Less than one week after a Federal High Court in Lagos struck out his suit against the Economic and Financial Crimes Commission (EFCC), the Chairman of Bi-Courtney Limited, Wale Babalakin, has relisted the suit with minor adjustments to the former one.
Babalakin had filed the former suit to challenge the legality of the criminal charge filed against him by the anti-graft agency before an Ikeja High Court.
The businessman had argued that the EFCC lacked the power to prefer the charge against him at the Ikeja High Court without the fiat of the Lagos State Attorney General.
But Justice Mohammed Idris struck out the suit.
Justice Idris held that Babalakin committed procedural errors by failing to comply with provisions of the court rules.
The judge held that under Order 34 Rules 5 of the court's Civil Procedure Rules, the plaintiff is required to depose to and file an affidavit of service of court processes on the respondents, a requirement Babalakin failed to comply with.
The judge, who relied on both the Supreme Court and Court of Appeal authorities in about 23 cases, held that the rules of court must be obeyed.
Justice Idris held that Babalakin's non-compliance with the said requirementrobbed the court of jurisdiction to entertain the suit, and then struck it out.
The EFCC, through its counsel, Rotimi Jacobs (SAN), had urged the court to dismiss the suit because it was clearly intended to prevent a statutory agency from carrying out its statutory functions.
If the court had not dismissed the suit as against the striking out order, Babalakin would have been left with no option than to appeal the matter.
But yesterday, Babalakin refilled the suit.
It was gathered that the new suit has already been assigned toJustice Ibrahim Buba, while the new judge has fixed December 21, 2012 for hearing.
Babalakin's lawyer, Wale Akoni, had while arguingthe former case, urged the court to grant the relief sought to prevent the EFCC and the Federal Attorney General and Justice Minister, Bello Adoke (first and second respondents respectively), from continuing with their act of illegality.
He said Babalakin's rights had been seriously trampled upon, adding that the EFCC even continued to extract statements from him after the charge at the Ikeja High Court was filed, not minding the fact that he had been deceived that no such thing would happen.
Akoni further argued that the action of the EFCC and Adoke in preferring charges against Babalakin before the Lagos High Court was not done in accordance with the Constitution, theEFCC Act and the Criminal Code Laws of Lagos State.
He said the authority to prefer a charge atthe High Court of any state, is the Attorney General of that state, whose fiat must be clearly exhibited on the face of the charge, adding that in the instant case, no fiat of the Lagos State Attorney General was exhibited to the charge.
The failure of Adoke and EFCC to exhibit the fiat of Lagos Attorney General, according to Akoni, makes the charge filed at the Lagos High Court unconstitutional.
Akoni further explained why the issue was not raised before the Lagos State High Court, saying doing so would amount to challenging the court's jurisdiction.
He said: "We are not challenging the jurisdiction of the Lagos State High Court, we are only challenging the legality of the actions of the respondents."