Abuja Division of the Court of
Appeal has given the Economic and Financial Crimes Commission, EFCC, nod to
continue its investigation of Capital Oil and Gas Limited and its Managing
Director, Ifeanyi Ubah, for alleged complicity in a N43.29bn petroleum subsidy
scheme fraud.
EFCC and the police had leveled allegations
of obtaining subsidy payments by false pretences, stealing, money laundering
and forgery with respect to the alleged fraudulent payment of N43.29bn in the
transactions conducted in 2011.
A unanimous judgment of a
three-man bench prepared by Justice Emmanuel Agim and consented to by Justice
Akomolafe-Wilson (bench head) and Justice Tani Yusufu, was released on Sunday.
Ifeanyi Ubah is still in the
detention of the Department of State Services (DSS) for investigation into
a separate case of alleged diversion of N11bn worth of Federal Government’s
Premium Motor Spirit (petrol).
In the lead judgment, Justice
Agim nullified the July 25, 2013 verdict of Justice Abdukadir Abdu-Kafarati of
the Federal High Court in Abuja, who had made an order of perpetual injunction
restraining the EFCC, the Inspector-General of Police and the AGF, from prosecuting
Ubah with respect to the subsidy fraud allegations.
Justice Agim, also in the lead
judgment of the appeal court, nullified all of Justice Abdul-Kafarati’s orders,
including the one quashing the November 3, 2012 interim investigation report of
Aigboje Aig-Imoukhuede-led Presidential Committee on Verification and
Reconciliation of Subsidy Payments to Petroleum Marketers.
He held that by virtue of the
Aig-Imoukhuede committee’s report, and the first two reports made by the
Commissioner of Police in charge of Special Fraud Unit ‘D’ Department of the
Force Criminal Investigation Department, Mr. Tunde Ogunsakin “there was a
reasonable basis for the suspicion of the first and second respondents (Ubah
and Capital Oil) of committing the said offences.”
The Court agreed with EFCC’s
lawyer, Mr. Rotimi Jacobs (SAN), that the agency “can competently reopen and
continue investigation into the matter,” after the police, through Ogunsakin,
had issued a third report of investigation clearing Ubah and Capital Oil contrary
to the findings of the first two reports by the same police officer indicting
the businessman and his company.
Justice Agbim noted that “the
fuel subsidy fraud involved corruption and fraud on a very massive scale”; that
it involved many oil companies and officials of government’s regulatory
agencies “looting and stealing of trillions of naira from the Federal
Government of Nigeria and threatening the security and economy of Nigeria.”
He frowned that in spite of
sabotage, Justice Abdu-Kafarati of the Federal High Court in Abuja had granted
Ubah’s application for fundamental human rights “in such a manner as to prevent
or frustrate investigations into the scam.”
He held that the trial court
issued injunctions in Ubah’s case to stop ongoing process and prevent even
future process “without regard to the very serious nature of the crime alleged”
and its “far-reaching destructive effect on the society.”
In upholding a joint appeal by
the EFCC and the Attorney General of the Federation against the Federal High
Court’s judgment, Justice Agim held that the enforcement of a person’s rights
must not be used or allowed to shield the person from “the due process of
criminal law”.
He held that the legal system had
provided remedy for a suspect in the civil suit for relief from malicious
process “if after the investigation with or without arrest and detention” or
“after the trial the evidence does not establish the guilt of the suspect.”
He ruled, “Such determination
must involve a consideration of a whole range of issues to ensure that the
enforcement of a person’s fundamental or other rights is not used or allowed to
prevent or frustrate the initiation or continuation of the due process of
criminal law against him by the competent law enforcement authorities or is not
used to shield the person from the due process of criminal law or is not used
to prevent or frustrate the competent law enforcement agency from exercising
its constitutional or statutory powers of crime prevention, control,
investigation and prosecution o is not used to defeat the legitimate public
expectation of law enforcement or is used to acquire toga of defacto impunity
for himself.”
Justice Agim also held that the
judgment of the Lagos Division of the Federal High Court delivered on February
18, 2013 in favour of Ubah and his company had since 2015 been set aside by the
Court of Appeal, Lagos, in 2015.
He also rejected the documents
which all cleared Ubah and relied on by Ubah’s lawyers, Mr. Raphael Oluyede and
Babs Akinwumi in the course of the appeal.
He held that the documents,
including the legal opinion offered by the then Attorney-General of the
Federation, Mr. Mohammed Adoke, in 2014 and a letter anchored on Adoke’s legal
advice and sent by the then Chairman of the EFCC, Mr. Ibrahim Lamorde, to the
Federal Ministry of Finance, were nothing but opinions which could not stop
further investigation when the need arose.
Justice Agim also held that
report of the House of Representatives which investigated fuel subsidy fraud,
relied on by Ubah and his company did not absolve them from “complicity in the
massive fraud in the petroleum subsidy payments”.
The appeal court added that since
the House of Representatives or any chamber of the National Assembly lacked the
power to conduct criminal investigation, its report “cannot be used to prevent
or shield any of the petroleum marketer and supply companies from being
investigated by competent investigative authority upon a criminal complaint
that it fraudulently received billions of naira as imported petroleum subsidy
payments when it did not import or market the petroleum in Nigeria.”
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