(PART 3) Ozekhome's formal written presentation on Magu

 Continues:

BACKGROUND FACTS

On the 6th day of June, 2016, my client, one Mr. Desmond Nunungwo, a staff of Ministry of Defence, now deceased, was taken into custody of EFFC operatives under Mr Magu for onward interrogation related charges. The news of his death first broke via EFCC’s press release on the 10th day of June, 2016, with the caption, “Suspect in a Case of Fraud Dies”. The EFCC declared Desmond dead, to the shock of the family. This singular act devastated the deceased’s family members who were heart-broken. They wondered what could have transpired during the cause of his interrogation, for the life of their bread winner to be terminated just within few hours of being taken into custody by EFCC operatives.

It was however alleged in the print and social media that Desmond actually died in EFCC custody. Other versions of the story had it that he was declared dead in the Wadata Clinic located at Wuse Zone II. The EFCC immediately made a publication in their website declaring him dead with the caption “N91,000,000.00 Fraud suspect Desmond Nunugwo”.

The family of the deceased in their quest to unravel the mystery behind the death of their beloved brother opted for an autopsy. The autopsy was eventually carried out on the 20th day of April, 2018, at the National Hospital facility by a team headed by Commissioner of Police, Dr. Akhiwu Wilson (Police Pathologist), on agreement by all parties concerned. Although the result of the autopsy showed that “late Desmond Nunugwo died as a result of malignant hypertension cardiovascular disease, the family believes and suspects foul play, as Desmond was very hale and hearty when he was brutally arrested and whisked off to EFCC detention dungeon. At the conclusion of the autopsy, I applied for the release of Desmond’s body and properties to his family.

Till date, our application to EFCC for the investigations report to enable us transmit same to the deceased’s former place of work (Ministry of Defence) for the family to process his gratuity and all entitlements at his former place of work, has not been acceded to till date. See EXHIBIT I. For the EFCC’s press release, where it agreed that it detained Desmond Nunugwo at about 7.30pm, “in the absence of anybody to take him on bail”. EFCC also agreed that “six hours later, he suddenly complained of discomfort and was rushed to the hospital, where he was pronounced dead”.

EFCC UNDER MAGU USURPED JUDICIAL POWERS OF THE COURTS

One of the most despicable traction of the Magu-led EFCC was the blatant usurpation of the powers and functions of courts. Magu’s EFCC breached all known fiduciary rules governing banker-customer relationship, a relationship that is “uberima fidei”.

They routinely slammed “Post-No-Debit” orders on accounts belonging to their targeted victims. They did this with utmost whimsicality, capriciousness and arbitrariness. The worst of all: this is done without any valid court order, whether ex parte or on notice, first secured.

Where they manage to secure a court’s approval and authorization with an ex parte order, they quietly go back to sleep, refusing to serve on the victim, the very order or other court processes relating to the ex parte order. This is contrary to laid down principles governing ex parte orders as laid down by the Supreme Court in the causa celebre of KOTOYE V CBN (1989) 1 NWLR (Pt.98) 419. 2.

The EFCC’s powers to freeze accounts as enshrined in sections 26, 28 and 34 of the EFCC (Establishment) Act, 2004, can only be exercised with a clear court order first sought and obtained (see Section 34(1) EFCC Act 2004). In 

the very recent case of GTB V. ADEDAMOLA & ORS (2-19) LPELR-47310(CA), the intermediate court held as follows:

“I decided to check the provisions of the law relating to the powers of the Economic and Financial Crimes Commission to issue instructions to banks to freeze Bank accounts of Customers…The Economic and Financial Crimes Commission has no powers to give direct instructions to Bank to freeze the Account of a Customer, without an order of Court, so doing constitutes a flagrant disregard and violation of the rights of a Customer…Our Financial institutions must not be complacent and appear toothless in the face of brazen and reckless violence to the rights of their customers.”

DAME PATIENCE JONATHAN AS A CASE STUDY OF HOW NOT TO FIGHT CORRUPTION

THE “POST-NO-DEBIT” AND OTHER MATTERS

One of my clients is Dame Patience Jonathan. The EFCC under Magu copiously carried out malafide acts of personal vendetta to the family of the former first lady, Dame Patience Jonathan without any justification whatsoever. He extended this hatred to her siblings which eventually led to the death of her eldest brother, Mr Lazarus Iwari Oba, who died as a result of the shock and emotional trauma suffered in the hands of EFCC, which froze his accounts unjustly and closed down his Lawari furniture company businesses based in Port Harcourt, Bayelsa and Abuja.

The hallmark of any constitutional democracy such as we operate in Nigeria is that court orders must be obeyed by all, even if unpalatable. EFCC has been used to disobeying over 95% of court orders. In one of the particular cases of the former First Lady, Patience Jonathan’s case handled by Ifedayo Adedipe, SAN, my humble self and now late Glanville Abibo, SAN, the EFCC refused to obey court orders by allowing banks pay money to the much traduced and humiliated former First Lady, in accordance with court orders. No First Lady in the history of Nigeria, starting with Mrs Flora Lugard (hee, Flora Louisa Shaw) has suffered so much humiliation, spite, malevolence, disrespect and shabby treatment, as the EFCC propelled by Mr Magu did to Patience Jonathan in the last five years. Magu wrote letters to concerned banks in cases we won, warning them (under pain of shut down), not to release money already unfrozen in blocked accounts by competent courts of law. The banks of course preferred to obey Magu and EFCC, rather than court orders. Mere EFCC letters became superior to court orders, and were rather obeyed by frightened and intimidated banks. I must emphasise that Magu and his EFCC did not appreciate that the EFCC has no powers within our criminal justice system to blockade or freeze a citizen’s account without a valid court order first sought and received as provided for in section 34(1) of the EFCC (Establishment) Act, 2004.

SUIT NO. 1

The case mentioned above is FRN VS. SKYE BANK & ORS; SUIT NO: FHC/L/CS/1342/2016. This civil suit was filed by EFCC against several parties excluding Patience Jonathan as a party. The EFCC secured an Interim Order of forfeiture via an ex-parte application dated and filed on the 10th day of October, 2016. The said motion never had Dame Patience Jonathan as a party, but her accounts were frozen, using the said ex-parte court order.

The order was challenged successfully and the Honourable court, coram Olatoregun, J (as he then was) ordered the defreezing of the said account. The bank (Skye Bank Nig PLC) obeyed the order and released a little fraction of the funds. Surprisingly, the same day, the EFCC wrote a letter to the banks, instructing it not to obey the court order. The bank, being more afraid of the EFCC than a Court Order, yielded to that unorthodox request despite the filing of Forms 48 and 49 by us against the said bank. Upon our filing of the said forms, EFCC quickly rushed and filed a Motion for stay of execution, which it later conveniently withdrew after hurriedly filing a fresh suit.

In a letter written and signed by one Mohammed Abba Umar, Director of Operations, the EFCC brazenly counselled the Managing Director, Skye Bank Plc, that in view of its merely filing a fresh “ex parte originating summon for an interim forfeiture order” (which had not even come up nor been argued), the bank must “maintain the Post-No-Debit status, until you receive contrary directive from this office”. This was after the bank had frightening released a little fraction of money from a court-ordered defrozen account. The EFCC subordinated the court order to the “contrary directive from this office”. Attached hereto is a copy of the EFCC’s counter instruction to a valid and subsisting court order (tender same). 

On the 8th of December, 2017, my law firm wrote to the managing Director of Skye Bank Plc, intimating him with the said court order and urging him to comply with same, by releasing funds from the defrozen accounts. To our shock, we received a reply from the bank, dated 11th December, 2017, stating amongst others, that “the Commission has directed us to freeze the accounts”, thus countering a valid and subsisting court order with a mere directory letter from the EFCC. A copy of the letter which is enclosed herewith, and signed this time by Garba Dugum, Head of Operations, Lagos, reads:

“We refer to your letter dated 8th December, 2017, in respect of the attached Court Order on the above subject matter.

In response thereof, please note that we received the enclosed exparte originating summons seeking the order of court to freeze the accounts listed in the schedule in the exparte summons. For the reason not to make the order of court nugatory and the power conferred on the Chairman of the Economic and Financial Crimes Commission (EFCC) by the enabling Act, the Commission has directed us to freeze the accounts.

Consequently, as a result of the reasons above, amongst others, we will be unable to unfreeze the accounts listed.”

Thus, in anticipation of an ex-parte order to be filed (not yet filed or argued) Skye Bank was forced by EFCC to disobey a valid court order. 

It is quite unfortunate that Magu and the EFCC did not appear to appreciate that disobedience to valid court orders and forum-shopping for a new court order to supplant the existing first valid court order with utmost contempt, is a worse form of corruption than the alleged looting of public treasury by an individual. Indeed, we issued form 48 and 49 against the Managing Director of Skye Bankn Plc, on 13th and 19th April, 2017, respectfully. See EXHIBITS J, J1, J2, J3, J4, J5 and J6. 

EFFC’S SERIAL FORUM-SHOPPING AND ABUSE OF COURT PROCESSES

The act of forum-shopping from one court to another perceived to be more favourable, is despicable and leads to los of faith in the judicial system. Some Judges in Nigeria are today derisively tagged “EFCC Judges”. Virtually every Nigerian knows the outcome of any case assigned to them. Other Judges are intimidated, petitioned against and generally despised. I have handled many cases which I won, with EFCC rushing from Abuja to another similar court in Lagos (and vice versa), to file the same case, with the same parties and the same subject matter. See EXHIBIT K.

SUIT NO. 2

FORUM SHOPPING ABUSE OF COURT PROCESS (PATIENCE JONATHAN’S SERIES OF CASES):

SUIT NO: FHC/L/CS/1342/2016; FRN VS. SKYE BANK & ORS.

This is the first civil suit filed by EFCC against several parties excluding Patience Jonathan as a party.

They secured an interim Order of forfeiture via an ex-parte application dated and filed on the 10th day of October, 2016. The said motion never had Dame Patience Jonathan as a party but her accounts were frozen using the said court order.

The Order was challenged successfully and the Honourable court Coram Olatoregun J (as he then was) ordered the defreezing of the said order.

The bank Skye Bank obeyed the order and released a little parts of the funds.

Surprisingly, same day EFCC wrote a letter to the banks instructing them not to obey the court order. The banks being more afraid of EFCC than a Court Order yielded to that request despite the filling of Forms 48 and 49 by us against the said banks.

Upon out filing of the said Forms, EFCC rushed and filed a Motion for stay of execution which they later withdrew after filing a fresh suit. See EXHIBIT K1.

SUIT NO. 3

SUIT NO: FHC/ABJ/CS/821/2016; EFCC VS. INC TRT OF A. ARUERA & ORS.

This suit was filed in Abuja during the pendency of Suit Number FHC/L/CS/1342/2016. Some of the account numbers in the said suit were also affected. The application was filed on 17th October, 2016. EFCC secured this order served on the bank without publishing or serving any of the parties in the suit. The Respondents got to know of the pendency of the suit and said order while at the National Assembly Committee on Public Complaints Hearing.

The Order was to last for 90 days specifically from the day it was issued being 30th day of May, 2017. On the 5th day of December, 2017 the order of interim forfeiture was vacated as it had elapsed.

Upon the order being set aside, we applied for the Order and served the banks. The Banks refused to obey the court order.

The EFCC the same day reprinted the same processes and refiled with a new suit number. They without the matter being assigned and without any court order wrote letters to the banks asking them not to unfreeze the accounts.

The banks rather than obey court order obeyed the EFCC. See EXHIBIT K1.

SUIT NO. 4

SUIT NO: FHC/L/CS/640

/2017; EFCC VS. JONATHAN PATIENCE & 6 ORS.

This suit filed by EFCC against several parties wherein Patience Jonathan was also a party including companies belonging to her Brothers and her late mother. Her Sister was also sued in person.

In this suit, the EFCC as always secured an Interim order of forfeiture against the said accounts.

We filed a motion challenging the Order urging the court to set same aside for being an abuse of court process. The court agreed with us and struck out the said suit because same cause of action involving same parties were pending 

before Hon. Justice Nyako in Abuja in suit No FHC/ABJ/CS/821/2016 and before same Hon. Justice Olatoregun in suit No FHC/L/CS/640/2017.

Upon the striking out of this suit, the EFCC proceeded to formally withdraw the suit in FHC/L/CS/1918/2017. See EXHIBITS L, L1, L2, L3, L4, L5, L6 and L7.

SUIT NO. 5

SUIT NO: FHC/L/CS/827/2018; EFCC VS. PATIENCE IBIFIKA JONATHAN & 6 ORS.

This suit was filed before Hon. Justice Olatoregun (as he then was) in Lagos. Same parties and accounts in FHC/L/CS/1918/2017 and FHC/ABJ/CS/821/2016. These three (3) suits existed at the same time and were on the same subject matter.

Upon our filing of a Notice of Preliminary objection, the EFCC rushed to Abuja and file a Notice of Discontinuance in the said suit no FHC/ABJ/CS/821/2016. Despite the pendency of this suit before they filed, the EFCC didn't end this quest for perpetual abuse of court process. See EXHIBIT M, M1, M2, M3, M4, M5, M6, M7 and M8.

 

SUIT NO. 6

SUIT NO: FHC/L/CS/1728/2017; EFCC VS. AM-PM GLOBAL NETWORK LIMITED.

The EFCC again in its gross abuse of judicial process picked one of the accounts pending in suit number FHC/L/CS/1918/2017 and FHC/ABJ/CS/821/16; being 

AM-PM Global Network Limited a company owned by the brother to Mrs Patience Jonathan and secured an interim order of forfeiture. This they did without prejudice to the pendency of different suits. Immediately the company filed an application to set same aside, they withdrew the suit. What more can be more irritating and annoying ? See EXHIBIT N, N1, N2 and N3.

SUIT NO.7

SUIT NO: FHC/KN/CS/156/2018; EFCC VS. MAGEL RESORT LTD & ANOR.

The EFCC left Lagos travelled to the Federal High Court, Kano and filed another suit in its abusive manner. Here, it chose Magel Resources Ltd. a company that 

the exact account was already subject of litigation in FHC/L/CS/620/18 and FHC/ ABJ/CS/821/2016 and secured another Interim order of forfeiture over 

the same account and published it in the media as well.

Upon our challenge of the said order in Kano through a motion to set same aside, they hurriedly filed a motion to withdraw the said suit.

Never in my years of practice have I seen such reckless and ruthless abuse of judicial process. NEVER! See EXHIBIT O and O1.

SUIT NO. 8

SUIT NO: FHC/ABJ/CS/1207/2011; EFCC VS. MAGEL RESORT LTD & ANOR.

The EFCC filed this suit which was a replica of the processes in suit no. FHC/ABJ/CS/821/2017. Upon the court coram Nyako J setting aside the interim order of forfeiture, the EFCC went to court the following day and filed this process. They without securing court orders instructed the banks not to release any funds from the accounts. The Banks despite being served the court orders vacating the Interim forfeiture orders could do no more but obey the EFCC as against a Court Order. See EXHIBITS P, P1, P2, P3 and P4.

GROSS ABUSE OF POWERS: ILLEGAL OCCUPATION OF DAME PATIENCE JONATHAN’S NGO BUILDING TILL DATE

The EFCC under Magu was nothing but tyrannical, worse than a military regime. He chose when to obey court orders and when not to, using the instrumentality of force as against adherence to due process.

A typical example is the case of the NGO Building of the former first Lady, Dame Patience Jonathan located at Mabushi here in Abuja. The building houses The Women for Change and Development Initiative and A. Aruera Reachout Foundation being the names of the said NGOs.

The EFCC on the 20th day of September, 2017, filed an exparte application asking the court for an order of forfeiture and the power to manage the said 

building. The court, coram, Justice Nnamdi Dimgba, granted its prayer of interim forfeiture but only for a period of 45 days commencing from the 30th day of April, 2018. The said Order went further to say that the EFCC should investigate and charge to court if they find anything culpable about the building.

Surprisingly and in its brazen manner, the EFCC till date did not charge the matter to court, neither did they file for an extension of such order prior to its expiration as the court ordered. Rather, the EFCC Officials led by Magu personally, stormed the premises, chased away all the security personnel of the NGO, took over possession and has refused to yield same to its owner for more than two years. As we speak here and now, the security personnel sent by Magu are still there and has no plan to obey the court order which asked them to give it up possession after 45 days from the 30th day of April, 2018.

INTIMIDATION OF DIRECTORS IN SUIT NUMBER FHC/L/337C/2016

The EFCC filed a criminal charge in suit number FHC/L/337C/2016 between Federal Republic of Nigeria against Waripomwei Emmanuel Dudafa & 6 Ors.

In order to secure conviction, the EFCC team led by Rotimi Oyedepo Esq. under the supervision of Magu got persons to present themselves as purported Directors and plead guilty in a criminal charge involving a company.

To make it worse, they also secured the service of a lawyer to appear for the companies without authorisation of the companies. What more can a body saddled with the fight against corruption do? See EXHIBIT R and R1.

HARRASMENT OF LAWYERS AND INTIMIDATION JUDICIARY STAFF:

The lawyers handling Mrs. Jonathan's matter had several discussions verbally with the EFCC lawyers on the need to settle the matter out of court. To this 

end, we were directed to write formally to that effect, which we did. To our shocker, we saw on the pages of The Nation Newspaper, that we were defending corruption.

In our cases in Lagos, the EFCC filed suit Number FHC/L/CS/620/2018. Upon our discovery of the said suit, we filed a Preliminary objection to it.

The EFCC got some staff of the Lagos state Judiciary working at the Open Registry arrested under the accusation that they leaked the information to us. This was spearheaded by Rotimi Oyedepo Esq.

This was shocking to us as court processes being public documents are not secrets which ought to be kept. These staff were locked up for some days and their jobs threatened.

Again, upon the defreezing order of the court in Suits number FHC/ABJ/CS/821/2016 and FHC/L/CS/1918/2017; the former first lady who was to pay her lawyers issued cheques to some of them to carter for these expenses, since all the accounts had been blocked by the same EFCCthe EFCC got wind of it after the banks wrote to them attaching copies of the said cheques. The EFCC concluded plans to arrest the Lawyers over these cheques. This made the former first lady withdraw the said cheques meant to settle her lawyers' fees from them. See EXHIBITS S, S1, and S2, S3, S4, S5, S6 and S7.

Even a conciliation meeting that was arranged by the EFCC with Dame Patience’s lawyers at EFCC office at Awolowo Road, Ikoyi, lagos, was leaked to the press. EFCC claimed Patience Jonathan was begging them for her monies. See EXHIBITS T, T1, T2, T3, T4, T5, T6, T7 and T8. 

UNTOLD AND UNENDING HARASSMENT, INTIMIDATION AND DEGRADATION OF THE FORMER FIRST LADY DAME PATIENCE JONATHAN, HER FAMILY AND SIBLINGS.

The EFCC under Magu copiously brought malafide intentions in the form of liken to a personal vendetta to the family of the former first lady, Dame Patience Jonathan without any justification whatsoever. He extended this hatred to her siblings which eventually led to the death of her eldest brother who died as a result of the shock and emotional trauma.

Her Sister Esther Oba was without any formal invitation declared wanted, arrested at the Airport on her return from a surgical operation abroad, and taken to the EFCC Custody in Abuja wherein she was thereafter flown to their Lagos office.

She kept reporting during the days' they asked her to, but surprisingly the EFCC despite all these facts came before the court in Suit Nu FHC/L/CS/620/2018 to state in an affidavit that she was on the run. They kept publishing these information about the family, securing repetitive court orders and selling to the whole world an image of several corruption cases involving the former first lady.

Her Mothers company which she ran over the years before her death was also accused of engaging in criminal activity without pointing out the alleged crime.

The EFCC accused the former first lady of being a permanent secretary in the Bayelsa State Civil Service. The Ministry wrote letter wherein they confirmed to them that she was on leave of absence and wasn't receiving any salary during the said period. The Head of Service even came to court to testify of these facts and EFCC continued in their persecution and intimidation of the former first lady.

The EFCC without investigation, inviting any of the company's representatives of Directors was busy going from one court to another securing via Exparte several Interim orders of Forfeiture. The companies in court explained all they do and showcased these by leading evidence. The EFCC on its part relied only on suspected proceeds of crime without showing or proving what the alleged crime is.

Donors to the NGO of the former first lady like Hajiya Bola Shagaya wrote to the EFCC to explain why they donated funds to the NGO and the EFCC refused and jettisoned these explanations. All we see daily was several sponsored publications in the media against the former first lady and her siblings.

The companies belonging to the siblings of the former first lady has been run aground with all their funds frozen. The companies cannot operate or pay salaries. In this era when the government is seeing how to take youths off the street, the companies that can aid the economy is being grounded and jobs lost. What an unfortunate fight against lip service corruption.

Constant Media Trial and Negative publicity. The EFCC under Magu uses this as its biggest tool under its masquerading attempt to fight corruption. Everyday Nigerians are given different news of people who are allegedly corrupt. They are first convicted in the court of public opinion rather than a court of competent jurisdiction.