The Federal High Court in Abuja on Tuesday dismissed six of the seven money laundering charges filed against a former Chief of Air Staff (COAS), Mohammed Umar, a retired air chief marshal.
The Economic and Financial Crimes Commission (EFCC) had accused him of diverting over N4.8 billion from the Nigerian Air Force’s account ”within 24 months” and using the funds to buy personal property in choice areas.
The trial judge, Nnamdi Dimgba, in his ruling on the no-case submission filed by the defendant, dismissed six of the counts and ordered him to open his defence in respect of the one remaining count.
“I uphold the no-case submission in relation to Counts 1, 2, 3, 4, 5 and 6. I hereby discharge and acquit the defendant in relation to these counts.
“I refuse and dismiss the no-case submission in relation to Count 7.
“I hereby direct the defendant to open his defence in relation to this count,” the judge ruled.
The judge adjourned till April 28 and 29 for the defendant to open his defence.
The EFCC had in 2016 charged Mr Umar, who was Nigeria’s Chief of Air Staff from September 19, 2010 to October 10, 2012, with seven counts of money laundering.
The prosecution alleged that Mr Umar diverted over N4.8 billion from the Nigerian Air Force’s account between September 2010 and September 2010 and used the funds to acquire property in choice areas of Abuja and other places.
It said the defendant used part of the funds fraudulently removed from NAF’s account to acquire the property at Plot No. 1853, Deng Xiano Ping street, Off Mahathir Mohammed Street, Asokoro Extension, Abuja.
It also alleged that part of the funds was also used by the defendant to purchase a residential property comprising four-bedroom duplex, with boys’ quarters at Road 3B, Street 2, Mabushi, Ministers Hill, Abuja.
The EFCC said the defendant used part of the proceeds of fraud to acquire the property at 14 Audu Bako Way, GRA, Kano and a three-bedroom duplex with three-room boys’ quarters at No. 8 Kabala Road, Unguwan Rimi, GRA, Kaduna.
After the prosecution closed its case with 12 witnesses, the defendant filed his no case-submission urging the court to dismiss the entire seven counts on the grounds that the evidence by the prosecution did not link him to the offences.
The EFCC, through its lawyer, Sylvanus Tahir, opposed the no-case submission and urged the court to dismiss it.
But ruling on the no-case submission on Tuesday, Mr Dimgba after upholding the defendant’s arguments in respect of Counts 1 to 6, held that “the no-case submission of the defendant succeeds in part, and fails also in part.”
The judge ruled that Mr Umar had a case to answer concerning the transfer of N66 million from the official bank accounts of the NAF in Stanbic IBTC bank to the bank account of the solicitor (PW2) engaged by PW1 on his behalf as alleged in Count 7.
He noted that from the evidence led, the money was used for the “renovations/improvement of the property in Asokoro which is the subject of count 3.”
He added that the transfer was done around March 2012 at a time when the defendant was in charge at the NAF as the COAS.
He added that the prosecution’s evidence also showed that the property at Asokoro had been purchased by the defendant, through the PW1 and for his own personal use.
“There was no evidence or suggestion that the property was an official property or that it belonged to the NAF or was being purchased for the NAF,” the judge added.
He also said, “The circumstances surrounding this transfer of funds raises questions bordering on breach of trust and abuse of office.
“An explanation is needed in the context of a defence.”
‘Why Counts 1 to 6 failed’
On why six of the seven charges filed by the EFCC failed, the judge said his review of the evidence led by the prosecution revealed “considerable doubts, cloud of mystery, and general contradictions and discrepancies”.
He said there were unresolved questions on how EFCC arrived at the N4.8 billion allegedly converted fraudulently by the defendant, and “what was its proper application.”
The judge recalled that the Prosecution Witness 1 (PW1), Air Commodore Yushau, a retired air commodore, who was the Director of Finance (DoF) of the NAF, testified about how he, on monthly basis, delivered the dollar equivalent of N558.2 million to Mr Umar at his residence for a period of 24 months for the “upkeep” of the COAS’ office.
“This claim was corroborated by PW9, Hamma Damma Bello, the EFCC investigator on the case,” the judge said.
He added that both witnesses (PW1 and PW9) maintained that “this practice of delivering that sum of money was for the duration of the period (about 24 months) in which the defendant was COAS of the NAF.”
But the judge noted that by a simple arithmetic, “it would mean that the sum which the defendant collected and allegedly converted will be a sum of approximately N13,400,000.00 and not the sum of N4,846,639,000.00 which the defendant was alleged to have converted.”
He added, “This would be the sum of N558,200,000.00 collected monthly multiplied by the about 24 months that the Defendant was the COAS of the NAF.
“How the prosecution came by this figure of N4,846,639,000.00 (Four Billion, Eight Hundred and Forty Six Million, Six Hundred and Thirty Thousand Naira) in the count is a matter of mystery, and there was no attempt to lead evidence to show how this figure was arrived at.”
The judge also said there were discrepancies in the testimonies of PW1, PW6 and PW9, the star prosecution witnesses whom he said gave different figures as the amount delivered monthly to the defendant as his monthly upkeep.
‘Monthly N500m upkeep fund, a moral issue’
He said EFCC also failed to show that the practice of setting aside such a significant amount of money for upkeep for the COAS office was illegal.
He noted that “although this practice on the surface does raise eyebrows,” the philosophy behind it was explained by PW6 who was the Commander of Pay and Accounts.
It will be recalled that Mr Umar’s successor as Chief of Air Staff, the late Alex Badeh, was also standing trial on similar charges until his death in 2019.
Mr Dimgba noted that PW6 “affirmed that indeed such a practice and tradition has even recently received official endorsement by the highest executive authority in the land, from President Buhari as the Commander-In-Chief of the Armed Forces.”
He added that system of setting aside upkeep funds delivering it to the head of the NAF “for the discretionary spending by the head” was not initiated by Mr Umar but “was instituted by Air Marshal Petirin years ago.”
He said the practice of setting aside “a significant amount of money” for the COAS or to his office for the “upkeep” of the occupier of that office is a question of morals but the court “is a court of law, not a court of morals.”
He said EFCC failed to prove that Mr Umar pressurised NAF officers to deliver the funds to him when he assumed office or that he had any criminal intent accepting the funds.
‘No evidence to show property purchased with upkeep funds’
Mr Dimgba also held that EFCC’s case in Counts 2 to 6 that Mr Umar used the office “upkeep funds” to buy the choice assets was based on assumption and speculations.
He said the from the evidence of the prosecution witnesses, the defendant, as the Chief of Air Staff, could earn enough to buy such property from his allowances include estacodes and EFCC failed to prove otherwise.
He said, “The money could have come from any other source. And the burden to show that it came from an illegal source or from the ‘upkeep’ money, which the prosecution claims to be unlawful, is a burden of the prosecution.”
“As a matter of fact, both PW1 and PW6 admitted or testified that a person of the rank of COAS as the Defendant was, could earn huge sums of money from the NAF as estacodes and other allowances,” he said.
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