How to Establish the Offences of Prohibited Dealings in Ammunition and Disobedience to Standing Orders against a Military Officer

CASE TITLE: YAKUBU v. NIGERIAN ARMY (2022) LPELR-58526(CA)

JUDGMENT DATE: 2ND SEPTEMBER, 2022

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

LEAD JUDGMENT: MOHAMMED BABA IDRIS, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on criminal procedure under military law.

FACTS:

The Appellant was arraigned before the General Court Martial, Division Officers’ Mess, Kaduna, on a three-count charge, bordering on prohibited dealings in ammunition and disobedience to standing orders.

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The Appellant pleaded not guilty to the charge. The Prosecution opened their case and called the Investigating Police officer, CPL Amadi Michael as PW1, who testified that the Appellant was brought to his office on an allegation of illegal possession and sales of ammunition. The witness said he interrogated the Appellant and took down his statement after he cautioned him since the Appellant could not write. The Appellant signed the statement and the OIC also signed to testify that there was no duress. PW1 went ahead to testify that the Appellant sold some ammunitions to one Mr. Ibrahim, who is now at large for the sum of N75,000 and the confessional statement was tendered through him and it was admitted in evidence and marked as Exhibit A1.

PW2 who was the officer in charge of Military Police Investigation also testified that he was told by the Appellant that one Mr. Ibrahim asked for his help to help him get live rounds and an empty magazine of an AK47 rifle. PW2 then called one of his investigators to write for the Appellant since the Appellant could not write. He sought to tender the Code of Conduct for Troops in Op Lafiya Dole guiding military operations and it was admitted in evidence and marked as Exhibit A2. The witness further testified that paragraph cc of the said Exhibit A2 stated that the troops of Op Lafiya Dole must not for any reason depart the theatre of operation with any firearm ammunition or any other controlled items without depositing such with the quarter/store. PW2 had testified that he never met the Appellant and that he carried out the investigation based on the confessional statement the Appellant gave.

PW3 also testified that he was told to monitor the Appellant and he instructed his source to monitor the Appellant. He was informed that someone saw someone going to the Appellant’s house and bought some ammunition. They went to the house of the person and saw the ammunitions but the person escaped immediately he sighted them. They then went to the house of the Appellant and arrested him and he confessed that he sold it to Mr. Ibrahim.

The defence opened their case and called the Appellant who testified as DW1. The witness said he was at home and that he was arrested by PW3 and two others. No weapon was found in his house but he was told that they found empty cases and ammunition at one Mr. Ibrahim’s houses who he claimed was his in-law. DW1 said he was threatened and that he did not voluntarily make the confessional statement.

The learned trial judge convicted the Appellant and sentenced him to 4 (Four) years imprisonment on count one, 2 (two) years imprisonment on count two, and 1 (one) year imprisonment on count 3 (three). The sentences were to run concurrently. Dissatisfied with the judgment of the Court Martial, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION:

The appeal was determined on the following issues thus:

(1) Whether the General Court Martial did not err in law and reached a perverse decision when it convicted the Appellant notwithstanding the paucity of evidence and failure of the Prosecution to prove the ingredients of the offences against the Appellant beyond reasonable doubt as required by law?

(2) Whether the General Court-martial had the requisite jurisdiction to try and convict the Appellant in respect of the charges before it?”

DECISION/HELD:

The appeal succeeded. The entire proceedings, conviction and sentencing of the Appellant were declared a nullity. The Appellant’s conviction was quashed and the Court ordered that he be released from prison custody forthwith.

RATIOS:

• CONSTITUTIONAL LAW – PRESUMPTION OF INNOCENCE: Statutory provision as it relates to the presumption of innocence in a criminal trial
• CRIMINAL LAW AND PROCEDURE – CHARGE(S): Position of the law as regards defect in a charge
• CRIMINAL LAW AND PROCEDURE – CHARGE(S): Whether the charge sheet of an accused brought before a Court Martial must be signed by the Commanding Officer of the accused
• EVIDENCE – HEARSAY EVIDENCE: Whether the evidence of an investigating police officer as regards what he saw or discovered during an investigation is hearsay
• MILITARY LAW – OFFENCE(S): What the prosecution must prove to establish the offences of prohibited dealings in ammunition and disobedience to standing orders