Ingredients of offence of abduction and defilement under military law
IBRIN v. NIGERIAN ARMY
CITATION: (2021) LPELR-55398 (CA)
In the Court of Appeal
In the Jos Judicial Division
Holden at Jos
ON MONDAY, 19TH JULY, 2021
Suit No: CA/J/261/C/2020
Before Their Lordships:
MONICA BOLNA’AN DONGBAN-MENSEM Justice, Court of Appeal
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice, Court of Appeal
BOLOUKUROMO MOSES UGO Justice, Court of Appeal
SGT. NASIRU JIBRIN – Appellant(s)
THE NIGERIAN ARMY – Respondent(s)
LEADING JUDGMENT DELIVERED BY MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.
The facts leading up to this appeal according to the Appellant are that the Appellant was a Sergeant in the Nigerian Army serving in Command Secondary School, Jos as a staff. He was charged before the General Court Martial (GCM) with the offences of abduction, defilement and disgraceful conduct under various provisions of the Armed Forces Act, being a person subject to Military Law.
According to the Respondent, the Appellant was a Sergeant in the Nigerian Army serving in Command Secondary School, Jos as a staff, He was tried and convicted for the offences of abduction and defilement of a 14 years old underage JSS 3 student, Miss Zarawu Dogo, who was a boarding student in the school; that the Appellant was the guardian of the underage Prosecutrix. He lured the girl out of the school premises in his car to his house in town and slept with her till the next day before returning her back to school. While in the house of the Appellant, the Prosecutrix used his mobile telephone to call and inform her sister. When a roll call was conducted in the school that day, Zarawu Dogo was discovered to be missing from the hostel.
When he was arraigned, the Appellant pleaded not guilty to all the counts. In proving its case, the Respondent called six witnesses and tendered eight Exhibits. The Prosecutrix testified that the Appellant told her to follow him home and she did. And the following day he brought her back to school.
The Appellant testified in his defence and gave unchallenged evidence that his car has no tint and that the same was always searched each time he comes and leaves. At the end of the trial, the GCM convicted the Appellant of the three count offences. The confirming authority however set aside the conviction and sentence on the third count of disgraceful conduct but retained the conviction on the first two counts. Dissatisfied with his conviction, the Appellant appealed to the Court of Appeal.
ISSUES FOR DETERMINTION
The appeal was determined on the sole issue of whether from the totality of evidence presented before the GCM, the charges against the Appellant was proved beyond reasonable doubt.
Appellant’s counsel submits that the Appellant’s confessional statement was wrongly admitted because same was obtained under duress. He contended that PW2 identified the confessional statement by her handwriting, which means she wrote the confessional statement and that the confessional statement was not recorded in the presence of the Appellant’s counsel. He urged the Court to expunge the confessional statement; citing NAMSOH V. THE STATE (1993) 5 NWLR (Pt. 292) 129; (1993) LPELR-1937 (SC).
Appellant’s counsel submitted that the three counts charge of Abduction, Defilement and Disgraceful Conduct are all intertwined and the confirming authority having rightly found the Appellant not guilty of disgraceful conduct ought to have also acquitted the Appellant on the Counts of Abduction and Defilement; CAPT. AKANNI V. NIGERIAN ARMY (2016) NGCA 3 (8 JULY 2016).
Appellant’s counsel further submitted that the Respondent failed to establish a logical nexus between the offences charged and the Appellant, failed to call some vital witnesses and failed to tender some vital exhibits, which amounts to withholding evidence in Section 167 (d) of the Evidence Act. He also contended the evidence from the Records does not support the conviction for abduction and defilement because the Prosecutrix herself did not say the Appellant had sexual intercourse with her; she only mentioned that she does not know what happened to her. On this point he relied on NJOKWU V. STATE (2013) 53 NSCQR (PART 11) 230. He asked that his appeal be allowed
Respondent’s counsel submitted that Appellant’s retraction of the confessional statement does not make it inadmissible but reduces the weight to be attached to it. He contended that the confessional statement was recorded voluntarily by the Appellant in his own handwriting and the presence of the Appellant’s Counsel was not necessary because the Administration of Criminal Justice Act, 2015 is not applicable to a Court Martial. He further contended that the testimonies of the Prosecution Witnesses corroborated the contents of the confessional statement; Section 2(2) Administration of Criminal Justice Act and ALIYU V. STATE (2019) 11 NWLR (Pt. 1682) 108 were cited in support.
Respondent’s counsel submitted that proof beyond reasonable doubt does not mean beyond a shadow of doubt; citing PHILIP V. STATE (2019) 13 NWLR (Pt. 1960) 509. And that the offence of disgraceful conduct does not have the same ingredients as the offence of abduction and defilement. He submitted that the Prosecution is not bound to call any particular number of witnesses to prove its case and the Appellant is at liberty to call those witnesses the Respondent failed to call if he thinks they are vital witnesses; relying on ODUNLAMI V. THE NIGERIAN NAVY (2013) 12 NWLR (Pt. 1367) 20.
Respondent’s counsel submitted that the General Court Martial is in a vantage position to assess the credibility of witnesses, which it did correctly and there is no need for the Court to interfere with its findings; ABOKOKUYANRO V. STATE (2020) 2 NWLR (Pt. 1285) 530.
RESOLUTION OF ISSUES
The Court held for the prosecution to succeed on a criminal charge, it must prove its case against the accused beyond reasonable doubt. See Section 138(1) of the Evidence Act, 2011 and OGUNDIYAN V. THE STATE (1991) LPELR-2333(SC).
The Court held that the ingredients for the offence of abduction are;
i. That the Accused Person is subject to service law and under the jurisdiction of the GCM.
ii. That the Accused Person used force on the Prosecutrix; and
iii. That the Prosecutrix was compelled to go from place to place; or
iv. That the Accused Person induced the Prosecutrix from place to place; and
v. That the Accused Person did the act by deceitful means.
See Sections 272 and 273 of the Penal Code and the case of MOHAMMED V. KANO STATE (2014) LPELR – 24597 (CA).
The Court further held that the ingredients for the offence of Defilement are;
a) That the Accused Person is subject to service law and under the jurisdiction of the GCM.
b) That the Prosecutrix is under the age of sixteen (16) years.
c) That the Accused Person had carnal knowledge of the Prosecutrix.
See Section 78 Armed Forces Act and AHMED V. NIGERIAN ARMY (2016) LPELR – 40826 (SC).
The Court also held that the ingredients for the offence of disgraceful conduct are;
a. That the Accused Person is subject to service law and under the jurisdiction of the GCM.
b. That the act of the Accused Person is cruel and indecent. (See page 204 of the Records and Section 93 of the Armed Forces Act).
The Court held that the commission of the above offences can be proved either by an eyewitness of the crime; by confession; or by circumstantial evidence, positive and compelling and pointing to one conclusion only that the accused committed the offence. See IJEOMA ANYASODOR V. THE STATE (2018) LPELR-43720 (SC).
The Court agreed with the discharge of the Appellant of the offence of disgraceful conduct on the grounds that within the context of Section 93 of the Armed Forces Act, there was no use of force in abducting and defiling the Prosecutrix.
The Court, however, held that such a discharge does not equate to a discharge on the other counts of abduction and defilement. This is because for the offence of abduction also has the ingredient of deceit, which the Appellant applied in the instant case by telling the Prosecutrix that he was taking her home. For the offence of Defilement, having carnal knowledge of a girl under the age of 16 is Defilement. The Court held further that the Prosecutrix testified that she felt dizzy and weak before she fell asleep and later woke up.
The Appellant’s Counsel argument that the Appellant never forced the Prosecutrix to leave school with him was held to be a clear admission that the Appellant took the Prosecutrix to his house.
The Court held that the defence that the Prosecutrix consented to having sexual intercourse with the Appellant by conniving with him to sneak out of school is ridiculous and unknown to law because the Prosecutrix is only 14 years old and could not have possibly given consent. See Section 31 of the Child Rights Act.
The Court also held that a conviction could be based on a confession alone, after scaling through the process of verification by a trial within trial. And retracting a confessional statement does not affect its admissibility but only affects the weight to be attached to the statement. See ONYENYE V. STATE (2012) LPELR – 7866 (SC). The Court further held that it is not the position of the law that where in the course of recording the statement of an accused person, a police officer asks questions and records the answers by the accused therein, the statement automatically becomes involuntary and inadmissible. See Section 31 of the Evidence Act, 2011. Furthermore, the Court held that by virtue of Section 2(2) of the Administration of Criminal Justice Act, the provisions of the ACJA do not apply to a Court Martial.
The Court also held that the Prosecution has the discretion to call on any number of witnesses that it deems fit to prove its case. The defence is at liberty to call any witness not called by the Prosecution. See OCHIBA V. STATE (2011) LPELR-8245 (SC). In the same vein, the Court held that the GCM could properly convict an accused on the evidence of only one witness where this evidence is found to be cogent, credible, unequivocal and reliable. See ALIYU V. STATE (2013) LPELR – 20748 (SC).
Conclusively, the Court held that the role of the appellate Court is to see whether the case was properly tried and whether the conclusion arrived at can be supported by the available evidence. See ADEBESIN V. STATE (2014) LPELR-22694. An appellate Court will not disturb or interfere with the findings of the GCM unless it is seen to be unreasonable, perverse or unsupported by evidence. See NASIRU V. COP (1980) LPELR-1944 (SC). It is not the function of an appellate Court to substitute its own views for those of the GCM with respect to facts found by the Court and based on a dispassionate appraisal of the evidence before it. See NWOSU V. STATE (1986) LPELR – 2134 (SC).
The Court held that the appeal lacked merit and accordingly dismissed same.
N.T. Komak, Esq., with him,
T.K Fwankgan, Esq. and A.E. Shallangwa, Esq. – For Appellant(s)
Mike Kebonkwu. Esq. with him,
James Ode Abah, Esq. – For Respondent(s)
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