Appeal Court Affirms Fault On EFCC’s Part, Dismisses Fraud Case Against Ex-CAS Amosu, Others

The Lagos Division of the Court of Appeal, on Monday, upheld the decision of the Federal High Court in Lagos, which dismissed a N22.8 billion fraud case against former Chief of Air Staff (CAS), Air Marshal Adesola Amosu (rtd), and two other senior Air Force officers.

The Appellate Court unanimously upheld the lower court’s ruling that the Economic and Financial Crimes Commission (EFCC) did not meet the required conditions before filing the charge.

The upper court, in its judgement delivered virtually via Zoom, ruled that Section 123 of the Armed Forces Act is a condition precedent that the EFCC failed to fulfil.

Justice Paul Ahmed Bassi, who read the lead judgement, held that Sections 121 and 123 of the Armed Forces Act impose mandatory procedures for handling allegations against serving military officers, including the requirement to report such allegations to the appropriate commanding officer.

He further held that the issue had already been settled by the binding judgement of the Supreme Court’s judicial authorities, from which the appellate court found no reason to depart.

Recall that the trial judge, Justice Chukwujekwu Aneke, held on February 6, 2024, that Amosu and his co-defendants, Air Vice Marshal Jacob Bola Adigun and Air Commodore Gbadebo Owodunni Olugbenga, could not be tried by the EFCC because they were serving military officers at the time the alleged crimes were committed.

LEADERSHIP reports that Air Marshall Amosu was appointed Chief of Air Staff (CAS) on January 16, 2014, and he was removed from the post on July 13, 2015, 12 months before his arraignment in court.

The EFCC had accused the trio of conspiracy, theft, money laundering, concealing crime proceeds, and converting funds belonging to the Nigerian Air Force (NAF) for their personal use, around March 5, 2014, in Lagos.

They were also accused of concealing “proceeds of crime” and thereby committed an offence contrary to Section 18(a) of the Money Laundering (Prohibition) (Amendment) Act, 2012 and punishable under Section 17(a).

They, however, pleaded not guilty to the charge.

Justice Aneke had upheld separate preliminary objections filed by the defendants and struck out the charge, holding that the court lacked jurisdiction to try them.

Dissatisfied with the ruling, the Commission appealed, urging the Court of Appeal to set aside the judgement of the Federal High Court.

In the upper court’s judgement, Justice Bassi held that the appeal arose from the ruling of the Federal High Court delivered on February 6, 2024, which dismissed Charge No. FHC/L/2280C/2016 in its entirety.

Regarding preliminary objections, the court reiterated that, under the Administration of Criminal Justice Act (ACJA), objections to the validity of a charge are typically addressed alongside substantive issues and resolved at the time of judgement.

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

The court agreed with the Respondents that their applications challenged the court’s jurisdiction, not merely the validity of the charge.

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

Regarding the timing of the investigations, the court found that they commenced while the respondents were still serving as officers in 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.

These provisions of the Armed Forces Act, the court noted, derive constitutional backing and must be strictly adhered to.

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.

The appeal, therefore, was dismissed in its entirety, and the judgement of the Federal High Court was affirmed.