Nigerian Air Force v Ex-Squadron Leader A. Obiosa (S.C. 361/2001) [2003] NGSC 3 (30 January 2003)

Citation: Nigerian Air Force v Ex-Squadron Leader A. Obiosa (S.C. 361/2001) [2003] NGSC 3 (30 January 2003)
Media Neutral Citation: [2003] NGSC 3
Court: Supreme Court of Nigeria
Case number: S.C. 361/2001
Judges: Katsina-Alu, JSC
Judgment date: 30 January 2003
Language: English
Type: Judgment

In The Supreme Court of Nigeria

On Friday, the 31^st day of January 2003

Before Their Lordships

Idris Legbo Kutigi	......	Justice, Supreme Court
Uthman Mohammed	......	Justice, Supreme Court
Umaru Atu Kalgo	......	Justice, Supreme Court
Akintola Olufemi Ejiwunmi	......	Justice, Supreme Court
Niki Tobi	......	Justice, Supreme Court

S.C. 361/2001

Between

Nigerian Air Force

.......

Appellants

And

Ex-Squadron Leader A. Obiosa

.......

Respondent

Judgement of the Court

Delivered by

Akintola Olufemi Ejiwunmi. J.S.C

This appeal is against the Judgment of the court below, (per Oguntade, Galadima and Aderemi, JJCA). Before that court, the appellant had appealed against his conviction by the General Court Martial. It is manifest from the records that the appellant was convicted upon the following charges and sentenced accordingly. They read thus. -

"(1) Making of false negotiable instrument contrary to section 112 (a) of the Armed Forces Decree. 1993 in that he at Lagos on or about 26 Mar; 96 forged CBNCheque No.00003.

(2) Forgery contrary to section 112(a ) of the Aimed Forces Decree, 1993 in that he at Lagos on or about 27 Mar., 96 forged CBN Cheque No. 00004.

(3) Forgery contrary to section 112 (a) of the Armed Forces Decree, 1993 in that he at Lagos on or about 28 Mar., 96 forged CBN Cheque No. 00005.

(4) Making of forged negotiable instrument contrary to section 112 (a) of the Armed Forces Decree. 1993 in that he at Lagos on or about 29 Mar., 96 forced CBNCheque No.00006.

(5) Uttering a forced cheque contrary to section 112 (a) of 'he Armed Forces Decree. 1993 in that he at Lagos on or about 28 Mar., 96 fraudulently or knowingly uttered a forced CBN Cheque No.00003.

(6) Uttering a forged cheque contrary to section 112 (a) of the Armed Forces Decree, 1993 in that he at Lagos on or about 27 Mar. 96 fraudulently or knowingly uttered forced CBN Cheque No. 00004.

(7) Uttering a forged cheque contrary to section 112 (a) of Armed Forces Decree, 1993 in that he at Lagos on or about 28 Mar., 96 fraudulently or knowingly uttered forged CBN Cheque No.00005.

(8) Uttering a forge d cheque contrary to section 112(a) of Armed Forces Decree, 1993 in that he at Lagos on or about 29 Mar., 96 fraudulently or knowingly uttered forged CDN' Cheque No. 00006.

(9) Stealing contrary to section 66 (a) of' the Armed Forces Decree, 1993 in that he at Lagos on or about 27 Mar., 96 stole the sum of' Nl6m property of' the Nigerian Air Force.

(10) Stealing con tiny' to section 66 (a) of the Armed Forces Decree, 1993 in that he at Lagos on or about 27 Mar., 96 stole the sum of NI 7m property of the Nigerian AirForce.

(11) Stealing contrary to section 66 (a) of the Armed Forces Decree, 1993 in that he at Lagos on or about 28 Mar., 96 stole the sum of N15m property of' the Nigerian AirForce.

(12) Stealing contrary to section 66 (a) Of the Armed Forces Decree, 1 993 in that he Lit Lagos on or about 27 Mar., 96 stole the sum of N4, 300,000 property of the Nigerian Air Force.

(13) Receiving stolen property contrary to Section 66 (a) of the Armed Forces Decree, 1993 in that he at Lagos on or about 3 April, 96 received part of the N2.8mstolen by Wg. Cdr. PE. lyen knowing or having reason to believe same to have been stolen.

(14) Disobedience to standing order contrary to Section 57 (l) of the Armed Forces Decree, 1993 in that he at Lagos in April. 96, contravened Administrative Instruction S/ No 3 dated Feb., 96 which Order was known to him or which he might reasonably be expected to know by engaging in private business."

Now, having set down as above the charges for which he was convicted, it is necessary to refer to the charges for which he was first arraigned before the General Court Martial, which from henceforth shall be referred to simply as "GCM". This is because the amendment of the charge from a five count one to a 14-count charge became an issue before the court below. I think, it is therefore convenient at this stage to give in brief background facts that led to this appeal.

In April 1996, the Chief of' Air Staff, Air Vice Marshall Femi John Femi was removed from that Office by the then Federal Military Government and was replaced by AVM Nsikak Eduok. At the time when to changes occurred, one Wing Commander PE. Iyen was the Director of Finance and Accounting, and would no\v be referred to simply as (DFA). It would appear, following his assumption of officer as the Chief of Air Staff. AVMN. Eduok raised the allegation that some Air Force Officers shared between themselves the sum of NI0 million, and that another sum of N48 million was hastily withdrawn from OPS Harmony Account with Central Bank of Nigeria. That sum was allegedly withdrawn for the renovation of the guesthouse of the Chief of Air Staff and also the Air House.

The Chief of Air Staff therefore, then set up a panel to investigate the allegation. As a result, the respondent and eight others were jointly tried, though each accused had his own separate charges levelled against him. At his initial arraignment, the respondent had against him a six-count charge of stealing, receiving stolen property, aiding and abetting service offence, scandalous conduct and disobedience to standing order. In the meantime. the respondent bud on the 27th April, 1996 been discharged from the Air Force, see Ex. 66A to that effect, And on the 6th of August, 1996, the six-count charge was amended to a 14-count charge as stated above. Though objection was raised to the new set of charges, it as overruled and the respondent pleaded 'not guilty to each of them. Also the objection raised to jurisdiction of the GCM to try the respondent was raised and overruled. The GCM, after all these preliminaries, then went on to try the respondent upon the charges as laid. The case for the prosecution is that the respondent forged and uttered tour CBN cheques Nos. 00003, 00004, 00005 and 00006 that amounted to the sum of N48 million and that the proceeds of the said cheques were stolen thereafter by the respondent. It was also part of the case for the prosecution that he also stole the sum of N4.3million in similar circumstances, and that he also received part of another N2.8 million that was also stolen, and that in the process disobeyed standing orders. In support of its case, the prosecution called 14 witnesses in the course of which 70 exhibits were admitted in evidence.

On the other hand, the case for the defence is that the Chief of Air Staff, AVM Femi John Femi who keeps the cheque book, authorised the withdrawal of the N48 million from the OPS Harmony Account with the Central Bank of Nigeria. That the cheques were not forged as they were co-signed by the Chief of Air Staff's nominee and he is known only to the former Chief of Air Staff, AVM Femi John Femi. It is also part of his case that the Chief of Air Staff (to be referred to from henceforth as CAS) instructed him to give the money to one Mr. Timi Alaibe at Societe General Bank for settlement of bills who thereafter made returns to AVM Femi John Femi. He also claimed that as per the instructions of AVM Them John Femi, he duly sent the returns to HQ, NAF. The respondent also denied that he received the sum of N2.8 million allegedly stolen from Wing Commander P. Iyen and added also, that he had never engaged in any other profession or business since he was in the Nigerian Air Force. He was not also aware of the NAF Administrative Instruction 3/96.

At the conclusion of the hearing of' the evidence adduced by the parties, GCM found the respondent guilty as the GCM time to the conclusion that all the charges against the respondent were proved beyond reasonable doubt. The GCM thereafter pronounced sentence upon the respondent as follows:

Sqn Ldr Obiosa, from the N10 million you got N2.8 million. You stole N48 million. On the renovation of the Air House and the CASs Guest House, you stoleN4.3 million. Sub-total, N55,100,000.00 million. Interest is N82,650,000.00 million. Your restitutions to the Air Force is N137,750,000.00.

He was also ordered to serve prison sentences annotated thus:

"Charge I, making of false negotiable instruments, 21years imprisonment.

Charge 2, Forgery 21 years imprisonment. Armed Forces Decree 66.

Charge 3. Forgery, 21 years imprisonment.

Charge 4, making of false negotiable instruments, 21years imprisonment.

Charge 5, Uttering, 21 years imprisonment.

Charge 6, Uttering, 21 years imprisonment.

Charge 7, Uttering, 21 years imprisonment.

Charge 8, Uttering, 21 years imprisonment.

Charge 9, Stealing, 2 years imprisonment.

Charge 10, Stealing, 2 years imprisonment.

Charge 11, Stealing, 2 years imprisonment.

Charge 12, Stealing, 2 years imprisonment.

Charge 13, Receiving, 2 years imprisonment and

Charge 14, Illegal business, 2 years imprisonment.

There is no recommendation for mercy. You will serve 69 years. Charges 1, 2, 3, 9, 13 and 14 will run consecutively, all other charges concurrently."

As the respondent was dissatisfied with the judgment and orders of the GCM, he appealed to the Court of Appeal. Upon the grounds of appeal so filed, the following issues were raised for the determination of the appeal.

"(i) Whether by virtue of section 131(2) (c) of the Armed Forces Decree No.105 of 1993 (as Amended), the proceedings of the General Court Martial is not a nullity in view of the convening order signed by Air Commodore F.O Ajobena purportedly acting on behalf of the Chief of Air Staff on verbal instructions.

(ii) Whether by the first arraignment on 26th July, 1996 of which the whole charges were later withdrawn and struck out and another arraignment of the appellant made on 6th August, 1 996 on new charges, the General Court Martial did not lack jurisdiction to try the appellant in view of section 169(2) of Decree No 105 of 1993.

(iii) Whether the former Chief of Air Staff, AVN Femi John Femi mentioned by the appellant as one who gave him instructions which he earned out and made returns to is not a vital material witness that would ha\e affected the decision of the General Court Martial.

(iv) Whether the General Court Martial was right in the circumstances of this case to have called a witness (CWI) suo motu at the close of the case for the defence without allowing the appellant to call a witness referred to by the CW 1 in rebuttal.

(v) Whether the General Court Martial was ri2ht to take judicial notice of Nigeria Air Force Administrative Instruction 3/96.

(vi) Whether there was proper basis for the order of restitution for N137,750,000.00 and auction of the appellant's properties.

(vii) Whether in the whole circumstances of the case and the evidence adduced the guilt of the appellant was proved beyond all reasonable doubts for the various offences."

After due consideration of the issues raised on behalf of the appellant, the court below upheld the appeal. This is because the court below formed the view that only the holders of the offices listed under section 131 (2) of the Armed Forces Decree (AFD) No 105 of 1993 could issue a convening order for a GCM, and that the power granted by the said section cannot be delegated. The court below therefore held that the GCM. which flied and convicted the respondent was not properly convened, and the GCM therefore lacked the requisite jurisdiction to try the respondent.

Secondly, the court below held that the GCM, having struck out the first charge levelled against the respondent following its withdrawal by the prosecution, the GCM no longer had jurisdiction to try the respondent, having regard to the provisions of section 169 (2) of the Armed Forces Decree. Therefore it was held that the trial and conviction of the respondent was a nullity.

Thirdly, the court below after the examination of the evidence led in support of the charges laid against the respondent, came to the conclusion that the prosecution failed to establish each of the 14 charges beyond reasonable doubt. The court below therefore said that it would have discharged and acquitted the appellant even if it had found that the GCM had jurisdiction to try the appellant.

In conclusion, the court below set aside the judgment of GCM and also declared as nullities all the orders made by the GCM, and accordingly discharged and acquitted the respondent.

Now, the appellant being very dissatisfied with the judgment and orders of the court below then appealed to this court. Following the grounds of appeal filed, pursuant to the appeal to this court, briefs of argument were filed and exchanged. For the appellant, the issues identified for the determination of the appeal are: -

"1. Whether the General Court Martial had been properly convened and had the jurisdiction to try the respondent.

2. Whether the responsibility of assisting the respondent's defence by calling a witness rested on the prosecution or on the accused.

3. Whether or not the prosecution had established a case of forgery and stealing against the respondent.

4. Whether or not the evidence led by the prosecution in respect of the 14th count bad been sufficient to ground a conviction.

5. Whether the Court of Appeal was right in setting aside the order requiring the respondent for N137.750, 000.00 as restitution."

The respondent in the brief filed on his behalf by his learned counsel also set down issues for the determination of the appeal the issues are clearly similar to those identified in the appellants brief, I do not consider it necessary to set them down in this judgment. The merit of the appeal will be considered in accordance will issues identified above.

The first issue raised by the appellant is concerned with, whether the GCM had been properly convened and had the jurisdiction to try the respondent. The submission made for the appellant in its brief and by its learned counsel before us is based on the view that the arguments and findings of the learned justices of the court below with regard to the interpretations given to the provisions of 13 1 of the Armed Forces Decree are basically erroneous. It is then argued for the appellant that the provisions of section 131(3) of the Armed Forces Decree, clearly invests the delegation of the power to convene a GCM by a person in whom that power resides. And it is therefore argued that as there is no doubt that the Chief of Air Staff is an appropriate superior authority, and so also was there any doubt that Air Commodore F. O. Ajobena was a Senior Officer of a detached unit, establishment or squadron. Upon that premise and having regard to the provisions of section 128(i)(b) of the Armed Forces Decree, it is the submission of learned counsel for the appellant that Air Commodore F. O. Ajobena being a senior officer of a detachment unit, establishment or squadron, i.e Director of Personnel Branch, one the 4 branches that constitute the headquarters of the Nigerian Air Force, could properly convene a General Court Martial. In any event, argued learned counsel for appellant, the Chief of Air Staff properly designated Air Commodore F.O. Ajobena to convene the GCM in compliance with section 131 (3) of the Armed Forces Decree. The special circumstances that existed then were that, as the accused who was retired on the 27th April. 1996 had to be tried within three months of his retirement time then became of the essence. In such circumstances, learned counsel contended, the GCM had to be convened within the time frame of sections 168 and 169 of the Armed Forces Decree.

The second leg of the complaint of the appellant in respect of this issue is against the holding of the Court of Appeal, that: - "On 6-8-96, when new counts were brought against the appellant he had ceased to be subject to service law under section 169 (2) above. The GCM no longer had jurisdiction to try the appellant as at 6-8-96. The trial and conviction of the appellant was therefore a nullity on this score."

Against this finding of the court below it is the contention of the appellant that the reasoning of that court was based on this erroneous misconception. This is because the court wrongly held the view that the substituted charges brought on the 6th of August, 1996 constituted a fresh arraignment of the respondent. The case made for the appellant is that the respondent was arraigned on the 26^th of July, 1996 and his plea was taken on that date. That date was when his trial commenced and cited Efiom v. The State (1995) 1 NWLR (Pt. 373) 507 at 532 &582 as support for that proposition. Appellant then further argued that the amended charges brought against the respondent pursuant to Section 162 of the Criminal Procedure Act did not mean that the prosecution of the respondent was commenced when the amended charges were brought against him. In support of that contention, the case of Attah v. The State (1993) 7NWLR (Pt. 305) 257, where the provisions of sections 162 to 165 of the CPAwere construed by this count was cited. The respondent in his brief also formulated his argument in respect of issue tin two parts.

The first part is with regard to whether the GCM admitted as exhibit "At" was properly constituted having regard to the fact that it was apparently convened by Air Commodore F.O. Ajobena who signed it. In the view of learned counsel for the respondent, the GCM was not properly convened. He contended that ex "Al", quite clearly shows that the GCM was convened under by virtue of section l3l (2)(c) of the Armed Forces Decree No. 105 of 1993 (as amended). And having regard to its provisions, Air Commodore F.O. Ajobena did not fall into the class of those enumerated therein to convene a GCM. It is therefore submitted for the respondent that having expressly stipulated those to convene a General Court Martial, the Armed Forces Decree has by implication excluded any other person. And cited in support of that proposition ofGregory Obi Ude v. Clement Nwara and Anor. (1993) 2 NWLR (Pt 278) 638 at 661.

It is also the contention of the respondent that as the convening order was under s.13 1(2), the order must be signed by the Chief of Air Staff himself. He cannot, as the case in hand, delegate his powers in that regard, particularly where the power is statutory in nature. See Chief L. H. Oikherhe v. Chief Joseph M. Inwanfero (1997) 7NWLR (Pt. 512) 226 at 247. And for the proposition that where persons are charged with statutory duty of depriving others of their liberty, such persons must observe strictly and scrupulously to the forms and the rules of the enabling statute. Reference was made to the following authorities Saidu Garba v. Federal Civil Service Commission (1989) 1 NWLR (Pt. 71) 449 at 477; Halsbury Laws of England Volume 10 at paragraph 720; Dr. Tunde Bamgboye v. University of llorin & Anor; (1999) 10 N\YLR (Pt. 622) 290 at 329. It was also argued for the respondent in his brief, that the argument in the appellant's brief that section 131 (3) of the Armed Forces Decree was applicable in the circumstances of this case be rejected. In the view of the respondent, the combined provisions of sections 128 and 131 of the Armed Forces Decree cannot be employed to the GCM as convened in this case.

With regard to the second part of the argument in respect of issue 1, it is submitted that this court should hold that by the amended charges filed against the respondent sequel to the withdrawal of first charges filed against him, the tidal of the respondent corn when the amended charges were flied against the respondent which he pleaded, in support of his several submissions, his counsel in his brief, referred to Godspower Asakitikpi v. The State (1993) 5 NWLR (Pt. 296) 641 at 652; Blacks Law Dictionaryp.109 and at p.1423; sections 75 and 180 of the Criminal Procedure Act; Madukolu & Ors.v. Nkemdilim

(1962) All NLR (Pt. 4) 2 SCNLR 341, 587 at 392; Attah v. The State (1993) 1 NWLR"305) 257; Awobotu v. The State (1976)5 SC 49 at p.70. It is submitted for the respondent that if as it has been argued, the commenced with the trial of the respondent on the 6th of 1996 by virtue of the amended charge, then the GCM jurisdiction to try the respondent. This is by virtue of (2) of the Armed Forces Decree, 1993, which stipulates of the respondent must commence within 3 months ft discharge from the Armed Forces.

In view of the argument proffered by learned counsel for the parties in respect of the first part of issue 1, it is manifest that to answer this part of the argument, it is necessary to consider the meaning and effect of the following sections of the Armed Forces Decree 1993. These are sections 128 and 131.

"Section 128

(1) The following persons may act as appropriate superior officer 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.

(2) the President may make rules rule for purpose of this section and those rules may confer on the appropriate superior authority power to delegate his functions in such cases and to such extent as may he specified in the rules to officers of a class so specified.

Courts Martial: General Provisions

129. There shall be, for the purposes carrying out the provisions of this Decree, two types of Courts Martial, that is

(a) a General Court of a president and not less than four members, a waiting, member, a liaison officer and a Judge Advocate.

(b) a special Court Martial, consisting of a president and not less than two members, a liaison officer and a Judge Advocate.

130 (1) A General Court Martial shall, subject to the provisions of this Decree, try a person subject to service law under this Decree for an offence which. under this Decree, is triable by a Court Martial and award for the offence a punishment authorised by this Decree for that offence except that where the Court Martial consists of less than seven members it shall not impose a sentence of death.

(2) A General Court Martial shall also have power to try a person subject to service law under this Decree who by law of war is subject to trial by a military tribunal and may adjudge a punishment authorised by law of war or armed conflict.