A Federal High Court in Abuja on Monday
refused to order the Economic and Financial Crimes Commission to unseal
and vacate some properties linked to the Ekiti State Governor, Ayodele
Fayose.
Justice Nnamdi Dimgba had on July 20,
2016 had granted the EFCC an order of interim forfeiture of the
properties for a period of 45 days which lapsed on September 4.
The judge had granted the order of
interim forfeiture on the strength of the EFCC’s argument that it was
carrying out a criminal investigation into the proceeds used to acquire
the properties.
On Monday, Justice Dimgba, in a bench
ruling in an application filed by Fayose seeking the release of the said
properties, held that the EFCC could not continue to seal the houses on
the account of the lapsed order made on July 20, 2016.
Justice Dimgba, however, held that he
could not order the EFCC to unseal the properties because of a fresh
order made by Justice Okon Abang of the same Abuja Division of the
Federal High Court, on November 3, 2016.
He ruled, “In the light of the
foregoing, I hold that the prayer on the motion is hinged on this
court’s order of July 20, 2016 and affirmed on August 2, 2016, being a
consequence of the order which lapsed on September 4, 2016.
“It is my further holding that the
extent that the continued sealing and occupation of the said seized
properties are hinged on the order of November 3, 2016 by Justice Abang,
this court is not seized of the full materials and indeed is unable to
comment on the order made by Justice Abang.”
But Justice Dimgba also ruled that “the
applicant (Fayose) should investigate the circumstances surrounding the
ex parte application” with which the EFCC obtained the November 3 order
to verify if the anti-graft agency made full disclosure of the history
of orders on the said property to Justice Abang.
The judge also held that the governor
was entitled to approach Justice Abang’s court with his application for
the setting aside of the order made on November 3.
Justice Dimgba also ruled that Fayose
was entitled to make use of the opinion expressed in his ruling along
with the findings derived from the governor’s investigation in
presenting his (Fayose’s) case before Justice Abang.
The judge ruled that contrary to the
contention by the EFCC’s lawyer, Mr. K. Latona, during the hearing of
Fayose’s motion earlier on Monday, the application by the governor was
not academic since the orders he made and that which Justice Abang made
touched on the same set of properties.
The seized houses, comprised four units
of four-bedroom at Chalets 3, 4, 6 and 9, Plot 100 Tiamiyu Salvage,
Victoria Island, Lagos; 44 Osun Crescent, Maitama, Abuja and Plot 1504
Yedseram Street, Maitama, Abuja.
At the hearing of the application
earlier on Monday, Fayose’s lawyer, Mike Ozekhome (SAN), had described
as “most unfortunate” the claim by the EFCC that his client’s motion had
become academic because the July 20 order of interim forfeiture had
lapsed.
Ozekhome said, “They based this on an
order made by this very same court but, this time by Justice Abang on
November 3, 2016, which is their Exhibit EFCC1. My lord will see that
this ex parte order was surreptitiously and clandestinely obtained
nearly one full month after we filed this application.
“Our simple contention is that it is not
only a gross abuse of court process but also it amounts to forum
shopping — getting a more favourable order from a more favourable judge.
“They never came back to this court as
my lord directed in Exhibits FA1 and FA2 after we have written Exhibit
FA3 (letter) dated September 27 asking the EFCC to obey the court order.
They neither obeyed the court order nor appealed against it.
“It is an abuse of court order; it is cherry picking of which order to obey.”
But the EFCC’s lawyer, Latona, said, “The issue of abuse of court process does not even arise by any stretch of imagination.”
He added, “The order made by this court
was already spent. It has seized to exist. We did not go to court during
the pendency of the court’s order.”
Latona also said the parties in the motions before Justices Dimgba and Abang were different.
He said while the motion before Justice
Dimgba was against Fayose, the motion filed before Justice Abang
involved companies and persons in whose name the properties were
acquired.
The EFCC said, in its counter-affidavit,
that its investigation had revealed that the houses were acquired
through companies known as J.J. Technical Service, Spotless Investment
Limited and one Mrs. Moji Ladeji.
It said at the expiration of the July 20
order given by Justice Nnamdi Dimgba (of the Federal High Court, Abuja)
for 45 days, it went before another judge of the court — Justice Okon
Abang — for a new order of interim forfeiture granted on November 3 this
year.
The EFCC argued that in view of the new
interim order of forfeiture, which was to last until the case against
the new owners of the properties was concluded, Fayose’s motion now
before Justice Dimgba had become an academic exercise.
The commission stated, “An order was
made by this court on the 20th of July, 2016 for an interim
attachment/forfeiture of the properties contained in this application
for a period of 45 days.
“The order has since lapsed and the
respondent, upon further investigation, discovered the names through
which the properties were acquired and had to proceed against those
names.
“The respondent (EFCC) re-attached the
properties and reapplied to this honourable court for a fresh order
before Honourable Justice Okon Abang, which application was considered
and granted.
“An order of interim or forfeiture is meant to preserve the res (subject matter) pending investigation or conclusion of trial.
“It is thus of interest to state that in
view of the respondent’s exhibit EFCC1 (a copy of the order by Justice
Abang), the order now being sought by the applicant has already been
overtaken by time and event.
“The applicant’s (Fayose’s) application is thus a pure waste of time and an academic exercise, which is based on nothing.”
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