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EFCC Vs Sen. Nwaoboshi!

By Emma Amaize, Regional Editor, South-South

THE Economic and Financial Crimes Commission, EFCC, and the Senator representing Delta North Senatorial District, Chief Peter Nwaoboshi, have been at daggers drawn for about two years, but the brawl took another dimension, April 23, when snooping operatives of the anti-graft agency took into custody the former chairman of Peoples Democratic Party, PDP, in Delta State, over alleged sleazy deals.

EFCC, which had temporarily seized a 12-storey building, popularly known as Guniea House, bought by the lawyer-politician from the Delta state government, some years back, after obtaining a court order to the effect, claimed that the politician was evading summons.

A Federal High Court Judge, Justice Abdulazis Anza, following an application by EFCC, April, last year, ordered a temporal forfeiture of a 12-storey building at 27 Marine Road, Apapa, Lagos, popularly known as Guniea House,  Golden Touch Construction Project Limited, but later sold Suiming Electricals Limited from the Delta state government.

The anti-graft agency traced both companies to Nwaoboshi and both sides have evolved several tricks to ambush and outmaneuver each other for over a year on the matter.

Golden Touch and Suiming Electrical became the first to drag EFCC to the Federal High Court, Asaba in March, 2017, seeking an order to restrain it from interfering with their ownership of the Guinea House among other reliefs, following a siege on the property by the commission, earlier that month.

Justice O E Abang presided over the matter, but  before he delivered judgment December 14, 2017, roughly eight months later,   EFCC took the matter to another  Federal High Court in Lagos, almost resulting in a judicial fiasco.

EFCC case against Nwaoboshi in Asaba

Justice Abang captured the EFCC case before his court thus:  “On the 3rd October, 2017, the 1st defendant, EFCC, called its witness. He is Ani Davis Stanley, a staff of EFCC. The witness statement on oath dated 19thJune, 2017 was admitted in evidence and marked exhibit D1.”

“The witness stated that a case a fraud and abuse of office was reported to the office of the Executive Chairman of EFCC via a written petition dated 22nd February, 2016 by Comrade Prince Kpokpgri, the chairman of the Anti-Corruption and Integrity Forum against Senator Peter Nwaoboshi, who is currently representing Delta North senatorial zone, Delta state and Chairman, Senate Committee on Niger Delta Development Commission, NDDC.

“He further stated as follows…That the complainant in his petition alleged that Senator Nwaoboshi’s company, Bilderberg Enterprises Limited was awarded a contract by the Direct Labour Agency, Delta state, to supply construction equipment in the sum of N1. 580 billion… Instead of supplying according to specification, the suspect supplied used equipment contrary to the bill of quantifies which specified new ones.

“The petitioner also alleged that same company was awarded another contract to supply machines like bulldozers, pail loaders, tippers and lorries at a staggering sum of N494.936 million by the Delta State Waste Management Board under the auspices of Delta State Ministry of Environment, which the company equally supplied used ones.

“The witness then stated that the petitioner alleged that suspect laundered the proceeds of his corrupt practices through purchasing an expensive landed property in Delta state and Lagos state. That one of them is a 12-storey building known as Guinea House, property of Delta state government in Apapa worth N4.5 billion.

“The witness further stated that upon receipt of the petition, the complainant and several witnesses were invited and their statement taken voluntarily. That several letters of investigation activities were sent to various agencies of Delta state government and agencies of the federal government and various banks where suspect maintains about 26 accounts requesting for necessary information,” the court said.

According to the judgment, The EFCC witness told the court that its investigations showed that Senator Nwaoboshi used the name of Golden Touch Construction Project Limited to purchase Guinea House;   did not declare all the companies and the bank accounts he has interest in before the Code of Conduct Bureau; and stated in his Code of Conduct Bureau Assets Declaration Form that he is a director in Golden Touch Construction Project Limited contrary to the details obtained from the Corporate Affairs Commission that Mr. Ike Nwabuoku and Emma Ekpon are directors of the company.

The 2-count charge in Lagos

After his arrest on April 23, Nwaoboshi and his supposed two firms were arraigned the next day, April 24, before a Federal High Court, Lagos, on a two-count charge of money laundering and fraud of N805 million slammed on them by the Economic and Financial Crimes Commission (EFCC). He pleaded not guilty to the charges.

The senator was alleged to have acquired Guinea House for the sum of N805 million when he reasonably ought to have known that N322 million out of the purchase sum formed part of proceeds of an unlawful act. The sum was said to have been transferred to the vendors by order of Suiming Electrical Ltd.

Suiming Electrical was said to have on May 14, 2014, aided Nwaoboshi and Golden Touch to commit money laundering.

The offences contravened the provisions of Sections 15(2), (d), 15 (3) and 18 (a) of the Money Laundering (Prohibition) Act 2011 and are liable to punishment under Section 15(3) of the same Act. He pleaded not guilty to both charges and was granted bail, four days after, April 27, by the trial judge, Justice Mohammed Idris.

Position of Delta govt 

Recording a testimony before the Federal High Court, Asaba, Justice Abang noted: “Witness to Delta state government, Ministry of Housing and Attorney-General, who are the 2nd to 4th defendants, a director of Public Building Department, Ministry of Housing, Asaba,  Architect Edward Maduemezie, told the court the 2nd, 3rd and 4th defendants “rightly sold Guinea House to the first plaintiff.”

Validity of Guniea House deal 

Reviewing the submissions of the parties, especially the validity of the purchase of Guinea House in his judgment, Justice Abang said: “My lords, before I answer this question, please permit to point out that the 1st defendant (EFCC) in its written address did not really address this issue. The learned counsel to the 1st defendant in his written address only addressed the issue as regard the fact that EFCC is a statutory body created by law to investigate financial and economic crimes and that the court cannot restrain it from performing its statutory duties.”

“There is no dispute as regard the above. But the issue is whether or not EFCC is a statutory body created to investigate financial and economic crimes is entirely in my view different from the issue whether there was indeed a valid sale of the property to the 1st plaintiff by the 2nd and 3rddefendants. Learned counsel for the 1st defendant’s written address was not in any way helpful to the court in this regard.

“The defence of the 1st defendant in this matter is that its investigations revealed that Senator Peter Onyeluka Nwaoboshi used his company, Golden Touch Construction Project Limited to purchase a 12-storey building in Apapa, Lagos, property of Delta state government at the cost of N805 million, which part of the money came from Suiming Electrical Limited’s account with Zenith Bank, a company he used in collecting loan from Nexim Bank.

Money laundering purely in the sphere of accusation

On the money laundering charge, the judge said:  “The contention of EFCC that the 1st plaintiff laundered money being the proceeds of contract awarded to it that was used to purchase Guinea House is a criminal allegation made in a civil proceeding.”

“On this, I agree entirely with the learned counsel to the plaintiffs, Onyeka Ehiwuogwu that the 1st defendant must prove beyond reasonable doubts that the plaintiffs purchased the property with money obtained from proceeds of money laundering thereby acquiring the property by fraudulent conversion and corrupt practices.

“With the facts placed before me in this matter, the issue of money laundering on the part of the plaintiffs is merely in the realm of allegation. No established fact has been led in evidence indicating that the sum of N805 million paid by the Ist plaintiff to 2nd and 3rddefendants is a product of fraudulent conversion and corrupt practices.

“There is no evidence before the court not to talk of one being conclusive to the effect that the sum of N805 million used to purchase Guinea House was money laundered from the proceeds of crime. See Shuromo vs. State (2010), 19 NWLR (Pt. 1226), Page 73.

“I also agree with learned counsel for the plaintiffs that the 1st defendant did not adduce evidence of how the plaintiffs acquired the said sum.

“Contrary to the submissions of the 1st defendant’s counsel, Sir Steve Odiase in paragraph 2.10 of his written address, it is not the duty of the plaintiffs to lead evidence as regard the sources of the money used to purchase the said building or that the money used for the purchase of the property was not a proceed of crime. He who asserts must prove. The burden is on the 1st defendant to prove that the money used to purchase the property was proceed of crime.

Court can’t act on allegation

“This cannot be inferred. What is before me is just in the realm of allegation. This is not a sentimental issue. A court of law acts on facts. A court of law cannot act on allegation or speculation.

“If indeed it is true that the equipment supplied to Delta state government by the 1st plaintiff or by the distinguished Senator were used equipment or substandard, yet the 1st plaintiff was paid for the contract awarded in 2010 and it used the money to buy property in 2015, a period of five years, EFCC must first of all prove that the contract was poorly executed or not a properly executed at all yet the 1st plaintiff was paid.

“In this regard, EFCC must also prove how the money was paid to the 1st plaintiff whether by cash or by cheque. The bank that the money was deposited and that it was the proceeds of the contract poorly executed that was used to purchase the property. The bank the money was deposited must be mentioned in evidence.

EFCC operatives

“EFCC must prove that in that account, no other funds was deposited by the 1st plaintiff and it is from that particular account, that cheques for the N805 million was drawn. It is not sufficient in my view that heavy weather as regard the allegation was made that it was proceed of crime that was used to purchase property.

No proof to connect plaintiffs to money laundering

Justice Abang stated: “It is my humble but firm view that since there is no evidence provided by the 1st defendant linking the purchase price of the property with money allegedly laundered by the plaintiffs from proceeds of contracts issued by Delta state government that the 1stdefendant claimed was not properly executed by the 1st plaintiff, I have no other recourse than to come to the conclusion that the 1st plaintiff validly and legally purchased the property from the 2nd to 4th defendants the building known as Guinea House situate at No 29 Marine Road, Apapa, Lagos.

“There, I endorse that the writ of summons deserves to succeed and it is accordingly granted as prayed. I so hold,” the judge added.

Forestalling judicial anarchy

Based on its findings that the transaction leading to the sale of Guinea House between the plaintiffs and defendants were genuine, the court said it would have made an order concerning the EFCC intrusion, Justice Abang said the court was disarmed by a forfeiture order of the said Guinea House already made by the Lagos division of the Federal High Court on April 21, 2017.

His words: “Though the detour by EFCC to another division of the court where it obtained the order was brought to the knowledge of the court in the evidence of 1st defendant’s witness under cross examination and the enrolled order not placed before the court, Justice Abang stated: “This piece of evidence was not challenged by the plaintiffs. Now the question is Lagos Division of this court having made an interim order forfeiting the property to Federal Government, this court as presently constituted having had knowledge that such order has been made by the Lagos division of this court, can this court being a court of coordinate jurisdiction with Lagos division of this court, make and order directing that the plaintiffs be allowed access to the premises to effect repairs? My lords, I think not. I so hold.”

Finding a way around

He said: “The plaintiff’s counsel submitted and rightly so that the instant suit was filed before the 1st defendant filed suit No FHC/L/CS/584/2017 at the Lagos division of this court on the same subject matter. He submitted that the suit filed by the 1st defendant on the same subject matter is an abuse of court\s process and relied on the case of Saraki vs. Kotoye (1992)  NWLR (Pt. 264) at P. 156.

“I have already held in this judgment that having regard to finding made in relief one, that it is deserving to make an order granting access to plaintiffs to enter the premises to continue with the repair work pending when EFCC concludes its investigation. However, granting such order in this matter will be in direct conflict with the order of interim forfeiture of the property made Lagos division of this court.

“It is settled law that I have no jurisdiction to make an order that will be in conflict with the order made by a Judge of coordinate jurisdiction. Supreme Court in the case of Union Bank Ltd. vs. IMB supra held that a judge of coordinate jurisdiction cannot make an order that will neutralize the effectiveness or the potency of an order made by a judge of coordinate jurisdiction.

“Though it is deserving that I make such an order, but I cannot take such risk in making an order that will violently be in conflict with the order of interim attachment made by the Lagos division of the court. There is an order of interim forfeiture of the property still subsisting, if I now make an order directing the plaintiffs to enter the premises for repair works though deserving for such order to be made in the circumstances of this case, the order if made, will definitely neutralize the effectiveness of the order of interim forfeiture made by Lagos division of this court and the legal combatants, that is the parties will be confused as regard which of the two orders is to be obeyed.

Abuse of court process! No jurisdiction to make findings 

On the order of interim forfeiture made by a court of concurrent jurisdiction, he said: “This can lead to anarchy and confusion. More so, this court cannot sit on appeal over a decision of brother judge. If I make an order granting access to the premises, it would seem that I have sat on appeal and reviewed a decision of brother judge. I have no jurisdiction to do so. I cannot in this proceeding say that the suit filed in Lagos division is an abuse of court’s process because I have no jurisdiction to make such findings.”

“Though the fact that if an order made by a trial court is a nullity, a judge of coordinate jurisdiction can set same aside, however, the issue as regard whether the order of interim forfeiture of the property made by the Lagos division of this court is a nullity was not raised by the plaintiffs, so I leave it as it is here,” the judge further stated.

EFCC may have a joker

Justice Abang’s judgment was clearly based on the evidence given  by EFCC as at the close of evidence on October 4, 2017 in his court, but it appears with fresh arraignment of Nwaoboshi and the two companies that it could have stumbled on new facts. If so, the new judge handling the matter will make his pronouncement at the end of legal fireworks by both sides.

 

 

 


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