09 June 2014, Lagos – Two oil marketers, Mahmud Tukur and Alex Ochonogor, on Monday asked an Ikeja High Court to quash the N1.8 billion fuel subsidy fraud charge preferred against them and two others.
Tukur and Ochonogor made the request in a preliminary notice of objection filed by their counsel, Mr Tayo Oyetibo (SAN), before Justice Lateef Lawal-Akapo.
The marketers were charged alongside their compani, Eterna Plc and another marketer, Abdullahi Alao.
They are charged with nine counts bordering on conspiracy, obtaining money by false pretences, forgery and use of false documents.
The Economic and Financial Crimes Commission alleged that the accused persons obtained N1.8 billion from the Petroleum Support Fund for the purported importation of 80.3 million litres of Premium Motor Spirit.
Moving the marketers’ application, Oyetibo urged the court to discharge Tukur and Ochonogor on the grounds that the proof of evidence did not support the offences filed against them.
Oyetibo said the criminal charge against his clients was an abuse of court process which should be quashed in the interest of justice.
According to him, the charge before the court arose from a joint venture agreement between Eterna Plc, Axenergy Ltd., Sahara Energy Resources and Ontario Oil for the importation of fuel.
“It is submitted that the proof of evidence does not disclose or support the fact that the first and second accused 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 said.
Oyetibo said it was wrong for Tukur and Ochonogor, who are the Managing Director and Head of Financial Control of Eterna Plc respectively, to be charged for the alleged offence.
According to him, there is 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,” Oyetibo said.
Citing Section 65 of the Companies and Allied Matters Act, he argued that both defendants did not act in their personal capacities in the transaction.
He further argued that Section 10 of the Advance Fee Fraud Act did not empower the EFCC to charge the defendants to court for offences allegedly committed by a public quoted company.
“The prosecution has no legal justification for including their names in this charge other than to embarrass and harass them because under our criminal law, there is no vicarious liability,” Oyetibo said.
Responding, the 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.
“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.
Jacobs, therefore, urged the court to dismiss the application for being premature and lacking in merit.
After listening to arguments of both counsel, Justice Lawal-Akapo adjourned the matter till June 27, for ruling.