IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS IUDICIAL DIVISION

HOTDEN AT LAGOS

SUIT NO: LDl10852MFHR-/ZO

IN THE MATTER OF AN APPLICATION BY BABAWANDE AFOLABI FOR AN

ORDER FOR THE ENFORCEMENT OF HIS FUNDAMENTAL RIGHT

IN THE MATTER OF FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE)

RULES 2009.

BETWEEN

MR. BABAWANDE AFOLABI )..APPLTCANT

AND

L. MR. KENNY AWOSIKA )

2. ECONOMTC AND FINANCTAL CRTMES COMMISSION )...RESPONDENTS

1ST RESPONDENT'S COUNTER AFFIDAVIT IN OPPOSITION TO THE

APPLICANT'S ORIGINATING MOTION DATED 4TH DAY OF DECEMBER, 2020.

I, KENNY AWOSIKA, Male, Christian, Dual Citizen of Nigeria and United States of
America do hereby make oath and state as follows:

L. I am the person sued as the 1't Respondent and Co-founder, Co-owner, and
Chief Innovation Officer (Director of IT and InnovationJ of Green YWhite
Group Limited; the parent company of Green Africa Airways Limited
[hereinafter referred to as 'the company'J with the Applicant and by virtue of
my position I am familiar with the facts of this case.

2 I have seen and read the affidavit of Mr. Babawande Afolabi in support of his
originating motion together with exhibits attached and I know as a fact that
the averment contained therein are false and a fabrication of the Applicant.

3 Sometime in 20 L2, I and the Applicant had a discussions and conversation

about starting a transportation company. The name, Green White Group
[GWG) which I suggested was registered with my home address in Maryland,
USA at 11,304 Appledowre Way Germantown, MD 20876. GWG Maryland was
 started as the parent company of Green Africa Airways, Nigeria IGAAJ and
the Company operations' activities were carried out in my home address.

4. GWG Maryland was registered with the Applicant and I as owners. The
agreed equity distribution is 450/o for the Applicant and 550/o for me. We both
developed Investors Presentation and made contacts to investors to raise
seed funds.

5. I solely paid all the GWG U.S. taxes. I further rebranded the company, created
several demo websites and performed key research and analyses. I was also
pivotal in creating the GWG company email system, creating the company
websites, securing the company domains, and using my personal finances to
drive the idea to realitY.

6. Furthermore, I paid for the Applicant's several trips to meet with investors
such as Mr. Aliko Dangote, Chief Olusegun Obasanjo, Dr. Obi Ezekwesili, and
Mr. Akbar Al Baker of Qatar and the incorporation of Green Africa Airways
Nigeria Limited at the Corporate Affairs Commission [CAC] and the Air
Travel License [ATL).

T. To my utter dismay, the Applicant fraudulently substituted both the above

proposed name of the subsidiary company to be incorporated to Green Africa
Airways Nigeria Limited. As if that was not enough, he substituted my name
with his younger brother's fTaiwo AfolabiJ as co-owner of the company.

B. The Applicant skewedly did not indicate that Green Africa Airways Nigeria
Limited is a subsidiary of the parent company - Green \tVhite Group,
Maryland. While I was still in the United States, the Applicant deceived me
and made me to believe that my name would not be required for the initial
registration but that it would be included later after receiving the Air Travel
License [ATL].

g. The Air Travel License [ATL) was granted and the Applicant filed Air Travel
License (ATLI with the Nigerian Civil Aviation Authority (NCAAJ licence
application in Nigeria without indicating my name as a co-owner.

10. Upon the unfolding of the Applicant's fraud, I discovered that sometime in
ZALT,the Applicant signed a loan agreement with Kuramo Capital as a Series
A investor without my name on the contract document. I also discovered that
my name was not on relevant corporate documents and raised the issue with
the Applicant but, he continued to lie to me about effecting the necessary
changes on the incorporation documents.
11. I relocated full-time to Nigeria on 5m day of September,2AlT and began work
with vendors at the Aviation Festival as Green Africa Airrnrays Co-owner/
Director of IT and Innovation. It was during my time in Nigeria that I
discovered that the Applicant had been lying to me at this juncture, I
discovered that the Applicant had been lying to me all these while and did
not mention my involvement as a co-owner with investors nor in any official
documents of correspondents.

!2. The Applicant further registered Green White Group [GWG) UK and Green
White Group (GWG) Delaware without including my name and lied about the
company's creation and details with ulterior motives. It was at this stage that
I discovered a lot of incriminating documents against the Applicant including
the Applicant linking GWG UK as the parent company to Green Africa
Airways, Nigeria.

13. From formation to the time I left Nigeria to United States of America in
February, 20!9, my commitment and financial dedication to the company
includes leaving my full time $153,000 payment iob to move to Nigeria,
selling my Washington D.C. rental property, selling my stocks, using my
wedding funds to fund licensing and operational activities, and emptying my
entire savings for the continued operations of company when there were no
investor funds.

14. I solely made the total payments of $8,000 for all the GWG Maryland U.S' tax
payments from formation to present. I made payments for Green White
Group and Green Africa Airways Nigeria services from 2013 to 2018 that
sums up to $20,000.

15. My finances paid for majority of Green Africa Airways funding activities and
operations projects from 201,3 to 2017; the estimated amount I expended
was $25,000.

L6. I sent to the Applicant an estimated sum of $71,000 via (checks, wire
transfers, and direct deposits into his account and the GWG Maryland
business account) and even gave him free access to my credit card for the
operations of GWG Maryland and Green Africa Airways Nigeria.

L7. In 2018 alone, I purchased $8,000 worth of tools and materials for the
operations of Green Africa Airways Nigeria while I was in Nigeria.
18. Using the GWG Maryland company, I raised $65,000 from seed investors
(family and friends) in the United States for the operations of the subsidiary
company, Green Africa Airways Nigeria; A total of $250,000 was raised from
seed investors globally and sent to the Applicant. Herein attached and
marked as Exhibit A are copies of documents evidencing same.

Lg. Contrary to the averments made in paragraph 1 and 3 of the Affidavit in

support of Motion, I state that sometimes in 2012 we started the discussion
for the birth of the Company, the Applicant and I incorporated Green White
Group Limited on the 26tn day of September,20L3 and later as Co-founder,
Co-owner of Green Africa Airways Limited IGAAJ, the Applicant and I agreed
in 2015 that he was to go and register GAA as a subsidiary of Green White
Group LLC, a company we both registered at my home in Maryland (11304
Appledowre, Way #583 Germantown, MD 20876). The Green White Group
allocated 45o/o shareholding to the Applicant while I held 55o/o shareholding
in the Company contrary to the averments in the Applicant's affidavit in
support. Herein attached and marked as Exhibit 8L-5 are copies of
incorporation documents securing the trade name.
20. That Contrary to some averments made in paragraph 4 of the Affidavit in
support of Motion, I am an Information technology expert, and I never
resigned my position in the company. The Applicant forcefully removed my
credentials in the company when I travelled back to the United States of
America in fear of my life due to threats and for my safety sometime in
February, 2019.1 discovered all that the Applicant has manipulated a lot of
documents, minutes of meeting and crafting board resolutions without my
knowledge.

21. Further to paragraph 4 above, the Applicant has forged agreements that were
used to divert, steal and siphoned money from the company. I provided the
initial start -up investments of the company and continued to do so after
seeds investors and the Series A agreement. The Applicant diverted all the
funds made to the company, seed investors'fund and the initial capital raised
to himself and his familY members'

22. With reference to the averments made in paragraph 6 of the Affidavit in

support of Motion, the Applicant, otherwise known as my brother, grew up
with me in Ile-lfe, Osun State before I left Nigeria for the United States in
LggT.lt was me that co-signed the undergraduate school loan at Wesleyan
University that allowed him to study in the United States. When he was not
interning, he spent most of his holidays with me. It was during one of his
regular visits and our walks together that we conceived The Green White
Group, a transportation company in Maryland. In the intent to make sure that
we reduced the financial burden on the new Startup, the Applicant moved in
 permanently with me with access to the entire 3rd floor which included a
home office, private bathroom, internet service and three [3J course meals
while not working or having a job.
23. With reference to the averments made in paragraph 7 of the Affidavit in
support of Motion, the Applicant's intent was full employment with American
Airlines upon the completion of his internship unfortunately, he was denied a
full-term employment upon the completion of his internship. The first
business we started under the Green White Group corporation was
MyCityBus (a bus transportation company) and not an airline as he has now
misconstrued the origins of the startup. The intent was to cover all means of
transpor! using technolory and information as our business advantage, a
business model similar to transdevna.com. Herein attached and marked as
Exhibit C1-1-5 are couple of printed out electronic mails/chats between the
Applicant and I during the early stage of the startup/company.

24. With reference to the averments made in paragraph B of the Affidavit in

support of Motion, the registration of Green White Group LLC, at my address
in Maryland was a joint agreement between the both of us. The 55:45
percentage split of the company was also a shared agreement between both
of us (55o/o to me and 4|o/oto the ApplicantJ. As I was the only partner with a
full-time job, I held a lot of the risk and liabilities for the running operations
of the company including the annual tax liabilities. Herein attached and
marked as Exhibit D are taxation documents evidencing payments for the tax
of the company.

25. With reference to the averments made in paragraph 9 of the Affidavit in

support of Motion, the funds raised for the registration of Green Africa
Airways a subsidi ary of Green rWhite Group LLC, was raised by both me and
the Applicant in the United States. The decision to incorporate the company
in Nigeria was a decision we agreed to because of the business incorporation
and Air Transport License [ATL] process in Nigeria. Taiwo Afolabi was never
part of the conversation or a member of the company. I was only aware that
we needed someone with the expertise of Captain Roy Ilegbodu to have the
credentials to obtain the ATL license.

26. Sequel to paragraph25 above, the Applicant called me in haste one afternoon
staiing that he urgently needed to complete the registration of Green Africa
Airways and that because I needed to be present in Nigeria for the
registration that he would add my name to the company incorporation
deiails after the Air Travel Operation License. The Applicant was my brother,
so I trusted him and agreed to the decision to move forward with the
incorporation of Green Africa Airways in Lagos, Nigeria. I asked for the
incorporation documents but the Applicant only showed me the front page of
the document and did not include the shares distribution pages which I
 innocently knew nothing about. My appointment as Director to the company
in November 2018 was after I continued to question the Applicant's alternate
intentions and my omissions in the corporate documents. It was out of
frustration that the Applicant added me as a Director of Green Africa Airways
and said he would correct the ownership after settling the Series A
agreement with Kuramo Capital. Fortunately for me, a few weeks later, I met
the founder 0f Kuramo Capital, Mr. Wale Adeosun through my cousin at his
Birthday. It was during our conversation and consequential in-person
meetings that I discovered that the Applicant has been falsifying corporate
documents and lying to me about the Investors awareness of our partnership
and my ownership structure in the company. Herein attached and marked as
Exhibit E is an electronic mail informing one of our close friends my
discovery of what the Applicant did.

27. With reference to the averments made in paragraph 10 of the Affidavit in

support of Motion, the Applicant's full-time job as CEO was fundraising while
mine as CIO was operations and technology. That said, I still contributed to
the fundraising initiative and was able to raise 24o/o of the planned seed
round budget. The Applicant had access to my personal credit card which he
used for the plane flights to meet investors also, he had access to my car at all
times. For the purpose of transparency, I ensured that all my seed investors
met with the Applicant and during each meeting investor were clear that we
were business partners which gave them the confidence to invest in the brief
business plan.

28, With reference to the averments made in paragraph l,L of the Affidavit in
support of Motion, during the Series A Funding round, I continued to provide
research and suggested funding opportunities to the Applicant. We needed
the income from my day job to keep the company operational and we both
could not be on the road fundraising. So, it was decided that since the
Applicant was unemployed, he would perform the "road-show" fin person
meetings with the investors) while I provided operational support from the
home office. The strategy was effective because it would have been
impossible to raise funds and travel to meet with investors if we both had a
full-time job. Interestingly, it was my frustration after I had quit my full-time
job, moved to Nigeria, emptied up all my savings, sold my stocks, sold my
property in Washington D.C. to fund the operations of the company that I
decided to stop focusing on just the operations of the company in Nigeria.

Zg. Sequel to paragraph 28 above, the Applicant's progress with the Series A
fund raising was failing and our prime and only Series A investor, Kuramo
Capital had stopped all communications with him. I decided to break ranks
and started fundraising again. It was through my fundraising that I met with
my cousin. Fortunately, for me, I discovered that our Series A core investor,
 Kuramo Capital, Mr Wale Adeosun was her uncle, hence making him my
distance uncle. Even better, the night of our meeting was his Birthday. It was
due to our chance meeting that night that I discovered the fraud that the
Applicant was. Even after the discovery, I hoped the Applicant will change
and right the wrongs or repent, so I worked to bring Mr. Wale Adeosun back
to the Series A negotiation table. Instead of the Applicant thanking me for
reconnecting with Kuramo, he instead said the following words, "You
Awosika's are everyrwhere, do you want to take over the world? Soon,
you and Wale Adeosun will take the company away from me". It was
after this surprising statement that I started seeking legal advice in privacy.

30. With reference to the averments made in paragraph 12 of the Affidavit in

support of Motion, the Applicant and I had always planned the strategy of the
company together since day one, so it surprised me after I moved to Nigeria
full time that discussions and decisions were being held without my
inclusion. I questioned the Applicant about this on many occasions and the
conversation always led to the fact that the company was growing extremely
fast, and each person had to focus on their specialized area and teams. The
sad part was that the Applicant was not to be trusted with the specialized
authority (CACI to handle the company incorporation or finances. Herein
attached and marked as Exhibit FL-1,2 are copies of electronic printout of our
conversations during the early stage of the startup.

31' With reference to the averments made in paragraph 13 of the Affidavit in

support of Motion of the Applicant wherein he stated that registering the
Green ttA/hite Group in the UK was based on the legal team's advice; and that
of the briefing during or regular partnership meeting. I believed him hence I
provided the Applicant and the company lawyer, Oluwayemisi Bolarinwa
with my credentials/identification for the registration. I asked for the
company's registration documents a few weeks later and the Applicant
passed me off as the CFO. I later did my personal research and found out that
the Applicant had registered the UK and Delaware, U.S.A. company without
including my information. I questioned him about this upon my discovery
and his response was that it must have been a mistake by the legal team and
the CFO and that due to the ongoing Series A negotiation, I should not add to
the complexity and that I should trust him that it would be fixed after the
Series A is completed. That about zAM one morning during one of our usual
long hours in the office, the Applicant walked up to my office to discuss about
being a "silent partner", I responded that "it was too late to be discussing
such matter and why now?". At this poin! I knew not to trust his words and
continued my research and private legal advice.

32. With reference to the averments made in paragraph 14 of the Affidavit in

support of Motion, there was nothing like "To ensure a smooth logistical
 process". The fact is that there is no such thing as a smooth logistical process,
this was the same story I was told when The Green Africa Airways was
registered in Lagos, Nigeria without the Applicant including my name as co-
owner and co-founder. As a matter of fact, the Applicant failed to mention
that he also opened a "private" LLC under the name of the Green White Group
Limited in Delaware, U.S.A. I found out about the Delaware subsidiary during
my research. The Applicant then sent a private letter to seed investors,
without informing me, requesting that they sign an agreement within a few
days or forfeit their investment and to transition their investments to the
Green White Group Limited, U.K.

33. Note, the Applicant did not inform investors that he had falsely removed me
from the ownership of the company, that Green rvVhite Group LLC which they
invested and is the founding company of Green Africa Airways was not
associated with the new company. Neither did he tell them that upon
registration of Green Africa Airways in Nigeria, he didn't register it as a
subsidiary of the company they invested in which was Green White Group,
LLC in Maryland. As of the moment of this affidavit, the Applicant has not
communicated with any of my seed investors on the status of their shares or
their investments since the forced shares transition letter was sent.

34. With reference to the averments made in paragraph 15 of the Affidavit in

support of Motion, it was as a result of my findings, legal advisory, and goal to
preserve the company that I choose the route of the "Demand Letter"
although I was advised to immediately advance the findings to the
commission in charge of financial crimes and Nigerian Federal Courts.

35. With reference to the averments made in paragraph L7 of the Affidavit in

support of Motion, the Applicant attempted a hasty negotiations and
mediation session with individuals with bias on the matter which would give
him a swift advantage to the dispute. Even after we were able to have a
meaningful mediation, it was the Applicant that worked away from the
mediation table.

36. With reference to the averments made in paragraph 18 of the Affidavit in

support of Motion, it was the Applicant that worked away from the
negotiation sessions. During the negotiations, the Applicant only objective
was to remove me from the company and pay me off to cover up his
falsehood (The Applicant was frustrated that I had discovered his ulterior
motive). He further ostracized me from key meetings, removed my company
access and informed team members to stop all communications with me. He
went as far as firing team members that were loyal to me and paying off the
company's associates with shares of the company. It was apparent to me that
the core investor did not know of my existence although I have been led to
 believe so by the Applicant, hence my letter to the core investors to inform
them of the ongoing situation.

37. With reference to the averments made in paragraph 19 of the Affidavit in

support of Motion, a few days upon the arrival of the Applicant's letter, we
*"i" asleep at home when the AC unit of my house started burning; with me,
my wife, my baby sleeping inside. The house had only one exit door and the
fiie started outside in front of the main entrance to the house. The whole
house was a total loss, but we were blessed to have escaped with our lives by
just two [2) minutes spare and ran through the fire and heavy dark smoke.
This house was also the home office of Green White Group LLC. Seven (7)
specialist investigators investigated the cause of the fire and were not able to
find any scientific reason or cause of the fire.

38. With reference to the averments made in paragraph 20 and 22 of the

Affidavit in support of Motion, interestingly, the Applicant paid me a surprise
visit all the way from Nigeria the day/morning of the fire; literally four [4)
hours after we had been homeless not to show condolences of losing
everything and almost losing our lives but to settle the issue of ownership
and shares of Green Africa Airways. It was at this point that I informed him to
stop all communications with me and to only correspond with me through
mylawyers. The $650,000 settlement offer was again another buyout offer
by the Applicant and an attempt to cover up his lies and fraud hence the
reason why my lawyers and I rejected the offer.

39. The $1,500,000.00 settlement offer was also rejected because my terms were
not being met; the Applicant's continued intent was to wipe out my existence
in the company and cover up his lies and fraud.

40. With reference to the averments made in paragraph 23 of the Affidavit in

support of Motion, as an outed Co-founder and co-owner, it was my right to
r.iort to the Nigerian authorities the fraud I have experienced. The matter of
the Applicant hacking into my social media accounts, ipage account (domain
and webhosting services) through the help of Princesse Likayi an employee
of the .o*prrry and stealing all the domains I have managed and funded for
many y"urr and transferring them to GoDaddy was another criminal offense
which the Applicant admitted to. Herein attached and marked as Exhibit G1-
L6 are .opi.r of electronic email print out evidencing the fact that I
personally paid and obtained the company's domain and the hacking of my
ipage/social media accounts.

41,. With reference to the averments made in paragraph 24 and 25 of the

Affidavit in support of Motion, I wrote a petition against the Applicant
serious allegations of fraud , forgery, misappropriation of the company funds
etc. Like the Applicant, I was interrogated by the EFCC and mandated to
 travel from the United States to Nigeria on two [2) occasions to physically
attend to the EFCC interviews. Each time, I have had to hire the Nigerian
Police for my safety and security due to threats from the Applicant's father.
Herein attached and marked as Exhibit H is a copy of my petition to the 2"d
Respondent.

42. Sequel to the above, during the EFCC interviews, there were no threats,
intimidation, or harassment from the EFCC officials during the interviews
contrary to the averments made in paragraph 24-34 of the Affidavit in
support of Motion which are very untrue, I state that the petition I wrote to
the EFCC was not because of the outcome of the settlement/mediation that
failed but to safeguard my investment in the company from fraudulent
activities such as fraud, forgery, diversion and oppression by the Applicant
and his family as I did not want to resort to self-help and all other atrocities
embarked upon by the APPlicant.

43. Sequel to paragraph 42 above, I state further that apart from the reason
stated above, I was compelled to write the said petition because I know that
the Applicant has been making fictitious payments to conduct fraudulent
transactions including misappropriating the company's money.

44. Contrary to the averments made in paragraph 24-34 of the Affidavit in

support of Motion which are complete falsehood, the Applicant is trying
fervently to prevent any investigation by the EFCC that will expose his
alleged crimes.

45. Contrary to the averments made in paragraph 24-34 of the Affidavit in

support of Motion which are very untrue, there has never been any
intimidation or harassment by the 2"a Respondent, EFCC as a result of my
petition. I maintain the Applicant is desperate at all cost to prevent
investigation into his alleged crimes and one would only wonder why the
Applicant want to use the instrument of court to prevent an agency of
government from carrying its lawful duty.

46. Contrary to the averments made in paragraph 24-34 of the Affidavit in

support of Motion which are not true and an unnecessary exaggeration by
the Applicant, I do not have the powers to use the 2"a Respondent, EFCC, I
only performed a civil obligation imposed by law to report commission of a
financial crime to the appropriate government agency set up by law to carry
out investigation.

47. With reference to the averments made in paragraph 27 and 28-34 of the
Affidavit in support of Motion, and contrary to the averments made therein, I
am only aware the Applicant was invited for questioning with regards to with
the allegation of fraud, forgery and diversion of company funds. The
 Applicant was never detained to my knowledge and the claim by the
Applicant about profiling can only be verified or clarity by the EFCC, the 2'd
Respondent of the allegations as I am not able/position to ascertain the
veracity of the claims since I am not part of the investigating team neither am
I an officer of the 2"d Respondent.

48, Contrary to the averments made in paragraph 24-34 of the Affidavit in

support of Motion which are very untrue, I know for a fact that no one
including the Applicant and all other individuals invited for questioning with
regards to my petition were detained.

49. Contrary to the averments made in paragraph 24-34 of the Affidavit in

support of Motion, I only exercised my right to report to the police a case of
fraud, forgery, diversion of the company's fund etc. It is a known fact that the
duty of the court is not to investigate. I only reported to the appropriate
authority.

50. I vehemently deny paragraphs 28 of the Affidavit in support of Motion which

are very untrue and puts the Applicant to strictest proof of same.

51. With reference to the averments made in paragraph 29 of the Affidavit in

support of Motion which are not correc! and I put the Applicant to strictest
proof of same.

52. t know that the essence of this present action by the Applicant is to forestall,
frustrate and hinder the 2,a Respondent investigation. The Applicant has
been boasting around about his connections that he can get away with
anything.

53. This application will prevent the 2'd Respondent from carrying out its
statutory duties of investigating crime if granted.

54. Contrary to the impression and skewed intent of the Applicant to deceive this
Honourable Cour! it important that I state that I was never served on the
Court in respect of this application.

55. I became aware of this applicationbecause the registrar sent an email which
I received in my A007Kenny@gmail.com mailbox. The Service Address [No.
2, Ore-Ofe Oluwa Street, Opposite CAC Theological Seminary, Opa, Ile-Ife,
Osun State) used by the Applicant is another of his fraudulent approach "to
ensure a smooth logisticat process". The Applicant was a resident of the
above stated house many years ago with my mother who took him in as a
son; he is very aware that neither me nor any of my family members reside
or have any primary dealings with the house.
56. As a matter of fact, I was never a resident of the house (l left Nigeria as a child
before the construction of the house was completed) and my mother who
resides in the United States has not lived in the house for over fifteen (15)
years. Herein attached and marked as Exhibit I is a copy of the Hearing Notice
from the legal registrar of this Honourable Court.

57. It is in the interest of justice to refuse the Applicant's application more so

that the serious case of fraud, forgery and diversion of the company's fund
have been established against him from the preliminary investigation by the
2"d Respondent.

58. I urge this Honourable Court to discountenance all the averments made in
paragraphs of the Affidavit in support of Motion which are not correct,
merely fabricated and designed to evade criminal investigation and justice.

59. That it is in the interest of justice to refuse this application and allow the 2"d
Respondent to perform their statutory duty and conclude the investigation of
the alleged crime.

60. That it will be in the interest of justice to dismiss this application with
substantial cost.

61.. I depose to this affidavit in good faith believing its contents to be true and in
accordance with the Oaths Law in force.

NENT
SWORN TO at the
High Court Registry of Lagos State, Igbosere
This day of ]une, 2021"

BEFORE ME

COMMISSIONER FOR OATHS

 IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

SUIT NO: LDl10852MFHR/ZO

IN THE MATTER OF AN APPTICATION BY BABAWANDE AFOLABI FOR AN

ORDER FOR THE ENFORCEMENT OF HIS FUNDAMENTAT RIGHT

IN THE MATTER OF FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE}

RULES 2009,

BETWEEN

MR. BABAWANDE AFOLABI )..APPLICANT

AND

1. MR. KENNY AWOSIKA )

2. ECONOMTC AND FINANCIAL CRTMES COMMISSION )...RESPONDENTS

RESPONDENTS' WRITTEN ADDRESS IN OPPOSITION TO THE APPLICANT'S

MOTTON ON NOTICE DATED 15/11116.

1.00 Introduction

1.01 This written address is in support of the 1't Respondent's Counter Affidavit
and in opposition to the Applicant's Originating Motion seeking for reliefs
set out in the motion Paper.

2.00 Summary of Facts

z.OL Summary of facts are as contained in the Respondent's Counter Affidavit

deposed to by the Respondent. The Respondent shall rely on the entirety of
the Counter Affidavit and the Exhibits attached

3.00 Issues for Determination

 1. WHETHER the Applicant can use this Court as a tool to prevent the EFCC
2nd Respondent, from carrying on the statutory duties in the circumstance
of this case.

2. WHETHER the Applicant have been able to establish that their fundamental
rights were infringed by the Respondent.

3. WHETHER the right which the Applicant is seeking to protect under Order
2 Rule L,2 and 3 of the Fundamental Rights [Enforcement ProcedureJ Rules
2009 are absolute.

4. WHETHER the Applicants are entitled to the reliefs sought from this
Honourable Court.

4.00 Arsuments

4.00 Issue One: Whether the Applicant can use this Court as a tool to
prevent the 2"a Respondent from camying on their statutory duties in
the circumstance of this case.

4.01, We submit that the 1't Respondent being a citizen of Nigeria has a
constitutional duty to report the commission of a crime to the Znd
Respondent, to investigate such crime.

4.02 In order to underscore the above poin! we refer the Court to the case of
Fajemirokun v. Commercial Bank (Nig) Ltd. & Ors. (2009J Vol 21 WRN
10-15 the Court where Ogebe ]SC held as follows:

"It is the duty of citizens of this country to report cases of

commission of crime to the police for their investigation and what
happens after such report is entirely the responsibility of police.
The citizen cannot be held culpable for doing their civic duty
unless it is shown that it is done malafide"

4.03 On the strength of the above authority, the l-'t Respondent cannot be held
liable for reporting the commission of a crime by the Applicant herein. [See
paragraphs of the Respondent's Counter Affidavit.

4.04 The Court of Appeal in the case of Attorney-General, Anambra State v.

Uba (2005J 15 NWLR (PT 947) 44 at 50 where itwas held:
"For a person, therefore, to go to court to be shielded against
criminal investigation and prosecution is an interference of
powers given by the Constitution to law officers in the control of
 criminal investigation. In the instant cose, the 7't respondent has
no legally recognizable right to which the court can take
cognizance right to which the court can come to his aid. His claim
is not one the court can take cognizance of for it has disclosed no
cause of action. The 7't Respondent cannot expect a judicial fiat
preventing a law officer in the exercise of his constitutionol
power,,.
Of particular importance is the injunctive relief sought by the
plaintiff is contained in relief IX in the statement of claim. In effect,
the 7't Respondent is asking the court to shield him from criminal
inv e stig ation an d pro s e cution. "

4.05 We therefore submit that by virtue of section 6 of the EFCC Act, the 2'd
Respondent or any of its Unit, men and officers can invite interrogate for the
purposes of detection of any crime.

4.06 Also in the case of Mallam Abdullahi Hassan & 4 Ors. v. Economic and
Financial Crimes Commission (201,4) 1 NWLR IPT 1389) 616 where the
Court of Appeal held:

"No Courthas the power to stop the investigative powers of the Police or
EFCC or ony agenql established under our laws to investigate crimes
where there is reasonable suspicion of commfssfon of crime or ample
evidence of commission of an offence by a suspect."

4.07 In the present circumstance, we submit that, the 2"d Respondent have
inherent powers to investigate crime upon reasonable suspicion that the
Applicant has committed a crime and we urge the Court to so hold.

4.08 We refer the Court to paragraphs of the Respondent's Counter Affidavit

which expressly states the purpose for which the Respondent reported to
the 2,4 Respondent.

4.A9 We further refer to the paragraph 2L of the Counter-Affidavit of the

Respondent where the Respondent avers as follows:

'46. ...I do not have the powers to use the police, I only performed a
civil obligation imposed by law to report commission a crime to
the 2"d Respondent to carry out investigation,"

4.10 tt is the position of the law that when a repor! or petition or complaint is
made to the statutory body, their duty is to look at the complaint cannot be
suppressed.
4.1,1, On the above, we refer the Court to the case of Dododo v. Economic and
Financial Crimes Commission & Ors. (20L3J 1 NWLR (PT 7336) Page 468
at 510 para A-C where the Court held as follows:

"The EFCC and the ICPC enjoy the status of the powers vested in the
police which encompasses the duty to examine a complaint or
if
petition, investigate, qnd prosecute necessary and when a
petition or complaint is made to the statutory body their dutJr to
look at the complaint cannot be suppressed "emphasis supplied

4.LZ Also in the case of A.G. Anambra State v. IIba (2005) 15 NWLR (Pt 947)
Page 440 para H the Court per Bulkachuwa JCA went further to state as
follows:

"For o person, therefore to go to court to be shielded against

criminal investigation and prosecution ls qn interference of
powers given by the Constitution to Law Officers in the control of
criminal inv e stig ation "

4.1,3 In the case of Faiemirokun v. Commercial Bank (supra) the court held as
follows:

"In view of section 35(7)(c),(2), (3),(4)(5) and 6 snd section 36(1)-

(12) of the 7999 Constitution which provides adequate safeguard
for the arrest of any person suspected of having committed an
offence, investigation of the allegation and the prosecution of the
offender, no person has the constitutional right to be shielded
qgainst crimtnal investigation by a judicial fiat or order lemphasis
ours].

4.1,4 We therefore submit on the combined effect of all the authorities cited that
the Applicant cannot use this Honourable Court as an instrument or a tool
to prevention, detection andf or investigation of a crime and we urge the
Court to so hold.

4.1,5 It is trite that the allegation of a breach of human rights is determined based
on affidavit evidence set before the court. In that wise, it is our contention
that a careful perusal of the affidavits and annexures before your lordship
will show that the gravamen of the matter between the Applicant and the 1't
Respondent as presented before the 2nd Respondent is not that of "debt
recovery" but that of an alleged fraud by the Applicant. [See paragraphs 45,
52 and,S3 of the Counter Affidavit which we herein reproduce:
 '52. I know that the essence of this present action by the
Applicanfs is to forestall, frustrate and hinder the police
investigation.

4.\6 Contrary to the averments made in paragraphs of the Affidavit in support of

Motion which are not true and an unnecessary exaggeration by the
Applicant, the 1-'t Respondent has stated that he does not have the powers
to use the Znd Respondent, EFCC, that he only performed a civil obligation
imposed by law to report commission of a financial crime to the appropriate
government agency set up by law to carry out investigation.

4.17 It is the law that a person cannot by injunctive reliefs be shielded from
criminal investigation and prosecution. See AG, Anambra State v. UBA
(supra).

4.16 My Lord, it is our humbly submission that the 2na Respondent have a right
to act within the law to accept and investigate a criminal allegation reported
by the 1-.t Respondent as they are statutorily created under the law.

4.L7 We humbly submit that the l-$ Respondent's petition to the 2nd Respondent
is not that of the indebtedness of the Applicant, but a case of fraud which is
capable of being investigated by the 2na Respondent. We humble refer your
lordship to Section 6 of the Economic and Financial Crimes Commission
(Establishment etc) Act CAP E7 LFRN 2004 on the functions of the 2na
Respondent.

4.L8 We humbly submit that in the course of its investigations, the Znd
Respondent has the discretion to determine who to invite for interrogation
or number of time to invite a suspect while carrying out investigation on an
allegation of crime. See .Section 7 of the Economic and Financial Crimes
Commission (Establishment etc) Act CAP E7 LFRN 2004; and the case of
FAIEMIR0KUN v COMMERCIAL BANK (NIG.) LTD AND AN0R [2009] Vol.
27 W.R.N. Pg. 7 @pg. 26-27 para. 40-5 where in a similar vein, the
Supreme Court while agreeing with the decision of the Court of Appeal held
that:

",.. During the process of investigotion and interrogation, the

police are empowered to arrest, search, and detain the suspect.
See sections 20 and 24 of the Police Act. During this period the
fundamental rights of the suspect was (sic) not being infringed as
it was the normal duty of the police to arrest, search, and detain a
suspect. See sections 20, 24 and 25 of the Police Act as well as
sections 3 and 6 of the Criminal Procedure Act,"
4.79 I further refer the court to case of Faiemokun v. Commercial Bank (Credit
Lyomans Nig. Ltd.) at 110, Para D-E. The Court of Appeal Lagos Division for
Aminu Sanusi, ICA held that Police are at liberty to investigate any
allegation of commission of crime made by any person. Also in Fawehinmi v.
IGP [2005) 1 NCC Page 4'J,4 at Page 430, para C, the Supreme Court for
Uwaifo fSC [as he then was) held that police in their duty to detect crime
should normally investigate any crime committed by any person.

4.20 My Lord, the Zna Respondent received the petition and referred the matter
for investigation. It will amount to negation or in breach of their statutory
duty if they refused to act on the petition. The 2"d Respondent Police have
power to investigate the 1't Respondent petition on the alleged crime and
the Applicant cannot hide under fundamental right to stop the 2'd
Respondent from investigating the alleged crime against him as this will
also negate the spirit of the provisions of the law.

4.20 In conclusion on this issue we urge this Court to resolve the first issue in
favour of the 1't Respondent.

5.00 ISSUE TWO : Whether the Applicant has been able to establish that his
fundamental rights were infringed blz the Respondent AND ISSUE
THREE: WHETHER the right which the Applicant is seeking to protect
under Order 2 Rule 1.2 and 3 of the Fundamental Rights (Enforcement
Procedure) Rules 2009 are absolute (ARGUED TOGETHER).

5.01 We submit that the Respondent apart from lodging a formal complaint with
the 2nd Respondent and beseeching them to investigate the matter with a
view to bringing the culprit to bool<, Respondent did nothing about the
invitation and interrogation of the Applicant by the 2"d Respondent or any
other person at all to warrant labeling the Respondents as the violator of his
fundamental rights.

5.02 Apart from the mere allegation contained in petition the Applicant's
affidavit to the effect that the 2na Respondent detained them in its custody
for few hours, there is no further or other evidence by the Applicant to
demonstrate that the 2"d Respondent indeed detained him in its custody.

5.03 The Applicant did not exhibit any police report to authenticate the alleged
detention while in the premises of the 2nd Respondent or his claim that the
matter was civil in nature,

5.04 We submit that the burden to proof that the 2nd Respondent detained him in
its custody is on the Applicant. It is trite rule of evidence that "he who
assert must prove" section 131[1) of the Evidence Act, 2011.
5.05 The provision of 131(1) of the Evidence Act 201,L has been reasserted in a
plethora of cases that evidence must be adduced in support averments
before the court so as to guide against speculations and where there is no
evidence adduced in support of an avermen! such averment must be
discountenanced by the court. See Okafor v. Ezenwa (2002) 12 NWLR (PT
784) Page 334 para D-F, Arin v, Chaka (2000) FWLR Pf
rc) 340, Okeke
v. Onyejuluwa (2001) FWLR ef41) 7826.In the case of Fajemirokun v.
Commercial Bank (supra) at page 24 para 35 the Supreme Court held that:

"From the claim of the Appellant at the trial court, the duty to
establish that his fundamental rightwas breached rested squarely
on the Appellant."

5.07 We submit that the Applicant has failed woefully to place credible evidence
before this Court that the 2nd Respondent detained him in their premises
and we urge the Court to so hold.

5.07 In conclusion, we commend Your Lordship to the dictum of Ogebe ]SC in

Fajemirokun v. Commercial Bank (supra) at page 10 para 10-15 where
his Lordship held that:

'It is the duty of the citizen of this Country to report cases of

commission of crime to the police for their investigation and what
happens after such report is entirely the responsibility of the
police. The citizen cqnnot be held culpable for doing their civic
duty, unless it is shown that is done mala fide."

5.08 It is our contention that the Applicanthas failed to demonstrate through his
affidavit evidence that he was detained exposing his intent in bringing this
application which was done mala fide.

5.09 My Lord, it is our humble submission on these issues that the Applicant
rights are not absolute and that the Respondents did not breached or
violate the Applicant's rights as claimed for the mere invitation to the 2nd
Respondent office upon allegation of crime reported against him because
the State has an unequivocal power to derogate from citizens fundamental
rights to personal liberty in the interest of justice, public order, public safety
or public morality, one of such derogation is provided for under section
35[1) [cJ of the 1999 Constitution.

5.10 Section 35[1)" Every person shall be entitled to his personal liberty and no
person shall be deprived of such liberty save in following cases and in
accordance with a procedure permitted by Law."
5.11 Section 35(c) "For the purpose of bringing him before the court in execution
of order of court or upon reasonable suspicious of him having committed a
criminal offence or to such extent as may be reasonably necessary to
prevent him from committing a criminal offence."

5.1.2 We refer the court to case of Emeka Ekwenugo v. F'RN [2001J B NWLR IPT
7089) at Pager L777 paragraph L4. Also A.G Anambra State v. Chief Chris
UBA (2005) 33 WRN at \92 where Bulkachuwa |CA held that:

"For a person, therefore to go to court to be shield against criminal

investigation of power given by the Constitution to Law Officer in the
control of criminal investigation. The Plaintiff has no legal right to
which the law can come to his aid"

5.13 My Lord, the 2"a Respondent in course of investigation only invited the
Applicant and after the preliminary investigation, he was admitted to the
commission Administrative bail on same date.

5.L4 The 1st Respondent has deposed in paragraphs of his counter affidavit that
"...apart from presenting before the 2"a Respondent a formal petition and
beseeching it to "investigate the matter with a view to bringing the culprit
to book", the 1't Respondent did nothing about the invitation and
interrogation of the Applicant by the 2"d Respondent or any other person at
all."

5.15 In the absence of any concrete evidence by the Applicant that the l-'t
Respondent did more, we humbly submit that the 1't Respondent by
addressing a formal petition to the 2"d Respondent has merely carried out
his duty as a good citizen of this country to report cases of commission of
crimes to the appropriate authorities for their investigation, and he cannot
therefore be held culpable for doing his civic duty under the law where
there is no proof that same was done mala-fide. We humbly refer your
Lordship to Section 24 of the L999 Constitution of the Federal Republic of
Nigeria (as amendedJ, and also commend to your Lordship the dictum of
Ogebe I.S.C. In the case of FAJEMIROKUN v COMMERCIAL BANK (NIG.J LTD
AND ANOR [Supra] @pg. 1-0 para. 10-15. Where his Lordship held that:

"It is the duty of the citizens of this country to report cases of

commission of crime to the police for their investigation and what
happens after such report is entirely the responsibility of the police.
The citizen cannot be held culpable for doing their civic duty unless it
is shown that it is done mala fide."
5.16 We therefore humbly submit that the fundamental rights of the Applicant
have not been infringed by the 1't Respondent in any way and pray your
Lordship to so hold.

5.L7 It is our humble submission that in the spirit of respect to the revered
doctrine of separation of powers, the 2nd Respondent while not in breach of
any of the provisions of its enabling statute ought not to be hindered from
performing its administrative and constitutional duties as an extension of
the executive arm of government. See Section 4, 5, and 6 of the 1999
C onstitution (as amended).

5.18 While the Applicant has built his prayers around the allegation that what
transpired between him and the L.t Respondent is a case of debt, we have
set the facts straight before this Honourable Court that what is between the
Applicant and the l-'t Respondent is not a case of debt, and that the 1't
Respondent did not at any time report a case of debt to the 2na Respondent,
but that of fraud [we most humbly refer your Lordship to paragraphs of
our counter affidavit).

5.19 In the absence of a clear proof of bias, we humbly submit that the Applicant
cannot set this Honourable Court in motion against the 2nd Respondent. The
law is as stated by her Ladyship, Justtce Nwodo I.C.A, in the case of
DODODO v E.F.C.C. & ORDS (2013) 7 NWLR Pt. 7336 Pg. 468 @ 570,
parqs. A-C thal

"The EFCC and the ICPC enjoy the status of the powers vested in the
police which encompasses the duty to examine a complaint or petition,
investigate, and prosecute if necessor!", and that
,,

to look at the complaint cannot be suppressed".

5.20 In reaction therefore to the Applicant's assertion that the 1-'t Respondent
has colluded with the 2"d Respondent against him to recover a debt and
make him allocate shares, we posit that the burden lies on the Applicant to
prove the assertion if any. It is a trite rule of evidence that "he who asserts
must prove". Section 131 (1) of the Evidence Act 201.7.

5.2L The above provision of Section L3L (7) of the Evidence Act 2O1.L has been
reasserted in plethora of cases that evidence must be adduced in support of
averments before the Court so as to guide against speculations, and that
where there is no evidence adduced in support of an averment, such
 averment must be discountenanced by the Court. See OruFOR v EZENWA
(2002) 72 NWLR (Pt. 784) p. 334, paras. D-F; ARIN v CHAKA (2000)
FWLR (Pt. 18) 340; OKEKE v ONYEJULUWA (2001) FWLR (Pt. 41) 7826. tn
FAIEMIROKUN v COMMERCIAL BANK (NIG.) LTD AND AN0R [Supra] @pg.
24 para,35. The Supreme Court noted that:

"From the claim of the Appellant at the trisl court, the duty to
establish that his fundamental rightwas breached rested squarely
on the Appellant".

5.22 Furthermore, Paragraph 24-34 of the affidavit in support of the Applicant's

application is clear on the fact that the Applicant was never detained, he
was told to write his statement under caution. We humbly submit to your
lordship that none of the rights of the Applicant has been infringed, rather,
it is imperative for him to co-operate with the investigation efforts of the 2na
Respondent by his presence and in every other way.

5.23 Assuming but without conceding that the 2"d Respondent was biased in its
duties, we humbly submit that the appropriate remedy is not an application
to be shielded from the law or further investigation by way of an application
under Chapter 4 of the constitution, but a case of assault or battery in the
civil court which will be heard upon extrinsic and detailed proof of bias. We
humbly commend to your Lordship the Supreme Court case of
MOHAMMED OLADAPO OIENGBEDE V. M. O. ESAN (LOIA-OKE) (2001) 1B
N.W.L.R. Pt. 746 Pg. 777 @ 784-785 wherein the Court held that:

"In cases involving allegations of bias or reql likelihood of bias,

there must be cogent and reasonable evidence to satisfy the court
that there was in fact such bias or real likelihood of bias as
alleged. In this regard it hq
the mere vague suspicion of whimsical, capricious and
unreasonable people should not be mqde a standard to constitute
nroof of such serious comolaints."

5.24 Furthermore, it is our humble submission that an attempt to shelve the

Applicant from investigation will amount to placing the Applicant above the
reach of the 2"d Respondent investigation. The law is clear that "A person
cannot by injunctive relief be shielded from criminal investigation and
prosecution". See the case of A.G. Anambra State v Uba (2005) 75 NWLR
Pt. 947 Pg. 44 @66-67, paras H- C.
5.25 In the above cited case, his Lordship ]ustice BULKACHUWA I.C,A. went
further to state as follows:

"For a person, therefore, to go to court to be shielded against

criminal investigation and prosecution rs an interference of
powers given by the constitution to law officers in the control of
crimin al inv e stig ation. "

5.26 His lordship's position is in alignment with the thoughts of the lordships of
the Supreme Court in FAIEMIROKUN v COMMERCIAL BANK (NIG.) LTD
AND ANOR (Supra) thatr

"in view of Section 35 (1) (C), (2), (S), (4), (S), and (6), and Section
36 (1)-(12) of the 7999 Constitution which provide adequate
safeguard for the arrest of any person suspected of having
committed an offence, investigation of the allegation, and the
prosecution of the offender, no person hos the constitutional right
to be shielded against criminal investigation by a iudicial fiat or
ordef'
- Per AruPO I.S.C.in FAJEMIROKUN v COMMERCIAL BANK (NIG.)
LTD AND ANOR (Supra).

5.27 We therefore humbly submit that the Applicant's prayers ought to fail, and
that the 2nd Respondent cannot be restrained from carrying out its statutory
duty in this case.

5.28 In conclusion on these issues we urge this Court to resolve them in favour of
the l-st Respondent.

6.00 ISSUE 4. WHETHER the Applicant is entitled to the reliefs sought from
this Honourable Court.

6.AL My Lord, it is our further submission that the Applicants are not entitled to
the relief sought against Respondent because they were merely invited
during course of investigation into allegation against them, and the
Honourable Court cannot restrain or award damage against the Respondent
for performing the normal civic obligation and constitutional duties as that
can lead to a state of general breakdown of law and order or throw citizens
to lawlessness and self-help. I refer the court to the case of Nzewi & Other
v. Commissioner of Police, Anambra State (2007) HRLRA at 156

6.02 My Lord, it is our contention that the Applicant is not entitled to any damage
because they were merely invited and investigated, and there is no fact
 supported by any tissue of affidavit evidence before this Honourable Court
which showed any injury suffered as a result of their invitation and
investigation of the alleged crime against them.

5.03 We urge this Honourable Court to hold further that there is no cogent
evidence or fact before this court to show that the 1't Respondent breached
or likely to breach his fundamental rights of the Applicant as erroneously
claimed

7.00 Conclusion

7.01- We therefore urge the Honourable Court to hold that the 1-'t Respondent has
not infringed the rights of the Applicant in anryay howsoever and
consequently, the Court should dismiss this application in its entirety with
substantial cost.

Dated this ...day of April, 2A21

FUNMI FALANA FCI ATb

CHUKWUMA ONWUEMENE ESQ.
FALANA &FAIANA'S CHAMBERS
CLAIMANT'S COUNSEI
25, ADEKUNLE FAIUYI WAY,
GRA, IKEIA, LAGOS.
E-mail : ffl itigation@gmail.com
TEL: 08021,063232,
FOR SERVICE ON:
THE APPLICANT
c/o Hrs couNsEL
ABIMBOLA AKEREDOLU (MRS.) SAN, FCIArb.
oLAWAIE ADELIYI, ESQ.
APPLICANT'S COUNSEL,
BANWO & IGHODALO,
48, AWOTOWO ROAD,
SOUTHWEST, IKOYI, LAGOS STATE.
akeredo I u (0 banwo -igh o dal o. co m
oa deliyi(O banwo -igho dalo. com
liti gati o n (0 banwo -i gho dal o. co m
oBo3B72513B