6th February, 2024
By Akin Kuponiyi
The Federal High Court in Lagos on Tuesday, quashed a criminal charge preferred against a former Chief of Air Staff, Adesola Amosu, and two others over alleged N21. 5 billion money laundering offence.
The others are Air Vice Marshall Jacob Bola Adigun and Air Commodore Gbadebo Owodunni.
The Economic and Financial Crimes Commission (EFCC) first arraigned the defendants before Justice Mohammed Idris.
Trial had begun but subsequently, the trial Judge, Justice Idris was elevated to the Appeal court and the case was Chukwujekwu Aneke to Justice Chukwujekwu Aneke.
The defendants were subsequently, re-arraigned in 2018, on an amended 13-count charge bordering on conspiracy, criminal breach of trust and money laundering.
They pleaded not guilty to the charges and were granted bails.
On June 1, 2023, the first defence counsel, Bolaji Ayorinde (SAN) filed a notice of preliminary objection and an affidavit of six paragraphs, challenging the jurisdiction of the court and urging the court to quash the amended charge.
The Defence counsels initially argued that the grounds upon which the defendants were charged took place in Abuja, and so, the court lacked the requisite territorial jurisdiction to commence trial of the defendants, citing the supreme court’s decision in the case of Dele Belgore and others.
The defence counsel 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 section 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, the defence counsel 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 cited section 123 of the Armed Forces Act 2004 which 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 said the above steps ought to be taken first before the other legal steps, saying that consequently the 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 provisions of section 114, 121, 123, and 270 of the Armed Forces Act, 2004.”
The defence counsel 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.
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, Justice Aneke held that the prosecution neither admitted nor 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 in paragraph 1688 and 1695, contained letters written by the prosecution to First City Monument Bank dated Jan. 30, 2015.
The court held that the letters showed that investigations into the instant charge had already begun as at Jan. 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 illegality, 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 held.
The court also reached similar decision for the second and third defendants, and accordingly, quashed the charges.
In the charge, the defendants were alleged to have committed the offence on March 5, 2014 in Lagos.
The prosecution alleged that they conspired to convert the sum of N21.5 billion belonging to Nigerian Air Force 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 offence contravenes the provisions of section 18(a) of the Money Laundering ( Prohibition) Act, 2011( as amended).