BENSON ENIKUOMEHIN & CO.
(SHALOM CHAMBERS)
BARRISTERS, SOLICITORS & CORPORATE CONSULTANTS
27th February, 2025.
The Registrar,
Court 10,
Federal High Court,
Ikoyi,
Lagos.
Dear Sir,
RE: SUIT NO. FHC/L/MISC/702/2024 BETWEEN PASTOR SUNDAY OMONIYI ENIKUOMEHIN & I OR AND ECONOMIC AND FINANCIAL CRIMES COMMISSION, (EFCC).
-INVASION OF GOODWILL PRIVATE SCHOOLS, IKORODU, LAGOS ON THE 27TH DAY OF FEBRUARY, 2025
The abovementioned suit came before His Lordship Hon. Justice A. O. Owoeye on the 5th day of February, 2025 in which Dr. Benson Enikuomehin represented the parties whose interest are affected in the suit. Hannatu Umar Kofarnaisa Esq. represented the Economic & Financial Crimes Commission.
It was the contention of Dr. Benson Enikuomehin of counsel that the Defendant would take adverse effect to tamper with the Res while the suit is pending before the Court. The Court assured that none of such thing would happen particularly that the EFCC was represented in court by Hannatu Umar Kofarnaisa Esq.
Hannatu Umar Kofarnaisa Esq concurred with the Court that the Economic & Financial Crimes Commission will not do anything untoward about the Res until the matter would be heard. She thereafter sought for a long adjournment for which the matter was adjourned till 7th April, 2025.
The Economic & Financial Crimes Commission (as anticipated) has been going to Goodwill Private School’s property in Ikorodu at awkward times to serve a purported document. The climax of their action came today when they invaded the school with armed men while the students were in their various classrooms. There was pandemonium everywhere and the disruption of academic work. The chaos affected the neighborhood and sent everyone running helter skelter.
The action taken by EFCC today the 27th day of February, 2025 runs foul of the undertaking given by Hannatu Umar Kofarnaisa Esq before His Lordship. We attach herewith photographic and recorded video evidence of the onslaught of the operatives of the EFCC on Goodwill Private School at Ikorodu this 27th day of February, 2025.
We are of the strong view that the EFCC is not a law unto itself and should therefore not take law into its hands in a matter that is pending before the Honourable Court. By the action of the EFCC, the Commission intends to foist a fait accompli on the Honourable Court on the next adjourned date. The Commission has by this action indicated that it does not respect the rule of law, but will only use the court to achieve its aim.
In the light of the above, we humbly request the Honourable Court to abridge the time in which this matter will be heard.
Kindly bring the above facts to the attention of my noble Lord.
Yours Faithfully,
FOR: BENSON ENIKUOMEHIN & CO.,
Lola Omoyele Esq,
Head of Chambers.
CC: Hannatu Umar Kofarnaisa Esq.,
15A, Awolowo Way,
IKoyi,
Lagos.
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS.
SUIT NO: FHC/L/MISC/702/2024
BETWEEN:
1. PASTOR SUNDAY OMONIYI ENIKUOMEHIN -APPLICANTS
2. GOODWILL PRIVATE SCHOOLS LTD
AND
.
THE ECENOMIC AND FINANCIAL CRIMES COMMISSION RESPONDENT
MOTION ON NOTICE
MOTION ON NOTICE BROUGHT PURSUANT TO SECTION 44 (1), (2)(B), SECTION 36 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA AS AMENDED; SECTION 342(1) OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015; SECTION 17 OF THE ADVANCED FEE FRAUD AND OTHER FRAUD RELATED OFFENCES ACT, VOL.1 CAP. A-6 LAWS OF THE FEDERATION OF NIGERIA, 2006, AND UNDER THE INHERENT JURISDICTION OF THE HONOURABLE COURT.
TAKE NOTICE that this Honourable Court will be moved on the day of 2025 at the hour of 9 O’clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the Applicants for the following orders:
1. AN ORDER of the Honourable Court setting aside both the interim order of forfeiture made by this Honourable Court on the 18th day of November, 2024 and the final forfeiture order of this Honourable Court made on the 21st day of January, 2025 affecting and touching the U-shape Two Storey Building situated within the property known as Goodwill Private School Limited located at Ayegbami Street, off Sagamu Road, Eyita, Ikorodu Local Government Areas, Lagos State, which property belongs to the Applicants as the orders were obtained by false misrepresentation of facts.
2. AN ORDER of the Honourable Court setting aside the processes filed in this suit on the 7th day of January, 2025 as invalid for non-compliance with the provision of Section 17(4) of the Advance Free Fraud & other Related Offences Act, 2006
GROUNDS UPON WHICH THE APPLICATION IS BROUGHT
a. The order was fraudulently procured by glaring misrepresentation of facts.
b. That the Honourable Court lacks jurisdiction to adjudicate on the matter because the affidavits deposed to do not have anything to do with proceeds of crime or illegal activities.
c. That there are glaring irregularities and incurable defects in the processes filed for the forfeiture orders and the proceedings before the Honourable Court.
d. That the issue involved is a simple contractual transaction without any iota of criminality.
3. AND such further Order or orders this Honourable Court may deem fit to make in the following circumstances.
4. TAKE NOTICE THAT IN MOVING THIS APPLICATION, THE APPLICANTS SHALL ALSO RELY ON ALL THE PROCESSES AND EXHIBITS FILED BY THE RESPONDENT WHICH ARE BEFORE THIS HONOURABLE COURT.
Dated this 29th day of January, 2025.
Otunba (Dr.) Benson Enikuomehin, FCPA
Lola Omoyele, Esq.
David O. Adedara, Esq.;
Kayode Mogbojuri, Esq.;
Omolade Ebiwanno, Esq.
Applicants’ Solicitors.
Pp:Benson Enikuomehin & Co.
No. 16 Simpson Street,
By Carter Street, Beside Evans Square,
Ebute Metta, Lagos.
08122233445, 08034055486
Email: bensongoodness62@gmail.com
FOR SERVICE ON:
The Respondent
c/o The Solicitors
Rotimi, Oyedepo Iseoluwa, SAN
Bilikisu Buhari Bala, Esq.
Suleiman Ismail Suleiman, Esq.
Chineye Chisara Okezie, Esq.
Abbas Mohammed Omeize, Esq.
Hannatu Umar Kofarnaisa, Esq.
Zeenat Bala Atiku
Abubakar Salihu Wara, Esq.
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS.
SUIT NO: FHC/L/MISC/702/2024
BETWEEN:
1. PASTOR SUNDAY OMONIYI ENIKUOMEHIN -APPLICANTS
2. GOODWILL PRIVATE SCHOOLS LTD
AND
.
THE ECENOMIC AND FINANCIAL CRIMES COMMISSION RESPONDENT
AFFIDAVIT IN SUPPORT OF THE MOTION ON NOTICE
I, Pastor Sunday Omoniyi Enikuomehin, Male, Christian, Clergy/Educationist, Nigerian now residing at 1/3 Maja Street, off Sagamu Road, behind Ikorodu Cemetery, Ikorodu, Lagos State, Nigeria do hereby make oaths and state as follows:
1. That I am above named person and the 1st Applicant in the matter before this Honourable Court.
2. That the 2nd Applicant is a Limited Liability Company registered with Corporate Affairs Commission, Abuja primarily for educational advancements/purposes.
3. That I am the Managing Director of the 2nd Applicant and its Proprietor.
4. That I have the consent and authority of other Directors of Goodwill Private School Limited to depose to this affidavit.
5. That facts deposed to herein are within my personal knowledge except as it may be otherwise stated in this written depositions.
6. That I have read the 26 paragraphs affidavit of John Michael Idoko, in support of the Motion Experte for interim forfeiture order and 31 paragraphs affidavit of Jibrin Saidu in support of Motion Experte for final forfeiture order of the property known as Goodwill Private Schools Limited located at Ayegbami Street, off Shagamu Road, Eyita, Ikorodu, Lagos State and I say that both affidavits contained glaring misrepresentation of facts which are not true.
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7. That the Goodwill Private Schools had operated in rented apartments at No. 6/8 Solebo Street, off Lagos Road, Ikorodu, Lagos State for very many years.
8. That Goodwill Private Schools Limited was registered with the Corporate Affairs Commission, in 2005. Attached and marked Exhibit SOE1 is a copy of the certificate of registration together with form CAC 2.3
9. That paragraphs 6, 7 & 8 of the affidavit in support of the Motion Exparte for interim forfeiture of the U-shaped building located of Ayegbmi Street, off Sagamu Road are admitted.
10. That I am not in the position to admit or deny paragraphs 1,2,3,4,5,9,12,13,14,15,16,17,18,19,22,23 of the affidavit in support of Motion Experte.
11. That paragraph 11 of the affidavit is denied in that the instructions given to First City Monument Bank (FCMB) was to source for prospective buyers and refer them to me for negotiation and sale. Attached and marked Exhibit SOE2 is a copy of the letter written to FCMB dated September 7, 2016.
12. That First City Monument Bank (FCMB) by its letter dated October12, 2016 responded to my letter of September7, 2016 and agreed to introduce prospective buyers to me for the negotiation and sale of the property. Attached and marked Exhibit SOE3 is a copy of the said letter.
13. That paragraph 21 of the affidavit in support of Motion Experte for interim forfeiture order is vehemently denied and the facts are stated as follows:
a. That the original title documents of my landed property which houses Goodwill Private School Limited which was used as collateral to secure N30,000,000.00 credit facility from FCMB was handed over to First City Monument Bank(FCMB) on the 3rd July, 2013 as same was received by one Olufemi Olatunji. Attached and marked as exhibit SOE4 is the acknowledgment copy.
b. That the original title document has never been returned to me as same is still in the custody of First City Monument Bank.
c. That First City Monument Bank never approached me at anytime after 3/7/2013 or anytime whatsoever in respect of the original document I had earlier handed over to the Bank.
d. That I was informed by Dr. Benson Enikuomehin, FCPA of counsel in his office at 16, Simpson Street, Ebute-Metta, Lagos on Friday, 24th of January, 2025 at about 11am in the morning and I verily believe him that the allegation levied against me and my company (Goodwill Private School Limited) by the Respondent cannot be substantiated in the light of spurious evidence adduced both in the affidavit for interim forfeiture and that of the final forfeiture order.
14. That the property named and known as the U-shape 2 storey building was never and has never been proceeds of illegalities and unlawful activities and that the building along with all other buildings built on the 3430.709 square meters were constructed through personal funds and loan facilities from the banks
15. That the Applicants deny that, no fraud was perpetrated by them against any company or companies and that no money of any company or companies were fraudulently converted by them to build the property(s).
16. That in the petition written to the Respondent by one Aderonke Adekoya- Ogunjobi, Esq which was marked as exhibit EFCC 01 of the Respondent no mention was made about me or Goodwill Private Schools as person/institution that defrauded one Mrs. Olabisi Olaiya or any companies whatsoever.
17. That the complaints of Mrs. Olabisi Olaiya as stated in the said petition written by Aderonke Adekoya-Ogunjobi (Mrs) dated 27th Nov, 2025 was against First City Monument Bank (FCMB) for failing to meet the terms of their contractual agreement.
18. That neither myself nor the 2nd Applicant is a member of staff or management of the FCMB.
19. That Mrs. Aderonke Adekoya-Ogunjobi stated in the petition referred to above that:
“…The Bank has refused to hand over the property to our client despite the fact our client has paid the full purchase price for the property, the title document are also in custody of the bank and they have refused to release same to our client.
Without much ado the bank has held unto both (the) our client’s hard-earned money and property for four (4) months and blatantly refused to also hand over the possession of the property in which our client used the money to pay for”.
20. That in the above allegations levied against First City Monument Bank there was no mention of my name and that of Goodwill Private School Limited as the persons or organization that received the money from the said Mrs. Olabisi Olaiya.
21. That paragraph 21 of the affidavit in support of Motion Exparte for interim forfeiture is false and a calculated attempt by the Respondent to maliciously castigate me and the 2nd Applicant.
22. Further to the above, there was no time whatsoever did I and the 2nd Applicant have any transaction whatsoever with Mrs. Olabisi Olaiya, be it land transaction or any transaction whatsoever.
23. That the property which is the Up-shaped two storey building forms part of the building that were constructed through legitimate funds obtained from the banks and proceed of school fees.
24. That 2nd Applicant and I obtained loan facilities from the under mentioned financial institutions, to build the properties on Goodwill compound of which the U shaped 2 storey building forms a part.
a. That sometime in 2004, Intercontinental bank Ltd (now defunct) granted N15, 000,000.00 (Fifteen Million Naira) loan facility to Goodwill Private School limited “to partly finance the school building expansion”. The money was utilized for the purpose and in 2016 the title document used to secure the loan was released back to Goodwill. Attached and marked Exhibits SOE5 (a & b) are copies of the loan granted and the Deed of Release and Surrender of Legal Mortgage to the 1st Applicant.
b. That in October, 2006 the NPF Community Bank Limited granted another N15, 000, 000.00 (Fifteen Million Naira only) loan facility to the Goodwill Secondary school “to enable you to expand and equip your school” Attached and marked exhibit SOE6 is a copy of the approved loan granted by NPF Community Bank Limited to the 2nd Applicant.
c. That sometime in October, 2008 United Bank for Africa, Plc (UBA) granted N40,000,000.00 (Forty Million Naira) loan facility to Goodwill Private School Limited “for completion of Administrative Building Construction” This sum was utilized for the construction of Goodwill Private Schools limited. Attached and marked Exhibit SOE7 is a copy of the loan approval granted by the UBA to Goodwill Private Schools
25. That the 2nd Applicant fully paid the total sum back to UBA. Attached and marked exhibit¬¬ SOE8 (a & b) are copies of the cheque and correspondences for the final payment to the UBA
26. That the total sum obtained from these three financial institutions amounted to (Intercontinental Bank Ltd N15,000,000.00+ NPF Community Bank Ltd N15,000,000.00+ UBA N40,000,000.00=70,000,000) Seventy Million Naira.
27. That these sum were not proceeds of illegal activities or fraudulent acts as the money gotten on loan from the various banks mentioned above were legally procured and documented.
28. That in all the paragraphs deposed to in support of either order for the interim forfeiture or final forfeiture of the property described as the U shaped two Storey building at Aiyegbami Street in Ikorodu, no iota of fact was adduced by the Respondent against me or the 2nd Applicant for fraudulent and illegal activities in sourcing funds for the construction of the property.
29. That I state without equivocation that I have never met Mrs. Olabisi Olaiya once in my lifetime, let alone getting any money from her to develop my properties located within the Goodwill Private Schools at Aiyegbami Street, Eyitta, Ikorodu, Lagos State.
30. That the Applications for both interim and final forfeiture of the property known and described as U-shaped 2 storey building to the Federal Government for the benefit of one Mrs. Olabisi Olaiya were brought in bad faith to deprive me the reward of my labour in my old age.
31. That I was informed by Dr. Benson Enikuomehin FCPA of counsel in his office at No. 16, Simpson Street, Ebute-Metta, Lagos on Friday 24th of January, 2025 at the hour of 11 O’clock in the morning and I verily believed him as follows:
a. That the transaction between FCMB and Mrs. Olabisi Olaiya was a civil transaction which does not authorize the Respondent to bring the application of this nature under section 17 of Advance Fee Fraud and other Related Offences Act.
b. That the misinformation and misrepresentation of facts in the averments placed before the Honourable Court led to the grant of both the interim and final forfeiture orders.
32. That the landed properties now located at No. 1/3 Maja Street, Eyita, Lagos (otherwise known as Goodwill Private School Ltd) upon which building structure were erected and acquired at various times from different vendors in my personal name.
33. That sometimes in the year 2000 I applied to the Lagos State Government to perfect my title in respect of the parcels of land which measure approximately 2293.772 square meters LOT-A and 1135-937 square meters LOT-B totaling 3,430.709 Square meters in dimension as prepared by Surveyor Animashahun and the Lagos State Government granted me Certificate of Occupancy of the land registered as No. 51, at Page 51 in Volume 2000 N at Lands Registry, Alausa, Ikeja, Lagos State on the 27th of October, 2000. A copy of the Certificate of Occupancy is hereby attached herein and marked as Exhibit SOE 9.
34. That on these parcels of land measuring 3430.709 square meters so many buildings were erected, namely:
a. The Administrative Block.
b. There is twelve (12) classrooms block meant for primary school pupils.
c. There is U-Shaped structure meant for the Secondary School students.
d. There are other halls built for educational purposes.
35. That sometimes in the year 2000, I, along with other proprietors of Goodwill Group of schools began the construction of the U-Shaped 2 storey building consisting of 17 classrooms and science laboratories.
36. That proceeds from tuition fees and credit facilities especially from the Intercontinental Bank Ltd, NPF Community Bank Ltd and United Bank for Africa, (UBA) as stated in the preceding paragraphs were utilized for the construction of the U-Shaped building and other structures on the land.
37. That the U-shaped 2 Storey building consisting of 17 Classrooms and science laboratories was in particular Commissioned in the year 2004 by the then Governor of Ondo State, Dr. Olusegun Agagu (now deceased.) Attached is the programme of commissioning of the school. Exhibit SOE 10.
38. That at no time was any proceeds of illegal activities deployed and utilized for the construction of the edifice or any buildings within the 3,430 square meters of land.
39. That I reasonably believe that Mrs. Olabisi Olaiya (who I am now aware) lives at No. 18, Olatunde Alausa Street, Eyita, Ojokoro, Ikorodu-(not too far away distance from Goodwill Private Schools located at Eyita) is the person instigating the officers of the Respondent to use the instrumentality of the Court to take over my property.
40. That I reasonably believe that the successes recorded by the 2nd Applicant in and around Ikorodu is the primary reason the said Mrs. Olabisi Olaiya is using the instrumentality of the Respondent to persecute me and blacklist the 2nd Applicant as organization that is involved in illegal activities.
41. That the 2nd Applicant has received both local and national commendations for the high standards set by the 2nd Applicant. Attached and marked Exhibit 11 (a, b & c) are commendations given by the representative of the Hon. Minister of Education, Lagos State Government and others.
42. That on the 8th of February, 2024, I was invited by officer of the Respondent, one ACE1 Michael Welkas, FWC, Zonal Commander, Lagos to come for investigation on a matter involving my school. Attached and marked exhibit¬¬ SOE12 is a copy of Letter of Invitation,
43. That on 14th of February 2024, I went in company of my lawyer, Lola Omoyele Esq. to the office of the Respondent located at No 15A, Awolowo Road, Ikoyi Lagos and was interrogated by one Mr. Jonathan who bluntly refused to avail me a copy of the petition allegedly written against me.
44. That I was threatened and coerced to submission not to request for the petition by the said Mr. Jonathan who uses MTN Telephone Number: 0706813233I. was told by Mr. Jonathan that my school had been sold by the FCMB to a third party and that I must summarily vacate the school with my staff and students as urgently as possible.
45. That I made it clear to the officer that interrogated me that the contractual relationship between FCMB, My School and I as regards the loan facilities taken from FCMB is ongoing.
46. That I made a statement under caution at the Respondent’s office and that no question as regards illegal funds for the construction of the property was ever raised by Mr. Jonathan or any other person with me during the interrogation. Notice is hereby given to the Respondent to produce the original statement I made under caution duly signed by me on the 14th of February, 2024 at the Respondent’s office at No. 15A, Awolowo Road, Ikoyi, Lagos.
47. That I submitted the undermentioned documents to the officers of the Respondent on Monday 19thof February 2024. The documents are:
a. Offer of banking facility given by FCMB.
b. Letter to FCMB dated September 7, 2016.
c. Reply from FCMB dated October 12, 2016.
d. Letter to FCMB dated February 15, 2017.
e. Letter to FCMB dated February 11, 2022.
f. Letter from FCMB dated February 23, 2022
Attached and marked Exhibit¬¬ SOE13 (a –f) are copies of the documents/letters submitted to the Respondent.
48. That on the 17th of May, 2024, operatives of the Respondent invaded 2nd Applicant and caused pandemonium when the SS3 students were writing their External Examination. The team was led by one Jubril who came with armed policemen to take over the school. They wrote inscriptions on the walls of the U-Shaped 2 Storey building to wit “RESTRAIN ORDER, EFCC KEEP OFF”. Attached and marked Exhibit¬¬ SOE14 (a-h) are copies of the inscriptions on the building. Also attached are pictures of the people that came showing them and the principal of the school, Mrs. Saidat Iyabode Abosede Olufemi-King.
49. That the event of the invasion of the 2nd Applicant by the Respondent was also captured in a video recorded showing the frustration of Mrs. Saidat Iyabode Abosede Olufemi-King, the Principal of the School and other persons. Attached and marked Exhibit SOE15 is the said recording.
50. That on Monday, 24th day of June, officers of the Respondent again invaded Goodwill Private School at about 12 O. Clock in the afternoon and arrested the principal of the school, Mrs. Olufemi-King, Saidat Iyabode Abosede and whisked her away to the Lagos office. This invasion took place when the student were writing WASSCE/WAEC Exam. She was interrogated and released by the Respondent after she had made statement under caution at the Respondent’s office.
51. That on Tuesday, 25th of June, 2024, a meeting was called by a senior officer of the Respondent, one Mrs. Oni Deborah in which it was found out that no petition whatsoever was written against me or the school by a woman now known as Mrs. Olabisi Olaiya.
52. That the petition was strictly against FCMB for failing to hand over alleged sale of our property to the said woman.
53. Owing to the series of harassment the officers of the Respondent were inflicting on my school, the Solicitors to the school on 28th day of June, 2024 wrote to the Executive Chairman of the Respondent on the need to stop this harassment and intimidation. The letter was received on July 1, 2024 at the EFCC office in Abuja. Attached and marked exhibit¬¬ SOE16 is a copy of the petition along with the Exhibits attached thereto.
54. That on July 8, 2024, the law firm of Benson Enikuomehin & Co. again wrote to the zonal Commander of the Respondent in Lagos and drew the attention Mrs. Oni Deborah to the fact that Goodwill Private School Limited has no issue whatsoever with the EFCC and that a petition had been written to the Executive Chairman of the Respondent on the constant harassment of the 2nd Applicant. Attached and marked exhibit¬¬ SOE17 is an acknowledged copy of the letter.
55. That the Respondent has never accused me or my school of any illegal activities since the ordeal of the school started in February, 2024.
56. That I was not aware of the order of interim forfeiture made by this Honourable Court which was published in the Punch Newspaper at page 40 of Monday 9, December 2024. That as at this time I had traveled out of the Nigeria to the UK to sort out some of my health challenges and visit my family outside the country. That I left Nigeria on the 19th of November, 2024 to the UK and returned to the country on 13 January, 2025. Attached and marked Exhibit 18 (a-d) are copies of the relevant pages of my International Passport.
57. That I became aware of the order of final forfeiture on 22nd of January, 2025 through social media publications.
58. That immediately, I instructed the solicitor to Goodwill private School Limited to take steps in bringing the true facts of the matter before the court.
59. That Dr. Benson Enikuomehin, of Counsel informed me and I verily believed him that he applied for the Certified True Copies of the processes filed in court in the proceedings and the orders made by the Honorable Court. Attached and marked exhibit SOE19 is a copy of the Application made to the court.
60. That I verily believe that the applications for both the interim forfeiture order and the final forfeiture order were brought in bad faith and a calculated attempt to deprive me of my asset.
61. That false information and misrepresentation of facts presented in the applications of the Respondent led to the conclusion reached by this Honourable Court in granting both the Interim and Final Forfeiture Orders.
62. That it is in the interest of justice to set aside the Interim and Final forfeiture Orders made against the 2nd Respondent as same were procured by the Respondent with false misrepresentation of facts.
63. That I reasonably believe that this Honourable Court has the inherent powers to set aside the forfeiture orders made in line with the facts set out in this affidavit.
64. That I depose to this affidavit in good faith conscientiously believing the content to be true and correct and in accordance with the Oath Act in force.
_______________
D E P O N E NT
Sworn to at the Federal High Court
Registry, Lagos this day of January, 2025.
BEFORE ME
COMMISSIONER FOR OATH
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS.
SUIT NO: FHC/L/MISC/702/2024
BETWEEN:
1. PASTOR SUNDAY OMONIYI ENIKUOMEHIN
2. GOODWILL PRIVATE SCHOOLS LTD
AND
THE ECENOMIC AND FINANCIAL CRIMES COMMISSION
AFFIDAAVIT OF URGENCY
I, David Olusegun Adedara, Male, Adult, Legal Practitioner of No. 16, Simpson Street, Ebute-Metta, Lagos do hereby make Oath and state as follows:-
1. That I am a Legal Practitioner with the law firm of Benson Enikuomehin & Co., Counsel to the Applicants herein.
2. That I have the consent of the Applicants and the authority from my employers to depose hereunder.
3. That by virtue of my position, I am conversant with the facts of this suit.
4. That on the 22nd day of January, 2025, the 1st Applicant came to our office with the processes for the final forfeiture Order at No. 16, Simpson Street, Ebute-Metta, Lagos.
5. That after vetting the said processes, we discovered that the Respondent failed woefully to comply with Order 17 sub 4 of the Advance Free Fraud and Other related Offences Act, 2006 in filing for the Final Forfeiture order.
6. That we also noticed that there are several irregularities that go to the root of the processes upon which the Order was made.
7. That the affidavits in support of both applications for interim and final order were bereft of any paragraph that stipulates that the U-Shaped building sought to be forfeited was constructed with proceeds of crime or illegal activities.
8. That the entire transaction between the Applicants and the Bank (FCMB) is civil in nature without an iota of criminality or criminal intent involved.
9. That loan facility procured from FCMB by the Applicants is for educational advancement and it is still an ongoing concern.
10. That negotiations were underway between the FCMB and the Applicants on the full and final amount payable prior to the filing of the application for forfeiture brought by the Respondent.
11. That the Respondent application is malicious and mischievous with intent to deprive the 1st Applicant the reward of his hard-earned labour.
12. That the Respondent has now applied for the Certified True Copy of the order of this Honourable court with intent to enforce same.
13. That further to paragraph 12 above, if the Respondent goes ahead and enforce the order the forfeiture, the Applicant would suffer irreplaceable loss.
14. The Applicants have presently filed their Motion on Notice with attached affidavit and Exhibits together with their written address in support of the motion.
15. That it is in the interest of justice to give accelerated consideration to the hearing of this application.
16. That I swear to the foregoing in good faith and in accordance with the Oaths Act.
…………………..
D E P O N E N T
SWORN to at the Federal High Court Registry,
Lagos this 29th day of January, 2025
BEFORE ME
COMMISSIONER FOR OATHS
IN THE FEDERAL HIGH COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS.
SUIT NO: FHC/L/MISC/702/2024
BETWEEN:
1. PASTOR SUNDAY OMONIYI ENIKUOMEHIN -APPLICANTS
2. GOODWILL PRIVATE SCHOOLS LTD
AND
.
THE ECENOMIC AND FINANCIAL CRIMES COMMISSION RESPONDENT
WRITTEN ADDRESS IN SUPPORT OF THE MOTION ON NOTICE
1. This application is brought pursuant to Sections 36, 44 (1) (2) (B) of the 1999 Constitution as amended; Section 342(1) of the Administration of Criminal Justice Act 2015; Section 17 of the Advance Fee Fraud and other Related Offences Act Vol. 1, CAP. A6 Laws of the Federation of Nigeria, 2006 and under the Inherent Jurisdiction of the Honourable Court.
2. The Motion is supported by 66 paragraphs Affidavit deposed to by Pastor Sunday O. Enikuomehin (1st Applicant) with 18 Exhibits attached thereto. There is also an Affidavit of Urgency. We shall be relying on all the averments in the Affidavit together with the Exhibits.
2.0 BRIEF FACTS
1.1. The facts of this case are that the Respondent acting upon the petition written by one Mrs. Olabisi Olaiya through her solicitor, Barrister (Mrs) Aderonke Adekoya- Ogunjobi on the 27th November, 2023 commenced investigation immediately into the petition. The said petition was specifically written against First City Monument Bank (FCMB) for receiving N90,000,000.00 (Ninety Million Naira) from the said Mrs. Olabisi Olaiya for the sale of a property belonging to Goodwill Private School Ltd in Ikorodu. It was alleged that FCMB failed to give the Deed of Assignment and other documents necessary executed between the Bank and Mrs. Olabisi Olaiya to her. The petition therefore appealed to the Respondent to examine the circumstances surrounding the matter and bring justice to play. The Respondent at the conclusion of their investigation decided to file this matter for the forfeiture of the property described as U-shaped, 2 storey building located at Aiyegbami Street, Off Sagamu Road, Eyita, Ikorodu, Lagos State to the Federal Government of Nigeria. The rationale for this application is as contained in the affidavit of the Motion on Notice before this Honourable Court.
ISSUES FOR DETERMINATION
1. Whether having regards to the facts and circumstances of this case, the Honourable Court has Jurisdiction to entertain and grant the application brought by the Respondent.
2. Whether the glaring irregularity in the forfeiture processes filed before this Honourable Court by the Respondent does not vitiate the entire proceedings and render it a nullity.
3. Whether by the averments of the deponents of the Respondent, this matter is not a simple contractual transaction which ought not to be clothed by criminality.
4. Whether the concealment of facts by the Respondent of facts now stated in the Affidavit of the Applicant was not fraudulent, mischievous and a deliberate actions with intent to deceive the court as to granting this order.
TREATMENT OF ISSUES
1. Whether having regards to the facts and circumstances of this case, the Honourable Court has Jurisdiction to entertain and grant the application brought by the Respondent.
It is settled law that jurisdiction is fundamental to adjudications- see Oyelami Vs Military Administration of Osun State (1998) 4NWLR (PT 547) 624 at 62b.
Where the Court lacks Jurisdiction to adjudicate on a matter, any decision reached no matter how well couched will go to no issue. We rely on Alraine & Shipping Ltd. Vs E.A. Chemicals (2001) 12NWLR (part 728) 759.
We submit that the facts of this case do not confer Jurisdiction on the Honourable Court. In the locus classicus case of Madukolu &Ors vs. Nkendilim (1962) 2 N.S.C.C. 374 at page 379, the Supreme Court per Bairamian F.J had this to say:
“Before discussing those portions of the record, I shall make some observations on the jurisdiction and the competence of a court. Put briefly, a court is competent when:-
1. it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another;
2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
3. the case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.”
We submit that the 31 paragraphs affidavit deposed to by Jubrin Saidu in support of the application for final forfeiture, do not contain an iota of facts relating to criminal acts of the Applicants in the funding of the property known as the U-Shaped 2 story building. The facts deposed to by Jurin Saidu were mainly civil (land) transactions between one Mrs. Olabisi Olaiya and FCMB. See paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 24 of the affidavit of Jubrin Saidu
It is our submission that all the facts deposed to as stated above do not contain any criminal or unlawful activities which relate to the funds utilized for the construction of the U-shaped 2 storey building. To give a 360 degree U-turn and cloth these facts with criminality, is to say the least, a colossal aberration.
We submit that the facts of a case placed before the court are what will enable the court to assume jurisdiction on the same. Where the facts (as in the instant case) are a negation or run contrary to the issue before the court, the court will ordinarily decline jurisdiction to entertain such a matter.
We submit that in the proceeding for forfeiture brought pursuant to Section 17 of the Advance Free Fraud Act, the prosecution must state facts that will give the court the impression that the property or funds to be forfeited are proceeds of unlawful/illegal activities. Where the facts deposed to are civil in nature and have no criminality, Section 17 of the AFF is not applicable.
We submit that no such facts exist both in the Affidavit in Support of the Interim Forfeiture and that of the Final Forfeiture made by the Honourable Court. On the contrary, the Applicants herein have stated copiously in paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 39, 40 and Exhibits SOE2, SOE3, SOE4, SOE5, SOE6, SOE7, SOE8, SOE9 of the affidavit in support of this motion, that the funds used in the construction of the U-shaped 2 storey building and other structure on the land are from legitimate sources and not proceeds of crime or unlawful activity.
It is important to define what amount to unlawful activity as provided under section 17 of the AFF Act. We submit that this refers to any behavior, conduct, or action that violates or contravenes the law, statue, or regulations of a country, state, or jurisdiction. The unlawful activities will include the following:
1. CRIME such as theft, robbery, assault, murder or other offences punishable by law.
2. FRAUDULENT ACTIVITY: This will include scam, embezzlement, money laundering or other deceptive practices.
3. REGULATORY OFFENCES which will include violations of law or regulations governing businesses, industries or professions
4. CYBERCRIMES which will include unauthorized access, hacking or malicious use of computer system, network, or data.
5. BRIBERY AND CORRUPTION offering, giving or receiving bribe or engaging in other corrupt practices.
Proceeds of these unlawful activities is what Section 17 intends to punish. Examples of such proceeds of these unlawful activities will include:
a. Money laundered from drug trafficking or terrorist financing.
b. Property acquired through embezzlement or corruption.
c. Asset obtained through cybercrime or identity theft.
d. Benefits derived from bribery or extortion.
e. Income generated from illegal businesses such prostitution or illegal gaming.
These are what can be said to be proceeds of some unlawful activities under this act.
We submit that the Respondent in the application for Interim Forfeiture and Final Forfeiture Order made to this court did not make mention of any acts committed by the Applicants which relate to the above. None of these was ever mentioned as the proceeds used for the construction of the U-shaped 2 storey building belonging to the applicant.
We further submit that any officer of the Respondent must have reasonable suspicion before such application can be made to the Honourable Court.
We submit that the Respondent cannot at his whim and caprices state that there is reasonable suspicion of proceeds of unlawful activity without credible evidence to buttress same.
We submit that in criminal matters, a reasonable standard to determine whether a law enforcement officer has sufficient reason (s) to investigate or detain an individual must be credible. For an act to amount to a reasonable suspicion, the following factors must be present:
(i) OBJECTIVE BASIS: The suspicion must be based on objective facts, circumstances or information rather mere intuition or hunch.
(ii) SPECIFIC AND ARTICULABLE FACT, the suspicion must be based on specific and articulable facts such as suspicious behavior, inconsistences in person’s story or physical evidence.
(iii) CREDIBLE INFORMATION: The information rely upon must be credible and trustworthy taking into account the source and reliability of such information.
(iv) REASONABLE INFERENCE: a reasonable inference must be drawn from facts or circumstances indicating that a crime has been or is being committed.
(v) NOT BASED ON STEREOTYPE OR BIAS: the suspicion must not be based on stereotype, bias or discriminatory factor such as race, ethnicity or nationality.
The above are the factors a Prosecuting Officer or entity must take into consideration before coming into conclusion that he reasonably suspects the commission of a crime.
We submit that none of such factors was adduced as evidence by the Respondent to justify the assertion that proceeds used on the construction of Goodwill Private School Limited are proceeds of illegal activities. We submit that the ingredients that make up unlawful activities which proceeds could be utilized in acquisition of property that will enable the Respondent to bring application for forfeiture are completely absent in the case at hand. This therefore rubs the court of the requisite power to adjudicate on this case as provided under section 17 AAF Act.
2. Whether the glaring irregularities in the forfeiture processes filed before this Honourable Court, by the Respondent does not vitiate the entire proceedings and render it a nullity.
Section 17 of the Advance Free Fraud and other Related Offences Act Cap. A 6 Laws of the Federation of Nigeria 2006 makes provision as to how Order for Forfeiture without conviction for an offence can be carried out. The Section provides-
(1) Where any property has come into the possession of any officer of the commission as unclaimed property or any property is found by any officer of the Commission to be in the possession of any other person, body corporate or financial institution is reasonably suspected to be proceed of some unlawful activity under this Act, the Money Laundering Act of 2004, the Economic and Financial Crime Commission Act of 2004 or any other law enforceable under the Economic and Financial Crime Commission of Act 2004, the High Court shall upon application make by the Commission, its officers, or any other person authorized by it and upon been reasonably satisfied that such property is an unclaimed property or proceeds of unlawful activities under the Act stated in this Sub-Section, make an Order that the property or the proceeds from the sales of such property be forfeited to the Federal Government of Nigeria.
(2) Section 17 Sub-Section 2
Notwithstanding the Provision of Sub-Section (1) of this Section, the High Court shall not make an Order of Forfeiture of the property or the proceed of the said property to the Federal Government of Nigeria until such notice or publication as the High Court may direct has been given or made for any person, body corporate or financial institution in whose possession the property is found, or who may have interest in the property or who may claim ownership of the property to show cause why the property should not be forfeited to the Federal Government.
(3) Section 17 Sub-Section 3
An Application under Sub-Section (1) above shall first be made by a Motion Exparte for Interim Forfeiture Order of the property concerned and the giving of the requisite notice or publication as required in Sub-Section (2) of this Section.
(4) Section 17 Sub-Section 4
At the expiration of 14 days or such other period as the High Court may reasonably stipulate from the date of given of the notice or making of the publication stated in Sub-Section (2) and (3) of this section, an application shall be made by Motion on Notice for the Final Forfeiture of the property concerned to the Federal Government of Nigeria.
(5) Section 17 Sub-Section 5
In this Section-
“Financial Institution” shall have the same meaning as in Section 7 of this Act;
“Property include” asset whether movable or immovable, money, monetary instrument, negotiable instrument, securities, shares, insurance policies and any investment.
(6) Section 17 Sub-Section 6
An Order of Forfeiture under this section shall not be based on a conviction for an offence under this Act or any other.
It is instructive to know that any property which has come into the possession of any of the commission as-
(a) Unclaimed property and
(b) The property which is reasonably suspected to be proceeds of unlawful activity can be made forfeitable to the Federal Government of Nigeria alone.
The Section also provides for the procedure to be embarked upon where the Forfeiture Orders are to be made. Section 17 (3) stipulates that where an Interim Forfeiture Order is being sought from the Court, the Application shall first be made by a Motion Exparte. In this instance, the party whose interest may be affected by the Forfeiture Order needs not be put on notice where the Application for Interim Forfeiture Order is sought. The Sub-section however provides for the giving of requisite notice or publication as required in Sub-Section 2 of the Section.
We submit that based on the provision of Section 17, Sub-section 2, any Application for Interim Forfeiture made under Sub-Section (3) of Section 17, the notice of such Order shall be made known or served on the person in whose possession the property is found or who may have interest in the property or claim ownership of the property so as to show cause why the property should not be forfeited to the Federal Government of Nigeria.
It is submitted that a successful application made pursuant to Section 17 (3) shall not be conclusive in itself until the Order is served on any person, body, corporate or Financial Institution in whose possession the property is found or who may have interest in the property or who may claim ownership of the said property.
It is submitted that upon obtaining the Interim Order of Forfeiture, the Applicant shall endeavor to serve the person that may be affected by that Order.
We submitted that in the instant case, the 1st Applicant is the person who may be affected by the forfeiture Order.
This was amply stated in the Affidavit in Support of the Motion Exparte for Interim Forfeiture deposed to by John Michael Idoko. In paragraph 6 & 7 of the Affidavit in Support, the deponent stated.
“6 that one Mr. Sunday Omoniyi Enikuomehin is the owner and proprietor of Goodwill Private School Limited (GPSL).
7 that the school proprietor of Goodwill Private School Limited (GPSL), Mr. Sunday Omoniyi Enikuomehin (SOE) took a loan facility of N30, 000 000.00 (Thirty Million Naira Only) from FCMB in 2015”.
We submit that the prosecutor knows the person who will be affected by the Interim Forfeiture Order.
The prosecution is also aware of the address of Mr. Sunday Omoniyi Enikuomehin (SOE). On the 8th of February, 2024, the prosecution through the Zonal Commander ACE 1, Michael Welkas FWC wrote a letter to Mr. Sunday O. Enikuomehin inviting him for interview at their office in Lagos. See Exhibit SOE 11 pleaded in paragraph 44 of the Affidavit in Support of this motion.
We submit it will be hypocritical for the Respondent herein to deny knowing the person that would be affected by this Forfeiture Order and the location of his address.
What is more, by the facts deposed to in paragraph 50 by the 1st Applicant herein, and Exhibit SOE 13 A & B, the officers of the Respondent herein invaded the premises of the Goodwill Private School Limited and wrote conspicuously on the walls “RESTRICTION ORDER, EFCC KEEP OFF” on the 17th of May, 2024,
We therefore contend and submit that the person affected by the Interim Order for Forfeiture and his address are well known to the Respondent herein. He is the person that should be served with the Interim Order for Forfeiture, so that he can show cause why his property should not be forfeited to the Federal Government.
It is our submission that though publication in the newspaper is a form of notice, but that this should only be resorted to where service on the person affected is practically impossible. The Respondent, who is aware of the person who would be affected by the Order and the address of the person is well known to her, would not act in good faith by resorting to publication in the newspaper which may not be read at the time of publication by the person who should be served with the Order for Interim Forfeiture. This position of ours is corroborated by the deposition of the 1st Applicant herein in paragraph 58 of the Affidavit in Support of this Motion and Exhibit 17 attached thereto. The 1st Applicant had travelled on the 19th of November, 2024 to the United Kingdom to attend to his health challenges and other family issues and only returned to Nigeria on the 13th January, 2025. The publication was done on Monday the 9th of December, 2024, (just in one newspaper-The Punch) when the Applicant herein was already outside the country, for which he said that he was not aware of the publication. See Exhibit 17 attesting to the documents of his travel.
We submit that if the Order which was a 3 page document had been pasted on the walls of the 2nd Applicant, where the Respondent conspicuously has a notice of “RESTRICTION ORDER EFCC KEEP OFF” pasted on the 17th May, 2024, the same would have been seen by staff of the 2nd Applicant and this would have been made known earlier enough to the 1st Applicant herein for which timely response would have been given.
Section 17 Subsection (4) provides
“At the expiration of 14 days or such other period as the High Court may reasonably stipulate from the date of the giving of the notice or making of the publication stated in Subsection 2 & 3 of this Section, an application SHALL be made by a Motion on Notice for the final forfeiture of the property concerned to the Federal Government of Nigeria. (underlined and capitalized is mine)
This Section makes it mandatory on the Respondent herein to file a Motion on Notice where application for the Final Forfeiture Order is sought.
We submit that it is incumbent, mandatory and compulsory for the Respondent to come by way of Motion on Notice when making Application for Final Forfeiture of the property to the Federal Government. This Section does not give discretion to the Respondent herein as to any other mode for the Final Forfeiture Order. It shall be by a Motion on Notice. This Motion on Notice implies that a Respondent is expected to be named on the process to be served. Where the Respondent herein, deviates, goes contrary to or embark on another mode of filing for Final Forfeiture Order other than the Motion on Notice, the procedure so adopted runs counter to the clear provision of Section 17(4) and to the extent of its collusion with this clear provision, the mode so adopted or employed shall be rendered Null, Void and of no effect whatsoever.
Looking at the Motion filed on the 8th January, 2025, the Respondent herein came by Motion Exparte for an Order of Final Forfeiture. This procedure adopted by the Respondent herein is a flagrant violation of Section 17 (4) of Advance Free Fraud Act, 2006. This Motion renders incompetent and nugatory all the averment, exhibits, affidavits in support of same.
The Respondent cannot pick and choose at her whims and caprices the procedure to be adopted contrary to the clear provisions of the law.
It is the law that where a Statute or any Enactment provides for a mode of doing a particular action, a deviation from that mode will render the action taken therein a nullity.
Our courts have held in plethora of cases that the provisions of statutes are not to be trampled upon by officers of government or any person in authority as he deems fit. The Supreme Court made this clear in the case of Wahab Adejobi vs State(2011)All FWLR(Pt. 588) 850 S.C. and held per Galadima JSC at page 864 that:
“ Where a statute under which an issue or matter is to be raisedhas provided a procedure for raising such issues or matter, that procedure and no other must be followed: Akaaer Joy v. kutoku Dom (1999) ( NWLR (Pt 620) 538 at 547”
It is our submission that the two procedures laid down by Section 17 (3) & (4) for the forfeiture of any person’s or organization’s property must be strictly followed. Where the Respondent fails in any of these procedures, the application made therein, upon which an order of court is predicated will be a nullity.
We submit that the decision of the Respondent to apply for Final Forfeiture Order by coming to this Honourable Court with a Motion Exparte is a glaring breach of Section 17 (4).
We submit that all Decisions, Judgements, Orders, made pursuant to this defective mode of applying for this defective Forfeiture Order will be a nullity.
We therefore submit that the processes filed by the Respondent which misled the Honourable Court to granting the Final Forfeiture Order is a waste piece of paper upon which the court should not countenance.
We submit that this error is not a mere irregularity but goes to the root of the processes filed. It is incurably defective and cannot be salvaged.
What the court is expected to do with greatest respect is to set aside, the order made thereto as enunciated above.
WHETHER THE FALSE MISREPRESENTATION
mentioned. That stated that the applicant or the school involved participated in any crime or criminal activity to warrant a criminal proceeding to be initiated against it. It is only where issue of crime is involved that Jurisdiction can be conferred upon this court by the provision of Section 17, of the Advance Free Fraud and other related offence Act, 2006. It is the duty of the prosecution to present facts which will suggest to the court that a suspect reasonably used the proceeds of crime to acquire the property in order to confer Jurisdiction on the court. In Labisi Vs Anretiola (1992) 8NWLR (Part 258) 139 at 150 the Supreme Court held that “the issue of Jurisdiction of a court is most fundamental in that where a court lacks Jurisdiction, it lacks vires to decide any issue in the case”
We submit that in all the averments of the prosecution in the application under reference do not show that the building the prosecution applied to be forfeited was made, constructed or bought with the proceeds of crime.
On the contrary, the application has deposed copious documentary evidence that the property was not acquired from the proceeds of crime or illegal activity. The applicant herein has stated that they borrowed money from intercontinental Bank. The sum of N15,000,000.00 (fifteen Million Naira), NPF Community Bank Ltd., the sum of N15,000,000.00 (fifteen Million Naira Only), United Bank for Africa, the sum of N40,000,000.00 (Fourty Million Naira Only), the money was taken as loans for the construction of the U shaped building and the other buildings on the land.
The loans taken cannot be said to be proceeds of crime. The money went through legitimate processes before they were released to Goodwill Private School Limited for the construction of the buildings. These facts cannot be controverted by the Respondent. We submit that once, there is no element of criminality in the funds used for the constructions of the buildings. We submit that it is not enough for the prosecution to flippantly contend that the proceeds for the constructions of the buildings were as a result of illegal activities without adducing credible evidence that will sway the mind of the court in his direction.
We submit that the entire 31 paragraphs Affidavit in Support of the Motion Exparte for Final Forfeiture together with Exhibits attached thereto is bereft of any iota of criminality.
We further submit that if the Respondent or any other agency of the Federal Government that handles financial matters are allowed to flippantly state that any building in Nigeria is a proceed of criminality or illegal activities without credible evidence to this effect, Nigerians will be on troll of disaster for what they legitimately earned.
We submit that the credible averments and the exhibits attached thereto by the applicants make a mockery of the mere assertions of the Respondent, in her desire to appropriate the property of the Applicant for the interest of this Olabisi Olaiya.
What is more, Mrs Olabisi Olaiya in her petition dated 27th November, 2023 to the Respondent did not allege that the money she allegedly paid to FCMB in August, 2023 was that which was used to construct the U-shaped 2 storey building at Aiyegbami Street, Eyita, Ikorodu which was long completed before the alleged transaction between FCMB and the said Mrs. Olabisi Olaiya.
Assuming but without conceding that the money of Mrs Olabisi Olaiya was obtained under false pretense, the proceeds of same must:
a. Be utilized by FCMB and not the Applicant herein.
b. The utilization of the fund cannot take retrospective effect dating back to 2003, 2004, 2006, 2008, 2010 when the applicants herein were constructing the buildings of which the U shaped building forms a part.
It is submitted that there is no scintilla of evidence adduced before this court by the Respondent which remotely connects the Applicant while constructing the U shaped building that the funds were of illegal activities.
It is further submitted that upon the clear wordings of section 342 (1) of the ACJA the defendnat accused of using proceeds of illegality to buy or construct building must have first been convicted by a court of competent jurisdiction consequent upon which an application can be brought for the forfeiture of the property. The section provides:
“Where a defendant is convicted of an offence relating to property, the Court convicting him may order that the property or a part of it, be restored to the person who appears to it to be the owner of it, either on payment or with the payment by the owner, to the person in whose possession the property or a part of it then is, of any sum named in the order:” (Underlined is mine)
We submit that no such case arises in this matter. The Applicants herein have not been charged to court let alone convicted for an offence relating to property. We further submit that the conviction of the defendant is a condition precedent that must have taken place before embarking on forfeiture of the property to either the Federal Government or the person who appears to be the owner of the funds under this section. Where the court has not convicted the Defendant, the Respondent as in this instance case lacks the requisite competence to insist that the forfeiture actions must take place (as in the instance case.)
It is therefore, our submission that no crime was alleged against the Applicants and that no conviction by the court has been made to this effect. The exercise embarked upon by the Respondent is merely a fluke in the air that carries no substance whatsoever. The court is therefore bereft of the competence to adjudicate on this matter consequent upon section 342(1) of the ACJA, 2015
We submit that the glaring irregularities in the forfeiture processes filed before this Honourable Court by the Respondent make the processes incurably defective and render the entire proceedings a nullity.
By the provision of section 17 (4) of the Advanced Free Fraud and Fraud Related Offences Act Cap A-6 Laws of Federation 2006, the Motion for Final Forfeiture of any property to which S. 17(4) relates shall be by an application made by a Motion On Notice. The word used is that such application “shall” be made by a Motion on Notice. We submit this procedure does not give discretion to the Respondent to use any other mode such as summons or originating proceeding or a Motion Experte.
We shall submit that this procedure is mandatory and failure to show compliance will render the processes filed before the Honourable Court a nullity.
There are two procedures enunciated when seeking for order of forfeiture pursuant to this Section.
The first procedures, is that where the application is for interim forfeiture, it shall be made by a Motion Experte as stated by S. 17(3) Advanced Free Fraud and other Fraud Related Offences.
The second procedure is that the Motion for Final Forfeiture shall be by a Motion on Notice.
We submit the Respondent is under obligation to comply with this provision of this Act in filing forfeiture orders.
The facts of this case reveal that on the 26th of Oct & Nov, 2024. The Respondent filed at the registry of this court a Motion Experte for the interim forfeiture order of the U-shaped 2 storey building situate within the property of Goodwill Private School Limited.
We submit this procedure is in order as same complies with S. 17(3) AFF Act. It is however, to be noted that the application made for the forfeiture to the Federal Government was in favour of First Bank,
First Bank is therefore deemed to be the victim who should receive the proceeds of the forfeiture. It is sequel to this application that the Honourable Court granted the Interim Order of Forfeiture on the 18th of November, 2024.
We submit that the process filed in court secure this Interim Order contained incurably defective process which render the proceedings a nullity. The application made, was granted on consequential order. We submit a consequential can only be made where the following exist.
1. (i) After a judgement or a consequential.
(ii) Order to give effect to a judgement or rely such as the payment of damages or court to the victorious party. It follows therefore, that an event must have occurred for which a consequential Order will be made in the instance case.
There was no order made by the court for which a consequential order for the forfeiture to the Federal Government will be made.
2. Consequential order can be made upon a dismissal of a case. If a case is dismiss, a consequential order may be made to deal with any outstanding issues such as cost or disposal of exhibit in the case at hand. No such situation arouse which will enure the court to make the consequential order.
3. Consequential order maybe after settlement or compromise of the suit. In other words, a consequential Order may be made to give effect to the terms of settlement or compromise such as ordering the payment of settlement amount. The situation in this suit has no bearing whatsoever which such situation exist for consequential order to be made.
4. In response to the contempt of court, if a person is found guilty of contempt of court a consequential order may be made to punish or sanction the offender. In the instant case, there is no such matter before this Honourable Court sequel to which the consequential order will be made.
5. Consequential order can also be made to enforce a previous order that has not been complied with can ignite the issuance of consequential order, the case at hand does not have any previous order made from which a consequential order can be made.
6. Consequential can be made to clarify or vary a previous order, a previous order that is ambiguous or and unclear may necessitate a consequential order to clarify, vary or make explicit the previous order. None of this exist in the instance case.
We submit that consequential order cannot stand on its own except it is consequent on previous action as highlighted above.
It is our submission that this interim order has no feet to stand upon and that same is irregular which vitiate the entire proceedings.
ISSUE B
S. 17(1) makes provision for two circumstances upon which an application for an order of forfeiture can be made without conviction of an offence. The two conditions are:
(1) The property has come into the possession of any officer as unclaimed property.
(2) The property reasonably suspected to proceeds of some unlawful activities under this Act.
These are the two conditions which can give rise to an official or the Respondent to make application for the forfeiture of the property to the Federal Government.
The Respondent has stated in her application that Godwill Private School Limited located at Ayegbami Street, Off Sagamu Road, Eyita, Ikorodu is reasonably suspected to be proceed of unlawful activities.
3. Whether by the averment of the deponents for the Respondent and the deposition of the Applicant together with the exhibits attached this matter is not a simple contractual transaction which ought not to be clothed with criminality.
We submit that by the deposition of John Michael Idoko made on the 6th of December, 2024 particularly paragraph 2 – 18 thereof, the facts therein a contractual relationship that broke down between FCMB and one Mrs. Olabisi Olaiya. In the entire depositions there was no place where the Applicants were accused of using proceeds of illegality or unlawful activities to build the property known as the U-shaped 2 storey building.
We submit that a civil suit compelling defaulting party to fulfill its own obligation under the terms of the agreement would have sufficed.
We submit that clothing civil transaction with criminality is an aberration in itself. What is more? There is no place in the entire affidavit where it was alleged that the Applicants received money from Mrs. Olabisi Olaiya to fund the construction of the U-shaped building belonging to the Applicants or any property whatsoever.
We submit that by the Deed of Assignment signed between FCMB and Mrs. Olabisi Olaiya it was an express term of the said agreement which stipulates in paragraph ‘F’thereof that FCMB shall “effectually indemnify the assignee against all claims from other person(s) interested in the demise property”.
We submit that the said Mrs. Olabisi Olaiya rather than taking civil action against FCMB for the breach of the agreement in the Deed of Assignment between her and FCMB has chosen to petition the Respondent herein to institute this forfeiture process/order against the property of the Applicants under Section 17 of the AFF Act who had no dealings whatsoever with her
We submit further that the Applicants were not parties to the agreement between FCMB and Mrs Olabisi Olaiya as stated in the averments of Jubrin Saidu and John Michael Idoko.
We submit that lumping Sections 17 of the AFF Act together with Section 324 (1) of the ACJA so as to allow Mrs. Olabisi Olaiya to unjustly acquire the property of the Applicants is the most undeserving action the Respondent has embarked upon in this matter.
We submit that section 17 of the AFF Act can only be used against a defendant who has not been convicted for the proceeds of unlawful activities embarked upon. Where the prosecution succeeds in the action against any person, the forfeiture can only be to the Federal Government of Nigeria and no other person.
On the other hand, a forfeiture brought pursuant to section 342 (2) can only be done after the conviction of the defendant had first been carried out by the prosecution. Where the conviction has been done, the proceeds of illegality can now be given to the victim of the crime.
We submit that the procedures of the two sections, namely section 17 of the AFF Act and section 342 of the ACJA 2015 are MUTUALLY EXCLUSIVE. The sections cannot be lumped together (as done by the Respondent herein) to achieve the non-conviction forfeiture order as postulated by the Respondent.
We submit that this is an abuse of the proceeding processes which we urge this Honourable Court to set aside.
CONCLUSION
We pray the Honourable Court to uphold our submissions and set aside the forfeiture order fraudulently achieved by false misrepresentation of facts.
Most obliged.
Dated this 29th day of January, 2025.
Otunba (Dr.) Benson Enikuomehin, FCPA
Lola Omoyele, Esq.
David O. Adedara, Esq.;
Kayode Mogbojuri, Esq.;
Omolade Ebiwanno, Esq.
Applicants’ Solicitors.
Pp:Benson Enikuomehin & Co.
No. 16 Simpson Street,
By Carter Street, Beside Evans Square,
Ebute Metta, Lagos.
08122233445, 08034055486
Email: bensongoodness62@gmail.com
FOR SERVICE ON:
The Respondent
c/o The Solicitors
Rotimi, Oyedepo Iseoluwa, SAN
Bilikisu Buhari Bala, Esq.
Suleiman Ismail Suleiman, Esq.
Chineye Chisara Okezie, Esq.
Abbas Mohammed Omeize, Esq.
Hannatu Umar Kofarnaisa, Esq.
Zeenat Bala Atiku
Abubakar Salihu Wara, Esq.
