Whether the Economic And Financial Crimes Commission Can Investigate and Prosecute a Military Officer

CASE TITLE: MOHAMMED v. EXECUTIVE CHAIRMAN, EFCC & ANOR (2022) LPELR-58538(CA)

JUDGMENT DATE: 18TH AUGUST, 2022

PRACTICE AREA: MILITARY LAW

LEAD JUDGMENT: HARUNA SIMON TSAMMANI, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

​ This appeal borders on military law.

FACTS:

This appeal is against the decision of the Federal High Court, sitting in Abuja per D. U. Okorowo, J delivered on the 25th day of November, 2021 in Suit No: FHC/ABJ/CS/513/2021.

The Appellant is a serving military officer with the Nigerian Army. Sometime in 2020, he was invited by officials of the 1st Respondent for interrogation in relation to allegations of criminal conspiracy and money laundering. The Appellant honoured the invitation and made a statement to the officials of the 1st Respondent. Subsequently, the rented apartments of the Appellant were searched by the said officials of the 1st Respondent. Sometime in the month of March 2021, the attention of the Appellant was drawn to an Interim Order of Forfeiture (exparte) which affected the personal property of the Appellant. The order was made on 9th March 2021 by the Federal High Court (per Honourable Justice F. O. G. Ogunbanjo). The Appellant verily believed that, as a senior army officer, he was subject to the provisions of the Armed Forces Act, Cap. A20, Laws of the Federation of Nigeria, 2004, and that the 1st Respondent could not side-step the provisions of that Act (Armed Forces Act) and, inter alia, ordinarily initiate an investigation into any allegation against him. Consequently, the Appellant commenced an action, vide an Originating Summons before the lower Court.

By the said Originating Summons which were dated and filed on 21/6/2021, the Appellant as the Plaintiff posed, among others, the following question:

1. Whether, having regards to the provisions of Sections 217(1), 218(4) (b), 315(1) (a) and (4)(b) of the Constitution of the Federation of Republic of Nigeria, 1999 (as amended), the Plaintiff a serving officer of the Nigerian Army is subject only to the provisions of the Armed Forces Act, 1994 “the Service Law” (Now codified as Armed Forces Act CAP A20, Laws of the Federation of Nigeria, 2004) with regards to Arrest, Invitation, Interrogation, Interview, Investigation being subjected to punishment by way of property deprivation and/or Prosecution in respect of the alleged offences of Criminal Conspiracy and Money Laundering levied against him by the 1st Defendant or in respect of any civil offence or offences within the meaning of Section 114 of the Armed Forces Act.

The Plaintiff/Appellant then prayed that if the questions are answered in the negative, the following relief, among others, should be granted in his favour:

a. A DECLARATION that the Plaintiff being a serving officer of the Nigerian Army is subject only to the provisions of the Armed Forces Act, 1994 “the Service Law” (Now codified as Armed Forces Act CAP A20 Laws of the Federation of Nigeria, 2004) with regards to Arrest, Invitation, Interrogation, Interview, Investigation, being subjected to punishment by way of property deprivation and/or prosecution in respect of the alleged offences of Criminal Conspiracy and Money Laundering levied against him by the 1st Defendant or in respect of any other civil offences or offences within the meaning of Section 114 of the Armed Forces Act.

At the hearing of the Originating Summons, the parties adopted their Written Addresses. In a judgment delivered on the 25th day of July, 2021, the learned trial Judge answered the questions posed for determination against the Appellant and accordingly dismissed the case. The Appellant was irked by the decision and therefore appealed to the Court of Appeal.

ISSUES FOR DETERMINATION:

The Court determined the appeal on the following issues:

i. Whether the lower Court was right in coming to the conclusion that there was nothing in the Armed Forces Act, which restricts the 1st Respondent’s power of investigation and prosecution of the Appellant (a serving military officer).

ii. Whether the lower Court was correct in declaring that, by the provisions of the Economic and Financial Crimes Commission Establishment Act and the Armed Forces Act, the lower Court was conferred with jurisdiction to try an offence under the Acts, when the condition precedent to assuming such jurisdiction had not been fulfilled in the case of the Appellant.

iii. Whether the learned trial Judge was correct in deciding that the right of the Appellant to opt for trial at the Court-Martial, instead of a civil Court, was limited to offences relating to service discipline.

DECISION/HELD:

In conclusion, the Court allowed the appeal.

RATIOS:

• EQUITY – DOCTRINE OF ELECTION: Meaning and application of the doctrine of election; whether a serving military officer has the right to elect to be tried by either a civil Court or a Court Martial
• MILITARY LAW – ARMED FORCES: Whether a serving member of the armed forces can be arrested and tried for the offences of conspiracy and money laundering by the Economic and Financial Crimes Commission
• MILITARY LAW – ARMED FORCES: Whether Section 123 of the Armed Forces Act ousts the jurisdiction of the Economic and Financial Crimes Commission to investigate a person subject to service law
• MILITARY LAW – OFFENCE(S): Whether the offences of criminal conspiracy and money laundering fall within the meaning of civil offences pursuant to Section 114 of the Armed Forces Act and should be tried by a Court Martial
• MILITARY LAW – ARMED FORCES: Procedure for the arrest, investigation and prosecution of a person subject to service law pursuant to the provisions of the Armed Forces Act; effect of failure
• MILITARY LAW – OFFENCE(S): Categories of offences created under the Armed Forces Act; whether a serving military officer has the right to elect to be tried by either a civil Court or a Court Martial