➥ CASE SUMMARY OF:
The State V. Squadron Leader S.I. Olatunji (SC.206/2001, 28 FEB 2003)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Subject to service law;
Trial within three months.
➥ CASE FACT/HISTORY
The facts giving rise to this case are not very complicated. The respondent was the paymaster HQ of the P.A.G. at the material time. His duty then was to pay all bills referred to him and take instructions from commander P.A.G. for all payments approved by the commander. On 3rd of April, 1996, the cashier brought to him the sum of N10 Million cash with a list of names sent by commander PA.G. On seeing the list, he asked the cashier to explain to him what the money was meant for. The cashier told him to ask the commander for full instructions. He did and the commander told him that the money was for welfare gift given to the listed officers by the Chief of Air Staff to be shared N6 Million for HQ, P.A.G. and N4 Million for HQ NAP. The respondent belonged to the headquarter P.A.G. and when the money was shared he collected N600,000.00 for himself. Wing Commander Iyen was the Ag. Director of Finance and Accounts at the material time and was alleged to have given the instructions for the money sharing. The respondent was also alleged to be involved in illegally sharing Nigerian Air Force money monthly with other officers. After his arrest and in the course of investigation the respondent was found to be in unlawful possession of firearms. He was also alleged to have acquired shares in a company called Sifor Nigeria Limited thereby engaging in private business in disobedience to the Nigerian Air Force standing orders. These gave rise to the seven counts charge made against the respondent and tried in the General Court Martial.
The respondent was a Squadron Leader in the Nigerian Air Force Headquarters in Lagos. His force No. was NAF/1217. He was one of the nine pay officers of the Pay and Accounting Group (PAG) under the Directorate of Finance and Accounts (DFA) of the Nigerian Air Force, Lagos. All the nine pay officers including the respondent were charged with various criminal offences and were tried and convicted by a General Court Martial (GCM) and sentenced to various terms of imprisonment. The respondent was the 6th accused before the G.C.M., and was charged with nine counts of conspiracy, stealing, receiving stolen property, illegal possession of firearms and disobedience to standing order. He, with other eight officers, were arraigned before the G.C.M. on the 26th of July, 1996. The charges against him were read and explained to him and he pleaded not guilty. The case was then adjourned to 6th August, 1996 for hearing. On the 6th of August, 1996, the prosecution applied to withdraw the charges to which the respondent pleaded on the 26th of July and substituted them with another 9 count charges. The respondent did not raise any objection to the application and it was granted as prayed. The new charges were then read and explained to the respondent and he pleaded not guilty to all of them one by one. The trial before G.C.M. proceeded and at the end of it all after the counsel for the prosecution and the defence addressed the G.C.M. at length, the G.C.M. adjourned for judgment. On the 21st of October, 1996, the G.C.M. in a unanimous decision, found the respondent guilty of all the charges against him, convicted him and sentenced him to a total of 45 years imprisonment. The respondent appealed to the Court of Appeal against the said decision and that court on the 28th of September, 2000, allowed the appeal, set aside the convictions and sentences by the G.C.M. and discharged and acquitted the respondent. The prosecution was not satisfied with this decision and it appealed to this court on 7 grounds of appeal.
➥ ISSUE(S)
I. Whether the Chief Air Staff can legally delegate the power vested in him under section 131(2) of Armed Forces Decree, 1993-(A.F.D.) to convene a General Court Martial (GCM)?
II. Whether the respondent was a person subject to service law as at 6th August, 1996 for the GCM to have jurisdiction to try him?
III. Whether in order to prove that a hand grenade is a firearm, the evidence of an expert is necessary?
IV. Whether the respondent’s evidence that he acted on the belief that CAS gave the order to withdraw and share the N10 million was sufficient to negative the element of stealing on his side, in law?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THE CHIEF OF AIR STAFF CAN PROPERLY DELEGATE HIS POWER AND HE PROPERLY DID
‘The convening order which is exhibit 1 (pages 296-298 of Vol. 5 of record of appeal) was clearly signed by Air Commodore F. O. Ajobena “for Chief of the Air Staff’ on the 22nd of July, 1996. Section 131(2) of the A.F.D. which I set out earlier in this judgment is clearly specific on who may convene a G.C.M. The Chief of Air Staff (CAS) comes under S. 131(2)(c) of A.F.D. as Service Chief. The fact that S. 131(2) is specific on who may convene a G.C.M. does not exclude the possibility of a provision in the same law allowing a delegation of the power to convene a G.C.M. to any person or body. Therefore while interpreting the provisions of S. 131(2), any other provisions in the same law relevant and related to the powers exercisable under S. 131(2) must be read together and be considered as a whole. This is a general principle of interpretation of statutes accepted and followed by the courts in this county. See Matari v. Dangaladima (supra) cited by appellant’s counsel; Mobil v. F.B.I.R. (1977) 3 SC 97; University of Ibadan v. Adamolekun (1967) 1 All NLR 213.’
‘In the first place, it is without dispute that Air Commodore Ajobena is a senior officer, heading the Directorate of Personnel of the Headquarter NAF which is a separate or detached unit of the Nigerian Air Force. It is also not in dispute that the CAS is an appropriate superior authority to Air Commodore Ajobena as well as the respondent who are officers directly under his command within the meaning of S. 128(1) of A.F.D. This therefore means that the CAS could validly authorize Air Commodore Ajobena to sign the convening order as he did in this case. It is also pertinent to observe that this authorization was fully confirmed and supported by – “1) the convening order itself which on page 297 of Vol. 5 of the record reads:- OFFICER AUTHORISED TO SIGN ON BEHALF OF THE CONVENING OFFICER 8. THE DOP, Nigeria Air Force, Air Commodore F. O. Ajobena (NAF/396) is authorized to sign for, and on behalf of the convening officer any amendments or other matters relating to the court; (ii) Exhibits 69 and 70 on page 513 of Vol. 5 of the record relating to the draft convening order which after approval was directed to be signed by D.G.P. on behalf of the CAS; and (iii) Exhibit A1 on P. 300 of Vol. 5 of record which was the written confirmation by the CAS himself that he authorized the D.O.P. Air Commodore Ajobena to sign the convening order and it reads:- ‘1. I write to confirm that I had duly authorized Air Commodore F. O. Ajobena (Director of Personnel, Headquarter NAF) to sign the convening order, charge sheets, and other documents relating to the above Court Martial.'”’
‘The above goes to confirm that while the CAS could validly authorize the powers vested in him under S. 131(2) of AFD by virtue of the provisions of S. 131(3) of the same Decree, he had in fact and without any iota of doubt authorized Air Commodore Ajobena D.O.P Headquarter NAF to sign the convening order. And by S. 286 of the A.F.D., the convening order as an instrument signed by Air Commodore Ajobena who was duly authorized by CAS to sign it, shall be accepted by all courts and persons as sufficient evidence unless the contrary is proved. In this case, there is no controversy that the convening order was in fact signed by Air Commodore Ajobena, and was therefore valid, competent and properly accepted by the GCM. Therefore I answer this issue in the affirmative. I have taken the trouble to dwell on this issue because of its importance in this appeal. It affects the competence and jurisdiction of the G.C.M. which tried the respondent. Any G.C.M. which is not convened as required by the provisions of the A.F.D. is just like a court or tribunal which is not properly constituted. And if a court or tribunal is not properly constituted any process issued or trial conducted by it is a complete nullity ab initio. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341.’]
.
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↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
[THE PROCEEDINGS AFTER THE AMENDMENT OF THE CHARGES WAS A CONTINUATION
‘The respondent and the other co-accused persons were brought to the G.C.M. and arraigned on the 26th of July, 1996. The charges were read and explained to them one by one, and the respondent pleaded not guilty to all the charges against him. On the 6th of August, 1996, when the trial was to commence on those charges the prosecution applied under S. 162 of the Criminal Procedure Act to amend the charges. The application was not opposed and it was accordingly granted whereby 9 new charges were filed against the respondent. The charges earlier preferred against the respondent on which plea was taken, were withdrawn and struck out. The respondent earlier received his notice in which he was granted terminal leave to commence on 30th April, 1996 and end on 31st May, 1996. This is evidenced by exhibit 67 on page 510 of Vol. 5 of the record of appeal. And so by exhibit 67, the service of the respondent in the Nigerian Air Force officially terminated on 31st of May, 1996, and he therefore ceased, with effect from that day, to be subject to service law.’
‘I shall deal with the amendment of the charges first. It is not in dispute that the respondent was arraigned before the GCM when he pleaded to the original charges against him on the 27th of July, 1996. His trial therefore commenced on that day. On the 6th of August, 1996 when the trial was to proceed, the original charges were struck out and substituted by new ones immediately after the striking out on the application of the prosecution under S. 162 of the C.P.A I have earlier considered this situation in a sister case of Nigerian Air Force v. Ex-Wing Commander L. D. James (2002) 18 NWLR (Pt. 798) 295 at 331 – 332 where I said:- “S. 162 and S. 163 of the Criminal Procedure Act speak of framing a new charge or adding to or altering the original charge. In the case of Okwechime v. I.G.P. (1956) FSC 73, it was held that the alteration of a charge under S. 162 and 163 of the Act includes the framing of a new charge in place of the original charge. There the Federal Supreme Court held at page 74 of the report that – ‘The learned trial Judge was of the opinion that the word “alter” in the context means more than “amend” and includes “substitute”, with this view we respectfully agree. In view of the fact that new charges could, under the section, be added to the original one, it would be unreasonable to hold that alteration of the charge cannot be extended to the framing of new charge in place of the original one.’ Therefore substitution will have the same meaning and effect with alteration. And according to S. 164 of the said Act, where a charge or count is altered all that is required to be done is to read the new charge or count to the accused and record his or her plea thereto. The proceedings are deemed to be continued and not disturbed as a result of the alteration. This in my view, is the correct position in the instant appeal immediately after the original counts were struck out.” I repeat the above quotation in respect of this appeal, and also add that a close examination of the new charges show that they are similar to those struck out. Therefore there cannot be any miscarriage of justice in the proceedings as a whole. I have considered all the submissions of the learned counsel for the respondent on this point and I find myself unable to agree with him. I therefore find that the proceedings of the 6th of August, 1996, was a continuation of the trial commenced on 27th April, 1996.’
THE TRIAL PROPERLY COMMENCED WITHIN THREE MONTHS OF SUBJECT TO SERVICE LAW
‘This means that while exhibit 66 discharged the respondent and the other officers mentioned therein, with effect from 27th April, 1996, exhibit 67 granted the same officers terminal leave expiring on 31st May, 1996. This also means that the officers will be regarded as being in service until after the expiry of their terminal leave. By section 169(2) the respondent and other officers shall be subject to service law and liable to be tried by GCM within 3 months after their discharge. If one takes exhibit 66, and the discharge date of 27th April, 1996, the respondent will be subject to service law up to 27th of July, 1996. If one takes exhibit 67 and the expiry date of the terminal leave of 31st May, 1996, the respondent will be subject to service law up to 1st August, 1996. From the record of appeal, it is abundantly clear the respondent was arraigned before the GCM and his plea taken on 27th July, 1996. It appears to me therefore whether exhibit 66 or 67 was relied upon, the respondent was properly arraigned and his trial commenced within 3 months of his discharge from service. Therefore he was subject to service law when his trial commenced on 27th July, 1996 and I so found. I accordingly answer issue two in the affirmative.’]
.
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↪️ ISSUE 3:
[ONE DOES NOT NEED EXPERT EVIDENCE TO DETECT WHETHER A GRENADE IS A FIREARM
‘The answer to this issue is very simple as it depends entirely on the definition or the interpretation of “firearm” given in the Fire Arms Act (Cap. 146 of Laws of Federation, 1990). S. 2 of the Act provides: 2. In this Act, unless the context otherwise requires “Firearm” means any lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged, and includes a prohibited firearm, a personal firearm and a muzzle-loading firearm of any of the categories referred to in parts I, II and III respectively of the schedule hereto, and any competent part of any such firearm.”. By this definition, a firearm is any lethal barrelled weapon of any description, and it includes a prohibited firearm of the categories described or referred to in parts I, II and III of the schedule to the Act. Item 4 part I of the said schedule reads:- “4. Bombs and grenades” This clearly shows that a grenade is a prohibited firearm and a lethal weapon within the meaning of the Fire Arms Act and one does not need any evidence of an expert to prove it as it is intrinsic in the Act itself.’]
.
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↪️ ISSUE 4: IN APPELLANT’S FAVOUR.
[‘From the evidence on record, the respondent was the paymaster of HQ, PAG, NAP and fully familiar with all the financial procedures and matters of the NAP. His main duties were to pay staff salaries of both the N.A.F. troops and civilians working with them, and also pay N.A.F. bills and other commitments. He would therefore know, before anyone else, whether there is or there is no short payment of salaries in April, 1996. He did not say in his statement exhibit 13, that he raised any voucher for short payment of salaries for April, 1996. But he admitted clearly in evidence that he saw the payment vouchers exhibits 9A – 9C approved for short payment of salaries, T5 claim, and repair of addressograph machines amounting to N10 million in favour of PAG, NAF headquarter. Also, as paymaster, the respondent was the holder and person in charge of the account from which this money was raised. When the money was brought to him by the cashier and was told that it was for welfare gift from CAS, he knew that the money could not be transferable to the welfare account since the approval of exhibits 9A – 9C was not for that purpose. And so when he agreed to disregard the financial procedure by sharing the money meant for short payment of salaries etc and shared it as welfare gift with full knowledge of what it was meant for, the respondent must be acting dishonestly and unreasonably. His belief in the so called orders of the C.A.S., even if it is true at that time, could not be honest having regard to the circumstances. I find that the respondents alleged belief in the so called orders of the CAS does not entitle him to any defence to the charge of stealing in this case.’]
.
.
.
✓ DECISION:
‘From all what I have said above, I find that there is merit in this appeal and allow it. I accordingly set aside the decision of the Court of Appeal delivered on 28th September, 2000 and restore the decision of the General Court Martial and the convictions, sentences and orders passed on the respondent.’
➥ FURTHER DICTA:
⦿ MUST BE TRIED WITHIN THREE MONTHS AFTER CEASING OFFICE FROM SERVICE LAW
By the provisions of section 168(1) of the A.F.D., any service officer who commits any offence triable by a court martial can be arrested, investigated and tried accordingly and the said officer shall continue to be subject to the jurisdiction of the court martial even after he/she ceases to be subject to the service law. And by the provisions of S. 169(2) of the A.F.D., any serving officer who ceases to be subject to service law, but who commits an offence triable by a court martial while in service must be tried within three months after he ceases to be subject to the service law. — U.A. Kalgo JSC.
⦿ THE DEFENCE CANNOT TELL THE PROSECUTION WHAT WITNESSES TO CALL
The other issue I would like to take is in respect of calling retired Chief of Air Staff, AFM Femi John Femi as a witness. In our criminal justice system, there is no duty foisted on the prosecution to call a particular person as a witness. The duty of the prosecution is to prove the charge against the accused and the moment that duty is discharged, the court can convict the accused person. The choice of witnesses is the discretion of the prosecution, and I dare say, the discretion is unfettered. It is not within the province or power of an accused person to dictate the witness or witnesses to prove the charge against him. After all, the prosecution of the case is not his. And so, he cannot dabble into a business that is not his. — Niki Tobi JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
U. A. Kalgo, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
P.W.A. Okoli, Esq.
⦿ FOR THE RESPONDENT(S)
A. Abayomi, Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
