However, on March 28, 2024, Kutigi pointed out the
contradiction, while dismissing the charges against Adoke and other defendants,
chiding the EFCC for wasting the court’s time for four years.
In his ruling, Ekwo said the EFCC did not provide any
evidence to prove the essential elements of the offence against Adoke.
THE ISSUES
In 2011, Adoke had taken a mortgage of N300 million from
Unity Bank to buy a property valued at N500 million from Abubakar.
However, he failed to pay his own equity contribution of
N200 million and the mortgage was cancelled in 2013.
Abubakar said he returned the N300 million to Unity Bank
after finding a new buyer — the Central Bank of Nigeria (CBN).
But in 2017, the EFCC accused Adoke of handing the dollar
equivalent of N300 million to Rislanudeen Mohammed, then acting managing
director of Unity Bank, to refund the loan.
The commission said it was a breach of money laundering laws
as it was above the N10 million threshold allowed, arguing further that a
bureau de change (BDC) — which the bank used to convert the dollar to naira —
is not a financial institution.
It accused Adoke and Abubakar of conspiring to commit the
offence of money laundering.
HOW THE COURT RULED
On the first count which borders on conspiracy to commit
felony, the judge held that the EFCC failed to provide the essential elements
of conspiracy.
The judge described count one as “inherently ambiguous”
adding that “there is no definite allegation as to who between the first and
second defendant, made or accepted the payment”.
“This cannot be left to any conjecture or assumption. This
is an incompetent or bad charge and the effect thereof is fatal,” Ekwo ruled.
On count two, the judge held that the evidence of
prosecution witnesses (PWs) 1, 2, 3, 4, 5, 6, 7 and 9 and the exhibits tendered
in evidence “had nothing to do with the allegation” contained against Adoke.
He said although PW8 mentioned the sum of N300 million four
times in his evidence-in-chief, the witness insisted that the money was the
refund of the 1st defendant (Adoke) in respect of the property he wanted to
purchase with a mortgage.
Ekwo also held that the EFCC ought to have withdrawn count
two after PW3, Usman Bello, a BDC operator, admitted that he had no direct
dealings with Adoke.
On count three, the court held that the cash transaction of
$2,267,400 between Adoke and Rislanudeen
Mohammed, then acting managing director of Unity Bank, was not in violation of
Sec 16(1)(d) of the Money Laundering Provision Act.
Mohammed, in his evidence-in-chief as the second prosecution
witness for the EFCC, claimed he collected the $2,267,400 cash from Adoke on
behalf of the bank and gave it to a BDC to convert to naira to refund the
mortgage.
He said after the money was repaid, the bank returned the
land documents to Abubakar and closed Adoke’s mortgage account.
“The provision of Sec 16(1)(d) of the Money Laundering
Prohibition Act prohibits any person from making or accepting cash payment
exceeding the amount authorised under which is N5m or its equivalent in the
case of an individual except in transaction through a financial institution,”
Ekwo explained.
The court noted that the financial institutions referred to
in the law include banks and BDCs.
“The provision of sections 1(a) and 16(1)(d) of the said Act
does not forbid paying cash to financial institutions like banks or BDCs,” the
court held.
“There is a need for caution in the manner of interpretation
of section 1(a) and 16(1)(d) of the Money Laundering Prohibition Act.
Otherwise, people will be constrained to keep money in their houses or other
places to the chagrin of the economy of the country.
“I do not think that the legislature by those provisions,
intended to create an offence for cash being deposited in Banks or taken to BDC
to change same from one currency to another.”
Ekwo said rather, the provisions cited by the EFCC prohibit
trading that is buying and selling or relative transaction with a physical
exchange of cash in the prohibited sum.
Finally, in count four which alleged that the former AGF
disguised the origin of the sum in the charge, the judge ruled that the Act
relied upon by the EFCC “does not make provision for the offence of disguise”.
“This must be an invasion of the drafting of the charge in
this case which intention is contrary to the spirit and letter of the law upon
which the charge is predicated,” the judge held.
“The law is that those who draft charges must do so in a
manner that reflects the actual words used in the statutory provision and not
invent their own words or offences or attempt to fit same into the wordings of
the status.
“The defect in count four is fatal and for that, I make an
order dismissing the count for the defect which I have stated.
“On the whole… I find that there is no evidence to prove the
essential elements of the alleged offences in counts 1, 2, 3 and 4 against the
first defendant.
“Upon the above, I find that the evidence of the prosecution
against the first defendant is manifestly unreliable that no reasonable
tribunal or court can safely convict on it.
“Consequently, the no-case submission of the 1st defendant
is upheld.”
However, Ekwo ruled
that Abubakar, the second defendant, has to open his defence in because he has
a case to answer on counts 5, 6, 8 and 9 which are not related to Adoke.
