Mohammed VS. EFCC & Anor – A Review -By Col BU Okorie (rtd) Esq

By B. U Okorie

Introduction

The Appellant in the above-mentioned case is a serving military officer in the Nigerian Army. He was caught in the web of EFCC for alleged involvement in criminal conspiracy and money laundering. Consequently, he was invited for interrogation and investigation within which process his house was searched and eventually EFCC obtained interim order of forfeiture of a property belonging to him.

The Appellant then sued the EFCC at the Federal High Court seeking declarations that:
a. Being a serving military officer, he is subject only to the AF A with regards to arrest, interrogation and

investigation in respect to the allegations of criminal conspiracy and money laundering levied against him.

b. And that the invitation, interrogation and investigation carried out by the first Respondent is illegal, ultra-

vires and unconstitutional.

After hearing the cases of both parties, the trial court decided the questions posed for determination against the Appellant and dismissed the case.

The Appellant appealed the decision at court of appeal Abuja to determine the following issues:

a. Whether the AFA limits the 1stRespondent’s powers and investigations against the Appellant.

b. Whether the lower Court was conferred with jurisdiction by the provisions of the EFCC Act and the AFA,

when the condition precedent for assuming such had not been fulfilled.

c. Whether the right of the Appellant to opt for trial at the court-martial, instead of a civil court, is limited to

offences relating to service discipline.

The court of Appeal decision on this case has shed more light on this area of military law. The determination of the issues appears consistent with relevant provisions of the AFA and the command structure of the military. No doubt in giving its judgment, the court of Appeal was guided by the doctrine of lex specialis which states that when two laws apply to the same factual situation, the law governing a specific subject matter overrides a law governing only general matters (‘lex specialis derogat legi generali’). The issues are addressed seriatim.

Issue one

Whether the AFA limits the 1stRespondent’s powers and investigations against the Appellant. On whether the AFA limits the EFCC’s power to investigate and arrest him, the Appellant submitted that sections 121 &123 of AFA to the exclusion of EFCC Act or any other law, regulates how a serving officer of Nigerian Army, including himself can be invited, arrested and investigated, thus limiting the powers of EFCC to investigate and prosecute him. The court of Appeal affirmed his submission and held that the exercise of powers of arrest and investigation of a serving military officer by EFCC is restricted by the AFA, adding categorically that:
“The EFCC Act, or any other statute on arrest, investigation and prosecution of a serving member of the armed forces, such as the appellant cannot derogate from special provisions of the Armed Forces Act”

The above judgment is consistent with the provision of AFA at section 121 where sub-section 1 provides as follows:

“A person subject to service law under this Act found committing an offence under any provision of this Act, or alleged to have committed or reasonably suspected of having committed the offence, may be arrested in accordance with the following provisions of this section.”

On who can arrest a military officer under the circumstance, section 121 (5) of AFA provides as follows:
“A provost or any officer, warrant or petty officer, non-commissioned officer, or soldier, rating or aircraftman subject to service law under this Act who is lawfully exercising authority under a provost officer or on his behalf, may arrest any officer or soldier, rating or aircraftman, provided that, an officer shall not be arrested by virtue of this sub-section except on the order of another officer.”

The court thus resolved issue one in favour of the Appellant.

Issue two

Whether the lower Court was conferred with jurisdiction by the provisions of the EFCC Act and the AFA, when the condition precedent for assuming such had not been fulfilled.
On whether the lower Court had the jurisdiction by the provisions of EFCC Act and the AFA to try the appellant when the condition precedent for assuming jurisdiction had not been fulfilled, the court resolved this issue in the negative. The court categorically held that:

“By virtue of the Armed Forces Act, 2004, there was indeed a condition precedent which was that the allegations should have been reported to the Commanding Officer, and that if this was failed to be done, it denies the Court of jurisdiction and the case of Madukolu v. Nkemdilin applies.”

The above judgment by the court follows the ruling in the case of Hon. Nganjiwa v. FRN where the court held that a serving judicial officer cannot be subjected to a criminal prosecution without first complying with the condition precedent of subjecting such judicial officer to the disciplinary jurisdiction of the National Judicial Council.

The judgment is equally consistent with the provision of section 123 of AFA which provides as follows:

“Before an allegation against a person subject to service law under this Act (in this section referred to as the accused) that he has committed an offence under a provision of this Act is further proceeded with, the allegation shall be reported, in the form of a charge, to the commanding officer of the accused and the commanding officer shall investigate the charge in the prescribed manner.”

The affirmative resolution of this issue goes to preserve the sanctity of power of command which include powers of a commanding officer to initiate disciplinary measures against erring personnel as embedded in the military law. The sanctity of power of command also ensures that the commanding officer’s power to have total control and access to deploy available men and resources as at when necessary is never undermined. A situation where a commanding officer is denied access to his personnel needed for emergency operation because the EFCC has arrested him for one undisclosed allegation or the other does certainly defeat the aim of a separate military justice system for military personnel.
Issue three

Whether the right of the Appellant to opt for trial at the court-martial, instead of a civil court, is limited to offences relating to service discipline.
On whether the right of the Appellant or any serving military officer to opt whether to be tried at court martial instead of a civil court is limited only to offences relating to service discipline, the Court of Appeal answered this in the negative. The court resolved this issue by stating that, recognition of the right of a person under service law to elect or opt for a forum to be tried is germane to that person’s right to fair hearing. The court specifically held as follows:

“If this right is taken away or even denied, it goes down to the deprivation of the person’s constitutional right to fair hearing.”

The court has thus interpreted the provision of section 117 of AFA which provides as follows:

“Notwithstanding anything in the foregoing sections of this Act, a commanding officer shall not proceed summarily with the trial of an officer, a warrant or petty officer until he has afforded the officer, warrant or petty officer an opportunity of electing to be tried by a court-martial and if the person so elects in writing, the commanding officer shall take the prescribed steps with a view to the charge being tried by a court-martial.”

By resolving all the three issues in favour of the Appellant, the court has rightly applied the doctrine of lex specialis principle of statutory interpretation and should not be misunderstood to have ruled that a serving military personnel faced with a pending court-martial trial has any right to opt for trial by a civil court. The court allowed the appeal of the Appellant who is a serving military officer based on his preference to the jurisdiction of the military justice system. This court judgment has further emphasized the doctrine of first exhausting the internal administrative machinery and the primacy of military justice system whenever a serving military personnel is concerned. The judgment appears to have appreciated the essence of the power of command in the military profession as well as the letters and spirit of the AFA provisions under sections 121 and 123 with respect to conferring jurisdiction over serving military personnel exclusively on the military justice system. For instance, where section 121 provides that:
“A person subject to service law under this Act found committing an offence under any provision of this Act.”

It should be noted that under any provision of this Actincludes both military offences and civil offences provisions under section 114 of AFA which covers offences under the EFCC Act under which the officer was investigated. Furthermore, where section 123 of AFA provides that:
“Before an allegation against a person subject to service law under this Act (in this section referred to as the “accused”) that he has committed an offence under a provision of this Act is further proceeded with,” once more, it should be noted that the phrase, “that he has committed an offence under a provision of this Act”, similarly refers to commission of offence under section 114 of AFA referring to civil offences, including the EFCC Act under which the Appellant was investigated.

These operational phrases of sections 121 &114 of AFA have been duly strengthened in the judgment of the Court of Appeal above. Besides, military jurisdiction was accorded its due primacy as should be the case whenever a serving military personnel is involved in any infraction, be it military or civil offences.

Conclusion

It can be safely concluded from the judgment of the Court of Appeal in the instant case that a civil law enforcement agency cannot ordinarily sidestep the AFA with its military justice system and initiate investigation against a serving military officer. Equally noteworthy is that the Court of Appeal judgment has appreciated the essence of the power of command in military commanders. This Court of Appeal judgment has indeed given impetus to a military law enforcement maxim stating that all cases involving serving military personnel must first be disposed of militarily.