N22.8bn Fraud: Appeal Court Dismisses EFCC’s Case Against Ex-Air Force Chiefs

Wale Igbintade

The Court of Appeal, Lagos Division, on Monday dismissed an appeal filed by the Economic and Financial Crimes Commission (EFCC) challenging the judgment of the Federal High Court in Lagos, which struck out a N22.8 billion fraud charge against a former Chief of Air Staff, Air Marshal Adesola Amosu (retd.), and two other senior Air Force officers.

In a unanimous decision delivered virtually via Zoom, a three-member panel of the appellate court held that the EFCC’s failure to comply with mandatory statutory conditions precedent deprived the trial court of jurisdiction and fatally undermined the prosecution’s case.

The panel was presided over by Justice Yargata Nimpar, with Justice Paul Ahmed Bassi delivering the lead judgment. Justice Bassi noted that the issues raised in the appeal had already been settled by binding judicial authorities, from which the court found no reason to depart.

At the Federal High Court, Justice Chukwujekwu Aneke had upheld separate preliminary objections filed by the defendants and struck out the charge on the ground that the court lacked jurisdiction to try them.

Justice Aneke held that Amosu and his co-defendants, Air Vice Marshal Jacob Bola Adigun and Air Commodore Gbadebo Owodunni Olugbenga, were serving officers of the Nigerian Air Force at the time the alleged offences were committed and could not be prosecuted without strict compliance with the Armed Forces Act.

Dissatisfied with that ruling, the EFCC appealed, urging the Court of Appeal to set aside the decision of the lower court.

Amosu was appointed Chief of Air Staff on January 16, 2014, and removed from office on July 13, 2015.

The defendants were first arraigned on June 29, 2016, before Justice Mohammed Idris, alongside seven companies.

The companies charged include Delfina Oil and Gas Ltd, Mcallan Oil and Gas Ltd, Hebron Housing and Properties Company Ltd, Trapezites BDC, Fonds and Pricey Ltd, Deegee Oil and Gas Ltd, Timsegg Investment Ltd, and Solomon Health Care Ltd.

The EFCC accused the defendants of conspiracy, stealing, money laundering, concealment of proceeds of crime, and conversion of funds allegedly belonging to the Nigerian Air Force for personal use around March 5, 2014, in Lagos.

In the lead judgment, the Court of Appeal explained that the appeal arose from the ruling of the Federal High Court delivered on February 6, 2024, which struck out Charge No. FHC/L/2280C/2016 in its entirety.

On the issue of preliminary objections, the court restated that under the Administration of Criminal Justice Act (ACJA), objections to the validity of a charge are generally taken alongside the substantive case and resolved at judgment.

However, it emphasised that objections touching on jurisdiction, abuse of process, or failure to fulfil conditions precedent may be determined at the preliminary stage.

The court agreed with the respondents that their objections went to the jurisdiction of the court, rather than merely challenging the validity of the charge.

It held that while defects in a charge may be curable, failure to comply with statutory conditions precedent to the assumption of jurisdiction is fatal.

On the timing of the investigation, the court found that investigations commenced while the respondents were still serving officers of the Nigerian Air Force.

It relied on documentary and affidavit evidence, including a letter dated January 30, 2015, issued during the investigation of DG Oil and Gas Limited, which featured prominently in the amended charge.

The court further held that Sections 121 and 123 of the Armed Forces Act impose mandatory procedures for dealing with allegations against serving military officers, including the requirement that such allegations be reported to the appropriate commanding officer.

These provisions, the court noted, are constitutionally backed and must be strictly complied with.

Although the court acknowledged that Section 123 of the Armed Forces Act constitutes a condition precedent, it held that the EFCC failed to comply with it.

“It is regrettable that the appellant’s non-compliance with the condition precedent has undermined its case, particularly in light of the binding authority of earlier decisions, from which this court has no reason to depart,” the court held.

The appeal was accordingly dismissed in its entirety, and the judgment of the Federal High Court delivered on February 6, 2024, was affirmed.