IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 7TH DAY OF MARCH 2008
SC 204/2004
BETWEEN
MAGAJI ........................................................................... APPELLANT
AND
THE NIGERIAN ARMY ................................................................................ RESPONDENT
|
Before: |
Niki Tobi; Sunday Akinola Akintan; Mahmud Mohammed; Ikechi Francis Ogbuagu; Francis Fedode Tabai, JJSC |
ISSUES
Whether the charge of sodomy against the appellant was competent.
Whether the General Court Martial was properly constituted.
Whether the evidence taken was under oath.
Whether the offence of sodomy had been proved.
FACTS
The appellant, a Major in the Nigerian Army, was arraigned before the General Court Martial on a charge of sodomy contrary to section 81(1)(a) of the Armed Forces Decree No. 105, 1993 based on an allegation by four complainants that the appellant had carnal knowledge of them against the order of nature. At the end of the case of the prosecution, the appellant who had pleaded not guilty to the charge did not testify or call evidence in defence, rather, he rested his case on that of the prosecution. At the conclusion of the trial, the General Court Martial convicted the appellant in respect of the offence against one of the complainants and sentenced him to (7) seven 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 of Appeal which affirmed the decision of the General Court Martial. Further dissatisfied with the decision of the Court of Appeal the appellant appealed to the Supreme Court.
HELD
Leading judgment by Niki Tobi, JSC; with S.A. Akintan, M. Mohammed, I.F. Ogbuagu, F.F. Tabai, JJSC concurring
- Failure of accused to testify weighs against him
The appellant did not offer any defence at this trial, and the issues raised in the appeal ought to have been taken up as an objection before entering his plea. Raising the issues at the appellate level was futile, since no proper foundation was laid at the trial. The accused who rests his case on the case presented by the prosecution exposes himself to gamble and risk. Per Akintan, JSC at 401; Per Mohammed, JSC at 403.
- Objection to charge must be made immediately
Any objection to a charge for any defect on the face thereof or any perceived irregularity relating to procedure should be taken immediately after the charge has been read to the accused. The appellant failed to object immediately, and so could not later complain about the defect in the charge. Per Ogbuagu, JSC at 405.
- Absence of irregularity in the proceedings of the GCM
The GCM was properly constituted. No member of the GCM was disqualified, the offence was committed within the jurisdiction of the GCM and the case came before the GCM by due process of law after complying with investigation, a condition precedent to the exercise of jurisdiction by the GCM. Per Tobi, JSC at 389.
- Appellant bound by record of proceedings
The appellant could not, on appeal, go beyond the record of the proceedings of the GCM. The record showed that the witnesses took the oath. The complaint on this ground also failed. Per Tobi, JSC at 389.
- Circumstantial evidence of sodomy overwhelming
The direct evidence of the witnesses clearly proved the offence of sodomy. In any event there was enough circumstantial evidence to prove that the appellant had committed the offence of sodomy. This included penetration. Per Tobi, JSC at 389.
- Offence against one person proper on multiple charges
If an accused is charged with committing an offence against two or more persons, he may be convicted of committing the offence against one person. Per Tobi, JSC at 388.
- Pre-trial statement not a confession – voluntariness therefore not an issue
The pre-trial statement made by the appellant admitted to “romancing” the complainants, but did not amount to an unequivocal admission of guilt. Therefore the issue of the voluntariness or otherwise of the statement did not arise. Per Tobi, JSC at 389.
- Absence of bias in the conduct of the tribunal
On the issue of fair hearing, the conduct of the tribunal (GCM) and in particular the nature and number of the questions asked, did not disclose bias. Per Tobi, JSC at 389.
Robert Clarke, Senior Advocate of Nigeria, with T.O. Ochonogor, Esq., for appellant
Mallam Jimoh Adamu, Chief Legal Officer, Federal Ministry of Justice, Abuja, for respondent
The following cases were referred to in this judgment:
Nigeria
A.K. Faddallah v Arewa Textiles Ltd (1997) 7 SCNJ 202
Abadom v State (1997) 1 NWLR 1
Adamu v The State (1991) 6 SCNJ 33
Adeleya v Attorney-General (West) (1956–84) Vol. 10 Digest of Supreme Court
Adio v State (1986) 2 NWLR (Part 24) 581
Agoju v Adiche (2003) 2 NWLR (Part 805) 509
Agusiobo v Onyekwelu (2003) 14 NWLR (Part 839) 34
Ajayi v Fisher (1956) 1 NSCC 82
Alaukwu v State (1956–84) Vol. 10 Digest of Supreme Court Cases 63
Ali & another v The State (1988) 1 NWLR (Part 68) 1, (1988) 1 SCNJ 17
Alonge v Inspector-General, of Police (1959) 4 FSC 203
Amachree v Nigerian Army (2003) 3 NWLR (Part 807) 255
Anatogu v Iweka (1995) 8 NWLR (Part 415) 547
Artra-Industrial Ltd v M.B.C.L. (1997) 1 NWLR (Part 483) 574 CA
Atano v Attorney-General, Bendel State (1988) 2 NWLR (Part 75) 201
Awobajo & 6 others v The State (2001) 12 SCNJ 293
Chewmoh v State (1986) 2 NWLR (Part 22) 331
Daily Times Ltd v Williams (1986) 4 NWLR (Part 36) 526
Edoha v Attorney-General, Akwa Ibom State (1996) 1 NWLR (Part 425) 488
Eimskip Ltd v Exquisite Ind. Ltd (2003) 4 NWLR (Part 809) 88
Emuze v Vice-Chancellor, University of Benin (2002) 10 NWLR (Part 828) 378
Famakinwa v Unibadan (1992) 7 NWLR (Part 255) 608
Gabriel v State (1989) 5 NWLR (Part 122) 457
Garba v University of Maiduguri (1986) 1 NSCC Vol. 17, 245
Gira v The State (1996) 4 SCNJ 95
Ikomi v State (1986) 3 NWLR (Part 28) 340
International Bank Nigeria Ltd v Dabiri & 2 others (1998) 1 NWLR (Part 583) 284 CA
Iyanda v Laniba (2003) 8 NWLR (Part 810) 267
Iyaro v State (1988) 1 NWLR (Part 69) 256
John Agbo v The State (2006) 6 NWLR (Part 977) 545; (2006)1 SCNJ 332; (2006) 1 SC (Part II) 73; (2006) 2 SCM 81; (2006) 135 LRCN 808; (2006) All FWLR (Part 309) 1380; (2006) 4 JNSC (Part 13) 253; (2006) Vol. 6 QCLR 48; (2007) 10 WRN 95
Kallamu v Gurin (2003) 16 NWLR (Part 847) 493
Kotoye v CBN (1989) 1 NWLR (Part 98) 419
Kuruma v R (1953) AC 197
Lieut. Col. K.D. Ajia v Nigerian Army (unreported) Ref. CA/L/9M/98 delivered on 6 July 2000
Madukolu v Nkemdilim (1962) 1 All NLR 587
Mohammed Kano NA (1968) 1 All NLR 424
NAF v Obiosa (2003) 1 SCNJ 343; (2003) 4 NWLR (Part 870) 233; Vol. 3 MJSC 78
Nigeria Air Force v Ex Wing Commander L.D. James (2002) 18 NWLR (Part 798) 295, (2002) 12 SCNJ379, (2002) 12 SC (Part 1) 1
Nwaeze v The State (1996) 2 SCNJ 42
Nwede v The State (1985) 3 NWLR (Part 13) 444
O.T. Onyeukwu v The State (2000) 12 NWLR (Part 681) 256 CA
Odu’a Investment Co Ltd v Talabi (1997) 10 NWLR (Part 523) 1
Oforlete v The State (2000) 7 SCNJ 162
Ogbuanyinya & 5 others v Obi Okudo (1979) 6–9 SC 32; (1979) ANLR 105; (1979) 1 MSLR 731; (1979) 3 LRN 318
Ogoala v The State (1991) 2 NWLR (Part 175) 509; (1991) 3 SCNJ 61
Ohunyon v The State (1996) 2 SCNJ 280
Ojegbe v State (1988) 1 NWLR (Part 71) 414
Ojong v Duke (2002) 14 NWLR (Part 841) 581
Okaroh v The State (1990)1 NWLR (Part 125) 128; (1990) 1 SCNJ 124
Okoyomon v The State (1973) 8 NSCC 9
Onigbo v Una (2002) Vol. 12 MJSC 14
Orugbo v Una (2002) 16 NWLR (Part 792) 175
Oshunrinde v Akande (1996) 6 SCNJ 183
Owoyemi v Adekoya (2003) 18 NWLR (Part 852) 307
Shazali v State (1988) 5 NWLR (Part 93) 164
The State v Godfrey Ajie (2000) 7 SCNJ 1
Theophilus v The State (1996) 1 SCNJ 79
Trade Bank Plc v Chami (2003) 13 NWLR (Part 836) 158
Ubani & 2 others v The State (2003) 12 SCNJ 111
Ugwumba v The State (1993) 5 NWLR (Part 296) 660; (1993) 6 SCNJ 217
Unibiz (Nigeria) Ltd v CBC I. Ltd (2003) 6 NWLR (Part 816) 402
Foreign
The Queen v Singh [1962] 2 WLR 238
The following statutes were referred to in this judgment:
Criminal Code Act: S 6
Criminal Justice Act, 1967, as modified by the Court Martial Evidence Regulation, 1967
Criminal Procedure Act: S 167
Evidence Act: Ss 135; 156; 179(5); 192; 193
The following decree was referred to in this judgment:
Armed Forces Decree, No. 105 of 1993: Ss 81(1)(a); 123; 124; 128; 131(1)(d); 138(2), (5); 149(1); 214
The following rules were referred to in this judgment:
Military Court Martial Rules, 1972: Rule 92 Schedule 14(6); 16(6)
Rules of Procedure (Army) 1972: Rule 54(2); 56(1); 57
The following book was referred to in this judgment:
Criminal Law and Procedure of the Six Southern States of Nigeria: Paragraphs 1685, page 633
Tobi, JSC (Delivered the leading judgment):– 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 Army Cantonment Boys Secondary School, Ojo. Augustine Oscar Ayewa was the errand boy of Major Magaji. He made the first contacts. He contacted Joseph Unigbe for the business. Joseph called Ayewa, Oscar, and so I will call him Oscar too. Oscar told Joseph to have his bath as he wanted him to go out with him. Joseph needed the company of his friend Emmanuel and he asked him to join in the outing. There are two Josephs. Joseph, the Prosecution Witness No. 2 and Joseph, one of the errand boys of Magaji.
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, 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 I finished drinking my eyes started turning me. Then the officer 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 (sic) 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 N1500k and said I should give Oscar N500k for bringing me. Then when I came out I gave Oscar N500k and it remained N1000k. Out of the N1000k Oscar collected N100k and it remained N900k. From the N900k, I bought things paid small small credit I was owing and bought school uniform for myself.”
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. The 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 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.)”
The respondent adopted the above five issues.
Learned Counsel for the appellant, Mr Robert Clarke, Senior Advocate of Nigeria, citing Madukolu v Nkemdilim (1962) 1 All NLR 587, submitted on Issue No. 1 that the Court Martial convened by Brigadier-General P.N. Aziza for the trial of the appellant lacked competence and therefore had no jurisdiction, as there was no prior investigation of the charge against him in the manner prescribed by law. He referred to sections 123 and 124 of the Armed Forces Decree, 1993 and the cases of Agusiobo v Onyekwelu (2003) 14 NWLR (Part 839) 34; Kallamu v Gurin (2003) 16 NWLR (Part 847) 493; Eimskip Ltd v Exquisite Ind. Ltd (2003) 4 NWLR (Part 809) 88; NAF v Obiosa (2003) 1 SCNJ 343 and Emuze v Vice-Chancellor. University of Benin (2002) 10 NWLR (Part 828) 378 on the use of the word “shall” and jurisdiction of the court.
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 Onyekwelu (supra); Kallamu v Gurin (supra); Eimskip Ltd v Exquisite Ind. Ltd (supra); Ojong v Duke (2002) 14 NWLR (Part 841) 581 and Owoyemi v Adekoya (2003) 18 NWLR (Part 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 Nigeria paragraphs 1685 at 633, sections 81 and 214 of the Decree, section 179(5) of the Evidence Act and the following cases:– Okoyomon v The State (1973) 8 NSCC 9; NAF v Obiosa (2003) 4 NWLR (Part 870) 233 and Alaukwu v State (1956-84) Vol. 10 Digest of Supreme Court Cases 63.
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 (Part 255) 608; Anatogu v Iweka (1995) 8 NWLR (Part 415) 547; Iyanda v Laniba (2003) 8 NWLR (Part 810) 267; Edoha v Attorney-General. Akwa Ibom State (1996) 1 NWLR (Part 425) 488); Ajayi v Fisher (1956) 1 NSCC 82 and Trade Bank Plc v Chami (2003) 13 NWLR (Part 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 (Part 98) 419; Unibiz (Nigeria) Ltd v CBC I. Ltd (2003) 6 NWLR (Part 816) 402; Agoju v Adiche (2003) 2 NWLR (Part 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, Abuja, submitted on Issue No. 1 that Brigadier-General P.N. Aziza, as Commander, Lagos Garison Command, was qualified to convene the General Court Martial to try the appellant and therefore competent to do so. He cited section 131 of the Armed Forces Decree, 1993 and the case of NAF v Obiosa 3 MJSC 78. He argued that the case of Madukolu v Nkemdilim (supra) cited by learned Senior Advocate for the appellant was not applicable. He said that an investigation was duly conducted in the case, thus satisfying the mandatory provision of sections 123, 124, 128 and 131(1)(d) of the Decree.
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 (Part 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 Okoyomo v The State (supra) from the facts of this case. He argued that sodomy is not among the offences in which corroboration is required. He relied on the pre-trial statement of the appellant. 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 (Part 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 Nkemdilum (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 e