Two oil marketers, Mahmud Tukur and Alex Ochonogor, has filed a preliminary objection asking an Ikeja High Court to quash the N1.8 billion fuel subsidy fraud charge preferred against them by the Economic and Financial Crimes Commission (EFCC).
When the matter came up before Justice Lateef Lawal-Akapo, the oil marketers said the proof of evidence filed in the charge before the court did not support the alleged offences against them, adding that they should be discharged by the court.
The marketers were docked by the EFCC alongside other defendant, Abdullahi Alao and their company- Eterna Plc on nine-count charge of conspiracy, forgery, use of false document, obtaining money valued at N1.8 billion under false pretences.
The prosecution said the defendants of obtaining the money from the Federal Government for a purported importation of 80.3 million litres of Premium Motor Spirit.
Mr Tayo Oyetibo (SAN), who represented the applicants in his argument said the proof of evidence did not support the offences alleged against them, adding that they should be discharged by the court, adding that the criminal charge preferred against them was an abuse of court process which should be struck out in the interest of justice.
He argued that the whole issue 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 Plc to be charged for the alleged offences.
It is submitted that the proof of evidence does not disclose or support the fact that the first and second defendants obtained money for themselves in the transactions in which the offences were alleged to have been committed.
“All financial dealings involved in those transactions were particularly between Eterna Plc and the other companies mentioned in the proof of evidence,” he added.
He submitted, there is no proof that the alleged fraud was committed as a result of the defendants’ connivance or negligence.
He said: “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.”
Arguing further, Oyetibo who cited Section 65 of the Companies and Allied Matters Act, Oyetibo said did not act in their personal capacities in the transaction.
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.
Disagreeing with the position, 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 said:” 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 urged the court to dismiss the application for being premature and lacking in merit.
The judge adjourned the matter till June 27 for ruling.