Can a serving member of armed forces be arrested?
Can a serving member of the armed forces be arrested and tried for an offence? Read the decision of the Court of Appeal in MOHAMMED vs. EXECUTIVE CHAIRMAN, ECONOMIC AND FINANCIAL CRIMES COMMISSION & ANOR.(2022)LPELR-58538(CA)
ISSUE: ARMED FORCES- Whether a serving member of the armed forces can be arrested and tried for the offences of conspiracy and money laundering by the Economic and Financial Crimes Commission
PRINCIPLE:
“I agree with the submission of the Appellant that the offences of conspiracy and money laundering are offences triable by Court Martial as well, and that the exercise of the powers of arrest and investigation of a serving military officer by the 1st Respondent’s officers have therefore been 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 in this case, cannot therefore derogate from the special provisions of the Armed Forces Act in respect of the arrest, investigation and prosecution of the Appellant as a serving military officer. I reject the Respondents’ submissions on this issue.” Per TSAMMANI, JCA.
ISSUE: ARMED FORCES- Whether Section 123 of the Armed Forces Act ousts the jurisdiction of the Economic and Financial Crimes Commission to investigate a person subject to service law
PRINCIPLE:
“It is important to draw here that both the Court Martial and the civil Court have jurisdiction to try a person subject to service law on matters of civil offences. What is left to resolve is whether there are circumstances surrounding the assumption of such jurisdiction. I am not unmindful of the nature of the special arrangement made for the persons subject to judicial service law as expounded in Nganjiwa’s Case (supra) cited by the Appellant’s counsel. Like in the case of the jurisdiction of the Courts, the powers to investigate a person subject to service law is not exclusive to the 1st Respondent. One may query, other than the person’s employer, who is more positioned to investigate an army officer who is alleged to be living above his lawful earning? Neither Section 7 nor 19 of the EFCC Act could be construed to
confer exclusive jurisdiction on the 1st Respondent or the civil Courts in this respect. In this regard, the decision of the Supreme Court recommended by the 2nd Respondent in Attorney General Lagos State v. Dosunmu is apt, where it was held that: “It is the duty of the Courts to expound their jurisdiction but it is not part of our duty to expand our jurisdiction. That will require legislation. The best advice here is that given by Rigby, LJ in Re Watkins (1896) LR 2 CD p. 339 that we ought not to overstep our jurisdiction because we think it might be advantageous so to do.”
I hold the view that the argument of the 1st Respondent that Section 123 of the Armed Forces Act does not oust the jurisdiction (powers) of other investigative bodies such as the 1st Respondent to investigate matters within their jurisdictional competence, duly donated to them by statute, is misconceived. What the Armed Forces Act provides is how the power should be exercised and when the jurisdiction should be assumed. I agree with the Appellant that the condition provided in Section 123 of the Armed Forces Act is a condition precedent. The case of Madukolu v Nkemdilim (supra) is therefore relevant.” Per TSAMMANI, JCA.
ISSUE: OFFENCE(S)- Whether the offences of criminal conspiracy and money laundering fall within the meaning of civil offences pursuant to Section 114 of the Armed Forces Act and should be tried by a Court Martial
PRINCIPLE:
“This Court is of the firm view that the offences of Criminal Conspiracy and Money Laundering for which the Appellant was invited or being investigated by the Respondent’s officers, though not military offences listed under the Armed Forces Act, they are other civil offences within the meaning of Section 114(1) of the Armed Force…
