A Lagos Federal High Court, has struck out 11 counts criminal charge filed against the aides for Senate President, Dr. Bukola Saraki, who were for allegedly divert N3.5 billion Paris Club Fund, for lack of jurisdisction.
The former Senate President’s aides who were charged before the court on the alleged scam are: Gbenga Makanjuola, Saraki’s Deputy Chief of Staff; Kolawole Shitu, Cashier in the Saraki’s office; Obiora Amobi; a former Managing Director of the defunct, Societe Generale Bank of Nigeria( SGBN), Mr. Robert Mbonu, said to be at large, and a limited liability company, Melrose General Services Limited, were charged before the court sometimes in September 2019, on the alleged offences by the Economic and Financial Crimes Commission (EFCC).
The defendants were first arraigned before Justice Babs Kuewunmi, who is on transfer to another division of the court.
Upon the transfer of Justice Kuewunmi, the defendants’ case file was transferred to Justice Akintayo Aluko.
Midway to their trial, the prosecuting agency, the EFCC applied to court to amend the charge against them and another two more counts were added to the 11 counts charges, making it 13 counts charge.
However, the defendants through their counsel, who includes; K. T. Alowomi, Mr. Paul Erokoro (SAN) and others, filed an application challenging the court jurisdisction to entertain the first charges against them, as well, vehemently objected to the second amended 13 count charges.
The defendants in their application argued that the prosecution failed to state categorically in the charges where the offences were committed.
On the second amended charge, the defendants claimed that it was prosecution’s ploy to cure it defect in the first amended charge.
Consequently, they asked the court to dismiss the charge with a cost of N20 million as damages against the EFCC.
Equally, the EFCC through its team of lawyers, opposed to the defendants’ application and urged the court to dismiss.
Justice Aluko, last Friday, while legally weighed the submissions of parties on various plethora of authorities cited, acceded to the request of Saraki’s aides and struck out the charges against them for lack of jurisdiction.
Justice Aluko however declined award the cost of N20 million against the EFCC as requested by the defendants.
In striking out of the charges against the defendants, Justice Aluko held in parts that: “the prosecution called my attention to the second Amended charge which they propose to bring in, I see this call as another means of seeking an amendment of the first amended charge, the validity and competence af which is on trial in view of the preliminary objection of the defendants over which the prosecution has joined issue and which is under consideration.
“I see the call by the prosecution urging me to take judicial notice of the proposed Second amended charge as Inviting the court to overrule itself in its ruling delivered on the October 15, 2021, where this court held that, an Incompetent originating process cannot be subsequently amended to render it competent as you cannot put something on nothing and expect it to stand.
“I hold the considered view that the call by the prosecution to take Judicial notice of the second amended charge in spite of the fact that both parties have Joined issues on the validity and competency question of the pending first amended Charge, has no capability of bringing succor to the prosecution. This Is because the second amended charge was initiated in breach of the mandatory provision of Section 45 of the Federal High Court Act. in the concurring judgment of the Apex Court in Belgore V FRN & Anor (supra) at page 533 paras D the court held thus; “Section 45 of the Federal High Court Act provides for where offences ore to be tried… These provisions cannot be waived. i is mandatory thot they ore complied with as Provided by the Act”.
“Even If I should heed the call of the prosecution to take judicial notice of the second amended charge nevertheless, | do not see how same can improve or repair the case of the prosecution. A glance at the 13 counts in the said charge shows that the alleged offences in the counts were alleged to have been committed In Lagos.
“In as much as the prosecution is still dwelling or relying on the Statements in the proof of evidence attached to the earlier amended charge, I venture to say that the story will loudly remain the same. That will continue to expose the obvious contradiction between the 13 counts In the proposed second amended charge as to where the offences were alleged to have been committed and the statements in the proof of evidence. it will mean that the 13 counts In the proposed send amended Charge reveal Lagos as the place or area of commission of the offences while the statements in the proof of evidence reveal Abula. This means and remains that the breach of the fundamental and mandatory provision in section 45 of the Federal High Court Act regarding territorial criminal jurisdiction of this Court is still extant in the charge.
“Finally, placing reliance or taking solace In the several provisions of the Administration of Criminal Justice Act, 2015 by the prosecution is unhelpful to their case. It is very essential to note that the defect alleged in the preliminary objection has to do with violation of section 45 of the Federal High Court Act, a substantive law provision on the territorial criminal jurisdiction of this court which is mandatory.
Those provisions of the Administration of the Criminal Justice Act, 2015 relied upon by the prosecution are procedural law provisions which do not have the potency or force of overriding the provisions of section 45 of the FHC Act, a substantive law on the territorial criminal jurisdiction of this court.
“In the drive and effort at seeing if the 1 Amended charge could possibly be saved by way of transfer of same to the Abuja Division of the Court as the appropriate judicial division clothed with territorial jurisdiction to entertain same as contemplated under section 45 a5 giibe Federal High Court Act, | have come to realise that such is would only amount to an effort in futility.
This is because such a venture does not cure the incompetence and invalidity as shown on the face of the charge. The proposed second amended charge even makes it worse and aggravates the effect of the obvious fundamental defect In the charge where the 13 counts state that the alleged offences were committed in Lagos as against what is Contained In the proof of evidence in any case, an incompetent and invalid process Is null and void and like an infectious disease, affects consequently anything that comes out of it by way of order, ruling or judgment.
“Coming from the foregoing, the sole issue In this. case is resolved In favour of the objectors against the prosecution.
“I hold that the preliminary objections of the Defendants have merit and substance in them. They are hereby sustained. I declare the prosecution’s first amended charge dated and flied on October 3, 2018 invalid and incompetent and same is accordingly struck out.
“Claim for award of damages in the sum of N20 million is hereby declined. Also, | make no Order as to cost”.
The EFCC had on October 7, 2018, arraigned the defendants before the court on charges bordering on conspiracy, payment of some monies without going through financial institutions.
At their arraignment, the EFCC through its lawyer, Mr. Ekele Iheanacho, had told the court that the three defendants, sometimes in December 2016, conspired among themselves to disguise the origin of the sum of N3.5 billion, which was paid into Melrose General Services Limited account with a bank.