LT. F.O. ODUNLAMI VS THE NIGERIAN NAVY

CORAM

PARTIES

LT. F.O. ODUNLAMI (NN/2121) APPELLANTS

THE NIGERIAN NAVY RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellant, a lieutenant in the Nigerian Navy was arraigned on an amended three count charge before a General Court Martial. He was charged for the murder of one Peter Edeh by shooting at him with a service pistol contrary to section 106 of the Armed Forces Act, Cap. A. 20 Laws of the Federation of Nigeria, 2004, loss of service property contrary to section 68 (1) (a) of the Armed Forces Act Cap A20 Laws of the Federation of Nigeria, 2004, and conduct to the prejudice of service discipline section 103 (i) AFA 105 of the Armed Force Act Cap A. 20 Laws of the Federation of Nigeria, 2004. He was found guilty of two out of the three Counts and was dismissed from the Military. Not satisfied, he appealed to the Court of Appeal wherein his appeal was dismissed. Further aggrieved with the lower court’s decision, he further appealed to the Apex Court.

HELD

Appeal Dismissed

ISSUES

Whether from the facts and circumstances of this case, the Court of Appeal was right in holding, that the defence of self-defence did not avail the appellant. Whether from the facts and circumstances of this case, the Court of Appeal was right in upholding the decision of the General Court Martial on the loss of service property. Whether the appellant was afforded fair hearing by the learned justices of the Court of Appeal who based their judgment on personal sentiments and extraneous conclusions (including allusions to findings of the General Court Martial which were not appealed against) and thereby refused to quash the conviction nor reduce the sentence.

RATIONES DECIDENDI

PROVOCATION AND SELF-DEFENCE – ON WHO REST THE BURDEN OF PROOF OF PROVOCATION AND SELF- DEFENCE

“The burden of proof of provocation and self-defence lies on the accused person” see Gabriel v. State (1989) col. 22 NSCC pt. 111 p. 349″”.

SELF-DEFENCE – SECTION 286 OF THE CRIMINAL CODE

“When a person is unlawfully assaulted and he did not provoke the assault the law expects him to defend himself. He is expected to use such force on his assailant as would be reasonable to make an effective defence”.

PROOF BEYOND RESONABLE DOUBT- DUTY OF THE PROSECUTION TO PROOF ITS CASE BEYOND REASONABLE DOUBT

“In our adversary system the prosecution is expected to prove its case beyond reasonable doubt and the defence is under no obligation to assist the prosecution to discharge that onus. The defence is to remain silent, but when the prosecution closes its case it becomes important that the accused person defends himself more so when the prosecution has established that the accused/appellant killed the deceased”.

SECTION 68 (1) (A) OF THE ARMED FORCES ACT – WHAT THE PROSECUTION MUST PROVE TO SUCCEED IN A CHARGE UNDER SECTION 68 (1) (A) OF THE ARMED FORCES ACT

“To succeed in a charge under section 68 (1) (a) supra the onus is on the prosecution to prove beyond reasonable doubt that:
(a) the accused is subject to service law
(b) the accused had charge of or was in care of the service property.
(c) the said service property is lost.
(d) the accused intentionally lost the items.
(e) the accused has no defence in law or facts”.

AUDI ALTERAM PARTEM- PURPORT OF AUDI ALTERAM PARTEM

“Audi alteram partem means hear the other side. It is a maxim denoting basic fairness and a canon of natural justice. Once it can be shown that a party was given an opportunity of being heard but he refused to avail himself of the opportunity he cannot be heard to complain that he was not given a fair hearing”.

CONTRADICTION – WHAT AMOUNTS TO CONTRADICTION

“Evidence contradicts another evidence when it says the opposite of what the other evidence say on a material point. The contradictions must be fundamental and substantial before it can affect the prosecution’s case. Discrepancies on the other hand are minor differences in details and these are allowed in proceedings. See Adele v. State (1995) 2 NWLR Pt. 377 p. 269, Kwaghshie v. State (1995) 3 NWLR Pt. 386 P.651”.

MINOR DISCREPANCIES – WHETHER MINOR DISCREPANCIES BETWEEN PREVIOUS WRITTEN STATEMENT AND SUBSEQUENT TESTIMONY ON OATH AFFECT THE CREDIBILITY OF THE WITNESS

“Minor discrepancies between previous written statement and subsequent testimony on oath do not in any way affect the credibility of the witness.

DOCUMENTARY EVIDENCE – DOCUMENTARY EVIDENCE SERVES AS A HANGER FROM WHICH TO ASSESS ORAL TESTIMONY

“Documentary evidence serves as a hanger from which to assess oral testimony. See Kindley v. M.G. Gongola State (1988) 2 NWLR Pt. 77 p.473, Omoregbe v. Lawani (1980) 3-4 SC P.117”.

DEFENCE OF PROVOCATION – DUTY OF THE COURT WHEN AN ACCUSED PERSON RELIES ON PROVOCATION

“When an accused person relies on provocation as his defence the court must consider the force or weapon used in relation to the provocation received to see if it was disproportionate, or reasonable. If the reaction of the accused to the provocation was disproportionate the defence of provocation fails. If on the other hand his response was reasonable the defence of provocation is sustained”.

DEFENCE OF PROVOCATION – EFFECT OF WHERE A DEFENCE OF PROVOCATION IS SUSTAINED

“Once the defence of provocation is sustained in a charge for murder, the accused would be found guilty of manslaughter and the judge has a discretion to impose sentence bearing in mind that the maximum sentence is life”.

CONCURRENT FINDINGS OF THE LOWER COURTS – WHEN WILL THE SUPREME COURT INTERFER WITH CONCURRENT FINDINGS OF THE LOWER COURTS

“This court will not interfere with concurrent findings of the courts below except where the findings are perverse, or not supported by credible evidence, or where miscarriage of justice has occurred. See Ibodo v Enarofia (1980) 5 – 7 SC p.42, Ebba v. Ogodo (1984) 1 SCNLR p.372. This is so since the trial court had the opportunity to hear, see and examine the demeanour of the witnesses. An appellate court does not have the opportunity of hearing and seeing the demeanour of witnesses and so should be slow to disturb the findings of the trial court. See further Popoola v. Adeyemo (1992) 6 NWLR pt. 257 p. 1”

CASES CITED

STATUTES REFERRED TO

Armed Forces Act Cap. A20 LFN, 2004,|Criminal Code|Evidence Act|Penal Code|

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