A Federal High Court sitting in Abuja on Monday declined to order the Economic and Financial Crimes Commission to uncap and vacate some properties connected to the Ekiti State Governor, Ayodele Fayose.
Justice Nnamdi Dimgba had on July 20, 2016 had granted the EFCC an order of temporary 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.”