The Federal High Court in Lagos on Monday struck out the N100m fundamental rights enforcement suit filed by a former Minister of State for Defence, Musiliu Obanikoro, against Economic and Financial Crimes Commission.
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Obanikoro, his wives, Fati and Moroophat, and his sons, Gbolahon and Babajide, had sued the anti-graft agency for what they termed an unlawful invasion of their houses and seizure of some of their properties.
They had, through their lawyer, Mr. Lawal Pedro (SAN), urged the court to declare as null and void the items seized from their houses on June 14, 2016 by the EFCC.
They also prayed the court to award N100m damages against the EFCC in their favour for the violation of their rights to privacy.
But in a ruling on Monday, Justice Abdulaziz Anka struck out Obanikoro’s suit for being incompetent.
The judge upheld the preliminary objection by the EFCC lawyer, E.E. Iheanacho, who contended that “since the main claim of the applicants was founded on tort, their principal reliefs are not maintainable under the Fundamental Rights (Enforcement Procedure) Rules, 2009.”
The judge noted that the applicants’ houses were searched by the EFCC based on search warrants secured by the anti-graft agency from the Lagos State Magistrates’ Court.
Justice Anka said he could not declare the recovered items as null and void, so as not to foreclose the possibility of the EFCC tendering them as exhibits in imminent criminal case against the Obanikoros.
The judge held, “What I grasped as the position taken by the learned SAN for the applicant is the alleged illegality of the search as well as the evidence procured there from, it is against this background that counsel seeks to attack the action of the commission and to enforce the applicants’ fundamental right to privacy as citizens; the question to ask at this stage is whether the court can be justified to declare the search warrant as well as the evidence procured there from as illegal considering the possibility of imminent prosecution of the applicants by the respondent in a criminal court and the court will be seen to have shut out the respondent whom by statutory duty has the power to investigate and prosecute persons involved in economic and financial crimes.
“The respondent, by the enabling law, has the power to investigate and prosecute offenders and in the process of carrying out their duties searches and arrests are imminent.”
The judge said the question of the legality of the method of obtaining the items should be taken before the criminal court.
He referred to decisions of the Court of Appeal stating that even illegally obtained exhibits were admissible in a criminal case as long as they were relevant to the case.
The EFCC had stated in his preliminary objection that it searched the houses of the Obanikoro’s on June 14, 2016 while investigating an alleged fraudulent payment of the sums of N46,219,950,239.25 and $33,296,548,50 paid by the Office of the National Security Adviser to various companies without any accompanying contractual agreements and approvals.
Among the beneficiary companies, the EFCC stated, was one Sylvan McNamara Ltd. to which Obanikoro’s children, Gbolahan and Babajide, alongside Mr. Ikenne Ezekwe and Mrs. Theresa Matuluko, were signatories.
According to the EFCC, Sylvan McNamara Ltd., without any evidence of any work or job executed, received a total of N4,745,000,000 from the account of ONSA domiciled in the Central Bank of Nigeria between April and December 2014.
Another beneficiary company, MOB Integrated Services Ltd., was said to have received sums of N130m and $1,018,000 on August 19, 2014 and March 18, 2015 respectively from ONSA in its accounts domiciled with Fidelity Bank.
The signatories to MOB Integrated Services Ltd., according to the EFCC, were Gbolahan, Babajide, Ezekwe and Miss Monisola Obanikoro.
“As part of the investigative steps, officials of the respondent applied to the Magistrates’ Court in Lagos for search warrants so as to execute searches at the houses of the 3rd, 4th and 5th applicants with a view to recovering incriminating items/documents that would aid investigation. These were granted and two search warrants were duly issued.
“On June 14, 2016, my team executed the search warrants at the houses of the applicants in line with the search warrants and in the presence of the 1st and 2nd applicants,” said Tosin Owobo, an operative of the EFCC.