A Federal High Court in Lagos yesterday struck out a suit filed by the family of the former Minister of State for defence, Senator Musiliu Obanikoro, against the Economic and Financial Crimes Commission (EFCC) over the seizure of his property.
The applicants are Obanikoro’s wife, Fati, his sons, Gbolahon, and Babajide and his wife, Moroophat.
The family had sued the commission through their lawyer, Mr. Lawal Pedro (SAN), seeking a court’s declaration that the forceful seizure of their personal effects constitutes a gross violation of their rights.
The applicants had prayed the court for an order setting aside the forceful confiscation of their property on June 14, 2016.
They demanded an “unreserved public apology,” as well as seeking the award of N100million as general damages against the commission.
They also sought an order restraining the commission from arresting them or entering their premises again to seize their belongings.
Besides, the applicants further raised queries on the mode of execution of the search warrant on the grounds of irregularities, and had urged the court to declare the searches conducted therefrom, as unlawful.
But the anti-graft agency opposed the application, urging the court to strike it out for lack of merit.
Delivering judgment yesterday, Justice Abdulazeez Anka upheld the argument of the respondent and accordingly struck out the application.
The judge who relied on a plethora of judicial authorities, held: “The learned silk to the applicant seemed to have delved into the issue of search warrant at the hearing of the preliminary objection before the substantive suit proper.
“Learned SAN seemed to have cautiously or otherwise, argued the substance of the main suit by attacking the search warrant at the stage of preliminary objection.
“At the stage of a preliminary objection, the court ought to avert its mind to whether it has jurisdiction to entertain the action; in any case, the court will reluctantly flow with the tide in other to address the issues raised.
“The gist of the applicant’s case as contained in the affidavit in support is that the EFCC which is investigating the offence of fraud in the office of the then National Security Adviser (NSA), discovered large sums of monies paid into various companies whose signatories are the third and fourth applicant.
“Subsequently, the commission applied to a Lagos State Magistrate Court for a search warrant of the applicant’s house, with a view to recovering the incriminating items that will aid investigation.
“The said warrant was said to be executed in the presence of the first and second applicant as exhibited in paragraph 9 of the affidavit in support of the preliminary objection, and items and documents recovered are as contained therein.
“What I can deduce from the argument of the learned SAN is the alleged illegality of the search, as well as the evidence adduced. The question however is whether at this stage, the court can be justified in declaring the said search as unlawful.
“It is my view that the EFCC has statutory right to investigate and prosecute offenders and in the process searches are imminent.
“In my view, the legality or otherwise of the searches as well as evidences obtained can be taken up and thrashed when such issues comes up for hearing.
“The test to be applied in determining whether an evidence is admissible is relevant; if such evidence is admissible, the court is not concerned how it was obtained.
“The respondent has exhibited a certified true copy of the search warrant as obtained from the magistrate court of Lagos, as well as documents recovered.
“Hence, parties ought to sheath their swords until such evidences are adduced in court when parties will have opportunity of objecting to the admissibility of evidences.
“Approaching the court three days after such search is conducted in other to quash same, will in my view, amount to pre-empting the possible outcome of the criminal trial which is yet to be embarked upon.
“This application to declare the search and seizure of properties illegal, is in my view, akin to pre-empting objection to the admissibility of a document in the main suit.
“In the light of the above, I hold that the preliminary objection succeeds; this application is hereby struck out. parties have a right of appeal, and I so hold.”
The commission had claimed that Obanikoro received suspicious payments from the Office of the National Security Adviser (ONSA) through companies linked to the family.
For instance, the commission said about $1 million was transferred from the ONSA to Mob Integrated Services on March 18, 2015.
The applicants however, claimed that the commission violated Regulation 13 of the EFCC (Enforcement Regulation) 2010 which provides that it shall “apply and obtain” a court order to enter and search any premises.