The Attorney-General.of the Federation (AGF), Mr Abubakar Malami, SAN, on Tuesday, took over a N1.84 billion money laundering suit against Nicholas Ashinze, a former military assistant to Col. Sambo Dasuki (rtd.) and eight others.
Dasuki was the ex-National Security Adviser (NSA) to former President Goodluck Jonathan.
Justice Okon Abang of a Federal High Court sitting in Abuja division granted the request 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 AGF’s powers, under Section 174 (1)(b) of the 1999 Constitution (as amended), to take over any matter before the court of law.
Ashinze (1st defendant) was standing trial alongside an Austrian, Wolfgang Reinl; Edidiong Idiong and Sagir Mohammed listed as 2nd to 4th defendants 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.
They were re-arraigned by the Economic and Financial Crimes Commission (EFCC) on a 13-count money laundering charge.
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.
They, however pleaded not guilty to all the counts preferred against them.
Upon resumed trial on the matter, 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 opposed the application.
Following his taken over 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.
But they 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 considering the facts and circumstances surrounding the case and taking the number of years the defendants had spent defending themselves into consideration, he prayed the court not only to discharge them but acquit them of the charges.
He cited Section 108(3) of the Administration of Criminal Justice Act (ACJA), 2015 which stipulates that the court can, in its exercise of its powers, acquitted 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.
On his part, Kaswe disagreed with the defence request.
According to the AGF’s lawyer, we are opposed to 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.
He said 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 of the charge 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 that was not difficult to resolve by the court
According to him, the stage wherein the application to withdraw the case is clear.
He held that the prosecution did not close 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 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.
He held that counsel for the defendants did not consider Section 108(2) of ACJA 2015 in making their application.
Abang further held 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 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.
He 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
The judge, who struck out the amended charge, only discharged all the nine defendants of the charge.