The son of former chairman of Peoples Democratic Party, Alhaji Mahmud Tukur and Alex Ochonogor have challenged the N1.8 billion fuel subsidy fraud charge preferred against them by the Economic and Financial Crimes Commission (EFCC).
The oil marketers, in their preliminary notice of objection filed before Justice Lateef Lawal-Akapo of an Ikeja High Court, asked the court to quash the charge on the grounds that the proof of evidence did not support the offences alleged against them.
Tukur and Ochonogor were arraigned alongside their company, Eterna Oil and Gas Plc and another marketer, Abdullahi Alao, son of an Ibadan-based businessman, Alhaji Abdullazeez Arikesola-Alao on a nine-count charge of conspiracy, obtaining money by false pretences, forgery and use of false documents.
The EFCC accused the oil marketers of obtaining N1.8 billion from the federal government for a purported importation of 80.3 million litres of petrol.
Moving the motion yesterday, counsel to Tukur and Ochonogor, Mr. Tayo Oyetibo (SAN), urged the court to discharge his clients since the proof of evidence did not support the offences alleged against them.
Oyetibo said the criminal charge preferred against them was an abuse of court process which should be struck out in the interest of justice.
Tracing the genesis of the charge, he said it arose from a joint venture agreement between Eterna Plc, Axenergy Ltd., Sahara Energy Resources and Ontario Oil for the importation of fuel into the country.
Oyetibo said it was not proper for Tukur and Ochonogor, who are the Managing Director and Head of Financial Control of Eterna oil and gas Plc to be charged for the alleged offences.
According to Oyetibo, there was no proof that the alleged fraud was committed as a result of the defendants’ connivance or negligence. “Although a company acts through its officers, those acts of the officers are seen in law as the acts of the company itself and therefore it is the company that is legally responsible and not the officers,” he submitted.
He, also faulted Section 10 of the Advance Fee Fraud Act which the EFCC claimed gave them power to charge the defendants to court.
He said his clients were being charged in their personal capacity to embarrass and harass them because there was no vicarious liability under the Nigerian criminal law.
Responding, EFCC counsel, Mr. Rotimi Jacobs (SAN), said Section 260 (2) of the Administration of Criminal Justice Law of Lagos State prohibited the court from entertaining such applications.
Jacobs argued that a company on its own cannot commit an offence. It has to use human beings to do so.
“The argument that the principal officers of the company are not liable is baseless. It is the evidence that will distinguish the role of each of the defendants when the trial starts”, he said.
He urged the court to dismiss the application for being premature and lacking in merit.
Justice Lawal-Akapo adjourned the matter till June 27 for ruling.