CAPTAIN N. AHMED (NN/1427) v. NIGERIAN NAVY (2017)

In The Court of Appeal of Nigeria

On Friday, the 14th day of July, 2017

CA/L/1163/2014

Before Their Lordships

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria


Between

CAPTAIN N. AHMED (NN/1427) Appellant(s)

AND

NIGERIAN NAVY Respondent(s)

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JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from the judgment of a Special Court Martial (Court-martial) convicting the appellant of negligence and loss of service property and conduct prejudicial to service discipline and sentencing the appellant to 3 years loss of seniority on rank, a fine of N354,330.00 and reduction to the rank of Commander (Cdr) of 4 years with consequential effect of loss of command in the Navy forever.In outline, the facts as presented by the appellant were that the appellant was in command of a Nigerian Navy ship NNS LANA. Other officers and some ratings were under the appellant onboard the ship at the material time. On 13-11-12 the armourer of the ship raised alarm that two browning pistols and 100 rounds of ammunition were missing from the armoury on the ship.
The appellant commenced investigation into the matter. Before the appellant would proceed deep into the investigation the Fleet Commander and the Flag Officer Commanding Western Naval Command, his superior, stopped the investigation. The appellant’s written plea on two occasions to be given time to continue with investigation of the matter were turned down by his superiors. The last two officers that kept duty could not account for these service items which formed part of the items that are handed over daily by duty officers and their daily record maintained.
The officers earlier indicted by the appellant in the course of investigation were relieved of the restrictions placed on them even when they acknowledged that they took over the missing items as duty officers and could not account for the same. A Special Court Martial was convened to try the appellant and the ship’s company which convicted and sentenced the appellant as indicated (supra).
While the facts as presented by the respondent were that on 13-07-2012 and 27-09-2012 the appellant refused to count the arms and ammunition on the ship and caused the loss of service property of 2 browning pistols and 100 rounds of ammunition which amounted to negligence on the part of the appellant.
The said disciplinary measure taken by the appellant against the two officers during investigation were ignored by the Convening Authority which caused the appellant to be Court-martialled leading to his said conviction and sentence with the court-martial reasoning in addition that the appellant brought some marabouts on the ship who forced the ship’s company to drink dangerous concoction as part of his investigation of the disappearance of the arms and ammunition.
Not satisfied with the judgment of the court-martial the appellant filed a notice of appeal with 12 grounds of appeal followed with a brief of argument filed on 09-12-14. The appellant argued that by the GSM handset messages recorded therein, Exhibit 44, there was information that he was set-up by his superiors showing bias which the court-martial overlooked in its judgment thus denying the appellant a defence available to him.
It was also argued that Exhibit 12 showed PW5 and PW6 signed taking/receiving the missing items without accounting for them which was also ignored by the court-martial. Likewise, the appellant’s defence that there was a conspiracy between some of his superiors and the ship’s company to set-up the appellant at the material time, therefore the appellant was not given a fair trial vide Ltd. Col. KD Ajia v. Nigerian Army (2012) A.F.L.R. (pt.1) (no pagination).
The

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appellant contended that Exhibit 43, the Captain’s Standing Order, did not assign any duty to the appellant, but to the ship’s company, therefore the court-martial erroneously relied on Exhibit 43 to convict the appellant.
It was contended by the appellant that some evidence from the PW3 and PW10 stated that there were no missing pistols as the armoury was safe by all standards at the material time which were admissions in favour of the appellant; while the other pieces of evidence from the PW1 to PW10 were replete with contradictions indicating the innocence of the appellant; and that if the court-martial had properly analysed the evidence of the prosecution witnesses and the evidence of the PW10 in particular alongside the appellant’s evidence the court-martial would have arrived at the verdict that the case against the appellant was not proved beyond reasonable doubt and would have found the appellant not guilty of negligence particularly as the statements of the witnesses to the investigator and their sworn evidence were in sharp conflict on the issue of negligence videSection 135(1) of the Evidence Act 2011 (Evidence Act), Adeyeye v. Ajiboye (1987) 3 NWLR (pt.61) (no pagination) Article 1816 of Naval Book of Reference (BR 11), Udo v. State (1992) 2 NWLR 471, Onubogu v. State (1974) 9 SC 9, Agbiti v. Nigerian Navy (2012) A.F.L.R. (Pt.1) at 29.
It was also argued by the appellant that 20 witnesses were called and 48 Exhibits tendered while the judgment of the court-martial was 5 pages without evaluation of the evidence before conviction was recorded in the judgment against the appellant, so the judgment should not stand vide Eyeboles v. Akande (2009) 15 NWLR (p1.1163) 119 at 147. 
The appellant argued that having regard to the fact that the evidence adduced by the prosecution favoured the co-accused tried with the appellant who were discharged at the close of the case for the prosecution, the appellant was also entitled to be set free by the court-martial on the said evidence and not having done so the court-martial erred vide Lt. Col. E.M. Kalu v. Nigeria Army (2010) 4 NWLR (Pt.1185) 291.
The appellant argued that by denying him the right to address the court-martial on issues of law raised by the judge advocate under Article 101 and 326 of the BR 11 Naval Court Martial Rules of Procedure the court-martial breached the appellant’s right to fair hearing; and that the court-martial erred by exceeding the time limit set for the proceedings vide Section 135(3) of the Armed Forces Act CAP A20, LFN 2004 (AFA, 2004).
The appellant contended that after relying on Exhibit 12 to hold that there was no missing service property upon which the court-martial discharged the 4th accused, the court-martial should not have convicted the appellant of negligence for loss of service property that allegedly occurred in July and September 2012 after ruling that the items were intact up to 07-11-12 and without further evidence.
It was argued by the appellant that his GSM conversation with two out of the three members of the court-martial revealed that they admitted doing “a bad work”; that they signed the judgment even though they were not part of the decision making; that the judgment was prepared before even the judge advocate gave advice; that they ignored all laws; that they agreed that there were many grounds of appeal and advised the appellant to appeal; therefore from the revelations of the two members of the court-martial the appellant was entitled to be acquitted vide Section 140(1) and (2) of AFA 2004; also, that the sentence was duplicated and was contrary to Section 118(2), (5), (6) and 17 of AFA 2004 and should be set aside.

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The appellant argued that count 3 of the charge on conduct prejudicial to service discipline in that the appellant was alleged to have used marabouts to help in the investigation of the case of the missing service property who allegedly prepared concoction and forced majority of the ship’s company to take thereby putting their lives in danger is an offence unknown to law and that the court-martial should not have convicted the appellant on the non-existent law vide Section 36(12) of the 1999 Constitution read with the case of Capt. GNA Asake v. Nigerian Army (unreported) (no citation).
The appellant argued that the condition precedent to the constitution of the court-martial as provided by the Mandatory Article 1602 of BR 11 and Article 176 of the Naval Court Martial Rules of Procedure were not complied with in that the charges and summary of evidence and the circumstantial letter did not exist at time and date the court-martial was constituted vide Exhibits 31 and 32 thus depriving the court-martial of the jurisdiction to entertain the case; and the fact that circumstantial letter was sent after the proceedings commenced vide the back-dated letter served in April, 2013 and the testimonies of DW1 to the 3rd accused as well as the 3rd accused himself and Exhibit 33 showing the charges framed and signed by the assistant prosecutor and served 16 days after the constitution of the court-martial which also showed the summary of evidence was dated 15-12-12 and the report of investigation was signed and dated 17-12-2012 when the court-martial was ordered on 12-12-12, showed the court-martial lacked the jurisdiction to entertain the case vide Agbiti v. Nigerian Navy A.F.L.R. (Pt.1)(no pagination), Madukolu v. Nkemdilim (1962) 1 All NLR (Pt.4) 589; and that the failure of the court-martial to rule on the issue of jurisdiction when it was raised before it but proceeded with the trial without ruling on the issue of jurisdiction first occasioned a miscarriage of justice to the appellant vide Ogunleye v. Jegede (1991) 6 NWLR (Pt.199) 994.
It was argued by the appellant that reviewing and confirming his sentence by the Navy Board during the pendency of the notice of appeal which was served on the respondent violated Section 198 of AFA, therefore the confirmation of the sentence by the Navy Board should be set aside; consequently the appellant urged that the appeal should be allowed and his conviction and sentence be quashed with substantial compensation given to him together with an order that the appellant be promoted to the rank of Commodore.
The respondent contended in her brief of argument filed on 23-11-16, but deemed as properly filed on 06-06-17, that Exhibit 44 was temporarily admitted pending the production of the phone, the primary evidence of it, which was not produced at the trial and Exhibit 44 being inadmissible in evidence in the way it was tendered would not constitute legal evidence and cannot be admitted as legal evidence even by the consent of the parties videKale v. Coker (1982) 1 SC 252, Omega Bank (Nig.) Plc v. OBC Ltd. (2005) 1 SC (Pt.1) 49; that the court-martial evaluated the evidence forming part of the parties’ final address vide Enclosure 27.
The respondent submitted that the appellant as the commanding officer of a ship was directly responsible for whatever happened on board the ship he commands, and that by Exhibit 43, the Captain’s Standing Order, the appellant was duty bound to conduct captain’s round once a month which he negligently refused to carry out throughout his stay onboard the ship NNS LANA vide the evidence of PW5 which was partially corroborated by the evidence of the appellant that he inspected the ship 3 or 4 times within 6 months before signing the handing/taking over note during the Chief of Naval Staff (CNS) advance team inspection visit.
The respondent submitted that all the ingredients of the offences were proved beyond reasonable doubt on the evidence tendered by the prosecution at the court-martial inclusive of Exhibits 15, 25, 26 and 27 and that whatever contradiction in the evidence was minor, therefore it was submitted that the

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court-martial was right in convicting the appellant on the said evidence vide Dibie v. State (2007) 9 NWLR (Pt.1033) 26 27, Dagayya v. State (2006) 7 NWLR (Pt.980) 648.
The respondent submitted that the discharge of the other accused was based on lack of evidence vide 588 paragraph 6008 of the record of appeal (the record) which was not the case with the appellant as there was evidence for his conviction and sentence which the court-martial rightly used in convicting and sentencing the appellant for the offences charged.
The respondent submitted that issue of jurisdiction raised by the appellant was considered by the court- martial vide page 1090 paragraph 9237 of the record; that even if the judge advocate failed to advise the court-martial on some issues raised (though without conceding) such failure only amounts to procedural irregularity and does not occasion any miscarriage of justice and cannot vitiate the proceedings vide Obaks Ofor v. State (1991) 22 N.S.C.C. 25 at 41; that the objection to jurisdiction was neither raised by the prosecution, nor the accused or friend of the accused as required by Article 326 of BR 11; and that the objection to jurisdiction was raised when the court-martial had already delivered its ruling and was functus officio.
The respondent referred to pages 1120  1126 of the record to submit that the court-martial considered the evidence before it arrived at the decision convicting and sentencing the appellant for the offences charged.
The respondent submitted that the allegation of bias was not particularized, nor did the record disclose the allegation of bias, so it should not be countenanced; and that the sentence was not duplicated but was in accordance with Section 118(2) of AFA 2004 read with the case of Ogunsanya v. The State (2011) 6 MJSC (Pt.1) 24.
The respondent submitted that count 3 was based on Section 103 of AFA 2004 and the evidence establishing it that the appellant brought marabouts on the ship who served bread on the entire ship’s company after making some incantations as a means of investigation contrary to conventional method of investigation and thus an assault on the competency and intelligence of the investigative segment of the Armed Forces and rendering redundant the investigative department of the service which was a prejudicial act capable of bringing the Armed Force into disrepute vide Zakari v. Nigerian Army (2012) 5 NWLR (Pt.111) 478.
The respondent observed that Exhibits 31 and 32 referred to by the appellant are not contained in the record served on her. The respondent proceeded to submit that paragraphs 6413, 6421 and 6423 of the record clearly showed that the charge and the circumstantial letter were in existence before the court-martial started proceedings; that the appellant who alleged the circumstantial letter was back-dated did not prove the allegation as it is trite that he who asserts must prove the assertion and that the defence counsel raised the issue of jurisdiction in final address vide the statement of the judge advocate in page 1090 paragraph 9237 of the record, therefore the court-martial possessed jurisdiction at the inception of the case, so concluded the respondent on the point citing in support Amadi v. FRN (2008) 12 SC (Pt.111) 55.
The respondent argued that an appeal does not operate as a stay of execution and that whereas the notice of appeal was dated 09-12-2014, the confirmation by the Navy Board was done on 30-09-2014, the confirmation was done before the appeal was filed; that at any rate AFA affects only the confirmation not the judgment; that an appeal can only be lodged after confirmation; that having filed the appeal

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before the necessary confirmation the appeal is a nullity; and that based on these submissions the appeal should be dismissed and the appellant reprimanded.
The contradiction or discrepancy in the case is not material and was satisfactorily explained by the witnesses concerned and is expected from testimonies of witnesses not tutored to give evidence, so the argument on material contradictions is a storm in a tea-cup, so to speak and is hereby rejected vide Jizurumba v. The State(1976) N.S.C.C. 156.
The “findings and judgment” in respect of the appellant are contained in pages 1120 – 1127 and enclosures 27 and 28 of the record. There the names of the parties, the charge sheet against the appellant, the submissions of the parties and the crux of the case are summarised, the findings of the court martial and the law backing the findings as well as the conviction and later sentence after plea of mitigation together with the signature of those that were on the court-martial as adjudicators are stated therein. In my modest opinion, this qualifies as a judgment. It is not the volume but the substance of what is contained in a judgment that makes a judgment. Consequently, I conclude that this is a valid judgment vide C.P.C. V. INEC (2012) 13 NWLR (Pt.1317) 260.
The judge advocate did not say anything on jurisdiction. The court-martial treated the complaint on jurisdiction as a technicality stating that the appellant admitted he was served the charge sheet and the circumstantial letter before arraignment therefore the court-martial was properly constituted.
The court-martial also stated in page 1111 of the record that it had ruled on jurisdiction. In the event anything was left out the appellant whose learned counsel prepared his address contained in enclosure 19 comprising 73 pages in which the issue of jurisdiction was addressed in pages 54-62 thereof had every opportunity to incorporate whatever he wanted in the written address on jurisdiction whether raised before but not considered by the court-martial including arguments on issues of law raised by the judge advocate, therefore I fail to see substance in the contention of the appellant that he was denied fair hearing on the issue.
At any rate, the issue of jurisdiction was determined on the threshold by the court-martial in pages 1090 – 1903 of the record showing the issue of jurisdiction was first determined before judgment was given in the case. Even in some cases and for the purpose of saving time and cost, though raised in limine, jurisdiction could be decided at a later stage of the proceedings in the judgment of the Court starting first with the issue of jurisdiction vide by analogy Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt.439) 637, Newswatch Communications Ltd v. Atta (2006) 12 NWLR (Pt.993) 144 at 168 – 169, Amadi v. NNPC(2000) 10 NWLR (Pt.674) 76 at 100, Senate President v. Nzeribe (2004) 9 NWLR (Pt.878) 251 at 274, Olorunkunle v. Adigun (2012) 6 NWLR (Pt.1297) 407 at 426.
In addition, where Court of first instance did not properly determine the issue of jurisdiction raised before it, an Appeal Court is still entitled to entertain the issue of jurisdiction raised before it as it is trite that an issue of jurisdiction can be raised at any stage of the proceedings, even on appeal for the first time.
The appellant’s argument that the Court martial exceeded the time-frame for the granting of adjournment, if in breach of Section 135(3) of AFA was not shown to have led to substantial miscarriage of justice and, is accordingly, of no moment vide the proviso to Section 185(1) of AFA.
Accordingly, even if the court-martial had on some occasions

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adjourned beyond 6 days without consent of the accused and prosecution which was not specifically pointed out by the appellant, not having shown that the appellant suffered failure of justice in the case the point would not have led to the reversal of the decision of the court-martial on that point vide the proviso to Section 19(1) of the Court of Appeal Act 2004, as amended.
It is trite that the record is binding on the Court and the parties and unless properly amended by the leave of the Court nothing outside the record will be countenanced vide C.O.P. v. Okoye (2012) 14 NWLR (Pt.1320) 396 at 425 – 426 per Augie, J.C.A., (now J.S.C.) following Onwuka v. Ononuju (2009) 11 NWLR (Pt.1151) 174, Olufeagba v. Abdur-Raheem (2009) 18 NWLR (Pt.1173) 1173.
In the absence of affidavit evidence that the other two members of the court-martial signed the judgment involuntarily, I am bound by the record and the presumption of regularity that official acts are deemed to have done regularly vide Section 168(1) the Evidence Act.
Exhibits 31 and 32, the dispatch from Fleet Headquarters West and Western Naval Command, respectively, are not in the record. The respondent’s complaint in the brief that said Exhibits are not contained in the record was not met by the appellant; accordingly, the allegations by the appellant that the circumstantial letter was back-dated and that the charge was prepared after the court-martial was convened without the convening order, and that the circumstantial letter was not concurrently in existence with the charge being matters of documentary evidence which no oral evidence like the evidence of DW1 can alter, contradict or vary vide Section 128 of the Evidence Actwere not proved as they were not borne by the record. Exhibit 31 and 32 not having been made part of the record nor the 15 messages in the call phone not having been transcribed, Exhibit 44 cannot be good evidence of what it contains, more so that appellant testified that the message were from anonymous sources which spoke in veiled terms of his frame-up without disclosing the persons behind the alleged frame-up.
It is trite that he who asserts must establish the assertion and not having done so, the allegation that the circumstantial letter was back-dated and the charge framed after the court-martial was constituted is speculative and not proved vide Orji v. Dorji Textile Mills (Nig.) Ltd. (2010) All FWLR (pt.519) 999 at 1013 – 1014, F.A.T.B. Ltd. v. Partnership Investment Co. Ltd. (2004) FWLR (Pt.192) 167.
Moreover, the allegation of back-dating a public document such as circumstantial letter is criminal in nature and required proof beyond reasonable doubt which was not met by the appellant in this case vide Section 135(1) of the Evidence Act.
Allegation of bias of an adjudicator is grave. It must be clearly raised in the proceedings and if the facts constituting it are discovered after the case, affidavit evidence of it should be filed and served on the person(s) accused of bias for their reaction which was not the case here.
In addition, the phone conversation on the allegation of conspiracy or gang-up between the appellant’s superiors and some of his ship’s company and members of the court-martial were not properly proved in evidence as its contents were not demonstrated in the court-martial by a witness conversant with it vide S.T. Hon’s Law of Evidence in Nigeria 2012 in pages 506  507 where the learned author aptly wrote
“… a GSM gadget or telephone itself, if it contains valuable information, can be successfully tendered in evidence together with whatever message or information stored therein; as evidence, the only duty of the tendering party being to read it in open Court and to demonstrate its contents in the open Court in the similitude of reading ordinary documentary evidence when admitted in evidence or taking them as

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read.”
As pointed out by the respondent even Exhibit 44 was provisionally admitted pending the tendering in evidence of the GSM phone so a document admitted provisionally or tentatively cannot be formally in evidence until the event upon which it was admitted occurred or was accomplished by the party upon the responsibility rested to accomplish the event vide Commercial Bank (Credit Lyonnais) Nigeria Ltd. and Anor. v. Joke Ishola and Anor (2014) LPELR – 24070 (CA), Makurdi Local Administration v. Yabubu Billa (1973) N.N.L.R. 101 at 104, Alhaji Yahaya Mohammadu v. Oturkpo Local Administration (1973) N.N.L.R. 112 at 144 and Sunday Ani and Anor v. State (2009) 16 NWLR (Pt.443) at 456 (letter H), Barde Egwa v. Moses Ciroma Egwa (2007) 1 NWLR (Pt.1014) 71 at 94.
Confirmation of the verdict of the court-martial by Navy Board was made on 07-11-14 and reduced the sentence of the appellant vide Page 1 of the additional record of appeal (additional record) thus –
“a. One year loss of seniority with consequential loss of Command including the period of Command of NNS LANA.
b. Payment of the sum of N354,330.00 as cost of the missing pistols and 100 rounds of 9m ammunition.
c. Two years loss of seniority.
2. Please note that the punishment of one year loss of seniority is to run concurrently with the two years loss of seniority.

While the notice of appeal was filed on 09-12-2014 vide pages 2  6 of the additional record. The appellant had canvassed in his brief in page 22 thereof that he had filed application for leave to appeal on the 5th January, 2013 and properly served the respondent all the processes of the Court of Appeal since then to which the respondent in her brief neither confirmed nor denied.
The record of the Court confirmed that the motion for leave to appeal was served on the respondent on 11-02-14. The confirmation of the verdict by Navy Board was thus made during the pendency of the motion for leave to appeal and was on that ground premature vide Section 198 of AFA 2004 thus –
“Nothing in this part shall affect the exercise by the reviewing authorities of the powers conferred by Section 149of this Act in respect of a decision of a court-martial so far as regards the exercise thereof at a time before the lodging with the Registrar of the Court of Appeal of an appeal or an application for leave to appeal to the Court of Appeal against the decision and nothing in this part shall affect the exercise by the president of the prerogative of mercy. (My emphasis).
The confirmation of the verdict by Navy Board during the pendency of the motion for leave to appeal against the decision of the court-martial being premature is hereby struck out or set aside.
The court-martial relied heavily on the evidence that the appellant had carried physical inspection of the ship in his command 4 times in 6 months instead of once in every month in determining count 1 on negligence against the appellant. Page 34 of the Captain’s Standing Orders in volume Two of the record (Exhibit 43) states on rounds of the Captain that –
1. I will conduct rounds of the ship once in a calendar month. The period may be reduced for security reasons which I may consider requires more frequent rounds.
2. I may also make surprise visits to any part of the ship if I consider it necessary at any time.

(My emphasis).

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It follows from the excerpt in Exhibit 43 above that the appellant as the captain of the ship had the discretion to conduct rounds once in a month or less or even more showing the lee-way the appellant had in the matter. The 4 rounds the appellant did in the 6 months period was therefore above average and did not violate the Captain”s Standing Order, Exhibit 43, and had the excerpt (supra) been taken into consideration by the court-martial it would not have held that the appellant was negligent in handling his post of Captain or Commander of the ship in the circumstances.
The unchallenged evidence of the appellant that he caused the inspection of the armoury to be made as required by service law was not taken into account by the court martial in its judgment. Had these important aspects of the case been given due weight by the court-martial the charge of negligence on count 1 against the appellant who personally inspected the ship 4 times in 6 months it would have swayed it to give the appellant the benefit of the doubt. Accordingly, I see merit in the appeal on count 1.
In view of the ruling of the court martial in relying on Exhibit 12 in the no case submission discharging the 4th accused wherein the Court martial held that the service property intact up to 07-12-12 when the charge sheet alleged in count 2 that thereof that the service property comprising 2 pistols and 100 rounds of ammunition were intact when the charge service property in question was said to be missing between July and September 2012 it was argued that the appellant should have been acquitted and discharged as well.
But the charge sheet against the appellant alleged in count 2 that the appellant negligently caused the loss of service property as commanding officer on or about 07-11-12 not between July and September 2012 therefore the appellant’s case was not on the same pedestal as the 4th accused; consequently, the contention of the appellant that the discharge of the 4th accused should have led to the appellant’s discharge and acquittal in the case when the ground(s) upon which the 4th accused got discharged on no case submission were not the same as in the appellant’s case.
There is evidence by PW5 in page 301 of the record that the 2 browning pistols and 100 rounds of ammunition were kept in the armoury and the PW10 testified in page 474 of the record that he was at the material time the armourer. But there was no evidence from the respondent that the appellant had the keys of the armoury. Rather there was evidence from the appellant that all the keys to the ship are with the OOD.
Exhibit 12, the handover/takeover, note, contained in volume two of the record with particular reference to second and third sheet thereof showed the handover note dated 13-08-2010 had under item 8 the arms and ammunition comprising inter alia pistols and 14 ammunition boxes containing assorted bullets which established that as at 13-08-2010 the 2 pistols and the 100 rounds of ammun were still in the armoury of the ship and were part of the items handed over to the PW5 and the PW6 showing the appellant was not in personal or direct control of the arms and ammunition.
Loss of service property was discussed in the case of Navy Lt. Odunlami v. The Nigerian Navy (2013) 12 NWLR (PT.1367) 20 at 49 to the effect that the accused must be subject to service law; the accused had charge of or was in care of the service property; the said service property is lost; the accused intentionally lost the service property or items; and the accused has no defence in law or on the facts. Kalu v. Nigerian Army (2010) 4 NWLR (Pt.1185) 433 was followed by the Supreme Court in Odunlami v. Nigerian Navy (supra) at 51 per the lead judgment prepared by Rhodes-Vivour, J.S.C., thus –
“In Kalu’s case the ammunitions were kept in an army store. Other items were also kept in the

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same store and Lieutenant-Colonel E.M. Kalu was not the only officer who had keys to the store. That is to say he did not have exclusive control of the store. Some items were missing, he was convicted by the court-martial. I sat on the panel that reversed the judgment of the Court-Martial. We reasoned, Dongban-Mensem, JCA at pg. 452, delivering the leading judgment that –
“……the appellant ought to be given the benefit of doubt as it was never established that the appellant was responsible for the loose and porous control of the store.”
In this case the appellant, though subject to service law, was not placed in direct charge or care of the armoury where the 2 missing pistols and 100 rounds of ammunition were kept nor does the third and fourth ingredients of the offence apply to the appellant. There was therefore no available evidence that the appellant had exclusive access to the armoury where the weapons were kept.
As it was not established by credible evidence or beyond reasonable doubt that the appellant did not have exclusive access to the armoury or was shown to be in direct control of or directly responsible for the armoury where the 2 browning pistols and 100 rounds of ammunition were missing, the court-martial should have given the appellant the benefit of the doubt and should have been wary in convicting the appellant on the loss of the 2 browning pistols and 100 rounds of ammunition. There is therefore merit in the appeal on the issue dealing with the conviction and sentence of the appellant on count 2 of the charge relating to service property.
Regarding count 3 on conduct to the prejudice of service discipline the appellant admitted in his evidence in pages 783 – 784 of the record that he brought some civilian marabouts on board the ship to help in the investigation of the missing 2 browning pistols and 100 rounds of ammunition and on the instruction of the civilian marabouts the appellant sent for bread which was bought and given to willing members of the ship’s company who ate it after the civilian marabouts said some prayers or incantations for the purpose of extracting confession from any person that was responsible for the disappearance of the 2 browning pistols and 100 rounds of ammunition.
The said method of investigation was an uncomfortable shift from the orthodox and conventional mode of investigation normally deployed by a branch of the Armed Forces specially trained to conduct such investigation. For the appellant to have employed the fetish method of investigation in disregard of the standard practice of the Armed Forces, a disciplined and cultured force, cast a dark shadow on the image of the Navy, which in the eyes of an officious bystander watching the marabouts in action would hold the Navy in disrepute.
In the case of Ex-Captain Zakari v. The Nigerian Army and Anor. (2012) 5 NWLR (Pt.1294) 478 at 504 this Court (Lagos Division) held in the lead judgment prepared by Okoro, J.C.A., (now J.S.C’) inter alia that conduct by a serving officer of the Armed Forces that would bring the Armed Forces into disrepute is an offence known to Law under Section 103 of the Armed Forces Act, 2004. The word ‘disrepute’ means disgraceful, not respectable, disordered and shabby vide Chamber’s Twentieth Century Dictionary page 375. The appellant was therefore charged with an offence with ingredients thereof and the penalty therefor prescribed in a written law – Section 103 of AFA, an Act of the National Assembly.
I am at one with the court-martial that the said conduct of the appellant, a serving senior officer of the Navy in command post at the material time, was prejudicial to good order and service discipline of the Navy as part of the Armed Forces and the court-martial was accordingly right in convicting the appellant under Section 103 of AFA 2004.
In conclusion, I find merit in the appeal on count 1 dealing with negligence of duty and on count 2 on miscellaneous offences dealing

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with service property and would allow the appeal on these counts and set aside the conviction and sentence of the appellant on counts 1 and 2 of the charge sheet which for the avoidance of doubt are hereby quashed and a plea of not guilty entered for the appellant in respect of the said counts 1 and 2 of the charge sheet.
Since the appellant was not convicted of fraud or fraudulent application or theft or any form of undue enrichment, the court-martial should not have ordered the appellant to pay a fine of N354,330.00k vide Section 118 (4) of AFA 2004. Also, having regard to the fact that the sum of N354,330.00k was imposed for the loss of the 2 browning pistols and the 100 rounds of ammunition, the holding (supra) by me that the appellant was wrongly convicted of the loss of the 2 browning pistols and the 100 rounds of ammunition automatically cancelled the imposition of the fine of N354,330.00k, which for the avoidance of doubt is hereby set aside and/or quashed.
There is, however, no merit in the appeal on the conviction on count 3 dealing with conduct to the prejudice of good order and service discipline contrary to Section 103 (1) of AFA 2004.
The conviction under Section 103(1) of AFA is, accordingly affirmed.
On sentence, the plea of mitigation by the appellant showed he had unblemished record of service of over 28 years and had contributed to the development of the respondent and was well behaved throughout the trial vide page 1126 of the record. Based on these factors a lesser sentence than reduction in rank from Captain to Commander with 4 years loss of seniority is, with tremendous respect to the court-martial, severe.
The punishment a court-martial may impose on an officer are stated in Section 118(1) of AFA in downward order thus –
“The punishments which may be awarded to an officer by sentence of a court-martial under this Act and those set out in the following scale, that is –
(a) death;
(b) imprisonment;
(c) dismissal with disgrace and dishonor;
(d) dismissal from the Armed Forces;
(e) reduction in rank;
(f) forfeiture of seniority in rank;
(g) a fine of a sum not exceeding the equivalent of 3 month???s pay;
(h) severe reprimand or reprimand;
(i) admonition;
(j) forfeiture, where the offence is fraud, 
fraudulent mis-application, theft, or any other form of undue enrichment of the accused, provided that evidence exists which satisfies the Court that the accused or his estate has benefited from the property or thing subject of the offence;
(k) stoppages, where the offence has occasioned any expense, loss or damage not exceeding one third of the total sum”.
 (My emphasis).
I would interfere with the sentence vide Section 19(3) of the Court of Appeal Act 2004 which provides inter alia that –
On an appeal against conviction the Court of Appeal shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as it thinks ought to have been passed. (My emphasis).
Accordingly, I quash the sentence and substitute therefore a sentence of reprimand under Section 118(1)(h) of AFA which literally means to tell somebody officially that you do not approve of his behaviour where the behaviour is unprofessional vide Oxford Advanced Learner’s Dictionary (7th Edition) 1240.
The request by the appellant for the court to direct the respondent to promote him to the rank of Commodore cannot be granted as the modalities for promotion in Public Service are not within the purview of the Court but belong to the sector of the Public Service concerned, consequently the said request is hereby refused. Order accordingly.
TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading before now the lead Judgment prepared and rendered by my learned Brother JOSEPH SHAGBAOR IKYEGH JCA. I am in complete agreement with the reasoning and conclusion and adopt the entire Judgment as my own with nothing useful to add.
JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the draft of the lead judgment just delivered by my learned brother JOSEPH SHAGBAOR IKYEGH JCA and I agree with the judgment, adopt it as mine with nothing further to add.

Appearances

Mr. I. Agboola. For Appellant

AND

Mallam J. A. Adamu, (Assistant Director, Federal Ministry of Justice (A.D. FED. M.O.J.). For RespondentARMED FORCES/MILITARY OFFENCESNEGLIGENCE

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