to any willing
eye to see and watch.
Apart from the direct evidence
of Emmanuel, there is enough circumstantial evidence justifying the
conviction and sentence of the appellant. After all, a court or tribunal can
convict on strong circumstantial evidence which lead to the commission of
the offence. See
Chewmoh
v. State (1986) 2 NWLR (Pt. 22) 331; Adio v.
State (1986) 2 NWLR (Pt. 24) 581; Ikomi v. State
(1986) 3 NWLR (Pt. 28) 340; Iyaro v. State
(1988) 1 NWLR (Pt. 69) 256; Ojegbe v. State
(1988) 1 NWLR (Pt. 71) 414; Atano v.
Attorney-General
Bendel State (1988) 2 NWLR (Pt. 75) 201;
Shazali v. State (1988) 5 NWLR (Pt. 93) 164;
Gabriel v. State (1989) 5 NWLR (Pt. 122) 457.
Learned Senior Advocate
submitted that as Mohammed Abubakar and Isaac
Jonah did not testify at the trial, the allegation
against the appellant in respect of them have been abandoned. I do
not see how this submission helps the appellant. If an accused person is
charged with committing an offence against two or more persons, he could be
convicted and sentenced in respect of committing the offence against one
person; and the conviction and subsequent sentence stand. Our adjectival law
does not require that the prosecution must prove the commission of the
offence against all the victims before the accused could be convicted.
Sodomy is not one offence where corroboration is statutorily required. Even
if it was to be so, the pre-trial statement of the appellant would have gone
a long way, if not all the way.
The next issue is in respect
of the admissibility of the pre-trial statement. I think I have touched it
by the last foregoing sentence. Let me go into it in more detail.
Rule 57 of the
Rules of Procedure (Army) 1972,
MM; 1972 provides that a written
statement which is admissible in accordance with the provisions of the
Criminal Justice Act, 1967, as modified by the Court Martial Evidence
Regulation 1967, shall be handed to the court by the prosecutor or the
accused as the case may be, without being produced by a witness. Learned
Senior Advocate would appear to have forgotten to consider the above rule.
If he had done so, he would not have raised the issue.
The impression is given by
both counsels that Exhibit 1
is a confessional statement. With respect, it is not. A
confessional statement unequivocally confesses to the commission of the
offence charged. The offence is sodomy. Appellant did not confess in
Exhibit 1 that he committed the offence. All he said is that he romanced
the victims and they romanced him in return. Mere romance without
penetration through the anus is not sodomy. Therefore the issue of
voluntariness of Exhibit 1 raised by learned Senior Advocate for the
appellant and the corresponding submission of counsel for the respondent do
not arise. Assuming that I am wrong (and I do not think so) there is clear
evidence outside Exhibit 1 justifying the conviction and sentence of the
appellant. And here, the evidence of Emmanuel readily comes out to the fore.
And that takes me to the last
issue on fair hearing; Learned Senior Advocate has seriously canvassed in
this court that the appeal should be allowed because the General Court
Martial took over the prosecution and thereby interfered with the course of
the proceedings. He took time to count the number of questions the General
Court Martial asked PW2, PW3 and PW4.
It is straight and strict law
that tribunals, or courts of law, by their special place in the adjudicatory
process, should not condescend to the nitty-gritty of the dispute or flirt
with the evidence in a way to compromise its independent and unbiased
position in the truth searching process. A tribunal or court is expected to
hold the balance in an egalitarian way so that the parties and persons
present in court will not accuse the body of bias. This is the real essence
of our adversary system of the administration of justice as opposed to the
inquisitorial system of the French prototype.
The above position of the law
is good as long as it is the general principle of law. For a conduct of a
trial tribunal or court to affect its decision in respect of interference,
an appellate court must be satisfied that there was bias or likelihood of
bias. In considering this, an appellate court will have a very close look at
the questions asked by the tribunal or court to see whether they affected
the live issues in the dispute and the live issues here mean issues which
will inevitably give rise to the decision of the tribunal or court one way
or the other. Therefore if a tribunal or court asked, say, a thousand
questions, which are peripheral, and in the opinion of an appellate court,
do not go to the root and foundation of the matter, it cannot allow an
appeal on that ground. In such a situation, an appellate court can only take
the conduct of the tribunal or court as noisy and lousy, which has no effect
on the conviction.
Emmanuel was the star witness,
so to say. He gave evidence as PW1. The court did not ask him any question.
Learned Senior Advocate did not say that the court asked Emmanuel any
question. He said that the court asked PW2 one question, PW3 fifteen
questions and PW4 ten questions. The questions counsel complained of in the
brief were mainly on the money appellant gave the victims as they related to
the offence of sodomy.
I do not think the evidence of
PW2, PW3 and PW4 are that material to the conviction of the appellant. I
made the point that the evidence of PW2, as it affects the commission of the
offence on Mohammed, is hearsay. PW3 lived with the appellant. PW4 lived at
Block 05/14, Ojo Cantonment. They did not give
evidence of the commission of the offence of sodomy and so questions heaped
on them really go to no issue.
I do not think the issue of
fair hearing canvassed by learned Senior Advocate will be of any assistance
to the appellant. In the case of
Orugbo
v. Una (2002) 16 NWLR
(Pt. 792) 175 cited by counsel for the respondent, I said at page 211
and 212 of the Report:
"It has become a fashion for
litigants to resort to their right to fair hearing on appeal as if it is a
magic wand to cure all their inadequacies at the trial court But it is not
so and it cannot be so. The fair hearing constitutional provision is
designed for both parties in the litigation, in the interest of fair play
and justice. The courts must not give a burden to the provision which it
cannot carry or shoulder. I see that in this appeal. Fair hearing is not a
cut-and-dry principle which parties can, in the abstract, always apply to
their comfort and convenience. It is a principle which is based and must be
based on the facts of the case before the court. Only the facts of the case
can influence and determine the application or applicability of the
principle. The principle of fair hearing is helpless or completely dead
outside the facts of the case."
I see no reason to depart from
the above. The facts of the case in this appeal do not support the
invocation of the principle of fair hearing in favour of the appellant
because I do not see where the appellant's right to fair hearing was
violated or contravened.
I think I have taken half the
issues raised by learned Senior Advocate. What the appellant decided to do
was to dare nature in his craze for immoral amorphous satisfaction. By his
conduct, the appellant re-ordered God's creation. Has he got the power to do
that? No. No human being, whether in the military or not, has the power to
re-order God's creation. After all, we are not talking of fighting a war. By
his conduct, the appellant has brought shame to himself. Although a bit of
the dent is on the Army, I am not prepared to hold that Force guilty of the
conduct of the appellant. The Army did not ask him to commit this heinous
and atrocious offence. He is a terrible criminal. And he is alone, clearly
alone.
This case clearly brings to
the open the problem of poverty in our society: not just poverty but abject
poverty. It is in evidence that the victims were hired by money. Parents
should try as much as they can to provide for the needs of their children.
And when I say this, I am not unaware or oblivious of the fact that some
children are not satisfied even if their parents supply all their needs
because of their insatiable growing and glowing gluttony for more and more,
like Oliver Twist of literary fame.
In sum, I do not see the
slightest merit in this appeal.
I dismiss it and affirm the conviction and sentence of the General Court
Martial.
Judgment Delivered by
Sunday Akinola Akintan,
JSC
The appellant was a
Commissioned Officer in the Nigeria Army and held the rank of Major.
He was arraigned before the General Court Marital (hereinafter
referred to as GCM) on 6th February, 1997 on a charge of sodomy
contrary to section 81(l) (a) of the
Armed Forces Decree 1993. The particulars of the offence are that he
sometime in 1996 had carnal knowledge of the following 4 men: Mohammed
Abubakar; Joseph Umaigbe;
Emmanuel Ilagoh and Isaac Jonah against the
order of nature. He pleaded not guilty to the charge and evidence was led by
the prosecution in support of the charge.
Each of the four men gave
evidence of their experience with the appellant. At the close of the
prosecution's case, the appellant did not lead any evidence in his defence.
Rather, his counsel informed the General Court Marital that the accused was
resting his case on that of the prosecution. The appellant was eventually
convicted as charged and a seven year sentence was passed on him.
The appellant's matter was
thereafter referred to the confirming officer as required under the said
Armed Forces Decree. The confirming officer reduced the 7 year term imposed
on the appellant to 5 years. The appellant was dissatisfied with his
conviction and sentence. He therefore filed an appeal to the Court of Appeal
which dismissed his said appeal. The present appeal is from the judgment of
the Court of Appeal Lagos Division which dismissed his said appeal.
The parties filed their
respective brief of argument in this court. The appellant formulated five
issues in the appellant's brief. The main appellant's compliant seriously
canvassed in this court are mainly on technicalities. They include that the
officer who empanelled the General Court Marital that tried him was not his
commanding officer as also required by law; and that there was no proper
investigations before his arraignment as required by the enabling law. Each
of these issues was adequately treated in the leading judgment written by my
learned brother, Niki Tobi,
JSC, the draft of which I have read. I therefore
do not intend to go over them as doing so would amount to unnecessary
repetition. All I need to say is that I entirely agree with his reasoning
and conclusion which I also adopt. I will, however, like to add that the
offence for which the appellant was convicted is an unusual, abnormal and
unbelievable one. Again, the appellant did not offer any defence at his
trial and all that he is now raising in this appeal ought to have been taken
up as an objection before entering his plea. The parties would have joined
issues on each point and heard before a ruling was made on every issue so
raised. But raising them first at the appellate level would be futile since
no proper foundation evidence was laid at the trial upon which the appellate
court could come to a conclusion that a breach had been committed, Again
merely resting his case on that of the prosecution amounts to nothing less
than admission of the evidence led by the prosecution.
In conclusion, therefore, for
the reasons given above and the fuller reasons given in the leading
judgment, I hold that there is totally no merit in the appeal and I
accordingly dismiss it.
Judgment Delivered by
Mahmud Mohammed, JSC
The Appellant in this appeal
was a Major in the Nigerian Army. He was arraigned before the General Court
Martial (G.C.M.) for short, on a charge of sodomy contrary to
Section 81(l) (a) of the Armed Forces
Decree No. 105 of 1993. The particulars of the offence were that
some time in 1996, he had carnal knowledge of Mohammed
Abubakar, Joseph Unigbe, Emmanuel
Ilagoh and Isaac Jonah against the order of
nature. He pleaded not guilty to the charge. In order to prove its case
against the Appellant, the prosecution called a total of four witnesses
before closing its case. The Appellant who was also represented by Counsel,
elected not to give evidence or call witnesses in his defence. His learned
Counsel informed the General Court Martial that the Appellant was resting
his case on the case as presented by the prosecution against him. At the
conclusion of the proceedings at the trial, the Appellant was found guilty
as charged and sentenced to seven (7) years imprisonment. This sentence was
later reduced to (5) five years imprisonment by the Confirming Authority.
Aggrieved with his conviction
and sentence by the General Court Martial, the Appellant appealed to the
Court of Appeal, Lagos Division which after hearing the appeal affirmed the
conviction and sentence on the Appellant. It is against this decision of the
Court of Appeal that the Appellant is now before this Court on a final
appeal. Five (5) issues were raised by the Appellant in his brief of
argument which issues were adopted by the Respondent. These issues are –
"1.
Whether the Court Martial convened by Brigadier-General P. N. Aziza
was competent, having regards to the facts that there was no prior
investigation of the charge against the Appellant in the manner prescribed
by law and that the Appellant was not under his Command (Grounds 1 & 2).
2.
Whether the lower Court was right when it held that the prosecution
witnesses testified on Oath (Grounds 3 & 4).
3.
Whether the lower Court was right when it upheld the conviction of
the Appellant for the offence of sodomy as created under Section 81(l)(a) of
the Decree (Grounds 5, 6 & 7).
4.
Whether the lower Court was right when it upheld the admissibility of
the purported statement of the Appellant which was alleged to have been
obtained under duress and was tendered from the bar (Grounds 8 & 9).
5.
Whether having regard to the Records of proceedings of the Court
Martial the lower Court was right when it came to the conclusion that the
Appellant was given a fair hearing (Grounds 10, 11 & 12).
Looking at these issues as
formulated from the 12 grounds of appeal filed by the Appellant, it is not
difficult to see that the main issue for determination in this appeal is
issue 3 which is whether the Court below was right in upholding the
conviction of the Appellant for the offence of sodomy as created under
Section 81(l) (a) of the Armed Forces
Decree 1993. Taking into consideration that the Appellant was
represented by Counsel throughout the proceedings of the General Court
Martial before which no complaint of denial of fair hearing was made on his
behalf, shows quite clearly that the issue is now being raised only in
struggling to find something to hand on at the hearing. The fact that at the
conclusion of his own trial, the Appellant elected not to go into the
witness box to refute all the evidence given against him by the victims of
the crime against which he was charged, must be regarded to have left his
fate to the General Court Martial. Since he had decided not to place any
fact before the trial General Court Martial other than those facts which the
prosecution placed on record in support of its case against him, the
Appellant had decided to keep to himself in the exercise of his right under
the law, his own side of the story in any possible rebuttal of those very
serious allegations made against him.
The law is well settled that
an accused person, who decided to rest his case on the case as presented
against him by the prosecution, is exposing himself to gamble and risk. This
is because if the case is such that even if all the prosecution witnesses
are believed, yet the offence as charged is still not proved, there it may
be permissible for an accused person to rest his case on the case of the
prosecution. However, Counsel will be taking a big risk, as in the present
case, where the issues of fact will have to be decided in favour of the
accused person, before his defence will succeed. See the cases of
Nwede
v. The State
(1985) 3 N.W.L.R. (Pt. 13) 444; Ali & Anor.
v. The State (1988) 1
N.W.L.R. (Pt. 68)1. Very unfortunately for the
Appellant, the nature and quality of evidence led against him including the
insertion of his penis into the anus of one of the victims of 'the charge
against him, is overwhelming in proving all the ingredients of the offence
of sodomy.
It is with these few comments
on issue 3, that I say, I entirely agree with my learned brother
Niki Tobi,
JSC that there is no merit at all in this
appeal. The appeal is hereby dismissed. The conviction and sentence of the
Appellant are hereby affirmed.
Judgment Delivered by
Ikechi
Francis
Ogbuagu, JSC
This is an appeal against the
Judgment of the Court of Appeal, Lagos Division (hereinafter called "the
court below") delivered on 30th June, 2004, affirming the
conviction and sentence of the Appellant by the General Court Martial
(hereinafter referred to simply as ("GCM") on 6th February, 1997.
Dissatisfied with the said
Judgment, the Appellant has appealed to this Court on twelve (12) Grounds of
Appeal. In his Brief of Argument, five (5) issues have been formulated which
have been adopted by the Respondent in their Brief. They read as follows:
"1.
Whether the Court Martial
convened by Brigadier-General P.N. AZIZA was competent, having regards to
the facts that there was no prior investigation of the charge against the
Appellant in the manner prescribed by Law and that the Appellant was not
under his command. (Grounds 1&2)
2.
Whether the lower court was
right when it held that the prosecution witnesses testified on oath (Grounds
3 & 4).
3.
Whether the
lower court was right when it upheld the conviction of the Appellant for the
offence of sodomy as created under
Section 81(1)(a) of the Decree (Grounds 5, 6 &
7).
4.
Whether the lower court was
right when it upheld the admissibility of the purported statement of the
Appellant which was alleged to have been obtained under duress and was
tendered from the bar. (Grounds 8&9)
5.
Whether having regard to the Records of Proceedings of the Court
Martial the lower court was right when it came to the conclusion that the
Appellant was
given a fair hearing. (Grounds 10,
11 & 12) ".
When this appeal came up for
hearing on 13th December, 2007, in accordance with the Rules of
this Court, the learned counsel for the parties, adopted their respective
Briefs of Argument. While the Appellant's learned counsel - Clarke,
Esqr, (SAN) urged the Court to allow the appeal,
Adamu, Esq, -
learned counsel for the Respondent, submitted that issue of penetration is
not relevant, That the law provides offence against course of nature. That
there was a Review Authority and that the Appellant did not petition against
the said confirmation.
He finally urged the court to dismiss the appeal. Thereafter,
Judgment was reserved till to-day.
The facts briefly stated are
that the Appellant - a Major
in the Nigeria Army, was arraigned before the GCM on a charge of
Sodomy contrary to
Section 81((1) (a) of the Armed
Forces Decree No. 105,1993. The particulars of the offence
are stated to be that he (on a date not stated) in 1996 had
carnal knowledge of Mohammed
Abubakar, Joseph Umaigbe,
Emmanuel llagoh and Isaac Jonah against the
order of nature. After pleading "Not Guilty" to the charge (see Form
C-Arraignment at page 11 of the
Records), the prosecution, called
four (4) witnesses in proof of its case. The Appellant was represented. The
Appellant did not testify or call evidence/witnesses) in defence,
but rested his case on that of the
prosecution.
I note that this fact of the
defence resting its case on that of the prosecution was never mentioned in
the Appellant's Brief. I will therefore, later in this Judgment, deal with
the effect or consequences of an accused person, relying/resting on the case
of the prosecution and not calling a defence or testifying in his defence.
However, at the end of proceedings, the GCM, convicted and sentenced the
Appellant, to seven (7) years imprisonment which was commuted to five (5)
years by the confirming Authority.
Dissatisfied with the said
conviction and sentence, the Appellant, appealed to the court below which
affirmed the said decision, hence the instant appeal to this Court. I will
deal with the said issues briefly.
Issue 1:
It is surprising to me that it
is contended in the Appellant's Brief that:
"the
Court Martial convened by Brigadier-General P.N. Aziza for the trial of the
Appellant lacked competence
and therefore had no jurisdiction
in that there was no prior
investigation of the charge against him in the manner prescribed by
law and that the said Brigadier-General
had no power to make the order
convening the Court Martial
as the Appellant was not serving under his command".
I say surprised because,
firstly, there is no evidence in the Records, that the Appellant or his
counsel ever raised any objection either before or after the charge was read
to the Appellant and he pleaded to it as to the competence of the GCM and
the jurisdiction in respect of the charge. It is settled that any objection
to a charge for any formal defect on the face thereof or for any perceived
irregularity relating say to procedure, shall be taken
immediately after the charge has
been read over to the accused and not later. See
Section 167 of the Criminal Procedure
Act and the cases of
Okaroh
v. The State (1990) 1 NWLR (Pt.125) 128
@
136 -137; (1990) 1 SCNJ. 124
and John Agbo
v. The State (2006) 6 NWLR (Pt.977) 545
@ 577-578:
(2006) 1 SCNJ. 332
@ 356:
(2006) 1 S.C. (PtII)
73;
(2006)2SCM81; (2006) 135 LRCN 808: (2006)
All FWLR (Pt.309) 1380; (2006) 4 JNSC (Pt.13) 253; (2006) Vol. 6 QCLR 48
and (2007) 10 WRN 95.
The word is "shall"
and this means that it is
mandatory.
Secondly, there are the
statutory provisions in Sections 123,
124, (also reproduced in the Appellant's Brief at page 3),
128 and 131 (1) of the Armed Forces Decree/Act 1993 (as amended)
hereinafter called "the Act") which read as follows:
"123
Before an allegation against a person subject to service law under
this Decree (in this section referred to as the "accused") that he has
committed an offence under a provision of this Decree is further proceeded
with, the allegation shall be reported, in the form of a charge, to the
commanding officer of the accused and the commanding officer, shall
investigate the charge in the prescribed manner".
124 (1) After investigation, a charge against an officer below the rank of Lieutenant-Colonel or its equivalent or against a warrant or petty officer may, if an authority has power under the provisions o |