Justice Akintayo Aluko of a Federal High Court in Lagos has struck out a N3.5 billion alleged fraud charge filed against two aides of a former Senate President and Kwara Governor, Dr. Bukola Saraki and three others by the Economic and Financial Crimes Commission (EFCC) for lack of jurisdiction.
The two aides: Gbenga Makanjuola, Deputy Chief of Staff to Saraki, and Kolawole Shitu, Cashier in Saraki’s office, were in 2018 dragged to court by the anti-graft agency alongside Obiora Amobi; a former Managing Director of the defunct Societe Generale Bank of Nigeria( SGBN), one Robert Mbonu, said to be at large, and a limited liability company, Melrose General Services Limited on an 11-count charge bordering on the alleged offence.
The defendants were first arraigned on 3rd October, 2018, by the EFCC before Justice Babs Kuewumi. Their case file was however moved to Justice Aluko upon the transfer of Justice Kuewumi out of Lagos Division.
Midway to the defendants’ trial, EFCC applied to court to amend the charge against them. Two more counts were subsequently added to the 11 counts making it 13 counts charge.
Dissatisfied with EFCC’s action, the defendants through their lawyers, K. T. Alowomi and Paul Erokoro (SAN), filed a motion challenging the court’s jurisdiction to entertain the two charges.
In their motion, the defendants argued that the prosecution failed to state categorically in the first charge, where the offences were committed, and that the second amended charge was a ploy by the prosecution to cure this defect.
Consequently, they asked the court to dismiss the charge with a cost of N20 million as damages against the EFCC.
Responding, EFCC through its team of lawyers, opposed the defendants’ motion and urged the court to dismiss it.
In his ruling on the motion, Justice Aluko after citing plethora of authorities, granted the defendants’ request and struck out the charge.
The judge, however, turned down the defendants’ demand for award of N20 million against the EFCC.
In striking out the charge, Justice Aluko held: “The prosecution called my attention to the second amended charge which it proposed to bring in, I see this call as another means of seeking an amendment of the first amended charge, the validity and competence of 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 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 succour 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.
“Even If I should heed the call of the prosecution to take judicial notice of the second amended charge, nevertheless, I 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.
“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”.
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