Justice Daniel Osiagor of the Federal High Court in Lgos has quashed and dismissed the perjury charge filed by the police against two businessmen, Babafunsho Adeyemi and Olufemi Bakare, alongside their company, Fenchurch Energy Nigeria Limited for being frivolous.
Justice Osiagor quashed and dismissed the two counts of charge filed against the business people by the operatives of the Force Headquarters Abuja while ruling on the preliminary objection filed and argued by the lawyer to the businessmen, Adedoyin Adetunji-Adeniyi.
The police in charge, numbered FHC/L/265c/2024, had alleged that both Adeyemi, Bakare and their company, sometime in February 2023, conspired together to commit perjury when they misled the court by allegedly stating on oath in suit number FHC/L/CS/319/2023 in paragraph 24 of their affidavit deposed to before the court that “the shareholding of the first plaintiff/applicant and Bastanchury Limited the first defendant, as altered by the Shares Subscription Agreement dated March 15, 2019, ought to be registered at the Corporate Affairs Commission with the relevant documents and filings made thereon.
The offences, according to the police, Sections 516 and 117, are punishable under Section 118 of the Criminal Code Act.
However, at the resumed hearing of the charges today, while Barrister Kyije Roland Abang appeared for the prosecution, Adetunji Adedoyin-Adeniyi, who led the team of lawyers to the defendants, appeared for the two business people and their company. At the same time, Mr Babatunde Kwame Ogalla (SAN) announced his appearance to watch briefly for the nominal complainant in the charge.
Upon the calling of the matter, the business people’s counsel, Adedoyin-Adeniyi, told the court that he had filed a preliminary objection on behalf of his clients, challenging the competency and validity of the charge.
But the Counsel for the Prosecution, on the last adjourned date, urged the court to order the defendants to be prosecuted and take their plea, but the court held that it is better to get the objection out of the way.
Similarly, counsel watching brief for the nominal complainant at the resumed hearing on the 26th of June 2024, Babatunde Ogala (SAN), also urged the court to order that the defendants should first be arraigned before any application can be entertained.
Responding to the submissions of both the prosecutor and Ogalla, lawyer to the businessmen, said the preliminary objection takes priority because it challenges the validity of the charge itself.
He told the court that his clients’ preliminary objection should be taken first.
“My lord, how can police embark on the voyage of futility because this present charge is baseless? They are saying that the defendants deposed to two different facts in different matters before the courts, and those matters are yet to be concluded or judgment given.
“If my lord allowed this illegality to go on here and those cases in favour of the Defendants, what will become of this charge? And the defendant would have been traumatised by the rigour of the trial.
“I beg my lord to dismiss the charge as it offence the sanity of the court.”
Justice Osiagor, after reading through the business people’s preliminary objections alongside supporting documents and after citing the plethoras of legal authorities, upheld the preliminary objection.
The judge consequently quashed and dismissed the charges against the two business people and their company, Fenchurch Energy Nigeria Limited.
The businessmen, in an affidavit in support of their preliminary objections deposed to by Patrick Mgbeoma, a lawyer in the law firm of Messrs AAA Chambers, states the followings: “that the defendants/applicants had filed Suit No: FHC/L/CS/319/2023: between Fenchurch Energy Nig. Limited & 2 Ors. Vs Bastanchury Power Solutions Nig. Ltd on the 22nd day of February 2023, wending before the Federal High Court, Lagos Division.
“That the suit above with Suit No: FHC/L/CS/319/2023 is currently pending before Honourable Justice Peter K.O. Ogundare at the Federal High Court, Lagos Division, and the allegation of perjury has established before the Honourable Court in the civil proceedings in the aforementioned earlier suit to warrant the present charge against the defendants/applicants.
“That the parties have joined issues concerning the affidavit evidence before the Court in Suit No: FHC/L/CS/319/2023, and same is currently pending before Honourable Justice Peter K.O. Ogundare at the Federal High Court, Lagos Division with all the relevant documents to substantiate the facts stated in the affidavit therein.
“That the issue of shareholding of Bastanchury Power Solutions Nig. Ltd, as deposed to by the first defendant/applicant in its affidavit evidence, is substantiated by documentary evidence, which is the certified true copy of the Corporate Affairs Commission search conducted in 2023 and attached to the affidavit evidence in the earlier suit.
“That is the crux of the dispute between Bastanchury Power Solutions Nig. Ltd and the defendant applicants ass assault of the Mareva Order that was discharged by the Honourable Court in Suit no: FHC/L/CS/319/2023: between Fenchurch Energy Nig Limited & 2 Ors. V. Bastanchury Power Solutions Nig. Ltd, on the 22nd day of February 2023, the Complainants failed to await the final determination of the appeal challenging the Ruling of the Court before filing this action.
“That Honourable Court delivered Ruling on the Mareva Injunction in Suit no: FHC/L/CS/319/2023: between Fenchurch Energy Nig Limited & 2 Ors. V. Bastanchury Power Solutions Nig. Ltd, on the 6th of June 2023, vacated the earlier ex-parte Order granted to the Defendant Applicant.
“The defendants/applicants have already appealed the Ruling of the Court, and it is indeed surprising that the complainants have decided to orchestrate these criminal proceedings through the office of the Inspector-General of Police without awaiting the outcome of the appeal.
“The deposition made by the Defendants/Applicants in the affidavit evidence in Suit no: FHC/L/CS/319/2023: between Fenchurch Energy Nig Limited & 2 Ors. V. Bastanchury Power Solutions Nig. Ltd has not been convicted of a false statement or amounting to perjury by the Honourable Court to warrant the commencement of this criminal proceedings against the Defendants/Applicants.
“That the present criminal proceeding is somewhat premature as the pending issues in the earlier suit also included the issue of the shareholding of Bastanchury Power Solutions Nig. Ltd in the earlier suit pending before Honourable Justice K. O. Ogundare sitting at the Federal High Court is yet to be decided to determine whether there is perjury or not, and the same has been adjourned to 28th May 2024 for Hearing of the substantive originating summons.
“That the filing of the instant criminal charge constitutes an abuse of Court and judicial process, as the instant suit is irritating to the Defendants/Applicants and should accordingly be struck out and dismissed.
“That this Honourable Court lacks the jurisdiction to consider the charge filed therein as the issue of shareholding and other incidental matters are already pending before this same Court, that is, Federal High Court, Lagos Division.
“That the complainants ought to have awaited the outcome of the appeal challenging the Ruling of the Honourable Court in Suit No: FHC/L/CS/319/2023: between Fenchurch Energy Nig. Limited & 2 Ors. V. Bastanchury Power Solutions Nig. Ltd on the 22nd day of February 2023, before orchestrating the instant criminal prosecution against the Defendants/Applicants.
“That, at best, the complainants could have awaited the final determination of Suit no: FHC/L/CS/319/2023: between Fenchurch Energy Nig Limited & 2 Ors. V. Bastanchury Power Solutions Nig. Ltd on the 22nd day of February 2023, before orchestrating this present action.
“That the filing of the instant suit constitutes an abuse of Court and judicial process, as the instant suit is irritating to the Defendants/Applicants and should accordingly be struck out and dismissed.
“That this Honourable Court lacks the jurisdiction to entertain criminal prosecution over a matter that the civil suit is already pending before the Federal High Court, Lagos Division, between the same parties
“That the case would have been different if it was confirmed after the civil proceedings that the defendants/applicants indeed lied about the shareholding of Bastanchury Power Solutions Nig. Ltd, but there is nowhere the Court made any comment denouncing the conduct of the defendants/applicants concerning the shareholdings of Bastanchury Power Solutions Nig. Ltd herein.
“That the complainant/respondent is at this moment challenged to place any Court ruling, Order or Judgment that states that the Applicants lied on oath or anything to show that the Applicants; depositions were not accurate in line with the documents that the Corporate Affairs Commission provided as at the time the statement was made.
“That the instant criminal proceedings constitute a gross abuse of Court process because the defendants/applicants had earlier filed a suit by way of Originating Summons between same parties in Suit No: FHC/L/CS/319/2023, which is still pending before Honourable Justice K. O. Ogundare of the Federal High Court, Lagos Division.
“That it is pertinent to state that the Complainants in the suit- have used different avenues to frustrate the Defendants in difvariousurts, and it can be seen in the new matter also filed before the Lagos State High Court in SUIT NO: LD/10952GCMW/2024- Bastanchury Power Solutions Nig Limited & Anor VS Fenchurch Energy Nigeria Limited & 2 ORS, wherein the Bastanchury Power Solutions Nig Limited is also claiming that the Court should decide and the issues of the affidavit, which has not been made the subject of this incompetent charge.
“That the defendants/applicants have also filed a Notice of Preliminary Objection to challenge the competency of the suit, as it has become clear that the complainants have decided to use the scarce resources of the Nigeria Police force to intimidate, frustrate and harass the defendants/applicants.
“It is the interest of justice to strike out and dismiss the instant criminal charge with substantial and punitive cost as it is an abuse of the court’s process, which should not be encouraged by this Honourable court.”
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