By Jude-Ken Ojinnaka
Justice Chukwujekwu Aneke of a Federal High Court sitting in Lagos on Tuesday, quashed a criminal charge preferred against a former Chief of Air Staff, Air Vice Marshal Adesola Amosu, and two others over alleged conspiracy, criminal breach of trust and N21. 5 billion money laundering.
The other two defendants are Air Vice Marshal Jacob Bola Adigun and Air Commodore Gbadebo Owodunmi.
The Economic and Financial Crimes Commission (EFCC) first arraigned the defendants before Justice Mohammed Idris in 2016
The trial of the defendants had began but midway into the trial, Justice Idris was elevated to the Appeal court and subsequently ,the case was transferred to Justice Aneke.
Consequently, the defendants were re-arraigned in 2018 before Justice Aneke on an amended 13-count charge bordering on conspiracy, criminal breach of trust and money laundering.
Each of the defendants had maintained their not guilty plea to the charge which they pleaded when they were first arraigned before Justice Idris .
They were allowed bail as per the conditions given to them earlier.
Trial commenced before Aneke and the prosecution called its witnesses.
On June 1, 2023, the first defence counsel Mr Bolaji Ayorinde (SAN) filed a notice of preliminary objection and an affidavit of six paragraphs, challenging the jurisdiction of the court and urging it to quash the amended charge.
Defence counsel had first argued that the grounds upon which the defendants were charged took place in Abuja, and therefore, the court lacked the requisite territorial jurisdiction to hear the charge.
He had cited the Supreme Court’s decision in the case of Dele Belgore and others.
Defence had also argued that the first defendant was at all times material to the trial, a serving officer of the armed forces, who is subject to the trial by a court martial.
Besides, he had argued that Sections 16 and 18(a) of the Money Laundering Act 2011, (as amended), did not create the offence of criminal breach of trust for which the defendants were charged.
Also relying on an Appeal court’s decision in the case of Brig. Gen. Ja’faru Mohammed vs EFCC Chairman and others, defence had argued:
“That the court had held that the said offences in that case, were triable by a “court martial ” by virtue of Section 114 of the Armed Forces Act, as they formed part of other civil offences prescribed for persons subject to service law”.
He had argued that the first defendant was at all time material to the instant trial, not just a serving officer but also the Chief of Air Staff and was subject only to the provisions of the service law, with regards to arrest, invitation, interview or investigation.
He also argued that Section 123 of the Armed Forces Act 2004 was elucidated upon by the Supreme Court in the case of Sogbesan where the court held among others, that :
“A report of an allegation of an offence against an officer of the Armed Forces, must be made to his commanding officer, who must investigate it in the prescribed manner, before the allegation is further proceeded on”
He had argued that the above, are steps that ought to be first taken before the other legal steps.
Defence had therefore, raised a sole issue for determination:
“Whether the EFCC can arrest, arraign, and prosecute the first defendant, who was at all times material to trial, a serving military officer, without first complying with the provions of Section 114, 121, 123, and 270 of the Armed Forces Act, 2004.
If the answer to the above be in the negative, defence had then prayed the court to determine, whether the prosecution of the defendant is not “ultra vires” the powers of the EFCC and therefore, null and void.
He had also urged the court to determine whether it is properly “clothed” with the requisite jurisdiction to entertain the charge.
Other defence counsel, Mr Norrison Quakers (SAN) had also made similar submissions before the court.
On July 3, 2023, the EFCC filed a counter affidavit against the defendants’ objection and raised an issue for determination as to whether the defence were entitled to the reliefs sought.
Delivering his ruling on Tuesday February 6, Justice Aneke held that the prosecution neither admitted not denied the depositions of the defendants.
The court held that as at June 23, 2016 when the original charge was filed before the court, one was not sure whether the first defendant was still a serving officer of the Armed forces, since his exact date of retirement was not stated.
The court, however, held that in the proof of evidence filed by the prosecution at paragraph 1688 and 1695, are contained letters written by the prosecution to First City Monument Bank dated January 30, 2015.
The court held that the letters showed that investigations into the instant charge had already began as at January 30, 2015, by which time the affidavit evidence proved that the first defendant was still in service of the armed forces.
Reiterating the decision of the Apex Court in the case of Ja’faru Mohammed , the court held that the investigation of the first defendant was null and void.
“Therefore, the investigation of the defendant, the original charge, the amended charge and the arraignment which are all based on the illegal, null and void investigation, are equally null and void.
“Accordingly, prayers one, two and three sought by the first defendant in his motion on notice dated May 21, 2023 and filed June 1, 2023, are hereby granted,” he declared .
“For the avoidance of doubt, the first defendant is hereby discharged ” the judge held
The court also reached similar decision for the second defendant Air Vice Marshal Jacob Bola Adigun and third defendant Air Commodore Gbadebo Owodunmi and accordingly, quashed the charges against them.
In the charge, the defendants were alleged to have committed the offence on March 5, 2014 in Lagos .
Prosecution alleged that they conspired to convert the sum of N21.5 billion belonging to NAF, to their own use .
The Commission said that they reasonably ought to know that the funds formed part of proceeds of their unlawful activities namely criminal breach of trust.
The alleged offence contravenes the provisions of Section 18(a) of the Money Laundering ( Prohibition) Act, 2011( as amended).
