The Attorney-General of the Federation (AGF), Mr Abubakar Malami, SAN, has taken over a N1.84 billion money laundering suit against Nicholas Ashinze, and eight others.
Ashinze was a former military assistant to Col. Sambo Dasuki (rtd.), the ex-National Security Adviser (NSA) to former President Goodluck Jonathan.
David Kaswe, counsel for the office of the AGF, moved the application and Justice Okon Abang of a Federal High Court in Abuja division granted the request.
Justice Abang maintained that no court of law can question the exercise of AGF’s powers under Section 174 (1) (b) of the 1999 Constitution (as amended).
Background
Ashinze (1st defendant) is standing trial alongside an Austrian, Wolfgang Reinl; Edidiong Idiong and Sagir Mohammed are listed as 2nd to 4th defendants correspondingly.
Other defendants in the case, listed as 5th to 9th defendants are Geonel Integrated Services Limited, Unity Continental Nigeria Limited, Helpline Organisation, Vibrant Resource Limited, and Sologic Integrated Service Limited.
They got re-arraigned on a 13-count money laundering charge by the Economic and Financial Crimes Commission (EFCC).
The amended charge, dated Oct 3, 2017, was filed on Oct. 6, 2017.
The funds are alleged to have originated from the office of Dasuki, where Ashinze served as a special assistant.
They, however, pleaded not guilty to all the counts against them.
When the case resumed, Kaswe, who appeared for the AGF, told the court that he had the power of Malami to take over the case.
Kaswe noted that he was acting in accordance with Section 174(1) (a) and (c) of the 1999 Constitution (as amended).
Offem Uket, the EFCC’s counsel, did not oppose the application after stating that he was unaware that the AGF was taking over the matter.
Following that, Kaswe subsequently prayed for the withdrawal of the criminal charge against the defendants.
Lawyers to the defendants, including Afam Osigwe, SAN; Patrick Agu, Anita Isato, did not oppose Kaswe’s application.
They, however, urged the court to make a substantial order discharging and acquitting their clients of the 13-count charge.
Osigwe, who appeared for the Austrian national, 5th, 4th, and 6th defendants, 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 specifies that the court can acquit defendants of a charge if pleased with the merit of a case after withdrawal.
“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, although, Kaswe disagreed with the defence request.
According to the AGF’s lawyer, Section 108(1) of the ACJA 2015 gives ground for the withdrawal of the charge against the defendants.
“We pray that the defendants be discharged and not acquitted,” he said.
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Court Decision
Justice Abang, while delivering the ruling, held that the matter was a very simple issue that was not difficult to resolve by the court.
According to him, at the stage the application for withdrawal of the case was made, the prosecution failed to close their case.
The judge said when the application was made, the seventh prosecution witness was still in the witness box testifying-in-chief yet to be cross-examined.
He said it would be unlawful to discharge and acquit the defendants since the prosecution had not closed their case and the defendants were called upon to enter their defence.
He maintained that in making their application, counsel for the defendants did not consider Section 108(2) of ACJA 2015.
Abang further averred that based on Section 108(3) of ACJA, it was not obligatory for the court to 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, advising 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 mentioned that Section 108(2b) is about the acquittal of defendants if an application for withdrawal was made after the defendants had been directed to enter their defence.
He also said Section 108(3) hinges on 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 said.
The judge struck out the amended charge and discharged all nine defendants of the charge.
