The Lagos division of the Court of Appeal has dismissed an appeal filed by the Economic and Financial Crimes Commission (EFCC) challenging the judgment of a Federal High Court, Lagos, which dismissed a N22.8 billion fraud charge against a former Chief of Air Staff, Air Marshal Adesola Amosu, and two other senior Air Force officers.
In a unanimous decision, the appellate court on Monday held that the EFCC’s failure to comply with mandatory conditions deprived the trial court of jurisdiction, thereby undermining the prosecution’s case.
The judgment, delivered virtually via Zoom, was handed down by a three-man panel presided over by Justice Yargata Nimpar.
Justice Paul Ahmed Bassi who read the lead judgement, noted that the issue had already been settled by binding judicial authorities, from which it found no reason to depart.
At the lower court, Justice Chukwujekwu Aneke had upheld separate preliminary objections filed by the defendants and dismissed the charge, holding that the court lacked jurisdiction to try them.
He ruled that Amosu and his co-defendants, Air Vice Marshal Jacob Bola Adigun and Air Commodore Gbadebo Owodunni Olugbenga, were serving military officers at the time the alleged offences were committed and, as such, could not be prosecuted without compliance with the Armed Forces Act.
Dissatisfied with the ruling, the EFCC appealed, urging the Court of Appeal to set aside the judgment of the Federal High Court.
The defendants were first arraigned on June 29, 2016, before Justice Mohammed Idris, alongside seven companies.
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.
Justice Bassi in his lead judgment, the appellate court explained 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.
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 along with substantive issues and resolved at judgment.
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 jurisdiction of the court—not merely 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 investigations, 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 handling allegations against serving military officers, including reporting such allegations to the appropriate commanding officer.
These provisions, the court noted, derive constitutional backing 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.
The appeal was dismissed in its entirety, and the judgment of the Federal High Court delivered on February 6, 2024, was affirmed.
