Photo: Abubakar Malami. Justice Minister
Court orders minister to take over Dasuki’s ex-aide’s alleged N1.8bn fraud case
A Federal High Court in Abuja has granted the request by the Attorney-General.of the Federation (AGF) and Minister of Justice, Mr Abubakar Malami, SAN, to take over a N1.84 billion money laundering suit filed against Nicholas Ashinze, a former military assistant to ex-National Security Adviser (NSA) to ex-President Goodluck Jonathan, Col. Sambo Dasuki (rtd.) and eight others.
Delivering ruling on Tuesday, Justice Okon Abang gave the order for Malami to take over the case from the Economic and Financial Crimes Commission (EFCC) which had arraigned the defendants on a 13-count money laundering charge. after counsel for the office of the AGF, David Kaswe, moved the application.
Justice Abang held that no court of law can question the exercise of the AGF’s powers, under Section 174 (1)(b) of the 1999 Constitution (as amended), to take over any pending matter before the court of law.
It would be recalled that Ashinze (1st defendant) have been standing trial alongside an Austrian, Wolfgang Reinl; Edidiong Idiong and Sagir Mohammed, who were listed as 2nd to 4th defendants in the case, respectively.
Other defendants in the case are five companies: Geonel Integrated Services Limited, Unity Continental Nigeria Limited, Helpline Organisation, Vibrant Resource Limited and Sologic Integrated Service Limited listed as 5th to 9th defendants, respectively.
The amended charge, dated Oct 3, 2017, was filed on Oct. 6, 2017.
The money was alleged to have emanated from the office of the former NSA where Ashinze served as special assistant.
The defendants had, however pleaded not guilty to all the counts preferred against them.
At the resumed trial, Kaswe, who appeared for the AGF, informed the court that he had the authority of Malami to take over the case.
The lawyer said this was in accordance with Section 174(1)(a) and (c) of the 1999 Constitution (as amended).
EFCC’s counsel, Offem Uket, who said he was unaware that the AGF was taking over the matter, however, did not oppose the application.
Following Malami’s takeover of the suit, Kaswe prayed for the withdrawal of the criminal charge against the defendants.
However, lawyers to the defendants, including Afam Osigwe, SAN; Patrick Agu, Anita Isato, did not oppose Kaswe’s apllixation.
They instead urged the court to make a consequential order discharging and acquitting their clients of the 13-count charge.
Osigwe, who appeared for the Australian national (2nd defendant), 5th, 4th and 6th defendants, argued that taking into consideration the facts and circumstances surrounding the case, and the number of years the defendants had spent defending themselves, the court should not only discharge but also acquit them.
He cited Section 108(3) of the Administration of Criminal Justice Act (ACJA), 2015 which stipulates that the court can, in the exercise of its powers, acquit defendant of a charge if satisfied with the merit of a case after withdrawal.
The senior lawyer urged the court to do justice to the matter by acquitting the defendants not only to assuage their feelings but to redeem their damaged reputations.
“Such an order of acquittal will show that the Nigerian justice system is one that gives justice to all,” he said.
Other defence lawyers aligned with Osigwe’s submission.
However, the AGF’s lawyer, Kaswe disagreed with the defence request for the consequential order of acquittal.
He cited Section 108(1) of the ACJA 2015 as a ground for the withdrawal of the charge against the defendants.
The minister’s counsel said that under Section 108 (1) of ACJA 2015, the court was also given the discretionary powers to either discharge and acquit the defendants or rather discharge them after taking into consideration the overall circumstance of the case.
“We pray that the defendants be discharged and not acquitted,” he said.
Delivering the ruling, Justice Abang held that the matter was a very simple issue which was not difficult to resolve by the court because the stage wherein the application to withdraw the case was clear.
He held that the prosecution had not closed their case at the stage the application for withdrawal of the case was made.
The judge said that the seventh prosecution witness was still in the witness box testifying in-chief and was yet to be cross examined when the application was made.
He said since the prosecution had not closed their case and the defendants called upon to enter their defence, it would be unlawful to discharge and acquit the defendants of the charge.
Abang further held that the counsel for the defendants did not consider Section 108(2) of ACJA 2015 in making their application.
He explained that based on Section 108(3) of ACJA cited by Osigwe, it was not mandatory that a court must make a consequential order to discharge and acquit defendants when a prosecution withdrew a charge.
“It is at the discretion of the court, I do hold,” he said.
Justice Abang advised that the National Assembly should revisit Section 108(3) of ACJA in the overall interest of justice.
“It is my view that Section 108(3) of ACJA is poor legislative drafting,” he said.
He said Section 108(3) is in conflict with Section 108(2a) and (b) of ACJA.
The judge said Section 108(2b) talked about the acquittal of defendants if application for withdrawal was made after the defendants had been directed to enter their defence while Section 108(3) talked about acquittal of defendants if the court was satisfied.
“The court cannot be satisfied on the merit of the case except the prosecution closed their case and the defendants testified in their defence and called their witnesses,” he said.
