The Court of Appeal, Abuja Division, has set aside the judgement of a lower court barring the Economic and Financial Crimes Commission (EFCC) from initiating either civil or criminal proceedings against the former Accountant-General of the Federation (AGF), Jonah Oguniyi Otunla.
A three-member panel of the Court of Appeal, in a judgement, on Monday, January 30, 2023, held that Otunla failed to prove that there was actually a non-prosecution agreement between him and the EFCC.
The court upheld the arguments of EFCC’s lawyer, Sylvanus Tahir, SAN, and resolved the four issues identified for determination in favour of the anti-graft agency.
Justice Danlami Senchi, who read the judgment, noted that Otunla did not provide any written commitment, except his words and that of his lawyer, that such an agreement existed.
Justice Senchi held that Otunla could not halt his prosecution by merely claiming that there was an agreement, which existence he failed to establish with any credible evidence.
“In the instant case, there is no evidence to support the pleading of the respondent (Otunla) that he will not be prosecuted; that criminal or civil proceedings should not be instituted or initiated against him. There is no plea bargain or any documentary evidence relating to the President Panel for the Recovery of Funds. On the whole, the appeal is meritorious and it is allowed. The judgment of the Federal High Court, in suit number: FHC/ABJ/CS/2321/2021 delivered on the 16th day of July 2021 delivered by honourable Justice I. E. Ekwo is hereby set aside,” he said.
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Other members of the panel – Justices Stephen Adah and Elfreda Williams-Daudu – agreed with the lead judgement.
The EFCC investigated Otunla in relation to two cases; the alleged diversion of about N24 billion meant for disengaged staff of the defunct Power Holding Company of Nigeria (PHCN) and the N2 billion allegedly received from the Office of the National Security Adviser (ONSA).
Justice Inyang Ekwo of the Federal High Court in Abuja had, in the July 16, 2021 judgement, upheld Otunla’s claim of an existing verbal agreement between him and the then acting Chairman of the EFCC, Ibrahim Magu, that he would not be prosecuted if he make refund to the Federal Government.
Justice Ekwo, in the 2021 judgement on the suit, marked: FHC/ABJ/CS/2321/2021 filed by Otunla, held among others, that, in view of the assurance given to him by Magu, which informed his refund of the money, he could no longer be prosecuted for his actions while in office between 2011 and 2015.
Otunla had, in an affidavit, claimed that Magu promised him that he would not be prosecuted should he return funds traced to him and companies linked to him and his associates.
He stated that sometime in 2015, he was invited by a team of EFCC’s investigators, probing alleged diversion of funds from the ONSA and the PHCN pension funds.
Otunla said he later met with Magu, in the course of the investigation, when the then acting EFCC Chairman told him in person to “refund the monies linked to your companies and nobody will prosecute you.”
He said, based on Magu’s promise, he had a reconciliatory meeting with the team of investigators, where he immediately undertook to make available some funds as refunds.
In line with the agreement, Otunla said one of the companies linked to him – Stellar Vera Development Ltd – refunded N750 million, another company – Damaris Mode Coolture Ltd – refunded N550 million, while the two firms later made an additional joint refund of N2.1 billion.
He added that, at a point, he raised several manager’s cheques for N10 million in favour of the EFCC, which he handed to the Economic Governance Section.
Otunla said, in all, he made a refund of N6.3 billion to the Federation Account through the EFCC.
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