On Tuesday, the attorney general of the federation, Abubakar Malami, took over a N1.84 billion money laundering suit against Nicholas Ashinze, a former military assistant to Sambo Dasuki and eight others.
Mr Dasuki was the ex-national security adviser to former President Goodluck Jonathan.
Justice Okon Abang of the Abuja Division of the Federal High Court granted the request after counsel for the office of the AGF, David Kaswe, moved the application.
Mr Abang held that no court of law could 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.
Mr Ashinze (first defendant) was standing trial alongside an Austrian, Wolfgang Reinl, Edidiong Idiong and Sagir Mohammed were listed as second to fourth 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 the fifth to ninth 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 October 3, 2017, was filed on October 6, 2017.
The money was alleged to have emanated from the office of the former NSA, where Ashinze served as a 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 Mr 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 Mr Malami was taking over the matter, did not oppose the application.
After taking over the suit, Mr Kaswe prayed for the withdrawal of the criminal charge against the defendants.
However, the defendants’ lawyers, including Afam Osigwe, Patrick Agu, and Anita Isato, did not oppose Mr Kaswe’s application. But they urged the court to make a consequential order discharging and acquitting their clients of the 13-count charge.
Mr Osigwe, who appeared for the Australian national (second defendant), fifth, fourth and sixth 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 acquit the 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 Mr Osigwe’s submission.
Mr Kaswe disagreed with the defence request, saying, “We are opposed to the consequential order of acquittal.”
He cited section 108(1) of the ACJA 2015 as a ground for withdrawing the charge against the defendants and 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 of the charge after taking into consideration the overall circumstance of the case.
Mr Kaswe added, “We pray that the defendants be discharged and not acquitted.”
Delivering the ruling, Mr 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.
Mr Abang explained that since the prosecution had not closed its case and the defendants were 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.
Mr Abang further held that based on section 108(3) of ACJA cited by Mr 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.
Mr Abang advised that the National Assembly 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, adding that section 108(3) conflicts with section 108(2a) and (b) of ACJA.
He noted that section 108(2b) talked about the acquittal of defendants if an application for withdrawal was made after the defendants had been directed to enter their defence, while section 108(3) talked about the 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 explained.
(NAN)
