Alleged N26bn Fraud: You Must Stand Trial – Appeal Court Tells Ex-AGF Otunla
BY EDMOND ODOK – Despite reportedly returning about N6.4 billion to the Federal Government coffers, the Court of Appeal in Abuja says there is no freedom yet for former Account General of the Federation (AGF), Jonah Oguniyi Otunla.
Consequently, the appellate Court has set aside the July 16, 2021 High Court judgment stopping the Economic and Financial Crimes Commission (EFCC) from initiating either civil or criminal proceedings against him (Otunla) over the alleged N26 billion fraud standing against him.
In a judgment delivered by a three-member panel, the Court of Appeal said Otunla failed to prove that there was actually a non-prosecution agreement between him and the EFCC.
Therefore, the court upheld arguments by EFCC’s lawyer, Sylvanus Tahir (SAN) and resolved the four issues, identified for determination, in favour of the anti-graft agency and against the former AGF.
Justice Danlami Senchi, who read the judgment, noted that Otunla did not provide any written, except his words and that of his lawyer, that such an agreement existed.
Justice Senchi held that Otunla could not prevent his prosecution by merely claiming that there was an agreement, which existence he failed to establish with 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 proceeding should not be instituted or initiated against him.
“There is no plea bargain or anything 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,” Justice Senchi said.
The lead judgment, delivered on Monday in the EFCC’s appeal, marked: CA/A/657/2021, was unanimously adopted by other members of the panel, Justices Stephen Adah and Elfreda Williams-Daudu
According to the anti-corruption Commission, Otunla was investigated 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).
In his ruling on July 16, 2021, Justice Inyang Ekwo of the Federal High Court in Abuja had 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.
Among other issues on the suit filed by Otunla and marked: FHC/ABJ/CS/2321/2021, Justice Ekwo declared 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, 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 office of the National Security Adviser (ONSA) and the Power Holding Company of Nigeria (PHCN) pension funds.
Otunla explained that after meeting with Magu in the course of the investigation, the then acting EFCC Chairman assured him in person to “refund the monies linked to your companies and nobody will prosecute you.”
The former AGF said based on Magu’s promise, a reconciliatory meeting took place with the team of investigators, where he immediately undertook to make available some funds as refunds.
Furthermore, he said in line with the agreement one of the companies linked to him, Stellar Vera Development Ltd refunded N750m; another company, Damaris Mode Coolture Ltd refunded N550m, while the two firms later made additional joint refund of N2,150,000,000.00.
Canvassing his position further, Otunla said several managers cheques for N10 million were raised in favour of the EFCC, which he personally handed to the Agency’s Economic Governance Section.
Otunla said the sum of N6,392,000,000.00 stood as the total refunds that he made to the Federation Account through the anti-graft agency.