Naval chiefs lose bid to stop trial over missing ship
By Alex Olise and Emmanuel Badejo
A BID by two Naval chiefs to stall their trial over the missing oil bunkering ship, MT African Pride, was yesterday dismissed by the Court Martial.
The two Naval chiefs are former Chief of Training and Operations (CITOPS), Naval Headquarters, Abuja, Rear Admiral Francis Agbiti and the former Flag Officer Commanding (FOC) Western Naval Command, Rear Admiral Samuel Kolawole.
Also standing trial with them is former commandant, War College, Kuru, Jos, Plateau State, Rear Admiral Anthonio Ibinabo Bob-Manuel, who is, however, not challenging` the trial.
At the resumed hearing yesterday, counsel to Kolawole, Mr. Babatunde Fashanu (SAN) raised a preliminary objection over the jurisdiction of the military court.
Fashanu also said that the court was incompetent to continue proceedings, a position that Agbiti's counsel, Chief Wole Olanipekun (SAN) also aligned with.
Arguing the oral application of jurisdiction, Fashanu cited section 123 of the Armed Forces Act of 1994.
According to him, section 124(5) states the prescribed manner by which his client could be tried. He said that from the document and the statements from all the witnesses, there was nothing to show that the accused had been placed before the Chief of Naval State (CNS), a condition he maintained was precedent for such a Court Martial.
Kolawole's counsel, who declared that he was not querying the court's jurisdiction as a whole, insisted that the condition precedent for the trial had not been complied with. He cited Okoro V NMC 2003, NWLR, Pt 647, pp 77 at 87 and 92.
Fashanu said: "With respect to the condition precedent, it is relevant because of the principle and position of the law. Though we are before a Court Martial, the constitution still holds that the issue of jurisdiction is very important. We are talking about the incompetence of this court because there was nothing to prove that the accused had been investigated before the constitution of this court. And since this condition had not been complied with, I submit that at this stage, this proceedings ought to halt."
On the alleged incompetence of the charges, Fashanu said, "my submission is in line of the provision of the constitution and the Armed Forces Act. A very mandatory provision for these charges to be valid has not been complied with".
He referred the court to BR 11, Manual of Naval Law, Naval Court-Martial Regulation II.
Contending further, Fashanu said that the charge sheet that the prosecutor brought to the court was containing the signature of the prosecutor but that it was not counter - signed by the convening authority.
He added that the document was highly insufficient to try his client and urged the Court Martial to strike out the charge sheet.
But in his opposition, the prosecution counsel, Mr. J.A. Asemota referred the court to section 123 earlier cited by the defence.
"What was required to be served on the defence was not the action of the CNS. He added that one of the basic requirements for a Court Martial was the service of the circumstantial letter, which he said the prosecution had done and of which Kolawole had earlier acknowledged service.
On jurisdiction, the prosecution counsel said the court was duly constituted and that the subject matter for which the accused was being tried fell within an offence, which could be heard by the court. He cited section 69-76.
The prosecution also said that since the accused had pleaded the charge, it was wrong for him now to say that only the prosecution signed the charge sheet.
He drew the attention of the court to a document earlier cited, saying that anything in it that conflicts with the Armed Forces Acts could not be said to be out-weighing the former.
He then urged the court to disregard Fashanu's submission saying that it lacked merit.
Olanipekun submitted that it was their duty as counsel to assist the court to arrive at a good decision, adding that the impression that pleas had been taken so the charges could not be challenged was wrong.
He, like Fashanu, also said that the condition precedent for the court to be constituted had not been complied with, adding that the condition was the bedrock of any matter.
Contending further, Olanipekun said that it was not even right for the trial to continue since the National Assembly is still conducting investigation into the matter.
He said that the court ought to stay proceedings pending the completion of the National Assembly's probe. Olanipekun queried: "If the National Assembly eventually concludes its finding against the court, what will be the understanding of the common man of the whole matter?"
But the prosecution said that the National Assembly's investigation could not act as a stay of proceedings at the Court Martial.
He said that the only power that could stop the trial was an injunction from a superior court adding that since they were not aware of any such injunction, the proceedings in the court must go on.
At this point, the Judge Advocate, Colonel John Audu did a little interpretation and submissions upon which the president of the court Rear Admiral Joseph Ajayi, ruled.
In his short ruling, he said: "I have patiently listened to the submissions of both parties. I have equally listened to my advocate and I will like to overrule the objection raised by the defence."
He then called the prosecution to continue its testimony. The prosecution brought in a new witness, Commodore Musa Ajadi, the former Chief Staff Officer (CSO) under two of the accused persons Bob-Manuel and Kolawole, who were at one time or the other served as FOC Western Naval Command during the period bunkering vessel was arrested and its disappearance.
Ajadi is currently the acting FOC, Western Naval Command following the travail of his former boss, Admiral Kolawole.
