March 17, 2022

The Federal High Court, Abuja, has discharged and acquitted a former Chief of Air Staff, retired Air Marshal Mohammed Umar of diverting N66 million from the account of the Nigerian Air Force, (NAF).

The court, however, ordered Umar to refund N57 million to the Federal Government or else his residence at Asokoro extension in Abuja would stand forfeited to the government.

Delivering judgment, Justice Nnamdi Dimgba, acquitted Umar on the grounds that he found no evidence linking Umar to instructing the transfer of the said funds for the renovation of his private property in Abuja.

The judge said he was not convinced that the prosecution discharged the burden placed on them to the requisite standard on count seven which Umar was called upon to defend having earlier been acquitted of other counts.

“Reasonable doubts do exist in the prosecution’s case as made out in the body of this judgment.

“As the law commands, I am bound to resolve the doubts in favour of the defence and I so resolve them.

“In the final analysis, I find the defendant innocent on the sole count, and consequently discharge and acquit him,’’ the judge held.

Justice Dimgba also said that it would be dangerous to speculate on a wild assumption that the defendant ought to be aware of every financial transaction from NAF’s account.

“It will be dangerous speculation to make a wild and wide assumption that the defendant as the Chief of Air Staff ought to know of every single bank dealing involving NAF simply because he was the Chief Accounting Officer.

“Criminal trials of this nature involving the possibility that an accused person could lose his liberty is to be fought on the strictest tests.’’

The judge, however, held that in as much as the evidence provided by the prosecution was not strong enough to warrant the conviction of the defendant as charged, it would be against good conscience for the court to shut its eyes to the fact that Umar benefitted from funds belonging to NAF.

“This is even if not in a manner sufficient to warrant his conviction for the offence that he has been charged or any other offence that he could have been found liable for.

“The question that agitates my mind is what is to be made of the sum of N57 million?

“Should the benefit of the funds be allowed to be retained by the defendant so that the he becomes unjustly enriched at the expense of the public?

“I am satisfied that the said sum of N57 million was not payment for any value received by the NAF from the defendant nor did it fall within the lawful expenditures of the force.

“ It was rather made for the renovation of the defendant’s property.’’

He opined that allowing the defendant to retain the benefit would be a clear case of unjust enrichment under the law of restitution.

“Any civilized system of law is bound to provide remedies in situations of this nature, so that a man is prevented from retaining funds, or some benefit derived from those funds, of another, which it is against conscience that he should keep.

“This is even if the man did not act criminally or with a mind to defraud.

“The Court must be vigilant and quick to deny everyone, whether innocent of crime or guilty of same, of opportunity for unjust enrichment, or of reaping of any unjust benefit,’’ the judge said.

He therefore ruled that the former air chief would not be allowed to reap the benefits of the said N57 million.

“Pursuant to Section 333(1) of the Administration of Criminal Justice (ACJA) 2015, and the inherent powers of the court to be exercised as the justice of the case demands, I am of the view that notwithstanding his discharge and acquittal, the defendant shall not be allowed to keep the benefit of the N57 million funds of the NAF to renovate/improve his personal property.

“Allowing him to retain this benefit will violate good conscience and in violation of the equitable principles of the Law of Restitution, and which abhors unjust enrichment.

He said that Umar should refund the money to NAF  irrespective of the order of court acquitting and discharging him of the sole surviving count of the charge.

“The defendant shall refund to NAF the total sum of N57 million being the amount actually transferred into the Stanbic IBTC Account No. 9202077424 belonging to Capital Law Office and used for the renovation/improvement of his property.

“The defendant shall file a report of compliance with the above order with the Registry of the Court and serve a copy of same on the Economic and Financial Crimes Commission within 10 working days from the day the judgment was delivered.’’

He ruled that if the defendant failed to comply with the orders, his property at No. 1853 Deng Xiao Ping Street, Off Mahathir Mohammed Street, Asokoro extension Abuja would stand permanently forfeited to the Federal Government.

He is to refund the money within seven working days while he is to file the report of compliance within 10 working days.

Umar was  originally arraigned on May 11, 2016 on a seven-count charge following the subsequent transfer of the matter, he was re-arraigned on Jan. 25, 2017 on the said seven-count charge where he pleaded not guilty to all counts.

On Feb. 23, 2021, the court sustained Umar’s  no case submission with regards to counts 1, 2, 3, 4, 5 and 6 of the charge and discharged and acquitted him on those counts, leaving only count seven.

The Court then directed him to open his defence on the remaining count where through his counsel, Mr Onyechi Ikpeazu, he told the court that there was no evidence showing that N66 million was transferred from NAF account to renovate his private residence.

The Prosecution Counsel, Mr  Sylvanus Tahir, had told the court  even though the prosecution could not prove that N66 million left NAF account,  but it was able to prove that N57 million left in two tranches of N47 million and N10 million.(NAN)