CORAM

---

AMINA AUDI WAMBAI

BITRUS GYARAZAMA SANGA

MOHAMMED BABA IDRIS

---

PARTIES

---

SGT. BAWASA YAKUBU APPELLANTS

---

NIGERIAN ARMY RESPONDENTS

---

AREA(S) OF LAW

---

APPEAL, COURT, EVIDENCE, MILITARY LAW, CRIMINAL LAW AND PROCEDURE, JURISDICTION, PRACTICE AND PROCEDURE

---

SUMMARY OF FACTS

The Appellant herein, was arraigned on a three count charge bordering on prohibited dealings in ammunition and disobedience to standing orders. The Appellant pleaded not guilty to the three count charge. The Respondent as Prosecution at the Court martial, opened their case and called three (3) witnesses. At the close of the Prosecution’s case, the defence opened their case and called the Appellant who testified as DW1, and DW2 who is the first wife of the Appellant. After evaluating the exhibits and the testimonies of the Prosecution witnesses, 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 lodged this appeal vide a Notice of Appeal dated the 27th day of September, 2021, raising 4 (four) grounds of appeal.

---

HELD

---

Appeal succeeds

---

ISSUES

---

(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 proof 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?

---

RATIONES DECIDENDI

---

CRIMINAL LAW AND PROCEDURE BURDEN AND STANDARD OF PROOF – BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES – ON MEANING OF PROOF BEYOND REASONABLE DOUBT

---

“In any criminal proceeding, the prosecution has the burden of establishing the guilt of the accused person beyond reasonable doubt. See Section 135 of the Evidence Act 2011. The burden remains on the prosecution and does not shift. Thus, proof beyond reasonable doubt means establishing the guilt of an accused person with compelling and conclusive evidence. Proof beyond reasonable does not mean proof beyond all doubt or all shadow of doubt or proof to the hilt. If the evidence is strong against a person as to leave only a remote probability in the mind of a reasonable man, the case is proved beyond reasonable doubt.” Per IDRIS, JCA

---

PRINCIPLES OF NATURAL JUSTICE – DUTY OF A COURT TO REMAIN UNBIASED

---

“The principle of natural justice, equity and good conscience, nemo judex in causa sua, restrains the Court from usurping the function of the prosecution under the Nigerian adversarial jurisprudence. That is to say, the Court must be an unbiased umpire and must not descend into the arena of conflict.” – Per IDRIS, JCA

---

EVIDENCE PROOF OF GUILT – WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON

---

“In the case of OJO VS. STATE (2018) 15 NWLR (PT. 1643) PAGE 527 @ 546 PARAS A – D, the Supreme Court held that the three ways of proving the guilt of an accused are:
“(a) through a voluntary confessional statement of the accused person; and/or
(b) through direct credible and reliable eyewitnesses or victims of the offence account depending on the circumstance of the offence or offences; and/or
(c) through circumstantial evidence pointing or focusing on the guilt of the accused person that he was the one or one of the persons who committed the offence or offences charged and by no other person(s) but him.”
Under our criminal jurisprudence, the Prosecution can prove the guilt of the accused through three major ways as decided in Supreme Court case of DANJUMA VS. STATE (2019) LPELR – 47037 (SC), where it was held per Bage, JSC that:
“The penal code in our land gives the prosecution the choice or options for proving its case beyond reasonable doubt. A prosecutor may deploy all three options or a combination of options. The guilt of an accused maybe proved by – (i) Confessional statement of the accused; (ii) evidence of an eye witness and; (3) circumstantial evidence.”
See also, the cases of UMARU VS. STATE (2014) 13 NWLR (PT. 1425) AT 497 and IBRAHIM VS. STATE (2014) 3 NWLR (PT. 1394) PAGE 305.” – Per IDRIS, JCA

---

BURDEN AND STANDARD OF PROOF – BURDEN AND STANDARD OF PROOF IN CRIMINAL PROCEEDINGS AND HOW THE BURDEN IS DISCHARGED

---

“The standard of proof in criminal trials is proof beyond reasonable doubt. The proof required is not to push a Court of trial into looking for proof beyond the shadow of doubt but rather proof beyond reasonable doubt. The Respondent should be allowed to prove the charge against the Appellant.
It is trite that in criminal proceedings, the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt and the prosecution should readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. See the cases of YONGO VS. COP (1992) 4 SCNJ 113 and UCHE WILLIAMS VS. THE STATE (1992) 10 SCNJ 74.” – Per IDRIS, JCA

---

OFFENCE(S) – WHAT THE PROCECUTION MUST PROVE TO ESTABLISH THE OFFENCES OF PROHIBITED DEALINGS IN AMMUNITION AND DISOBEDIENCE TO STANDING ORDERS

---

“The Appellant, in this case, was tried and convicted of prohibited dealings in ammunition and disobedience to standing orders. The Prosecution must prove the following ingredients in order to establish the guilt of the Appellant beyond reasonable doubt:
(1)The accused is subject to service law and the jurisdiction of the General Court Martial.
(2)That the accused was in possession of firearms illegally.
(3)That the accused sold firearms.
(4)That the accused person is not a registered firearms dealer.
In respect of counts two and three, the Prosecution must prove that:
(a)That the accused is subject to service law and the jurisdiction of this General Court Martial.
(b)That there is a standing order.
(c)That the standing order is known to the accused or he is reasonably to know.
(d)That the accused breached such standing order.” – Per IDRIS, JCA

---

CONFESSIONAL STATEMENT – POSITION OF THE LAW ON CONFESSIONAL STATEMENT

---

“Section 28 of the Evidence Act 2011 provides that a confession is an admission made at anytime by a person, charged with a crime tending to show or suggest the inference that he committed the crime. Confessional statement is tenable and admissible. Confessional statement is the best evidence to ground conviction and it can be relied upon solely where voluntary. The criminal guilt of an accused person can be established by confessional statement, circumstantial evidence and evidence of an eyewitness. A confessional statement of the accused person that is free and voluntary regardless of the fact that he subsequently resiled from his voluntary confession at trial is good evidence to ground conviction. A confessional statement does not become inadmissible simply because the accused person denied having made it.”
When a sane right-thinking person freely and voluntarily confesses that indeed he was the one responsible for the crime for which he is being accused of, it is a gold mine for the prosecution as the accused has willing offered himself to be slaughtered. A direct, voluntary and unequivocal confessional statement is a solid evidence that can be used to convict an accused person.
In the instant case, the Appellant was convicted solely and only on the strength of his confessional statement. The question that must be answered now is: was the confessional statement strong, direct, positive, unequivocal and free from doubt and capable of securing a conviction against the Appellant?
In the case of SULE VS. STATE (SUPRA), it was held that:
“The confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for conviction of the accused person. An accused person can be convicted on his confessional statement alone, where the confession is consistent with other ascertained facts, which have been proved. Confession in criminal procedure is the strongest evidence of guilt on the act of an accused person. It is stronger than evidence of an eyewitness because the evidence comes from the accused person. There is no better evidence and there is no further proof. Therefore, where an accused person confesses to a crime in the absence of an eyewitness to the crime, he can be convicted on his confession alone once the confession is positive, direct and properly proved. In other words, a free and voluntary confession of guilt, direct and positive and if duly made and satisfactorily proved is sufficient without corroborative evidence so long as the Court is satisfied as to the truth of the confession.”
” – Per IDRIS, JCA

---

HEARSAY EVIDENCE – MEANING OF HEARSAY EVIDENCE – WHETHER THE TESTIMONY OF AN INVESTIGATING POLICE OFFICER AMOUNTS TO HEARSAY EVIDENCE

---

“What is hearsay evidence? In the case of OBOT VS. STATE (2014) LPELR – 23130 (CA), it was held that hearsay evidence is evidence that does not derive its value solely from the credit given to the witness himself but which rests also, in part, on the veracity and competence of some other person.” Per IDRIS, JCA

---

HEARSAY EVIDENCE – WHETHER THE TESTIMONY OF AN INVESTIGATING POLICE OFFICER AMOUNTS TO HEARSAY EVIDENCE

---

“The question that must be answered now is: does the testimony of the three prosecution witnesses amount to hearsay evidence?
The testimony of PW1 cannot be deemed to be hearsay evidence because he is the Investigating Police Officer. Any statement from him is a collation of information he gathered while handling the case. In the case of OBOT VS. STATE (2014) LPELR – 23130 (CA), it was held per Ndukwe-Anyanwu, JCA that:
“… it appears the learned Appellant’s counsel does not appreciate fully the job description of an investigating Police officer. He just investigates crimes. Invariably an Investigating police officer is hardly ever at the crime scene. His investigation comes after the crime had been committed. An Investigating Police Officer obtains statements from accused persons and witnesses alike. He thereafter testifies in Court giving a synopsis of what he did during the investigation. He tenders the statements of both accused and in some cases that of witnesses. He also tenders some documents and exhibits obtained during investigation. The Investigating Police Officer therefore gives direct evidence as to what he has done during the investigation of the crime. The evidence of the Investigating Police officer is not by any standard hearsay. He gives an account of what he has done in the process of his investigations.”
The testimony of PW1 cannot be said to be hearsay evidence since his job as the Investigating Police Officer is to give direct evidence of his findings even if he garnered such information from another person.” – Per IDRIS, JCA

---

CONFESSIONAL STATEMENT – TESTS TO DETERMINE THE CORRECTNESS AND WEIGHT TO ATTACH TO A CONFESSIONAL STATEMENT BEFORE A COURT CAN CONVICT ON SAME

---

“In the case of MUSA VS. STATE (2018) 13 NWLR (PT. 1636) PAGE 316 PARAS D – F, 318 PARAS F – G, it was held per Eko, JSC that:
“Courts in Nigeria apply the rule in R v Sykes 8 CAR 233 at 236 to test the veracity of the making of the confession as well as the correctness of the contents of the confessional statement. The six way test is run on the following pertinent questions. That is:
(a)Is there anything outside the confession to show that it is true?
(b)Is it corroborated?
(c)Are the relevant statements of fact made in it true as far as can be tested?
(d)Is the confession possible?
(e)Is it consistent with other facts which have been proved?”
” – Per IDRIS, JCA

---

CONFESSIONAL STATEMENT – CONSEQUENCE WHERE A CONFESSIONAL STATEMENT IS RETRACTED AND OBJECTED TO ON GROUNDS THAT SAME WAS NOT MADE VOLUNTARILY

---

In the case of ONYENEYE VS. THE STATE (2012) 15 NWLR (PT. 1324) PAGE 586 @ 619 PARAS A – C, the Apex Court set out the circumstances and effect of confessional statements obtained by duress or threat and those merely retracted as follows:
(1) “Where the accused has clearly expressed his ordeal in the process of obtaining the statement accredited to him in effect that it was obtained by force, tricks and undue influence or any non-recognizable legal ways, there would be need for a trial within trial.
(2) Where the accused retracted his confessional statement on the ground that it was not read to him before he signed it or that he never made it at all, the requirement of a trial within trial is not applicable.”
” – Per IDRIS, JCA

---

CONFESSIONAL STATEMENT – DUTY OF COURT WHERE ALLEGATION OF INVOLUNTARINESS OF A CONFESSIONAL STATEMENT IS RAISED

---

From the above statement made by the Appellant, it is clear that he did not retract the confessional statement by merely denying ever making same rather, he stated that he did not voluntarily make the said confessional statement because he was threatened.
How then, did the trial Court reach such a decision without conducting the trial within trial which is a duty and obligation placed on him by the law when the issue of involuntariness in making a confessional statement is raised?
In the case of OFORDIKE VS. STATE (2019) 5 NWLR (PT. 1666) PAGE 395 @ PAGE 424 PARAS H – C, it was held per Nweze, JSC that:
“in this sort of situation, the trial Court is under obligation to conduct a trial within trial (also known as voire diew or mini trial) to determine the veracity or otherwise of the claim… the raison d’etre of the evolution of the mini trial or voire dire procedure is to arm the trial Court with a procedural mechanism for sifting the chaff of involuntary, and, hence, inadmissible evidence from the wheat of admissible evidence whose cogency and probative value are indubitable. The cases on this point are legion; they are countless. OGUDO V THE STATE (2011) 12 SC PART 1 PAGE 71, THE STATE V RABIU (2013) 8 NWLR PART 1357 PAGE 585.”
The law has placed a duty on the trial Court to conduct a trial within trial when the issue of involuntariness is raised with regard to confessional statements. In this case, this is not a matter of resiling, denying or retracting the confession statement. I therefore hold that the trial judge failed to discharge the responsibility and obligation placed on him by the law to order a trial within trial to eliminate the issue of involuntariness. I also hold that the trial judge failed to test the veracity of the confessional statement as stated in the case of MUSA VS. STATE (SUPRA). There is nothing outside the confessional statement to corroborate and to establish without any doubt that it was the Appellant that sold the ammunition recovered from the person who the Respondent did not satisfactorily establish his identity.” – Per IDRIS, JCA

---

SPECULATION – WHETHER COURTS ARE ALLOWED TO SPECULATE

---

The witnesses kept going back and forth and they testified with a lot of uncertainties. The entire case as far as I am concerned is based on speculations. The Appellant never denied knowing the said Mr. Ibrahim who he even confirmed was his in-law. If the undisclosed source of PW3 had been monitoring them, what overt act did he observe that made him conclude that there was an illegal sale transaction of ammunition between them? All the testimonies were tainted with doubts and speculations both during examination in chief and cross-examination.
In the case of ORHUE VS. NEPA (1998) 7 NWLR (PT. 557) PAGE 187, it was held that “it is not part of the assignment of any Court to speculate. It must avoid it.”
In the recent case of IKEMEFUNA & ORS VS. ILONDIOR & ORS (2018) LPELR – 44840, it was held that:
“The law is settled that a Court of law, including this Court, should not indulge in speculating on anything. Put simply, the Court has a duty not to speculate.”
See also, the cases of IKENTA BEST (NIG.) LTD VS. A.G. RIVERS STATE (2008) 8 NWLR (PT. 1084) 612 and ANIMASHAUN VS. UCH (1996) 10 NWLR (PT. 476) PAGE 65.” – Per IDRIS, JCA

---

JURISDICTION – PRINCIPLES OF LAW REGARDING JURISDICTION – TYPES OF JURISDICTIONS

---

In the case of SHITTA-BEY VS. ATTORNEY-GENERAL, FEDERATION (1998) 10 NWLR (PT. 570) PAGE 392, jurisdiction was defined as follows:
“it is the authority a Court of law has to entertain and decide a matter brought before it by litigants. It embraces every kind of judicial action be it criminal, civil and what nots. It is the power of Court to decide a matter in controversy and it presupposes the existence of a duly constituted Court with control over the subject matter and the parties.”
While the ingredients of jurisdiction exist where:
(a)The subject matter of the case is within the jurisdiction of the Court and there is no feature in the case which prevents the Court from exercising its jurisdiction.
(b)The Court is properly constituted as regards members and their requisite qualification and no member is disqualified for one reason or the other; and
(c)The case comes before the Court initiated by the due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.
See generally, the cases of MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341, SKENCONSULT (NIG) LTD VS. UKEY (1981) 1 SC 6, ISHOLA VS. AJIBOYE (1994) 6 NWLR (PT. 352) PAGE 506, WESTERN STEEL WORKS LTD VS. IRON AND STEEL WORKERS UNION (1986) 3 NWLR (PT. 30) PAGE 617 and ODOFIN VS. AGU (1992) 3 NWLR (PT. 229) PAGE 350.
In the Supreme Court case of PDP VS. OKOROCHA & ORS (2012) 15 NWLR (PT. 1323) PAGE 205, it was held that:
“jurisdiction is visualized as the very basis on which any Court or tribunal tries a case. It is the lifeline of all trials. Any trial without jurisdiction is a nullity. The question of jurisdiction being radically fundamental, it can be raised at any stage of a proceeding.”
There are different kinds of jurisdiction. There is the original jurisdiction of Court, appellate jurisdiction, concurrent jurisdiction, exclusive jurisdiction, limited jurisdiction, unlimited jurisdiction, subject matter jurisdiction, territorial jurisdiction amongst others. Jurisdiction of every Court is statutory. It is conferred by the statute which creates it, and may be expanded or extended by specific legislation. Neither the Court nor any of the parties can confer jurisdiction on the Court by conduct, consent or inference and cannot be enlarged by estoppel or waiver. Jurisdiction is the forerunner of the judicial process, and cannot by acquiescence, collusion, compromise or waiver confer jurisdiction on a Court that lacks it. Parties do not have the legal right to donate jurisdiction on a Court that lacks it.
The Supreme Court reiterated the fundamental nature of the issue of jurisdiction, stressing that it is the duty of every Court, the Supreme Court inclusive, to carefully examine the issues in the Statement of Claim, to determine whether the issues sought to be ventilated before the Court are within its jurisdictional competence. The issue of jurisdiction is radical and at the foundation of adjudication, and if a Court acts without jurisdiction, the entire process is a nullity. A Court cannot, under any disguise, decline to deal with an issue of jurisdiction raised for the first time on appeal without leave. See the case of CGG (NIG) LTD VS. AMINU (2015) LPELR – 24463 (SC). Also, by virtue of Section 233(2)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), no leave of Court is required to raise an issue of jurisdiction as a fresh issue on appeal.” – Per IDRIS, JCA

---

CASES CITED

---

Not Available

 

---

STATUTES REFERRED TO

---

 1999 Constitution of the Federal Republic of Nigeria (as amended)

Administration of Criminal Justice Act, 2015 Armed Forces Act Cap A20 LFN, 2004

Evidence Act 2011

Firearms Act Cap F28 Laws of the Federation of Nigeria 2004

 

---

CLICK HERE TO READ FULL JUDGMENT