By Jude-Ken Ojinnaka
A Federal High Court sitting in Lagos has dismissed the Motion on Notice filed by the Economic and Financial Crimes Commission (EFCC )on June 30, 2023 in which it sought final forfeiture to Federal Government of Nigeria a property and situate at Plot No J 37B, 218 Close, 2nd Avenue, Banana Island, Ikoyi Lagos, suspected to have been acquired with proceeds of unlawful activity.
Justice Chukwujekwu Aneke dismissed the application in his ruling on Suit No FHC /L /CS/576 /2023 wherein the EFCC (applicant)prayed for court’s order for final forfeiture of the aforementioned property and the funds.
The court also disallowed the Applicant’s prayer for final forfeiture of the sum of N725, 345,897. 77 alleged to be proceed of unlawful activity to the Federal Government of Nigeria and set aside the entire ex-parte orders of interim forfeiture of the said property and funds made by the court on 3-4-23.
The ruling delivered on Tuesday June 11 by Justice Aneke was for final forfeiture of the said property and funds which had on April 3, 2023 been granted in the interim by Justice T.G.Ringim.
Upon the granting of the interim forfeiture by Justice Ringim on April 3, 2023 as sought by EFCC, the 1st Respondent /Person Interested Boloboloere Properties & Estate Limited on April 11, 2023 filed a Motion on Notice dated April 11, 2023 and sought the court orders as follows :
“An order setting aside and or discharging the interim orders of the court made on the 3rd of April, 2023, forfeiting in the interim to the Federal Government of Nigeria the property lying, and situate at Plot No J 37B, 218 Close, 2nd Avenue, Banana Island, Ikoyi Lagos.
“An order of the court restraining the Respondents /Applicant, whether acting by itself, or through its agents from advertising the order of interim forfeiture made by the court in this suit on the 3rd of April, 2023, pending the hearing and determination of the motion on notice filed in this proceedings.
“And for such further or other orders as the court may deem fit to make in the circumstances.
Boloboloere Properties & Estate Limited supported its Motion with a 26 paragraphs affidavit sworn to by Bernard Godwin, a litigation officer in the Chambers of counsel representing the 1st Respondent. Three exhibits were attached. It filed a written address dated April 11, 2023 in which it formulated three issues for determination to wit :
“Whether having regard to the fact that the Respondent obtained the order for interim forfeiture made on 3rd April, 2023 by misrepresentation, suppression and concealment of material facts, this court ought to set aside and /or discharge same?
“Whether having regard to the decision in Charge No FHC /L/31c/2015: Federal Republic of Nigeria v Patrick Ziadeke Akpobolokemi &10 others, the Respondent can hide under the defence of reasonable suspicion to justify the misrepresentation, suppression and concealment of material facts it has perpetratedon this court.
“Whether having regard to the decision of this court in charge No.FHC /L/31c /2015: Federal Republic of Nigeria v Patrick Ziadeke Akpobolokemi &10 others, this suit constitutes an abuse of court process?
Amongst other things, 1st Respondent submitted that it is mandatory for an applicant in an ex-parte application to disclose all material facts within its knowledge and that the failure of the applicant(EFCC) to disclose the decision of this court on Charge No.FHC /L/31c /2015: Federal Republic of Nigeria v Patrick Ziadeke Akpobolokemi &10 others as it relates to the 1st Respondent is a misrepresentation, suppression and concealment of material facts which ought to make this court to set aside or discharge the order for interim forfeiture granted by the court on April 3, 2023.
In response to the 1st Respondent’s issues raised ,EFCC in its written address filed on May 3, 2023, raised only one issue for determination, which is “Whether having regards to the facts and circumstances of this case, it can said that the order made by this court on the 3rd of April, 2023 was not validly sought and obtained by the Applicant /Respondent?.
Then on June 30, 2023, EFCC filed a Motion on Notice dated June 27, 2023 and sought a Final Forfeiture Order of the court forfeiting to the Federal Government of Nigeria, the property lying, being and situate at Plot No J 37B, 218 Close , 2nd Avenue, Banana Island, Ikoyi Lagos suspected to have been acquired with proceeds of unlawful activity;
A Final Forfeiture Order of the court forfeiting to the Federal Government of Nigeria, the total sum of N725, 345, 897. 77 which sum is reasonably suspected to be proceeds of unlawful activity;
And for such further or other orders as the court may deem fit to make in the circumstances of this case.
The Motion on Notice filed by EFCC was supported with 11 paragraphs affidavit dated April 25 , 2023, deposed to by Oghare Ogbole, a staff of the applicant. Eight exhibits were attached to the Motion and a written address dated June 27, 2023 in support of the Motion.
In its written address, the applicant framed one issue for determination, which is ” Whether having regards to the facts of this case, the applicant is not entitled to the relief being sought ?.
EFCC submitted that after citing the provisions of Section 17 of the Advance Fee Fraud and Other Related Offences Act, 2006, the court has the power to grant the reliefs sought once the applicant presents evidence to show that the property and sums to be forfeited are reasonably suspected to be proceeds of unlawful activity of the Respondent.
It further submitted that the reasonable suspicion required for this court to grant the reliefs sought in the application is that of the applicant or any of its officers.
It contended that pursuant to Section 17 (1) of the Advance Fee Fraud and Other Related Offences Act and the investigative findings of the applicant which are highlighted in the affidavit in support of the application, the officers of the Commission have reasonably suspected the property and funds in the instant case to be proceeds of unlawful activities, and urged the court to grant the application in the interest of justice.
In opposition to EFCC’s application for final forfeiture of the said property and funds, Boloboloere Properties &Estate Limited(1st Respondent /Person Interested), Oyeinteke Global Network Limited(2nd Respondent /Person Interested)filed counter affidavit and written addresses opposing the Applicant’s Motion on Notice for final forfeiture.
Also, Attarhi Nigeria Limited,(Person Interested )filed an affidavit of 10 paragraphs on July 11, 2023 to show cause that the applicant(EFCC) is not entitled to an order of final forfeiture.Three exhibits were attached.
On May 8, 2023, the Nigerian Maritime Administration and Safety Agency (NIMASA) filed a 51 paragraphs affidavit and a written address to show cause in which it framed one issue for determination, which is ” Whether in view of the facts as related by the affidavit of the applicant and the circumstances of this case, it is not in the interest of justice to forfeiting the properties, the subject matter of this suit to NIMASA?
NIMASA submitted that in view of the facts of the case as revealed by the affidavit to show cause deposed to on behalf of NIMASA, that the funds used to acquire the property, Plot No J 37B, 218 Close, 2nd Avenue, Banana Island, Ikoyi Lagos and the sum of N725,345, 897. 77 are reasonably suspected to be proceeds of unlawful activities committed against the treasury of NIMASA, that it is in the overall interest of justice that the said property and funds be forfeited to NIMASA.
Summarising the processes and submissions of the applicant and respective parties who claim to have interest in the proceedings as well as the parties whose property and funds are the subject of the orders of final forfeiture sought, which are 1st and 2nd Respondents /Persons Interested, the Court held that other parties claiming to have interest in the matter except 1st and 2nd Respondents, appeared in order to clear their names from the criminal allegations made by EFCC and NIMASA which both are praying for forfeiture to be made to them.
Having gone through the processes filed, the submissions made, the evidence adduced by parties before the court, the exhibits tendered and plethora of authorities and Sections of EFCC Act cited, the main issue between the EFCC and the Respondents/Persons Interested raised by the trial judge is “Whether the Applicant (and NIMASA ) presentedany evidence before the court which reasonably satisfied the court that the property and funds, subject matter of this application for forfeiture were derived from proceeds of unlawful activities?
Besides, whether the 1st and 2nd Respondents /Persons Interested have shown cause that the property and funds, subject matter of this application for forfeiture should not be forfeited to the Federal Government of Nigeria?
In resolving the issues raised, the court noted that the unlawful activities used in Section 17 of the Advance Fee Fraud and Other Related Offences Act 2006 refersto crimes which must be proved beyond reasonable doubt.
“There is no such prove before this court ” the judge held.
Summarising the ruling, Justice Aneke said: “I am fortified in this believe by the ruling of Hon.Justice I.N. Buba delivered on the 15th day of July 2020 in Charge No FHC /L/31c/2016, between Federal Republic of Nigeria v Patrick Akpobolokemi and 10 Others in relation to a ‘No Case Submission’ made by Patrick Akpobolokemi and the 1st Respondent in the instant suit wherein the learned judge stated on page 24 and 26 of his 28 page ruling.
“In the instant charge, it is laughable that the Federal Government can be said to be induced at the highest level of the FEC to deliver the sum alleged in counts 1, 3, 5, 7, 9 , 11, 13, 15, 17 and 19 of the charge.
“I therefore hold that the 1st and 2nd Respondents /Persons Interested have shown cause why the Applicant’s application for final forfeiture filed on 30-6-23 but dated 27-6-23 should not be granted.
“Therefore, the Applicant’s Motion on Notice dated 27-6-23 but filed on 30-6-23 fails and is hereby dismissed.
“Nigerian Maritime Administration and Safety Agency (NIMASA’s) affidavit to show cause also fails and dismissed.
“The 1st Respondent /Person Interested application to set aside the ex-parte Orders granted by this court on 3-4-23 succeeds.
“The ex-parte-parte Orders of this court granted on 3-4-23 are hereby set aside.
“This is the ruling of this court ” the judge held.