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The Cambridge Advanced Learner’s Dictionary & Thesaurus define dilemma, as ‘‘a situation in which a difficult choice has to be made between two different things you could do’’.
It is synonymous with quandary, predicament, difficulty, problem, puzzle, conundrum, awkward, tricky, catch-22, vicious circle, plight, mess, muddle, perplexity, confusion, conflict, uncertainty, indecision, etc.
The above words manifestly describe the ugly situation in which the EFCC has found itself in its several desperate moves to bamboozle and decapitate Governor Ayodele Fayose, the enfante terrible Governor of Ekiti State, who enjoys total immunity under section 308 of the 1999 Constitution, just like the president, vice president and deputy governor.
In its do-or-die bid to overwhelm Fayose, the anti-graft agency has engaged in serial acts of ‘‘forum shopping’’. ‘‘Forum shopping’’ means running from a particular court where a case is pending, to another court, by a party where he believes he will obtain a more favourable judgment.
On July 20, 2016, the EFCC, in its unorthodox arm-twisting tactics, had approached the Federal High Court, sitting in Abuja, presided over by Justice Nnamdi Dimgba, and obtained an interim order ex parte, to seal off and attach some assets, belonging to Governor Fayose in Lagos and Abuja. This, according to EFCC, was to enable it carry out investigation into the said properties, which it claimed (without evidence), were suspected to be ‘‘proceeds of crime’’. The said ex parte interim order was again renewed on August 2, 2016, to last for a period of 45 days only. The court, while granting and renewing the said order stated clearly that: ‘‘The order shall last for a period of 45 days, without prejudice to the right of the applicant to apply for renewal of same on cause’’.
Having obtained the ex parte order, the EFCC felt victorious, and quickly went ahead to seal off the assets of the incumbent Governor of Ekiti State. The EFCC thereafter went to sleep, thinking erroneously that the 45 days would never expire. Lo and behold, the 45 days evaporated like a thief in the night and the interim order, which the EFCC held onto like a trophy or ‘‘title deed’’, expired on September 4, 2016. But EFCC continued its iron grip on the governor’s properties despite yours sincerely’s warning letter to EFCC (as Fayose’s counsel), to unseal and vacate the said properties. It wanted to eat its cake and have it at the same time. But, nature abhors approbation and reprobation.
To put an end to this impunity and confrontational arrogance of the EFCC, yours sincerely filed a motion on notice on behalf of the governor before the same Justice Dimgba, seeking an order, ‘‘directing the EFCC to unseal and vacate forthwith the property/assets attached, occupied and/or possessed by the EFCC pursuant to the order of the court obtained on the 20th July, 2016, and renewed on the 2nd August, 2016.’’
Yet another desperate move by EFCC
Having received the motion on notice to unseal and vacate the governor’s properties/assets, and in an attempt to further its illegalities, the EFCC curiously ran to Honourable Justice Efreti Abang, another Judge of the same Federal High Court, Abuja, and obtained a fresh order, to again seal off and attach the same assets of Governor Fayose, without putting the governor on notice, and without disclosing to Justice Abang that the case was already sub judice before his brother judge, Justice Dimgba. The EFCC, having succeeded in secretly obtaining another order from another judge, on the same properties, went rejoicing, without repenting. It never even served Governor Fayose, or my chambers, as Fayose’s counsel.
At the hearing of the application filed on behalf of Governor Fayose, yours sincerely, on December 19, 2016, urged Justice Dimgba to vacate his earlier interim order granted in favour of EFCC, dated July 20, 2016, and renewed on the August 2, 2016. The attention of the judge was also drawn to the later order of his brother judge, Justice Abang, obtained by EFCC in the most desperate and contemptuous manner, during the pendency of the yet unvacated order of Justice Dimgba.
In its bid to obfuscate issues, the EFCC argued that based on the latter order of Justice Abang, Governor Fayose’s application had become academic, as there was no longer any live issue to be decided upon.
The court in a well considered bench ruling, after hearing both parties, rejected EFCC’s argument, and granted the prayers of Governor Fayose. It unsealed and vacated possession and attachment of the properties by EFCC, and held as follows: ‘‘For the avoidance of doubt, the EFCC is not entitled to take any steps or derive and benefit from that order and any such benefit derived or enjoyed upon the order of 20/07/16 with effect from the 04/09/16 when the order lapsed is of no effect and, therefore, stands nullified. This includes any sealings, occupations or possessions of the properties subject of that order. Therefore, to the extent that any sealings, possession and occupation of the assets/properties set out in the schedule to the application are on the basis of the order of 20/07/16, my view is that this would amount to an activity that has no legal basis given that the order of court that birthed it has ceased to have effect. On that basis, therefore, to the extent that the prayer 1 in the motion paper for the unsealing and vacation of the properties listed in the face of the order of 20/07/16 is hinged on the order of 20/07/16 and affirmed on the 2/08/16, I see no harm in granting same on terms, and this prayer, therefore, is hereby granted’’.
On EFCC’s afterthought claims that Fayose’s properties suddenly belonged to different parties, the court disagreed: ‘‘The EFCC as an investigator of outstanding repute, and given the discovery of legal owners of the properties are discoverable by a visit to the land registry and even examination of documents of title, it is hard for this court to believe the claim that the discovery that the properties, which had already enjoyed an order of interim attachment, which lapsed on the 4/09/16 were owned by different persons subject to the lapse of this court’s order of 20/07/16 is a claim, which is very difficult to believe, and for the avoidance of doubt, this court disbelieves it.’’
The court equally frowned at the EFCC for suppressing the fact of the pendency of the case before Justice Dimgba, when it again approached Justice Abang, for a similar fresh ex parte order of interim attachment over the same properties. The court held that Fayose’s suit was not academic, but live, and urged Fayose to investigate what really transpired at Justice Abang’s court.
Thus, for the second time in six days, yours sincerely moved the judicial machinery to uphold Fayose’s rights; first, at Ado Ekiti, where his accounts were defrozen; and now, at the Federal High Court, Abuja, where his attached properties were again unsealed and vacated.
The Justice Dimgba decision, which vacated EFCC’s sealing, possession and occupation of Fayose’s properties highlights the dangers inherent in ‘‘forum shopping’’, a detestable and cowardly step usually employed by a party, who seeks more favourable results from a different court, other than the one his case is already pending. Bravo, Nigerian Judiciary.
For the avoidance of doubt, the immunity enjoyed by Governor Fayose under section 308 of the 1999 Constitution, our grundnorm, cannot be wrenched from him under any guise, antics, artifice and design, except the Constitution is amended.
The truth will always prevail against all odds. In latin, we say ‘‘res ipsa loquitur’’ (the fact speaks for itself). There is a season for everything under the sun.
