LT. CDR M.C. Abubakar (Appellant) And The Nigerian Navy (Respondent)

Facts

the Appellant, a commissioned officer of the Nigerian Navy, was assigned to maintain security over the MT AFRICAN PRIDE, a vessel arrested in October 2003 for transporting stolen crude oil belonging to the Federal Government of Nigeria. During his duty period of 29^th October to 4^th November 2003, the Appellant allegedly connived with unknown persons to facilitate the unlawful trans-shipment of the cargo in the vessel and its replacement with sea water. Upon discovery, an internal investigation was conducted, leading to the convening of a General Court Martial under the Armed Forces Decree No. 105 of 1993 (as amended). The Appellant was arraigned on a three-count charge of stealing and conduct prejudicial to service discipline, convicted on counts 1 and 3, and sentenced to terms of imprisonment and dismissal from service.

Dissatisfied by the decision of the General Court Martial, the Appellant unsuccessfully appealed to the Court of Appeal, which court affirmed the conviction and sentence. Nettled by the decision of the Court of Appeal, the  Appellant further appealed to the Supreme Court.

Issues for Determination:

The following issues were raised in the Appellant’s Brief of Argument:

1. WERE the learned justices of the Court of Appeal right to affirm the conviction and sentence of the Appellant of the alleged offences when Exhibits 3 and 5 (report of investigation and result analysis of the vessel) taken together with the evidence of PW5, PW6 and PW7 clearly shows that the alleged stealing did not take place at the time the appellant was on duty of the vessel?
2. WERE the learned justices of the Court of Appeal right to affirm the conviction and sentence of the Appellant on the sole evidence of PW1, PW2 and PW3 who were accomplices and whose evidence were substantially hearsay, contradictory, irreconcilable and uncorroborated?
3. WERE the learned justices of the Court of Appeal right to hold that the Naval Court Martial Rules 3 of BR 11 could override the provisions of Section 123 of the Armed Forces Act, Laws of the Federation 2004, which makes conduct of investigation by an accused commanding officer and signing of the report mandatory before a court martial may be convened?
4. WERE the learned justices of the Court of Appeal right to hold that the circumstantial letter recommending the convocation of a court to try the Appellant was valid when it was not signed by the Appellant’s commanding officer?

Arguments

Arguing the first issue, the Appellant submitted that the standard of proof in trials before the Court Martial under Section 143(1) of the Armed Forces Act (the “Act”) must be proof beyond reasonable doubt, relying on AFOLALU v STATE (2010) 18 NWLR (Pt. 1220) 584. He contended that the lower court erred in failing to properly evaluate Exhibit 3, the investigation report tendered through PW5, which showed that the Appellant had handed over duty on the 4^th November 2003 while the sample analysis indicating loss was dated the 5^th December 2003, well outside the Appellant’s duty period. He argued that the exclusion of Exhibit 3 amounted to improper “picking and dropping” of evidence as condemned in OLOWOYO v STATE (2012) 17 NWLR (Pt. 1329) 346. He emphasized that PW5 acknowledged the Appellant was not on board when the incident allegedly occurred, that material contradictions existed between the evidence of PW6 and PW7’s scientific reports, and that PW1 to PW3 were accomplices whose uncorroborated testimony should have been treated with caution. In response to issue one, the Respondent submitted that the attack by the Appellant on evidence of the prosecution lacked merit. Relying on NWANKOALA v STATE (2006) 14 NWLR (Pt. 100) 286, it was argued that the unchallenged testimony of PW4 regarding the deviation by the Board of Inquiry from its mandate sufficiently undermined the credibility of the findings of the Board, which the Appellant failed to rebut. That the original NNS Beecroft test result was unsworn hearsay and inadmissible, and there was no material contradiction between the evidence of PW6 and PW7 since PW7 personally extracted the sample and his evidence was inherently more reliable. The Respondent posited that the lower courts were entitled to rely on the collective and corroborative weight of the evidence and that the Appellant’s challenge should be dismissed.