5 months ago
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…Frees Army Sergeant from death sentence by military court
BY ANDREW OROLUA
The Supreme Court has affirmed the conviction and six-year jail term handed to former Managing Director of the now defunct Bank PHB, Francis Atuche by the Court of Appeal in Lagos in a judgment delivered on June 23, 2022.
In a unanimous judgment on Friday, a five-member panel of the apex court held that the appeal by Atuche was without merit.
Atuche had lodged the appeal marked: SC/CR/1223/2023 hoping that the apex court will upturn the decision of court of appeal on the fraud matter.
In the lead judgment prepared by Justice Habeeb Abiru, but read by Justice Moore Adumein, the apex court held that the appellant failed to show why it should tamper with the concurrent findings of the two lower courts.
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“Where the finding of a trial court on the demeanour of a witness is supported by oral and documentary evidence tendered at the trial, as in the present case, an appellate court has no business tampering with the decision of the trial court.
“This court has not been given any reason to tamper with the concurrent findings of the two lower courts in this appeal
“This appeal is totally lacking in merit. This appeal fails and it is hereby dismissed.
“The judgment of the Court of Appeal, Lagos division, delivered on the 23rd day of June 2022 in appeal number: CA/LA/CR/668/2021which, save for the adjustment of the judgment passed, upheld the judgment delivered by the High Court of Lagos State in charge number: ID/154c/2011 on the 16th day of June 2021 is hereby affirmed,” the Supreme Court said.
The Court of Appeal in Lagos had, in its June 23, 2022 judgment, affirmed Atuche’s conviction on a 27-charge in which he and two others were accused of engaging in about N25.7billion fraud.
The Court of Appeal however reduced the sentence of 12 years, earlier handed to him by the High Court of Lagos State sitting in Ikeja, to six years.
The Economic and Financial Crimes Commission (EFCC) had prosecuted Atuche, his wife, Elizabeth and a former Chief Financial Officer of Bank PHB, Ugo Anyanwu before Justice Lateefat Okunnu of the High Court of Lagos State.
Justice Okunnu, in a judgment on June 16, 2021 convicted Atuche and Anyanwu
on 21 out of the 27-count amended charges of conspiracy to commit felony and stealing brought against them by the EFCC.
The judge subsequently sentenced Atuche to 12 years and Anyanwu to 10 years imprisonment.
Justice Okunnu discharged and acquitted Atuche’s wife on the grounds that the prosecution failed to link her to the crime.
She held that suspicion, no matter how strong, cannot take the place of fact.
The judge held that it was not proven that she was aware of the source of the funds she received into her account from her husband and she had no powers to take any decision to influence the transaction.
While the Court of Appeal reduced Atuche’s sentence to six years, it reduced Anyanwu’s sentence to eight years.
The Court of Appeal equally upheld the discharge and acquittal of Atuche’s wife.
In the same vein, the Supreme Court has discharged and acquitted a Nigerian Army Sergeant, Akawu Bala from death sentence imposed on him by the General Court Martial of the Nigerian Army.
The respite came the way of the embattled Army Sergeant after spending 12 years in Kaduna prison waiting for ratification of the death sentence passed on him.
Delivering judgment in an appeal he lodged at the Supreme Court on March 16, 2017, a 5-man panel of Justices of the Supreme Court unanimously discharged and acquited him from the death penalty.
Sergeant Bala was accused by the Nigerian Army of shooting one Isa Mohammed on December 9, 2012 when he was attached to African Petroleum Station at Sabon Tasha, Kaduna with AK47 gun.
The victim of the gunshot was said to have died on December 10, 2012 at Saint Gerald’s Catholic Hospital in Kaduna.
Following his indictment, he was put on trial on murder charge punishable under section 106 of the Armed Forces Act 2014 before the General Court Martial on 2-count charge and he was found guilty of murder and subsequently sentenced to death by hanging.
However on February 17, 2017, his appeal against the death penalty was upheld by the Court of Appeal, Kaduna division on the ground that the charge sheet upon which he was tried and convicted was not signed by a General Commanding Officer as required by law.
Justice Obietonbara Daniel Kalo who read the Court of Appeal’s lead judgment declared the process of the trial and conviction of the Sergeant as a nullity but however refused to discharge him from the nullified trial, promoting further appeal to Supreme Court.
His lead Counsel, Mr Reuben Okpanachi Atabo, a Senior Advocate of Nigeria SAN had argued on behalf of the convict that having declared the trial of his client, a nullity, the Court of Appeal ought to have made a consequential order to discharge the accused person from the flawed trial.
The senior lawyer drew the attention of the Apex Court to section 193 of the Armed Forces Act 2014 which prohibited retrial of any military personnel after his trial has been voided and set aside.
The Nigerian Army through its lead counsel, Isaac Udoka vehemently objected to the arguments of the defence appellant and prayed that the Apex Court should order the retrial of the convict in the interest of justice.
In the Supreme Court judgment in the appeal marked SC/889/2017, Justice Helen Morenikeji Ogunwumiju however agreed with Atabo SAN that the Court of Appeal ought to have discharged the accused person having voided his trial and declared it a nullity.
Justice Ogunwumiju subsequently invoked section 193 of the Armed Forces Act 2014 and set the convict free adding that the ordinary meaning of section 193 of the Armed Forces Act 2014 is that the accused person can no longer stand another trial.
The Apex Court while rejecting the arguments of the Army’s lawyer, thereafter ordered immediate release of the convict from Kaduna prison where he had been on remand since 2012.
Apart from Justice Ogunwumiju, other Justices on the panel are Uwani Musa Abba Aji, Chidiebere Nwaoma Uwa, Stephen Jonah Ada and Abubakar Sadiq Umar.
Sergeant Bala had in his defense claimed that he fired gun shot at Isa Mohammed and one other person when they were walking towards him in the dark at the African Petroleum Station and his order on them to go back was rebuffed prompting him to fire at them before they could capture him
The convict claimed that he fired the gun at the two men because it was during the peak of Boko Haram activity in Kaduna that they were walking towards him in the dark.
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