Justice J.T. Tsoho of the Federal High Court sitting in Lagos State yesterday vacated the restraining order issued on the Economic and Financial Crimes Commission (EFCC) preventing it from arresting and prosecuting Chairman of Bi-Courtney Highways Services, Mr. Wale Babalakin.
Justice Tsoho in a ruling said that the ex-parte order granted Babalakin was intended as a brief intervention to prevent injury and not meant to last a long time. He explained that the order had outlived its lifespan and was no longer valid.
“If the applicants had filed their application early, the respondent would have responded appropriately. But this case will be adjourned without an award of cost. An ex-parte order is meant to be a brief intervention to prevent injury and not meant to last a long time. Therefore, the order has outlived its life span and is hereby discharged, but the respondent should not take any action that will jeopardise this proceeding,” he said.
Before the ruling was delivered, the EFCC counsel, Rotimi Jacobs, SAN, prayed the court to discharge the restraining order, which according to him, had been abused by the applicants' failure to file their application within the five days interval ordered by the court, but instead served same to the respondent at the court premises, which amounted to almost thirty days which ran contrary to the court order. Jacobs further urged the court to impose a cost on the applicants for failure to serve the motion on notice at the appropriate time.
“My lord, I will begin with this motion on notice for extension of time to file further affidavit and reply on point of law which the applicant served me here in court. I will ask for today’s cost for the applicants failure to serve the process since May 11, 2015, which is more than a month now, when the court only gave five days. I therefore urge the court to discharge the order made 28th April, 2015, restraining the respondents (AGF and EFCC) from arraigning the applicant before any court.
“My lord, it has taken them more than a month to serve, while the order ex-parte is still there. My lord we are therefore prejudiced by that order, and technically, the order that your Lordship made has elapsed. My Lord, an order given in the case of Uwazuruike vs AGF contained in the 2013 Nigerian Law Report made it clear that ex-parte order does not mean permanent injunction against the state and the applicant cannot continue to dangle that order like a talisman in the face of the respondent. They are dragging their feet, got an order and went to sleep and not diligent to file their case on time and this is a potent ground for your Lordship to discharge that order and that order has to be discharged,” he said.
Jacobs further told the court that the applicant who should have appeared before Justice Kudirat Jose of the Lagos High Court Ikeja has failed to show up in court due to the restraining order on the EFCC to arraign him.
“My Lord, we are between two courts, the Federal and State High Courts and the State high court has given us one last chance to produce the accused person who is the applicant in this case. Do we proceed at the state? If not, the state will strike out our case which will not be good for us. The applicant has tied our hands with this misleading application to this court to restrain the EFCC. I therefore seek the protection of this court in this matter and that is my submission,” he said.
But the defence counsel, Abiodun Layonu, SAN, argued that the respondent must abide by the order of the court and further urged the court not to grant the prayers of the respondent to discharge the order.
After listening to all their submissions, Justice Tsoho delivered his ruling and adjourned to June 29, 2015.
He, however, urged the respondent to stay action on any other proceeding that will frustrate the case.
