Court Of Appeal Holds That EFCC’s Power To Investigate & Arrest Serving Military Officer Limited By Law,

By EgbemaVoice,

The Court of Appeal, Abuja division has held that “A serving military officer cannot be invited, interviewed, interrogated, arrested, tried under general criminal laws of Nigeria, unless he elects".

This position was the conclusion of the Appellate Court in Mohammed vs. EFCC & Anor. Appeal no: CA/ABJ/CV/90/2022.

According to the Court’s judgement sighted by TheNigeriaLawyer, the invitation, interrogation, arrest and trial of a serving military officer cannot be done under general criminal laws of Nigeria and by regular investigatory body but under Armed Forces Act, unless he objects.

In the said case, the Appellant who is a serving military officer with the Nigerian Army, had been invited by the officials of the 1st respondent, the Economic and Financial Crimes Commission (EFCC) for interrogations in relation to allegations of criminal conspiracy and money laundering. The Appellants honored the invitation and his rented apartments were searched.

Subsequently, in March, 2021 his attention was drawn to an interim order of forfeiture that affected his personal property. The Appellants believed that as a serving military officer, he was subject to the provisions of the Armed Forces Act, 2004, and that the 1st Respondent could not side step this act, and ordinarily initiate an investigation against him.

In lieu of this, the Appellant via an Originating Summons, commenced an action at the Federal High Court, sitting Abuja, suit no: FHC/ABJ/C5/513/2021, seeking declarations that being a serving military officer, he is subject only to the Armed Forces Act, 2004 with regards to arrest, interrogation and investigation in respect to the allegations of criminal conspiracy and money laundering levied against him and an that the invitation, interrogation ad investigation carried out by the 1st respondent is illegal, ultra vires and unconstitutional. After hearing the cases of both parties, the trial court in a judgment delivered 25th day of July, decided the questions posed for determination against the appellants and dismissed the case.

Dissatisfied with the judgement of the lower court, the Appellants appealed the decision at the Court of Appeal, Abuja for the court to determine whether the Armed Forces Act limits the 1st respondent`s powers and investigations against the appellants, whether the lower court was conferred with jurisdiction by the provisions of the EFCC Act and the Armed Forces Act, when the condition precedent for assuming such jurisdiction had not been fulfilled and 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.

Arguing their appeal, the Appellant`s Counsel, O.A Dada Esq on issue 1, submitted that section 121 & 123 of the Armed Forces Act, 2004 to the exclusion of the EFCC Act, 2004 or any other law, regulates how a serving officer of the Nigerian Army, including the appellant, against whom allegations (both military and civil) are made, can be arrested, invited and/or investigated, thus limiting the powers of the 1st respondent to investigate and prosecute the appellants. The 1st and 2nd respondents` counsels, C. O. Ugwu Esq and Olarewaju Akinsola Esq respectively argued that the appellant is subject to both civil and military laws, and the 1st respondent can exercise its duties as provided for in the EFCC Act without recourse to the Armed Forces Act. And that section 121 and 123 of the latter Act does not oust investigation by the 1st respondent. On issue 2, the appellant argued that for any court including the lower court in this case to assume jurisdiction to try the appellant under any offence under the EFCC Act and Armed Forces Act, the offence must have been reported to his commanding officer in form of a charge. According to the appellant, this was a condition precedent which was not fulfilled in the instant case and denied the lower court jurisdiction in lieu of judicial precedence.

On their part, the respondents argued that the Armed Forces Act merely provides power of the commanding officer to investigate allegations and does not oust the jurisdiction of other investigative bodies to investigate the matter. In addition, the 2nd respondent argued that what trigger jurisdiction in this case is if an offence was committed under the Armed Forces Act. As regards issue 3, the appellant argued that by the provisions of s. 117 of the Armed Forces Act to right to elect was not limited or restricted to offences relating to conduct and service discipline, and as such the lower court was in error to have held otherwise. The respondents argued otherwise.

After considering these arguments, the Court of Appeal in resolving issue 1 held that the exercise of powers of arrest and investigation of a serving military officer by the 1st Respondent is restricted by the Armed Forces Act. “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 the special provisions of the Armed Forces Act” the Court held. Thus, the issue was resolved in favor of the appellant.

Also, resolving issue two in favor of the appellant, the court ruled that both the Court martial and the civil court has jurisdiction to try a person subject to service law, and that the only thing that can be in question is the assumption of jurisdiction. The Court 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.

On the final issue, the Court held 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. “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 held. The court went to reason that the whole import and intendment of the Armed Forces Act was to subject all serving military officers to the jurisdiction of court-martial, and that the EFCC would not be failing in their duties if the appellant is not tried by a court-martial as a serving military personal.

In lieu of all these, the court resolved the 3 issues in favor of the appellant and set aside the Judgement of the Federal High Court, sitting Abuja, suit no: FHC/ABJ/C5/513/2021, and went on to grant all order sought by the appellant.