The Federal High Court in Lagos on Tuesday struck out a N22.8 billion fraud charge against former Chief of Air Staff, Air Marshall, Adesola Amosu, and two other Air Force Chiefs.
Justice Chukwujekwu Aneke set the military officers free while delivering rulings on their separate preliminary objections challenging the court’s jurisdiction to try them for the alleged crime.
The court held that Amosu and his co-defendants, Air Vice Marshal Jacob Bola Adigun and Air Commodore Gbadebo Owodunni Olugbenga, could not be tried by the Economic and Financial Crimes Commission (EFCC) because they were serving military officers at the time the alleged crime was committed.
Air Marshal 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 defendants were first arraigned before Justice Mohammed Idris on June 29, 2016, by the EFCC and seven companies.
Companies named in the charge are 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 them of conspiracy, stealing, money laundering, concealing of crime proceeds and converting funds belonging to the Nigerian Airforce to 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, had pleaded not guilty to the charge.
The case was later transferred to Justice Aneke after Justice Idris, now a Justice of the Supreme Court, was elevated to the Court of Appeal in 2019.
EFCC had, on January 16, 2919, obtained a court order forfeiting N2.2 billion allegedly recovered from Amosu to the federal government.
Also forfeited was N101 million recovered from Solomon Enterprises, a company linked to him.
After the forfeiture proceedings were concluded, the EFCC amended the charge, reducing the number of defendants from 11 to three removing the eight companies previously named in it.
Also, attempts made by the defendants to hold plea bargain talks with the EFCC on two occasions failed due to the insistence of the anti-graft agency that the agreement must include a custodial sentence and other stringent terms.
The Defence counsel, Bolaji Ayorinde (SAN), while moving the application, had argued that the defendants were serving military officers at the time when the EFCC investigated them. Therefore, they are only subject to trial by a court-martial.
Ayorinde had also contended that sections 16 and 18(a) of the Money Laundering Act 2011 (as amended) did not create the offence of criminal breach of trust for which the defendants were charged.
The EFCC filed a counter affidavit against the defendants’ objection and raised an issue for determining whether the defence was entitled to the reliefs sought.
Delivering his ruling on Tuesday, Justice Aneke held that the prosecution neither admitted nor denied the depositions of the defendants.
The court held that as of June 23, 2016, when the original charge was filed, “one was not sure whether the first defendant was still a serving officer of the Armed forces, since his exact date of retirement was not stated.”
The judge also held that the proof of evidence filed by the prosecution in paragraphs 1688 and 1695 contained letters written by the trial to First City Monument Bank dated January 30, 2015.
The court held that the letters showed that investigations into the instant charge had already begun as of January 30, 2015. By that time, the affidavit evidence proved that the first defendant was still in service of the armed forces.
Relying on the judgment of the Supreme Court in the case of Ja’faru Mohammed and the federal government, the court held that the investigation of the first defendant was null and void.
He held, “Therefore, the investigation of the defendant, the original charge, the amended charge and the arraignment, all based on the illegality, is null and void, are equally null and void.
“Accordingly, prayers one, two and three sought by the first defendant in his motion on notice dated May 21, 2023, and filed June 1, 2023, are at this moment granted,” he held.
The court also reached a similar decision for the second and third defendants and, accordingly, quashed the charges.