Why Courts Ordered EFCC, ICPC to Return Firm’s Properties

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Afederal high court in Abuja has ordered the Economic and Financial Crimes Commission to release three landed properties to their rightful owners, following the failure of the commission to appear in court to defend an earlier order that the properties be temporarily forfeited.

Harringay Green Lakes Estate and Blaid Construction Limited, owners of properties known as DD13 Lakeview Estate and Plot 1042 Cadastral Zone B04 Jabi Abuja and Plot 2407 Cadastral Zone A05 Maitama, had applied to the court to set aside interim orders temporarily attaching/forfeiting the said properties and directing EFCC to appoint competent persons or firms to manage the properties.

The application to discharge the interim orders were based on the following grounds:
That the trial court lacked the jurisdiction to make the orders because the condition precedent to the exercise of the EFCC powers pursuant to section 28 of the EFCC (Establishment) Act 2004 was not fulfilled.

They also argued that section 28 of the Act was to the effect that any property subject matter of an order of attachment, must be shown from investigations by the EFCC to have been acquired from the proceeds of such economic or financial crime for which a defendant or suspect has been arrested and charged.
The applicants also stated this: “Haruna Momoh has neither been arrested nor charged for any offence involving financial crimes by the EFCC.”

The two firms also claimed that the properties in question belonged to them and not to Haruna Momoh.
They further told the court that the above information was fraudulently concealed from the court by the commission at the time of obtaining the interim orders of forfeiture.

Consequently, they stated that the properties were wrongly attached even as they pleaded with the court to discharge the orders adding that any order made without jurisdiction was liable to be set aside.

They also alleged that their fundamental human rights had been violated by the interim orders.
When the application came up for hearing before Justice Binta Nyako, the applicants’ lawyer , Ade Adeji, moved the application after satisfying the court that EFCC was duly served with the application, but chose to ignore the court.

The judgment shows that EFCC did not come to court and did not write to the court to execute itself.
The judge was satisfied that the commission was aware that the application would be moved on that day. An affidavit deposed to by the court bailiff was shown to the judge as a proof that EFCC duly acknowledged that it received the notice.

Her Lordship consequently granted the orders sought by the applicants and discharged the order of interim forfeiture earlier issued in favour of the EFCC with respect to the properties. Thereafter, the commission approached the court with a motion to extend the time within which it could file and serve its counter affidavit to the motion which had been argued and granted.
The commission also asked the court to deem the counter affidavit as properly filed and served.
In asking for the extension, EFCC had told the court that the lawyer, who ought to be in court on the day the application already granted was heard was briefed and later took ill.

The commission said the failure to be in court was not to distract the court.
It, however, did not attach any proof to buttress its claim that the lawyer was indeed ill.
However, the parties who applied to the court to set aside the interim order of forfeiture objected to the EFCC motion by way of preliminary objection asked that the motion be dismissed since the application the EFCC referred to had been determined.
They argued that the only option open to the EFCC if it was dissatisfied was to file an appeal and not to ask the trial judge to sit on appeal over her own judgment.

EFCC opposed the preliminary objection.
In dismissing EFCC’s motion, the judge held that the court’s rules would not allow her to do that which EFCC was asking for.
She held thus: “I agree with the submission of counsel for the parties affected by the orders of this court in support of the preliminary objections that the allocation for extension of time seeks, in essence the re-hearing of the motion to discharge the interim orders of forfeiture already heard and determined. This cannot be so as it is the duty of the court of appeal to pronounce on the decision or order of the court of first instance.”

In another judgment delivered by Justice of Olukayode Adeniyi of an Abuja High Court, the court ordered the Independent Corrupt Practices and other related Offences Commission (ICPC) to release to Blaid Construction Company Ltd all its funds illegally seized by the commission on the pretext that they were proceed of crimes.

The judge found as a fact that to obtain an order to forfeit the money, ICPC concealed material facts which if disclosed by the commission would have discouraged the court from granting the order.
The judge noted that even though ICPC had interrogated a director of the company, Mrs Ochuko Momoh, who had offered explanation regarding the funds.

However, ICPC had lied to the court that the company’s directors could not be found.
Mrs Momoh deposed to an affidavit wherein she said that in the course of interacting with ICPC, she explained the sources of the funds to the commission and that ICPC asked her to provide a bond for the funds, which she actually did.
She stated in the affidavit that after providing the bond, the funds in Ecobank were released but that Post No Debit orders were retained with the company’s account in other banks.

After reviewing the arguments of all the parties, Justice Adeniyi held as follows: “That the applicant (ICPC) concealed facts in obtaining from this court the interim forfeiture order made against funds in the 2nd Respondent (the company) account with Ecobank.
“That prior to the filing of the ex-parte application for forfeiture of the 2nd Respondent’s assets with Ecobank, the respondents have satisfactorily explained to the applicants details of their business activities to which the funds at the Ecobank are related; hence the request by the applicant for the respondents to provide a bond to secure the funds, which bond was provided.
“That the company’s funds in the account of the Ecobank were not being used in pursuit of commission of any known offence provided in sections 8-19 of the ICPC Act or any other law form that matter.

“That the applicant filed the ex parte motion for interim forfeiture in clear contravention of 48 (4) of the ICPC Act.”
He consequently issued an order directing the ICPC to return all the company’s funds back to it.