BETWEEN FOLIO COMMUNICATIONS AND SENATOR IKECHUKWU OBIORAH

IN THE HIGH COURT THE FEDERAL CAPITAL TERRITORY

IN THE ABUJA JUDICIAL DIVISION 

HOLDEN AT ABUJA

CHARGE No. CR/32/2010

BETWEEN:

FOLIO COMMUNICATIONS LIMITED ………… COMPLAINT/RESPONDENT

AND:

1.         SENATOR IKECHUKWU OBIORAH

2.         DSV LIMITED                                                      APPLICANTS

3.         HARLESDEN ENGINEERING LIMITED

4.         CORPORATE IDEALS PROPERTIES LIMITED

AFFIDAVIT IN SUPPORT OF MOTION FOR JOINDER

I, SENATOR IKECHUKWU OBIORAH, Nigerian Citizen, Adult  Male, Lawyer and Senator of the Federal Republic of Nigeria, resident at Asokoro, Abuja do hereby make oath and state as follows: -1. That I am the 1^st Applicant in this matter, and I swear to this affidavit with the knowledge, consent and authority of the 2^nd, 3^rd and 4^th Applicants, and on their behalf.

2. That I was shocked to see published in several National Newspapers a copy of an order made by this Honourable Court secured ex parte by the Respondent upon an application for leave to prefer direct charge against me and the three other Applicants (wherein we were described as Accused Persons), which order directed the Inspector General of Police to investigate the matter concerning us, and a certified copy of one of such publications in the Daily Sun Newspaper of February 3, 2010 is annexed herewith as Exhibit “A”.

3. That this publication was followed by a second set of publications wherein the above-said order was also published alongside some cheques with an extract of the ex parte application, certified copies of such publications in the Daily Sun Newspaper of February 5, 2010 and This Day Newspaper of same date are hereby annexed herewith as Exhibit “B” and Exhibit “B1”.

4. That thereupon I applied and obtained from the Registry of this Honourable Court a copy of the said order of Court, I annex herewith as Exhibit “C”.

5. That I have also seen and read the ex parte application to prefer direct charge by the Respondent against us, the Applicants, and I state that the entire application is based upon blatant falsehood, and gross misrepresentation designed to mislead this Honourable Court.

6. That the entire application by the Respondent is a gimmick to frustrate the enforcement of a judgment delivered by the Federal High Court in a suit we filed against the Respondent in Suit No.FHC/L/CP/1328/2009 D.S.V. vs. THE DAILY TIMES OF NIGERIA PLC, AFRIBANK NIG PLC, FOLIO COMMUNICATIONS LTD, FIDELIS ANOSIKE, CHARLES ANOSIKE, & NOEL ANOSIKE, over the ownership of the Daily Times of Nigeria Plc, (hereinafter called “the Company”. A copy of the order of Judgment is annexed herewith as Exhibit “D”.

7. That the Respondent and his counsel through press releases have been acting in utter disregard of the above judgment and have even cast aspersion and insinuations against the Honourable Judge of the Federal high Court. That in their This Day Newspaper publication of 2^nd Feb. 2010, page 15, annexed herewith as Exhibit D “1”, the respondent maliciously insinuated that one Hon J.C. Okeke an intending Director is the brother of the judge even though Mr. Fidelis Anosike the alter ego of the Respondent personally knows that Hon JC Okeke, a member of State House of Assembly, Anambra is no relation of the Judge. And he knows that “Okeke” is the most common name in Igbo land. The Respondent counsel knows that within the Federal High court system that there are three Judges bearing the name “Okeke.”

8. That the Respondent did not contribute a kobo out of the sum of N1, 250,000,000.00 needed for the purchase of Daily Times of Nigeria Plc, but used the Applicants and Hallmark Bank Plc to raise the funds, while masquerading as the core investor.

9. That the Applicants contributed the sum of N500, 000,000.00 to acquire approximately 40% of the shares of DTN Plc, while the sum of N750, 000,000.00 was obtained from Hallmark Bank Plc (now in liquidation) to complete the purchase.

10. That rather than run the Daily Times of Nigeria Plc as a company, the Respondent resorted to stripping the assets and selling off the several landed properties of the company to the detriment of the investors and shareholders

11. That the Respondent, among several acts of fraud, sold the major landed asset of the Daily Times Plc, that is, the stock exchange building at Lagos for the sum of N900, 000,000.00 but fraudulently declared the sum of N720, 000,000.00 while embezzling the sum of 180 Million.

12. That as a result of problems that arose as a result of the recklessness of the management by the Respondent and fraudulent disposal of company assets, series of litigations arose between the parties.

13. That the parties then signed Terms of Settlement on 18^th November 2005, a copy of which is annexed herewith as Exhibit “E”.

14. That the parties had then agreed that the Respondent would sell its factory at Abuja to the Company (DTN Plc) for the sum of N880 Million while the 2^nd Applicant would sell its own factory to the company (DTN Plc) for the sum of N600 Million.

The 3^rd and 4^th Applicants were to purchase the five named properties of the company valued at N760 Million, the understanding being that since the Respondent had claimed the Stock Exchange building was sold for N720 Million and had held unto the money, it was to bring its said factory in Abuja into the company and to cover the said sum, would now receive the difference of N160 Million from the 3^rd and 4^th Applicants in addition to N720 Million to make up the N880 Million.

The 3^rd and 4^th Applicants were to pay the remaining sum N600Million to DSV Limited the 1^st Applicant for its own factory.

 15. That the properties that were to be conveyed to the Applicants for the said total sum of N760 Million are:

 (1) No 35 Warehouse Road, Apapa, Lagos,

(2) No 15 Copper Road, Ikoyi, Lagos

(3) No 9 Wuraola Esan Close, Ashogbon, Ikeja, Lagos,

(4) Houses, 5,7,9 & 11, Gowon Estate, Ipaja, Lagos

(5) No. 63 Ikwerre Road, Port Harcourt.

16. The 3^rd and 4^th Applicants pursuant to the above agreement issued the 1^st Respondent posted dated cheques in the sum of N160 Million with the understanding that the cheques would be cashed as the 3^rd and 4^th Respondents received title documents and vacant possession of the above properties.

17. The 3^rd and 4^th Applicants thereafter paid the Respondent sum of N19 Million vide Intercontinental bank certified cheque 00007554 and the sum of One Million in cash in redemption of one of the post-dated cheques, the receipt of which the Respondent duly acknowledged in the said agreement annexed as Exhibit “E”.

18. That the Applicants later discovered that the Respondent did not own any print works factory in Abuja howsoever or anywhere else.

The Respondent pointed out an uncompleted, unroofed and abandoned building, overgrown with weeds and bush without any printing equipment whatsoever. 

It was a grand fraud. Recent copies of the photographs of the so-called print works factory are annexed as Exhibit “E2”. 

19. About the same time, the Applicants also received proof that the Respondent had actually sold the Stock Exchange building for N900 Million and not the sum of 720 Million that was falsely declared. Another grand fraud. The copy of letter of offer from the Nigerian Stock Exchange showing the purchase price at 900 Million is annexed as Exhibit “E3”

20. Due to the fraudulent misrepresentations shown in paragraphs 18 and 19 above the 2^nd Applicant rescinded the agreement in Exhibit “E” and wrote to the Respondent conveying the same, a copy of the letter is annexed as Exhibit “E4”  

21. That consequently, the Applicants DID NOT receive any of the said five properties, and none was conveyed to them

22. That the Applicant immediately demanded from the Respondent the return of the redeemed post-dated cheque, which it had failed to return and the other post-dated cheques but by then the Respondent had already cashed the sum of N80 Million plus the aforesaid N19 Million it had received by bank certified cheque and plus the cash sum of N1Million making N100 Million out of the N160 Million.

23. That the Respondent promised to return the un-cashed cheques and the money already cashed.

24. That the Respondent returned the un-cashed original cheques that were stopped, pleading that his staff had erroneously presented them for payment.

25 That the said Terms of Settlement in Exhibit “E” were later overtaken and super ceded by the judgment of the Federal High Court in the matter on 24^th April 2006 which incorporated fresh Terms of Settlement agreed to by the parties, which the judgment of the Court is annexed herewith as Exhibits “F” and which fact the Respondent suppressed from this Honourable Court.

26. That all the above-said five properties never left the ownership and/or possession of DTN Plc until the 1st Respondent illegally sold or long leased them to third parties, as shown hereunder, the same properties it claimed in the charge sheet that were obtained by the Applicants, in order to deliberately mislead this Honourable Court.

27. That with regard to the said No 35 Warehouse Road, Apapa, Lagos the Respondent illegally and without the approval of the Board of Directors of DTN Plc long leased the same to Zenith Bank Plc, Ekochiv Nigeria Limited and the documents evidencing the transaction are annexed wherewith as Exhibits “G” and the copy of cheque of N40 Million received from Zenith Bank by the Respondent is annexed as “G1”

28. That with regard to the said No. 15 Copper Road, Ikoyi, Lagos the BPE long leased the same to Dr. Patrick Oke and remitted the rent in sum of N35 Million to the Respondent who promptly converted the entire sum to its own use. A copy of the cheque is annexed wherewith as Exhibits “H” while the Respondent’s letter requesting for the payment is Exhibits “H1”

29. That with regard to No. 9 Wuraola Esan Close, Ashogbon, Ikeja, Lagos the Respondent illegally and without the approval of the Board of Directors of DTN Plc sold the same to Mikano/Citico Communication Nigeria Limited for the sum of # 575Million, a copy of contract of sale dated 21^st of Day of January, 2010 is annexed as Exhibits J” executed just five days before the filing of this charge and that Dr Alex Izinyon is very much aware of this since he is acting as counsel in the dispute regarding the purported sale of the above property by the 1^st Respondent.

30. That with regard to Houses 5, 7, 9 and 11, Gowon Estate Ipaja Lagos, the Respondent long before the agreement in Exhibit E had illegally encumbered the same with the tenants who are still in possession of same till date.  I annex herewith its letter of offer of the property as Exhibits “K”.

31. That with regard to No. 63 Ikwerre Road, Port Harcourt the Respondent illegally and without approval from the Board of Directors long leased the same to Tradetech Nigeria Limited for 25 years. I annex herewith a copy of the agreement as Exhibit “L”.

32. That the Respondent deliberately lied to this Honourable Court and misrepresented facts in order to secure the leave of court for investigation and to use same for propaganda purposes in the media, just to tarnish the image and reputation of the applicants.

33. That the order was obtained for the mischievous purpose of advertisement and publication of the order and processes to harass malign and blackmail the Applicants when there was no order whatsoever by this Honourable Court for substituted service by publication of the order and processes in the media.

34. That in spite of the judgment of the Federal High Court the Respondent issued a caveat emptor in which it described DTN Plc as its subsidiary and in the same publication of This Day Newspaper of 2^nd Feb. 2010, page 15, the Respondent stated that the so called bounced cheques were issued to him by the 1^st and 2^nd applicants for the purchase of the shares in the DTN Plc contrary to its claim in this suit that the said cheques were issued to it for the purchase of the above listed properties.  Annexed here with a certified copy of the said publication as Exhibit “D1”.

35      That as result of the fraudulent activities of the Respondent and Mr. Fidelis Anosike, we petitioned to the Economic and Financial Crimes Commission to investigate the Respondent, Mr. Fidelis Anosike and the officials of the Nigerian Stock Exchange, and I annex herewith the letter of the EFCC to them as Exhibits “M” “M1” and “M2” respectively.

36. That we have recently also petitioned to the Inspector General of Police to investigate the fraudulent activities of the Respondent, Mr. Fidelis Anosike and others and a copy of the Petition detailing their fraudulent acts is annexed herewith as Exhibits “N”.

37. That the said Mr. Fidelis Anosike and the Respondents have since been removed from the management of the Daily Times of Nigeria, and a copy of the Board Resolution is annexed herewith as Exhibit “P”, and I know that they consequently have no locus stand to seek the said leave from this Court in respect of matters concerning the Daily Times of Nigeria Plc.

38. That if the above facts were brought to the attention of this Honourable Court, this Honourable Court would have refused to grant leave or to make the order directing the Inspector General of Police to investigate the frivolous and false complaint against Applicants.

39. That I am advised by our lead Counsel, Chief Chris Uche, SAN, and I verily believe him, that the ex pare application upon which the order was based is incompetent and not brought according to law.

40. That the leave was obtained mala fide to undermine the judgment of the Federal High Court between both parties in this same matter.

41. That the leave of this Honourable Court was obtained mala fide for the purpose of cheap press propaganda and blackmail, and frustrate the judgment obtained against it.

42. That I obtained a certified true copy of the proceedings of this Honourable Court on 1^st February 2010 in this matter, and gratefully noted that this Honourable Court rightly observed the lapses in the Respondent’s application and the reluctance of the Honourable Court to grant the order as sought by the Respondent, and I annex a copy of the proceedings herewith as Exhibit “R”.

43. That I am further advised by our said Counsel, and I verily believe him, that this Honourable Court has the jurisdiction to discharge the order made in this matter in view of the misrepresentation and suppression of facts by the Respondent.

44. That it is in the interest of justice to discharge the said Order in order not to subject the Applicants to the ordeal and rigours of humiliation and embarrassment of arrest and prosecution of a baseless, frivolous and false charge.

45. That I swear to this Affidavit conscientiously believing the facts hereof to be true and correct and in accordance with the Oaths Act, 2004.

______________

   DEPONENT

Sworn to at the Registry of

FCT High Court, Abuja

This ----------------------------- day of February2010

BEFORE ME

COMMISSIONER FOR OATHS