Senator Nwaoboshi, Others Appeal Justice Anka’s Ex-parte Order On Alleged N1.5bn Fraud
Piqued by the refusal of Justice Abdulazeez Anka of the Federal High Court in Lagos to vacate an ex-parte order forfeiting his property, located at 29, Marine Road, Apapa, Lagos, Senator, Peter Nwaoboshi and two others have appeal the order.
Nwaoboshi, People’s Democratic Party (PDP) Senator from Delta State, Golden Touch Construction Project Limited (GTCPL) and Bilderberg Enterprises Limited (BEL) have approached the Lagos Division of Court of Appeal, urging it to strike out the order.
Justice Anka had, in a ruling on the application filed by the appellants refused to discharge the ex-parte order secured by the Economic and Financial Crimes Commission (EFCC) which perpetually put the contentious property, Guinea House, under investigation.
The trial judge had ruled that the ex-parte order was necessary to preserve the property until the substantive matter was finally disposed of notwithstanding a pending suit challenging the EFCC’s alleged unconstitutional pasting of the ‘under investigation’ notice on the property.
The lower court had also held in a ruling delivered on October 4, that there was no basis for an arrest and a search to be conducted on the property before any forfeiture of assets’ application would be considered.
But in their notice of appeal, the appellants raised four grounds under which Justice Anka did not only err in law, but misdirected himself when he dismissed their application which sought a discharge of the ex-parte order placed in perpetuity on Guinea House, located at 29, Marine Road, Apapa, despite a subsisting suit challenging the EFCC’s ‘under investigation’ notice on the property.
According to the appellants, even though the EFCC did not place any cogent material before Justice Anka to indicate that any of the appellants would be prosecuted, the order ex parte was not discharged by the judge.
Specifically, the appellants are asking the Court of Appeal to determine among others, that Justice Anka did not only err in law, but misdirected himself when he ruled that the suppression of the pendency of suit No. FHC/ABS/CS/28/2017 by the respondent was not material to warrant an order granted.
They told the Court of Appeal that Justice Anka erred in law when he held that the respondent in instituting suit No. FHC/L/CS/584/17 in spite of the pending of suit No. FHC/ASB/CS/28/2017 did not occasion an abuse of court process.
The appellants said that notwithstanding the fact that the judge found that the respondent had filed suit No. FHC/ASB/CS/28/2017, wherein the 2nd appellant, Golden Touch Construction Project Limited (GTCPL) and another person as claimants, challenged the propriety of the pasting of the notice ‘under investigation’ by the EFCC, Justice Anka refused to discharge the ex-parte order.
Citing Sections 28 and 29 of the EFCC Act, the appellants said Justice Anka miscarried justice when he held that an arrest or search needed not to be carried out before a forfeiture of assets would granted.
Besides, Senator Nwaoboshi and the two firms said that since the cause of action in two pending suits were similar, even if judgment was in EFCC’s favour, there would not have been a need for suit FHC/L/CS/584/17 as declared in UBA.v. Mode Nig. Ltd. (2001) 13 NWLR (Pt.730) 335.
The appellants said: “In suit No. FHC/L/CS/584/17, the EFCC surreptitiously obtained an ex-parte order of the lower court to ‘authenticate’ its already challenged action of pasting the ‘under investigation’ notice on the property.
“The cause of action in the suits are so similar that if the court in the earlier filed suit FHC/ASB/28/2017 gave judgment in favour of the EFCC, there would be no need to institute suit FHC/L/CS/584/17.
“The judge erred in law when he held that the suppression of the pendency of suit No. FHC/ASB/CS/28/2017 by the respondent was not material to warrant an order granted.
“The judge erred in law and misdirected himself when he held that the ex-parte order was to preserve the res. The res allegedly sought to be protected is the property known as Guinea House, situate at 29, Marine Road, Apapa, Lagos, an immovable property formerly belonging to the second appellant and later sold to Suiming Electrical Limited. The landed property in question cannot be moved out of jurisdiction or dissipated by the appellants.
“The ex-parte forfeiture order granted by the lower court was unconstitutional as it was stated to be pending the investigation and prosecution of the appellants. The appellants may likely never be prosecuted, therefore the property will be forfeited in perpetuity.”
They, however, asked the Court of Appeal to invalidate Justice Anka’s ex-parte order granted on October 4 and uphold their motion dated May 16 and discharge the ex-parte order dated April 24 granted by the lower court.
No date has been fixed for hearing of the appeal.