By Johnmary Chukwukasi Jideobi, Esq.
PREFATORY REMARKS:
Nigeria as a country has been in the gulag of corruption. If an example is sought for a country whose destiny has been badly mangled, distorted and hobbled, Nigeria comes first ahead of many others. There is a constitutional mandate that corruption must be fought frontally. This is what Section 15(5) of the amended 1999 Constitution provides: “The State shall abolish all corrupt practices and abuse of power”. Speaking on this and other interrelated provisions, the Nigerian Supreme Court in A-G. Ondo State v. A-G Federation (2002) 9 NWLR (Pt.772) 222 at 364 noted that “Section 13 imposes the duty and responsibility on all organs of government, and on all authorities and persons, exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of chapter 11 of the constitution and the abolition of corrupt practices and abuse of power is one of those provisions”. Ogwuegbu, J.S.C. noted further, and aptly so, that “Corruption is not a disease which afflicts public officers alone but society as a whole. If it is therefore to be eradicated effectively, the solution to it must be pervasive to cover every segment of the society.” As it was noted by the Court, “any legislation on corruption and abuse of power must be of concern to every Nigerian” adding that “Such an enactment … will be of paramount force.” Of recent, many military officers [serving and retired, including retired Service Chiefs) have been hauled before the Courts for trial on corruption charges. Reading the charges alone as they are constituted and filed by the Prosecution makes anyone who loves Nigeria teary. However, there is constitutional guarantee of rebuttable presumption of innocence inuring to all the accused persons as preserved by Section 36 (5) affirming that “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty”. Recently, the Economic and Financial Crimes and Commission [EFCC henceforth in this article], charged with the responsibility of “the co-ordination and enforcement of all economic and financial crimes laws and enforcement functions conferred on any other person or authority” by virtue of Section 6 (c) of EFCC Establishment Act, filed criminal charges against some military officers including a retired Chief of Army Staff, Lt. Gen. Kenneth Minimah. The defendants in the charges before the High Court of the Federal Capital Territory, Abuja reacted by filing an Originating Summons before the Federal High Court, Abuja Judicial Division resulting in an ex-parte Order granted in their favour whereby My Lord the Honourable Justice Ekwo made what the Court of Appeal has described as a “creeping order” which the Supreme Court has aptly interpreted as clearly intended to “muzzle” or prevent the EFCC from discharging its statutory function. Relying on a host of earlier cases of ABACHA V. FRN. (2014) 6 NWLR (Pt.1402) 43 at 112, DARIYE V. FRN. (2015) 2 SCM P.46 at 68. ATTORNEY-GENERAL OF ANAMBRA V. UBA (2005) 15 NWLR (Pt.947)44 at 67, the Supreme Court itself, in Kalu v Federal Republic of Nigeria and Others (SC.215/2012)[2016] NGSC 34 (18 March 2016) described this kind of reaction by the Generals through their Counsel on record, Mahmud Magaji (SAN), as “a clear interference with the powers given by law and the constitution to EFCC in the conduct of criminal investigation and prosecution” which in the esteemed view of their Lordships of the Supreme Court “is clearly an abuse of due process of the law”. The present remark is to buttress why, on the basis of our laws as they stand, the EFCC should proceed with the criminal trial of the Accused/Generals before the High Court of the Federal Capital, Abuja as proposed. This contribution is aimed at [and indeed limited to] demonstrating that in the face of existing Supreme Court authorities, the Order, as made by the Honourable Justice Inyang Ekwo of the Federal High Court, is clearly impotent and denuded (or destitute) of the legal capacity to either stall, halt, impede, hinder, hamper, block, interrupt, inhibit, thwart, frustrate, hamstring, restrain, encumber, fetter or otherwise put in abeyance the prosecution of the accused Generals before the High Court of the Federal Capital Territory, Abuja.
FACTUAL PREMISES:
Before the advent of the present Administration led by President Muhammadu Buhari, Nigerian nation started witnessing terrorism in the North-Eastern part of the country which impelled the country to respond to the emergence of that menacing scourge through multiple counter-terrorism measure including military options. This automatically, in the passage of time, fattened the defence budget so much so that for the past decade, the Defence sector has had the highest share of/in the nation’s budget. Comes with this increased budgetary allocations is procurement of military hardware for the use of the Military particularly the Army. Upon assumption as the Nigerian President, the President set up a Committee named: Committee on the Audit of Defence Equipment Procurement in the Nigerian Armed Forces (CADEP for short) from 2007- 2015, chaired by AVM Jon Ode (rtd). The setting up of the Committee came as no surprise to any because the war against corruption has been one of the cardinal projects which the President Muhammadu Buhari-led Federal Government of Nigeria has so much prioritized since assuming office in the year 2015 [even though there are diverse views by the observing public on how the war is being prosecuted]. It is from this Presidential Committee, CADEP, that the EFCC received a report [on August 15, 2016] alleging that between 2010 and 2015, “several billions of Naira were received by the Nigerian Army from the Federal Government for procurement of Military hard-wares and were discovered to have been misappropriated by Senior Army Officers”. According to the EFCC, in the course of investigation conducted,
“it was revealed that the sum of Thirteen Billion, Seven Hundred and Ninety Eight Million, Six Hundred and Nineteen Thousand, Three Hundred and Nine Naira (N13,798,619,309) was misappropriated by the following persons: Lt. Gen. KTJ Minimah (rtd), the former Chief of Army Staff, Maj. Gen. A.O Adetayo, one-time Chief of Accounts and Budget, Nigerian Army and then Colonel R.I Odi, former Director, Finance and Accounts, Nigerian Army… The sums were transferred from various accounts belonging to the Nigerian Army and moved to company accounts of entities that had no business relations with the Nigerian Army. This caused huge loss to the Nigerian Army and the Federal Government of Nigeria through the unlawful gains made by the aforementioned Officers who converted the monies for their personal use…The legal advice on the investigation opined that a prima facie case has been sustained against the officers”
On the strength of the foregoing, the EFCC formally brought the Accused persons [embattled Generals] before the High Court of the Federal Capital Territory, Abuja, vide the charge it filed to enable the Accused Generals have their day in court by answering to the charges concreted against them.
THE GENERALS’ REACTION:
Through their Counsel, Mahmud Magaji (SAN), the Accused Persons filed an Originating Summons before the Federal High Court formulating the following issues of law for the resolution of that Court, to wit:
- Whether in view of Sections 6(3), (5) (a), 240 and 318 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and Sections 113, 114 (1), (2) 8(3), 123, 124, 126(1), (2) 8. (4) and 270 of the Armed Forces Act, Cap A20 laws of the Federation of Nigeria, 2004, the Plaintiffs are not subject to be charged arraigned and /or prosecuted only by a Court Martial as a Court of first instance, to the exclusion of any other trial Court, viz: the Federal High Court, High Court of the Federal Capital Territory, and High Court of States, in respect of any offence committed by them.
- Whether in view of Section 270 of the Armed Forces Act, Cap A20, laws of the Federation of Nigeria, 2004, the Economic and Financial Crimes Commission (the 2nd Defendant) or any other prosecuting agency can lawfully investigate, charge, arraign and/or prosecute the Plaintiffs.
- Whether by virtue of Sections 123, 124(1) 8(3) and 126(1), (2) 8. (4) of the Armed Forces Act, Cap A20, laws of the Federation of Nigeria, 2004, the Plaintiffs are not to be reported in the form of a charge to their commanding officer after the investigation of any allegation against them.
- Whether in view of Sections 113, 114 (1), (2) 8(3), 124(3), and 126(1), (2) and (4) of the Armed Forces Act, Cap A20 Laws of the Federation of Nigeria, 2004, the Plaintiffs can validly be charged arraigned and/or prosecuted under any other law other than the Arm Forces Act, Cap.A20, Laws of the Federation of Nigeria, 2004.
- Whether by virtue of Sections 6(3) 8(5) (a) 240 and 318 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 129 of the Armed Forces Act, Cap A20, laws of the Federation of Nigeria, 2004, the Plaintiffs are not subjected to Court Martial in respect of offences (if any) committed by them.
- Whether in view of Sections 113, 114 (1), (2) 8. (3), 123, 124, 126(1), (2) 8(4) and 270 of the Armed Forces Act, Cap A20 laws of the Federation of Nigeria, 2004, any Court other than Court Martial can entertain any charge against any of the Plaintiffs”.
Upon determination of the legal questions, the Plaintiffs, among other reliefs, sought;
- “A declaration that in view of Sections 113, 114 (1), (2) 8(3), 123, 124, 126(1), (2) 8(4) and 270 of the Armed Forces Act, Cap A20 Laws of the Federation of Nigeria, 2004, no Court other than Court Martial can entertain any charge against any of the Plaintiffs.
- “An order of this Honourable Court restraining the Defendants whether by themselves, agents, privies, servants, or howsoever called from investigating, charging, arraigning and or prosecuting the Plaintiffs for any allege offences or misconduct while subject to the Nigerian Armed Forces Service Law.”
THE ORDER EX-PARTE GRANTED BY FEDERAL HIGH COURT:
On the 12th day of December, 2021, the Punch Newspaper [like other Nigerian major news outlets] reported as follows:
“A Federal High Court in Abuja has stopped the planned trial of a former Chief of Army Staff, Lt. Gen. Kenneth Minimah, and two serving senior Army officers over their alleged complicity in the diversion of public funds estimated at N13.8 billion. The two other persons were Major General A. O. Adebayo (ex-Chief of Accounts and Budget, Nigerian Army) and Brigadier General R. I. Odi (ex-Director, Finance and Accounts, Nigerian Army.) Justice Inyang Ekwo, in an ex-parte ruling, ordered parties in a suit by the three to maintain status quo ante bellum (allow things to remain as they currently are), pending the hearing and determination of the plaintiffs’ pending motion for interlocutory injunctions.”
THE IMPOTENCE OF THE ORDER MADE BY JUSTICE EKWO:
For the reasons that would follow anon, the Order of My Lord Justice Inyang Ekwo made in favour of the Plaintiffs/Supplicants before him, in so far as it is aimed at staying their criminal trial before the High Court of the Federal Capital Territory, Abuja, is of no assistance or utilitarian value to the supposed beneficiaries.
PRECEDENTS: (1) UWAZURUIKE V. A-G FEDERATION (2008) 10 NWLR (Pt. 1096) 458:
Like what has played out in the retired Generals case, similar scenario surfaced in UWAZURUIKE V. A-G FEDERATION (2008) 10 NWLR (Pt. 1096) 458 when Uwazuruike of MASSOB secured an ex-parte order to enforce his fundamental right which was to act as a stay of action in his criminal trial, just as the Generals have secured an ex-parte Order to restrain the EFCC pending the hearing of the Motion on Notice before the Court. Notwithstanding the restraining Order of the Federal High Court Owerri, the Abuja Division of the Federal High Court proceeded to try Uwazuruike whereupon he protested against his prosecution on the ground of the earlier restraining Order made in his favour by the Owerri Division of the same Federal High Court. His contention collapsed both at the Federal High Court and the Court of Appeal and was ultimately dismissed by the Supreme Court. In agreeing with the two lower courts, the Supreme Court while dismissing Uwazuruike’s appeal aptly stated the law thusly, which I invite the Generals’ Senior Counsel to listen to their Lordships’ revered view:
“I agree with the court below that the suit No.HU/177/2007 filed at Abia State High Court by the Appellant was nothing but a “gagging suit” with the order made there from on 31/5/2007, designed to frustrate, prevent, and discourage the 1st Respondent from discharging its statutory functions. It is apparent that the Federal High Court, Owerri and Federal High Court, Abuja are Courts of concurrent jurisdiction, therefore the contention by the counsel for the Appellant that 1st Appellant was charged to court maliciously in flagrant disrespect of an order of Federal High Court, Owerri cannot be correct, because courts that are of similar or concurrent jurisdiction are not bound to follow the decision of each other. See-PROF. AD. OLUTOLA V. UNIVERSITY OF ILORIN (2005) 3 W. R, N PAGE 22} (2004) 18 NWLR (PT.905) 416. I also agree with the submission of learned counsel for the respondent that an order granted by the Federal High Court, Owerri was an exparte order for the applicant that is the 1st Appellant in this Court, to enforce his fundamental human rights. It was not order directed to the proceedings before the same court sitting in Abuja. Consequently is my view that the trial judge was right not to have given credence to the Federal High Court, Owerri as the order given by that court was not binding on her,”.
(2): Kalu v Federal Republic of Nigeria and Others (SC.215/2012)[2016] NGSC 34 (18 March 2016)
This case involves a State High Court and Federal High Court just as we have in the case of the Generals between the High Court of the Federal Capital Territory, Abuja and the Federal High Court, Abuja. In this case, a former Governor of Abia State, vide Suit No: HU/177/2007, approached the Abia State High Court presided over by the Honourable Justice Kalu who on the 31st day of May, 2007 made the following order favourable to him [Kalu] but against the EFCC:
“It is ODERED that the leave so granted shall operate as a stay of all actions or matters relating to or connected with the complaint hereof until the determinations of the motion on Notice That the Respondent would not suffer any detriment if they are restrained from arresting, detaining or prosecuting the Appellant until he constitutionality and legality of the said threat is determined”.
Armed with this Order, Orji Uzor Kalu filed a preliminary objection before the Federal High Court where he was arraigned on money-laundering related offences contending that the charges filed against him by the EFCC ought to be quashed for the reason that the said charges were instituted in violation of a subsisting restraining order of Abia State High Court against the EFCC. The Federal High Court rejected the contention resting on the ratiocination that the Abia State High Court and the Federal High Court are courts of co-ordinate jurisdiction and proceeded with his trial. Consequently, Orji Uzor Kalu appealed to the Court of Appeal which cited and relied on UWAZURUIKE V. A-G FEDERATION (supra) to peremptorily dismiss his appeal. Aggrieved by the decision of the Court of Appeal, he further appealed to the Supreme Court. After referring to its earlier decision in UWAZURUIKE V. A-G FEDERATION (supra) and agreeing with the Court of Appeal, the Supreme Court further dismissed Mr. Kalu’s appeal and in effusively condemning the dilatory antics of the Appellant as constituting abuse of court process bemoaned thusly:
The suit of the Appellant, at Abia State High Court and the general and ambiguous order made therein from were clearly intended to “muzzle” or prevent the 1st Respondent from discharging its statutory function. Sections 6 (m) and 46 of the Economic and Financial Crimes Commission (Establishment) Act vest in EFCC the function and duty of investigating and prosecuting persons reasonably suspected to have committed economic and financial crimes. For a person to rush to court to place a clog or shield against criminal investigation and prosecution is a clear interference with the powers given by law and the constitution to EFCC in the conduct of criminal investigation and prosecution. It is clearly an abuse of due process of the law
CONCLUSION:
The concatenation of the foregoing extrapolations ineluctably sums up to this: the Order of Justice Inyang Ekwo earlier referenced is ineffectual to the extent that it is targeted at dissuading or disabling the EFCC from going ahead with the arraignment of the Generals, UWAZURUIKE V. A-G FEDERATION (supra) or possibly stalling such proceedings against the embattled Generals. This must be so because the (restraining) Order of Honourable Justice Ekwo cannot bind the High Court of the Federal Capital Territory, Abuja, since the said Court is not bound to follow the said Order, PROF. OLUTOLA V. UNIVERSITY OF ILORIN (2005) 3 W. R, N PAGE 22} (2004) 18 NWLR (PT.905) 416. An Order from a High Court cannot be directed against the proceedings of another High Court who are equipollent [equivalent in power], OZUEH V. EZEWEPUTA (2005) 4NWLR (Pt.915) 221 at 241. The direction taken by the Generals “is clearly an abuse of due process of the law” as the Supreme Court found in Kalu v Federal Republic of Nigeria (supra). The EFCC should not be deterred by the Order of the Federal High Court for all the existing Supreme Court authorities on the score lean heavily against the potency or effectiveness of such an order eventuating from the circumstances x-rayed above. It should be disregarded and the FCT High Court would be in the charming embrace of the Supreme Court decisions to ignore, side-step or not give credence to same and proceed to commence the criminal trial of the embattled Army officers, ATTORNEY-GENERAL V. TIMES NEWSPAPERS LTD (1973) 3 All ER. 54 at 60. The merit vel non of the Originating Summons filed by the Plaintiffs [embattled Generals] before the Federal High Court falls outside the orbit of the canopied ambience of the present discuss same being sub judice.
LOGGING OUT:
In signing off, the Generals must be told in clear language that our laws, as they stand, and espoused by the Supreme Court, forbids a person from rushing to court to place a clog or shield against criminal investigation and prosecution as it is a clear interference with the powers given by law and the constitution to EFCC in the conduct of criminal investigation and prosecution. More importantly, it is clearly an abuse of due process of the law. It is outside their reach to place a clog or shield against criminal investigation and prosecution using a Court process. One critical fact must not be forgotten. It was the President and Commander in Chief of the Armed Forces of the Federal Republic of Nigeria who set up the CADEP to probe their activities while they held sway. The report produced by that Committee (which was forwarded to the EFCC) was also presented to the President of Nigeria. The Generals appeared [or were given the opportunity to appear] before that Presidential Committee and made presentations. Above all, all the issues they have raised before My Lord Justice Inyang Ekwo vide their Originating Summons are issues they can as well raise by way of preliminary objection before the FCT High Court where they are to answer to the criminal allegations levied against them. Using the proceedings before Justice Ekwo to tactically mount a collateral attack on the proceedings of the FCT High Court where a criminal charge is pending against them is where the “abuse of due process of the law” manifestly crystallises which is a non-starter, Allanah v Kpolokwu 2016 6 N.W.L.R. Part 1507 Page 1 at 27. An abuse of court process has been defined as “the improper use of the judicial process by a party in litigation, aimed at interference with due administration of justice”, Ogboru v Uduaghan 2013 13 N.W.L.R. Part 1370 Page 33 at 53. The Accused have not denied stealing the money but their argument is that they ought to have been tried by court martial. It is noteworthy that seven years after the report on them was released by CADEP, the court martial they have been clinging unto has not put them on trial. Seven years down the line, thousands of Nigerians have been mercilessly slaughtered by the rampaging terrorists who have ghoulishly turned the North-Eastern Nigeria into a colossal killing field [of which even military Generals have become victims] to the embarrassment of the nation. This is apart from the disheartening number of our soldiers that were killed [and are being killed] by the terrorists for lack of appropriate arms and ammunition because money provided for arms procurement were diverted. If there was no need for accountability on the part of the embattled Generals, why would the President and Commander in Chief of the Armed Forces commission the probe of their tenure in the first instance? That fact alone is already bad and hoists a big integrity question mark on their service records. Added to this is that the CADEP report [forming the springboard of the EFCC’s criminal charge filed against them] has never been successfully challenged nor quashed by any court as being a sham. Interestingly, that is not the fulcrum or focus of their case before the Federal High Court presided over by My Lord Justice Inyang Ekwo! The embattled Generals at least have families and names to protect which ordinarily should have prompted them to be anxious of clearing their names by going through and coming out of the judicial process clean. Military men are known for honour, their valour and shining integrity. But no! The embattled Generals are now most reluctant to defend these core values that define an unblemished military career especially now they have a huge integrity question mark dangling over their heads like the sword of Damocles. This brings to mind the musing of Galadima, J.S.C. who anchored the Leading Judgment in Kalu v. Federal Republic of Nigeria (supra), wherein His Lordship pondered thusly:
I cannot fathom the reason why the Appellant is so lily-livered in a matter the law fully guarantees his constitutional rights in an event of his prosecution in the court established by the constitution to judiciously and judicially provide adequate facilities for his prosecution including due fair hearing as provided in S.36 of the constitution, for the alleged offences of money-laundering
Food for thought! They [the embattled Generals] have to realise that it is a cardinal pillar of our criminal law jurisprudence that “time does not run against the state in criminal matters” as postulated in Orji v. F.R.N. (2007) 13 NWLR (Pt. 1050). In other words, their criminal trial can take off at any time, OCHU V. F.R.N. (2011) ALL FWLR (Pt. 563) 2008. I venture to think that they might discover (even though belatedly) that seeking to avoid facing their criminal trial is to unwittingly sail against the wind. This fishing expedition in the desert must abate now. I rest my case.
