⦿ CASE SUMMARY OF:
Major Bello M. Magaji v. The Nigerian Army (2008) – SC
by NSA PaulPipAr
⦿ AREA OF LAW
– Criminal Law/Court Martial
Major Bello M. Magaji
The Nigerian Army
(2008) 8 NWLR (Pt. 1089) 338;
(2008)34 NSCQR Pt I 108;
(2008)34 NSCQR Pt I 108;
⦿ LEAD JUDGEMENT DELIVERED BY:
Niki Tobi, JSC
* FOR THE APPELLANT
– Robert Clarke.
* FOR THE RESPONDENT
– Mallam Jimoh Adamu.
⦿ FACT (as relating to the issues)
The Appellant, a General, was convicted for homosexuality on boys.
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 charge of sodomy contrary to section 81(1)(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.
His appeal to the Court of Appeal was dismissed. He has come to the Supreme Court.
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.
2. Whether the lower court was right when it held that the prosecution witnesses testified on oath.
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.
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.
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.
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. 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.
ii. 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 exercise of the jurisdiction of the General Court Martial.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The Court of Appeal said at pages 407 and 408 on the issue and I quote the court in extenso:
“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.
ii. 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.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. 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.
4. ISSUE 4 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. 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.
ii. 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.
5. ISSUE 5 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. 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.
– Sections 81, 123, 124, 128 and 131(1) of the Armed Forces Decree/Act 1993;
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
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. – Niki Tobi, JSC. Magaji v. Army (2008)
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. – Niki Tobi, JSC. Magaji v. Army (2008)
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 in the conviction. – Niki Tobi, JSC. Magaji v. Army (2008)
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. – Niki Tobi, JSC. Magaji v. Army (2008)
When however, the Appellant rested his case on that of the prosecution, the settled law is that evidence of prosecution not controverted or disputed by an accused person, is deemed to have been accepted or admitted by that accused person. – Ogbuagu, JSC. Magaji v. Army (2008)
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. – Niki Tobi, JSC. Magaji v. Army (2008)
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. – Niki Tobi, JSC. Magaji v. Army (2008)
Mere romance without penetration through the anus is not sodomy. – Niki Tobi, JSC. Magaji v. Army (2008)
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. – Niki Tobi, JSC. Magaji v. Army (2008)
Speaking for myself, since there is an appeal against sentence, I should have increased/enhanced the Term. He is also asking for re-instatement and payment of entitlements. This is evidence, in my respectful view, that the Appellant has no remorse for his shameful and condemnable acts against these young boys who were given the impression that they were going to be employed for work from where they will earn some income. What distresses me with disgust, is that from the Records, the Appellant is a married man with (2) wives and seven (7) children and according to him, three (3) girl friends in addition. He preferred having or enjoying sex by first getting his victims young boys, drunk and when the victims tried to resist his despicable act, he bribed them not to let anybody else know. He even complained to his agent Joseph Unigbe “that these people didn’t respond fine”. What is worse, I have a hunch, that he is or may have been a lawyer since from his statement at pages 125 of the Records, he was at the Law School in 1990. I say so, because at page 125A thereof, he was a legal Adviser to the Task Force on Telecommunication and Postal Offences since July, 1996. He attended both the Sardauna Memorial College in 1973 to 1977 and the University of Sakata in 1985 to 1989. He blamed his actions on “psychological and psychiatric problem which according to him, started about two (2) years before the date of the act that led to his trial and conviction. When he was asked whether his psychiatric problem was registered in any hospital, he answered in the negative and stated that he was afraid of exposure and that he acted on impulse. It is my humble and firm view, that the Appellant, deserves to be put away from the society and to be in prison custody in a secluded and single cell for a very long time where his alleged problem, will be taken care of by a Psychiatric Doctor. – Ogbuagu, JSC. Magaji v. Army (2008)