OZIGI & ANOR v. F.R.N
(2020)LCN/15468(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Tuesday, December 29, 2020
CA/LAG/CV/479/2020
RATIO
DUTY OF COURT: EVALUATION OF EVIDENCE
The duty of the lower Court or a Court before which evidence is given is to evaluate the evidence and then take a position on same. It is not just enough for a Court to believe or disbelieve the story of a witness without stating the reason for so believing or disbelieving. See Akporiaye vs. Okumagba & Ors (1999) 1 NWLR (Pt. 586) 271.
If the Court fails in evaluating the evidence before it, an appellate Court such as this Court can then under the provision of Section 15 of the Court of Appeal Act assume the position of the lower Court to evaluate the evidence and take a position and make appropriate orders that the lower Court should have made. See Oyo State Paper Mills Ltd & Ors vs. Nibel Co. Nig Ltd (2017) ALL FWLR (Pt. 873) 1683. PER PER EBIOWEI TOBI, J.C.A.
JUDGMENT WRITING: CONSTITUENT OF A GOOD JUDGMENT
I must however say that there is no hard and fast rule on the style of judgment writing. There is no one acceptable style. The style any Judge adopts is fine and acceptable provided the judgment meets the basic characteristics of a good judgment. What constitute a good judgment has been stated in a cloud of cases. I will just make reference to one. That is the case of Ajiboye vs. FRN (2018) 13 NWLR (Pt. 1637) 430 where the apex Court held as follows:
“Having posited above, it needs to be stressed that judgment writing is an art of itself and there could be numerous ways or methods of writing judgment. The methods normally adopted by judges may vary from one judge to another. The variation could be as many as there are numerous judges and each may have or may adopt the method he wishes to adopt. There is really no particular style approved for judges to adopt in judgment writing since as I stated supra, judgment writing is an art of itself as such there can be multiplicity of ways or method of writing it. See Garuba v Yahaya (2007) 3 NWLR [pt.1021) 390; Mbani v Bosi & Ors (2006)11 NWLR (pt.991) 800. In fact this Court in the case of Alfred Usiobaifo & Anor Vs Christopher Usiobaifo & Anor (2005)1 SC 60 the Court had this to say per Niki Tobi J.S.C. (of blessed memory).
“Judgment writing is not an arithmetical or geometrical exercise which must answer exactly to laid down rules in field of mathematics. A judge is not bound to follow the method or methodology stated by counsel in his brief. Once a judgment of a trial judge states the claim or relief of the plaintiff, the relevant facts and counter facts leading to the claim or relief argument of counsel, if counsel are in the matter, reactions of the judge to the arguments and final order, an appellate Court can not hold that the judgment is not properly written.” PER PER EBIOWEI TOBI, J.C.A.
PRACTICE OF THE COURT WHEN THERE IS A CONTEST BETWEEN TECHNICAL AND SUBSTANTIAL JUSTICE
The law has long been settled that when there is a contest between technical and substantial justice, the latter will prevail over the former. See Oke & Anor vs. Mimiko & Ors (2013) 8 SC 1; Ekweozor & Anor vs. Reg. Trustees of the Saviour’s Apostolic Church Nig (2020) LPELR-49568 (SC).
The Courts exist to do justice and therefore the will of substantial justice should not be sacrificed on the altar of technical justice. That apart, it has been decided by the apex Court that a motion does not become incompetent mainly on the premise that it was brought under the wrong law. In Iwuji vs. Ugorji (2015) LPELR-24354 (CA), this Court held:
“The Law needs no restatement that a Court will not turn its back against a party in Litigation merely because he has proceeded to seek for a remedy or determination of an issue or matter under a wrong Law or Rules of the relevant Court.
The Court concerned will not hesitate to grant in favour of such a Litigant the relief sought under the appropriate and relevant Law or Rules if he/she is able to establish or proof his or her right to the relief he or she is seeking. See the case of MIKE OMHENKE OBOMHENSE VS. RICHARD ERHAHON (1993) 7 NWLR (PART 303) 22 at 40 F -G per KARIBI -WHYTE, J.S.C. who said: “I agree that the principle is now well established that where a relief or remedy claimed under a wrong Law is supported by facts establishing the remedy, the claim will not be denied merely because of the wrong Law relied upon. See FALOBI VS. FALOBI (1976) NMLR 169. This principle is founded on justice and common sense. But in order to benefit from the principle the facts relied upon must support the correct Law to be applied. This is the critical issue in the application before us.” PER EBIOWEI TOBI, J.C.A.
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
1. JOHN ONIMISI OZIGI 2. DIAMOND HEAD VENTURES & DEV. COY LTD APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is predicated upon the judgment of Hon. Justice M.S. Hassan of the Federal High Court sitting in Lagos delivered on 8/5/2020 in Suit No. FHC/L/CS/1094/2018 – Federal Republic of Nigeria vs. John Onimisi Ozigi & Anor. The facts of the case at the lower Court that culminated in this appeal is based on the Originating Summons of the Respondent (then Applicant) brought under Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act No. 14, 2006 found on pages 390-391, vol. I of the record of appeal. The Respondent in its application sought the following reliefs to wit:
“1. A Final Order of this Honourable Court forfeiting the total sum of money contained in different accounts belonging to the 1st Respondent to the Federal Government of Nigeria which sum is reasonably suspected to be proceeds of unlawful activity.
2. A Final Order of this Honourable Court forfeiting the total sum found by the Commission in possession of John Onimisi Ozigi domiciled in the banks listed in the affidavit below to the Federal Republic of Nigeria.
3. An Order of this Honourable Court directing the Applicant to notify the 1st Respondent in whose possession the money sought to be forfeited are found to appear before this Honourable Court and show course (sic) within 14 days why the account and the monies contained therein should not be forfeited to the Federal Government of Nigeria.
4. Alternatively, an Order of this Honourable Court directing the publication in any National Newspaper of the Interim Order under reliefs 1, 2 and 3 above for the Respondent to appear before this Honourable Court to show cause within 14 days why the final Order of forfeiture of the properties mentioned in reliefs 1, 2 and 3 herein should not be made in favour of the Federal Government of Nigeria.
5. And for such further or other Orders as this Honourable Court may deem fit to make in the given circumstances.”
The ground upon which the application was premised was suspicion that the money sought to be attached were proceeds from an unlawful activity. The application was supported by a 9 paragraph affidavit of urgency and an 11 paragraph affidavit with three exhibits. In contending the application, the Appellant filed an affidavit to show cause attaching 8 exhibits and also a 21 paragraph further affidavit attaching 15 exhibits.
The lower Court after hearing the application and the arguments of counsel delivered a considered judgment found on pages 758-771, vol. II of the record of appeal (pages 1-14 of the judgment) wherein it held specifically on page 771 of the record (page 14 of the judgment) in this wise:
“The Respondent in the instant case has failed to satisfy this Court with concrete evidence why these monies suspected to be proceeds of some unlawful activity should not be forfeited to the Federal Government of Nigeria.
The Applicant has met the conditions stipulated in Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act.
From the foregoing, I hold that the instant application is meritorious, it is hereby granted as prayed. The final orders of forfeiture sought in prayers one (1) and (2) two contained on the Applicant’s Originating Summons dated the 1st day of March, 2019 but filed on the 4th day of March, 2019 are hereby granted as prayed.
This is my considered judgment.”
The Appellant dissatisfied with the decision of the lower Court filed this appeal vide a notice of appeal. The extant notice of appeal is the notice of appeal dated and filed 11/6/2020 found on pages 813-824, vol. II of the record containing eight grounds of appeal.
GROUND ONE:
The learned trial judge erred in law and the error occasioned miscarriage of justice when the Court wrongly assumed jurisdiction by entertaining the Application of the Respondent for final forfeiture order under the Act on mandatory condition precedent and without the service of both the interim order and the application for final forfeiture on the Appellants.
GROUND TWO
The learned trial judge erred in law and violated the rights of the Appellants to fair hearing as guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (As amended) when the Court below failed, neglected and refused to take into consideration the Appellants’ case to wit; ‘Affidavit to show cause and the further Affidavit to show cause’ thereby occasioning a grave miscarriage of justice to the Appellants.
GROUND THREE
The learned trial judge erred in law when the Court refused to follow its earlier stare decision, on similar fact, even though its attention was brought to it.
GROUND FOUR
The learned trial judge erred in law and the error occasioned miscarriage of justice to the Appellants when the Court simply held that:
“The Respondent in the instant case has failed to satisfy this Court with concrete evidence why these monies suspected to be proceeds of some unlawful activity should not be forfeited to the Federal Government of Nigeria” without in the least evaluate or properly evaluate the evidence of the Appellants in Exhibits OZIGI 1 to 10, Respondent’s Exhibits EFCC 1 & 2 and the Appellant’s explanations in Affidavit to show cause and the further Affidavit to show cause.
GROUND FIVE
The learned trial judge erred in law and the error occasioned miscarriage of justice to the Appellants, when the Court misconceived and wrongly placed the burden of proof on the Appellants by holding that; “The learned counsel to the Respondents failed to appreciate the fact that the burden is on him to show cause to the satisfaction of the Court why the various sum of monies found in the Respondents account should not be forfeited:
“…..the burden is on the Respondent to show cause why the monies found in his account reasonably suspected to be proceeds of some unlawful activity should not be forfeited.”
When the Respondent had failed to establish a prima facie case, to justify the cause shown by the Appellants being rejected by the trial Court.
GROUND SIX
The learned trial judge erred in law and the error occasioned miscarriage of justice to the Appellants when the Court wrongly held that the Appellants failed to discharge the burden on them to show to the satisfaction of the Court why the monies in the Appellants account should not be forfeited when the Court held as follows: “The learned counsel to the Respondents failed to appreciate the fact that the burden is on him to show cause to the satisfaction of the Court why the various sum of monies found in the Respondents account should not be forfeited”.
GROUND SEVEN
The learned trial judge erred in law in the interpretation and application of Section 17 of the Advance Fee Fraud and other Related Offences Act and came into wrong conclusion by holding that; “The Applicant has met the conditions stipulated in Section 17 of the Advance Fee Fraud and other Related Offences Act”.
and thereby finally forfeited the monies of the Appellants to the Federal Government of Nigeria even though the Respondent failed woefully to establish a prima facie case that would warrant such conclusion.
GROUND EIGHT
The learned trial judge erred in law and the error occasioned miscarriage of justice to the Appellants when the Court held that: “….the monies found in his account are not commensurate with the salary of the 1st Respondent as well as the proceeds from the 2nd Respondent.”
The Appellants’ brief of argument filed on 10/8/2020 was settled by Wale Balogun Esq. Appellants in their brief raised four issues for determination before this Honourable Court which are:
1. Whether the jurisdiction of the trial Court was properly activated by the Respondent.
2. Whether the right of the Appellants to fair hearing was not breached when the trial Court failed to consider the totality of the case of the Appellants.
3. Whether the trial Court did not wrongly place the burden of proof on the Appellants and where such burden is on the Appellants, whether the Appellants did not discharge the burden on them.
4. Whether the Appellants did not show reasonable and sufficient justification for the monies in their accounts.
On issue one, counsel while relying on Madukolu vs. Nkemdilim (1962) SCNLR 341; Okereke vs. Yar’adua (2008) 12 NWLR (Pt. 1100) 95 @ 118 listed out the conditions that must be fulfilled before a Court can be competent to determine a matter before it. He argued that once the set conditions and or procedure or a set due process has been laid down or prescribed by statute, the Respondent cannot change or alter the procedure. He cited Ojong vs. Duke (2003) 14 NWLR (Pt. 841) 581 @ 618; Braithwaite vs. Skye Bank Plc (2013) 5 NWLR (Pt. 1346) 1 @ 15 & 21. Learned counsel submitted that having commenced an interim forfeiture order under Section 34 of the EFCC Act the Respondent abandoned it and proceeded against the Appellants under Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act via Originating Summons for final forfeiture; this procedure cannot be said to have followed the procedure set by law as this is a rather strange procedure. It is the submission of counsel that from Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, the two requirements that are mandatory for the Respondent to fulfill are; obtaining an ex parte application for interim forfeiture and filing a motion on notice for final forfeiture; which requirements the Respondent breached. He relied on Animashaun & Anor vs. Ogundimu & Ors (2015) LPELR-25979 on the mandatory nature of the word ‘shall’ used in a statute. It is the contention of learned counsel that the failure of the Respondent to have filed an ex parte application as required by Section 17(3) of the Advance Fee Fraud and Other Fraud Related Offences Act as well as its failure to file a motion on notice as against originating summons is not a mere irregularity but goes to the jurisdiction of the Court as same was not initiated by due process of law and consequently, the entire proceedings conducted by the trial Court amounts to a nullity. He placed reliance on Shugaba vs. UBN Plc (1999) LPELR- 3068; Amaechi vs. INEC (2008) 5 NWLR (Pt. 1080) 227 @ 437-438. On this premise, counsel urged this Court to resolve issue one in favour of the Appellants.
On issue two, it is the argument of counsel to the Appellants that while the Appellants challenged the assertion of the Respondent that monies in the Appellants’ accounts were proceeds from the unauthorized withdrawals from the Defence Headquarters Overhead Expenses Account, the Respondent failed to put any relevant and material evidence before the trial Court to enable the trial Court arrive at one position judicially and judiciously. It is the contention of counsel that while the Respondent placed before the Court the statements of account of the Appellants, the Respondent did not bring before the trial Court the statement of accounts of the Defence Headquarters Overhead Expenses Account from which the said unauthorized withdrawals were made and paid into the Appellants’ accounts that were frozen and final forfeiture to the Federal Government of Nigeria sought and obtained. It is the submission of counsel that the failure of the lower Court to make a single pronouncement or give any consideration to this weighty factor goes against its decision in the sister case FRN vs. Falsal & Co. Global Serv. Nig. Ltd & 3 Ors FHC/L/CS/1094/2018, which involves the same Appellants and the Respondent before this Court. It is submitted by counsel that the trial Court is bound to follow its decision on the same facts and it was indeed an error of law for the learned trial Judge not to have considered the case of the Appellants as he did in the sister’s case. He cited Dawodu vs. Danmole (1962) 1 All NLR 702. It is the further submission of counsel that the learned trial Judge failed to show how he arrived at his conclusion and this is fatal to the decision as a Court is not allowed to arrive at a conclusion in a judgment without giving any reason but simply concluding that the Court is satisfied or not satisfied or that the Court believed or did not believe a party without more.
It is the further submission of counsel that the totality of the Appellants’ affidavit and the further affidavit were not controverted by the Respondent and as such the Court should have accorded it the status of an unchallenged evidence. He cited Obumseli & Anor vs. Uwakwe (2019) LPELR- 46937. It is the contention of the Appellants’ counsel that it is evident on the face of the statement of accounts that the inflows and outflows spanned a period of almost twenty years with both accounts predating the period the 1st Appellant worked at the Defence Headquarters; as the 1st Appellant only worked at the Defence Headquarters between April 2011 to December 2012 whereas the accounts have been in operations from 2003 and 2013 respectively. It is the submission of learned counsel that in the affidavits to show cause, the Appellants clearly and painstakingly took most of the entries covering almost twenty years one after the other to explain their sources with supporting documents. It is the further submission of counsel that once the trial Court is confronted with the gamut of both uncontroverted affidavit and documentary evidence, the Court must of necessity analyze and evaluate each of the evidence and come to one conclusion or the other with reasons.
Learned counsel for the Appellants contended that how the Respondent came to the conclusion of reasonably suspecting that the money in the Appellants’ account is proceeds of unlawful activities was never brought before the Court. This should ordinarily work against the Respondent, Appellants’ counsel submitted relying on State vs. Nwachineke (2008) All FWLR (Pt. 398) 204 @ 231; Duru vs. Nwosu (1989) 4 NWLR (Pt. 113) 24 @ 41. It is therefore the submission of counsel that the totality of the averments in the affidavit in support of the application filed by the Respondent was built on speculation and at best mere suspicion. He called in aid the cases of Chairman EFCC & Anor vs. Littlechild & Anor (2015) LPELR- 25199; Emesonye vs. State (2016) LPELR-40550 in support of the above submission. It is the further submission of counsel that had the trial Court considered, evaluated and reviewed the Appellants’ case, the Court would have no difficulty in coming to the one and irresistible conclusion that the imaginary scale of justice tilted in favour of the Appellants and thereby dismiss the application of the Respondent. Counsel posited that even though the case was fought on affidavit evidence, the trial Court was still duty bound to properly evaluate the affidavits on both sides of the divide in order to show justification for its conclusion. He citedZira & Anor vs. Vandu & Ors (2017) LPELR-42994; Uzor vs. The Honourable Minister of Works, Housing and Urban Development & Anor (2013) LPELR-21248; Morka & Ors vs. The State (1998) LPELR-5631. It is submitted by counsel that from the totality of the above, the trial Court denied the Appellants their right to fair hearing as it failed to consider, evaluate and or show how it arrived at its conclusion to grant the Respondent’s application; which denial is fatal and has occasioned a miscarriage of justice to the Appellants. He relied on Egharevba vs. Osagie (2009) 18 NWLR (Pt. 1179) 299 @ 310-311; Honeywell Flour Mills Plc vs. Ecobank (Nig) Ltd (2016) LPELR-40221; Marine Management Associates Inc. vs. Nigerian Marine Authority (2012) 3 NWLR (Pt. 1333) 506. He therefore urged this Court to resolve this issue in favour of the Appellants.
On issue three, it is submitted by counsel that like every legal and evidential burden, the burden under Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act is on the Respondent who asserted that the monies found in the accounts of the Appellants were proceeds of fraud or unlawful activities. It is further submitted by counsel that assuming without conceding that the burden is on the Appellants, the Appellants successfully and overwhelmingly discharged same by their affidavit to show cause and a further affidavit to show cause with over twenty exhibits, all unchallenged explaining the monies in Exhibits EFCC 1 and 2 which were submitted by the Respondent. He relied on Section 135 of the Evidence Act, 2011 as amended. It is the contention of Appellants’ counsel that the Respondent has the onerous responsibility to at least establish a prima facie case before the Appellants are now expected to prove the contrary and that from the proceedings at the lower Court, the Respondent has failed woefully to put a scintilla of affidavit and documentary evidence before the Court but rather a bare and unsupported allegation. He put forward the case of Gabriel Daudu vs. FRN (2018) LPELR-43637. On this issue, it is the final submission of counsel that the Appellants satisfactorily by affidavit and documentary evidence, showed credible cause on why the trial Court should not have granted the application of the Respondent for forfeiture.
On issue four, it is submitted by learned counsel that the Appellants showed sufficient cause(s) and justification for the monies in their accounts, hence the learned trial Judge’s conclusion to the contrary is not borne out from the record of the Court. On this premise, learned counsel for the Appellants urged this Court to resolve this issue in favour of the Appellants. In total, learned counsel submitted that the appeal be allowed.
The Respondent’s brief of argument dated and filed on 8/9/2020 was settled by Nkereuwem Anana Esq., on behalf of the Economic and Financial Crimes Commission. In the Respondent’s brief, counsel raised a sole issue for determination viz:
Whether the Court below was right to forfeit the accounts belonging to the Appellant considering the circumstance of the case.
On the lone issue for determination, counsel posited that the lower Court was right to forfeit the money contained in the accounts of the Appellants to the Federal Government of Nigeria without necessarily convicting the Appellants as the application was brought under Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act 2006.
He relied on 7-Up Bottling Co. Ltd vs. Abiola & Sons Ltd (1995) 3 NWLR (Pt. 383) 357 @ 280-281. Counsel contended that from the section, it is clear that the trial Court was right to grant the relief sought once the Respondent presents evidence to show that the properties found in possession of the Appellants are reasonably suspected to be proceeds of unlawful activities. It was argued by counsel that the suspicion under this section is not that expected to ground conviction of the Appellants but such that is reasonable to persuade the lower Court that the properties or accounts constitute proceeds which should be forfeited to the Federal Government of Nigeria on ground that they are products of unlawful activities. It is the submission of counsel that the properties attached are reasonably suspected to be proceeds of unlawful activities in view of the investigative findings of the Respondent which are highlighted in paragraphs and sub-paragraphs of the affidavit in support of the application before the lower Court.
It is the contention of learned counsel for the Respondent that contrary to the argument of the Appellants’ counsel in paragraph 2.3 of their brief, this application was a necessary step to be taken by the Respondent under Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act 2006 and which is why the lower Court ordered that the Appellants be served to show cause why the monies should not be finally forfeited. The procedure stated in the law was complied with by the Respondent, counsel submitted placing reliance on Section 34 of the Economic and Financial Crimes Commission Act 2004. Counsel relying on Professor Buba Garegy Bajoga vs. The Government of the Federal Republic of Nigeria & Ors (2007) LPELR-8924 (CA) contended that assuming without conceding that the Respondent did not commence the proceedings with an exparte application, same will not render it incompetent. He finally submitted that the Appellants were given fair hearing when the Court ordered that they should show cause why the monies should not be forfeited to the Federal Government of Nigeria. He therefore concluded that the learned trial Judge was right to forfeit the monies contained in the account of the Appellants to the Federal Government of Nigeria.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The facts of the case on appeal are not complicated at all and I even make bold to say that even the real issue for determination in this appeal is also not complicated. The Respondent using the instrumentality of one of its agencies established to fight corruption, in this instance the EFCC, secured an interim order from the lower Court to forfeit monies found in the account of the Appellants to the Respondent on the ground that they are reasonably suspected to be proceeds of unlawful activities. This order was secured under the provision of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act No 14, 2006 (in this judgment referred to henceforth as the AFFRO Act). This order was served on the Appellants and the order was also published. In accordance with the law, the Appellants had 14 days within which to file affidavit showing cause why the monies should not be finally forfeited to the Respondent. Consequent upon the interim order and the publication, the Respondent filed the application for final forfeiture order on 4/3/2019 by way of an originating summons. The lower Court after reviewing the affidavit evidence before it as contained in the application and the affidavit filed by the Appellants to show cause went on to grant the prayer for final forfeiture. The implication of this is that the lower Court was not satisfied with the evidence the Appellants presented in the affidavit to show cause and therefore the final forfeiture order was granted. To arrive at such a conclusion, it is the case of the Appellants that the lower Court should evaluate the affidavit evidence and give reason for the conclusion reached. The inability of the lower Court to evaluate the evidence of the Appellants as shown in the affidavit to show cause, counsel to the Appellants submitted amounted to the violation of the principle of fair hearing. The main issue therefore in this appeal is whether the lower Court was right in holding that the monies in the account of the Appellants upon which an interim order had earlier been secured should be forfeited to the Respondent finally as the monies as claimed by the Respondent is suspected to be proceeds of unlawful activity. The unlawful activity the Respondent is relying on would appear to be the unauthorized withdrawal from the Defence Headquarters Over-Head Expenses Account. To secure the interim order, there must be satisfactory evidence before the lower Court that the monies found in the account of the Appellants are reasonably suspected to be from unlawful activities. This has to be disclosed in the affidavit in support of the application for the interim order. In Melrose General Services Limited vs. EFCC & Ors (2019) LPELR-47673 (CA), this Court along this line held thus:
“I had mentioned above that Section 17 which is a Non Conviction Based forfeiture is not unconstitutional and the procedure adopted or the proof required is not proof beyond reasonable doubt. The law has clearly provided that the law enforcement agency can apply to a Court for an interim forfeiture order where there is a reasonable suspicion that the proceeds are from unlawful activity. The Appellant has argued that only a Court can determine whether a person is guilty of an offence and therefore the provision of Section 17 is unconstitutional. The issue of the constitutionality of Section 17 has been settled and therefore all that argument above cannot hold water as it is within the legal powers of the Court to grant the interim order which can only be set aside if the Appellant could show cause why the money should not be forfeited.”
After securing the interim forfeiture order, for the Respondent to secure a final forfeiture order the lower Court must be satisfied that there was no evidence before the Court which showed credible means or source for the monies. To make such a conclusion, the Appellants will either not file affidavit showing cause or that the affidavit showing cause did not disclose satisfactory evidence to that effect. In this appeal, I will, in determining whether the lower Court was right or wrong look at the evidence as disclosed in the affidavit to show cause whether the Appellants have really showed justifiable source of the monies in their account. This is the germane, real and live issue for determination. This is the main and only issue as formulated by the Respondent. The Appellants however formulated four issues for determination. The issues as formulated are in order as they arose from the grounds of appeal as contained in the notice of appeal. I had reproduced them above. I am at liberty to adopt the issues as formulated by any of the parties as mine or even formulate my own issues bearing in mind that the issues formulated arise from the grounds of appeal and does not offend the rule against proliferation of issues. See Molokwu & Anor vs. Divine Power Gospel Mission International & Ors (2020) LPELR-49840 (CA); FRN vs. Borisade (2015) 1 S.C. 107.
In my view, the issues formulated by the Appellants properly address the grounds of appeal, in the circumstance, I will adopt in this judgment the issues formulated by the Appellants as that will adequately address the points raised in this appeal. I will reproduce them for ease of reference:
1. Whether the jurisdiction of the trial Court was properly activated by the Respondent.
2. Whether the right of the Appellants to fair hearing was not breached when the trial Court failed to consider the totality of the case of the Appellants.
3. Whether the trial Court did not wrongly place the burden of proof on the Appellants and where such burden is on the Appellants, whether the Appellants did not discharge the burden on them.
4. Whether the Appellants did not show reasonable and sufficient justification for the monies in their accounts.
I will now address the issues one after the other. I will start issue 1 in numerical order. Apart from numerical order, it is also legally appropriate to start with issue 1 since it deals with jurisdiction. It is settled law that once the issue of jurisdiction is raised it must be addressed first as it is the threshold of any case and therefore any decision reached by a Court without jurisdiction amount to nullity no matter how brilliant the judgment. See First Marina Trust Limited vs. Bamidele Folabi-Owolabi & Anor (2018) LPELR-46714(CA); NNPC & Anor vs. Orhiowasele & Ors (2013) 13 NWLR (Pt. 1371) 211.
Issue 1 as couched is whether the jurisdiction of the lower Court was properly activated by the Respondent. The Appellants’ argument is that the Respondent’s case on commencing the proceeding is a bit confusing and unsettled. This is because the Respondent secured the interim order of forfeiture under the Section 34 of the Economic and Financial Crime Commission (Establishment) Act using as the reason ‘several unauthorized withdrawal made from the Defence Headquarters Over-Head Expenses Account’ and then in the application for final forfeiture order the Respondent is proceeding against the Appellants under Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act 2006 using as reason this time that the monies found in the account of the Appellants are ‘reasonably suspected to be proceed of fraud or unlawful activities.’ The Appellants’ counsel submitted that in the light of that, the Respondent did not follow the procedure as stated by law. I do not think I agree with the Appellant. The procedure under the law is that whether the Respondent proceed under Section 34 of the EFCC Act or Section 17 of the Act under reference in this appeal, the procedure for forfeiture or freezing of account is that the Respondent will first secure an interim order exparte and subsequently file an originating summons or motion for final order of forfeiture to freeze the account as the case may be depending under what law the order is sought. See Melrose General Services Ltd vs. EFCC & Ors (2019) LPELR-47673 (CA).
The law is settled and rightly stated by the Appellant to the effect that, once the law states a particular procedure to be adopted in commencing an action that procedure must be strictly followed otherwise the action will be incompetent and the Court will decline jurisdiction. SeeCOP, Abia State & Ors vs. Okara & Ors (2014) LPELR-23532 (CA); Obasanjo & Ors vs. Yusuf & Anor (2004) 9 NWLR (Pt. 877)144.
As stated above, to invoke the provision of either Section 34 of the EFCC Act or Section 17 of the AFFRO Act, the initial process will be the interim order secured exparte. It is not in dispute that the Respondent secured an interim order for forfeiture against the Appellants in the lower Court before the originating summons for Final forfeiture order was filed and granted. The application for the interim order is found on pages 6 & 7 and the order is found on pages 35-37 of vol 1 of the record. This order was made on 11/7/18. On 4/3/19, the application for final forfeiture order was filed. This is the order the lower Court granted which is the subject of this appeal. I am taking the pain to go through all this because the Appellants seem to submit that the Respondent did not secure an interim forfeiture order but rather went on directly to secure the final forfeiture order. That does not represent the state of the fact before this Court as disclosed in the record of appeal. There is an interim order preceding the final order. The point that the Appellants may be making is that the interim order was secured under a law different from the law under which the final order was secured. The Appellant went further to argue that the reason given to secure the interim order is different from the reason given to secure the final order. For emphasis sake as stated above, the interim order was secured under Section 34 of the EFCC Act for unauthorized withdrawal from the Defence Headquarters Over- Head Expenses Account while the final order was secured under Section 17 of the AFFRO Act of 2006. Does this really make any substantial difference to the case? I do not think so as the Appellant was not misled as to the intent and content of the interim and final orders. This could make a technical point but not substantial point. This is because both orders are in relation to the same accounts owned by the Appellants. The law has long been settled that when there is a contest between technical and substantial justice, the latter will prevail over the former. See Oke & Anor vs. Mimiko & Ors (2013) 8 SC 1; Ekweozor & Anor vs. Reg. Trustees of the Saviour’s Apostolic Church Nig (2020) LPELR-49568 (SC).
The Courts exist to do justice and therefore the will of substantial justice should not be sacrificed on the altar of technical justice. That apart, it has been decided by the apex Court that a motion does not become incompetent mainly on the premise that it was brought under the wrong law. In Iwuji vs. Ugorji (2015) LPELR-24354 (CA), this Court held:
“The Law needs no restatement that a Court will not turn its back against a party in Litigation merely because he has proceeded to seek for a remedy or determination of an issue or matter under a wrong Law or Rules of the relevant Court.
The Court concerned will not hesitate to grant in favour of such a Litigant the relief sought under the appropriate and relevant Law or Rules if he/she is able to establish or proof his or her right to the relief he or she is seeking. See the case of MIKE OMHENKE OBOMHENSE VS. RICHARD ERHAHON (1993) 7 NWLR (PART 303) 22 at 40 F -G per KARIBI -WHYTE, J.S.C. who said: “I agree that the principle is now well established that where a relief or remedy claimed under a wrong Law is supported by facts establishing the remedy, the claim will not be denied merely because of the wrong Law relied upon. See FALOBI VS. FALOBI (1976) NMLR 169. This principle is founded on justice and common sense. But in order to benefit from the principle the facts relied upon must support the correct Law to be applied. This is the critical issue in the application before us.”
In any event a Court is enjoined to take Notice of all Laws including Rules of Court relevant for the just determination of any matter before it. Permit me to recall the succinct words of my Noble Lord, NNAEMEKA AGU, J.S.C., in the case of LT. COL. MRS. R.A.F. FINNIH VS. J. O. IMADE (1992) NWLR (PART 219) 571 at 532 to 533 A -B where his Lordship said:
”Every Judge in Nigeria has sworn to do justice according to Law. The Laws to be applied by a Court in all cases are not limited to only those authorities, statutory judicial, which have been cited for the Court’s consideration by counsel on both sides. Rather they include those Laws which the Court can judicially notice as well as those relevant to the issues before the Court which the Court can from its own research find out. If Judges do otherwise they will be deciding contrary to Laws which they have sworn to uphold.”
I am of the settled view that the Notice of Preliminary Objection filed by the Respondent is still competent notwithstanding its having been brought pursuant to an obsolete Rules of 2007. It is the settled position of the Law also that it is the Law in existence at the time an action was or is instituted that is applicable to the matter.”
I really cannot agree with the Appellants that the lower Court exercised jurisdiction over a matter it had no jurisdiction over. The subject of jurisdiction is serious as it is the life wire of the Court in determining any matter. If it is therefore challenged it should be done responsibly. A Court should not be intimidated from exercising jurisdiction over a matter it has jurisdiction, in the same breath in balancing it, a Court should not go fishing for jurisdiction over a case it has no jurisdiction. I do not agree that the lower Court exercised jurisdiction over a matter that the condition precedent to commencing same has not been satisfied. The Appellants argued that by Section 17 of AFFRO Act, the application should have been commenced by way of a motion but the Respondent came by way of origination summons therefore the Court lack jurisdiction. This cannot be the correct position of the law as this Court inLawal vs. EFCC (2020) LPELR-49590 (SC), has held that even if the Respondent did not file a motion on notice, a final forfeiture order can be granted as the Appellants were not misled by the proceeding against them. In this appeal, the complaint is that the Respondent filed an originating summons instead of a motion. What difference does it make in this appeal? I make bold to say it really achieved no useful purpose as most importantly, after the interim order, the Appellant had the opportunity to file affidavit showing cause. I resolve this issue in favour of the Respondent.
Issue 2 is another very important subject that a Court must consider very well as any decision reached without affording the parties fair hearing will amount to a nullity no matter how brilliant the judgment and painstaking the proceedings are. This is because the subject of fair hearing is paramount. When a Court denies a party fair hearing, the whole proceedings is a nullity and the decision so reached is trashed as it is worthless and a complete waste of time. See Eye vs. FRN (2018) 7 NWLR (Pt. 1619) 495; MFA & Anor vs. Inongha (2014) 1-2 SC (Pt. 1) 43.
This is why a Court must make sure that the principle of fair hearing is observed strictly in a proceeding before it. The principle of fair hearing implies that all the parties in an action should be given equal opportunity to present their case before the Court. Where any of the parties is denied such opportunity there is a denial of fair hearing and the consequence as mentioned above will follow. See Military Gov. of Lagos State & Ors vs. Adeyiga & Ors (2012) 5 NWLR (Pt.1293) 291.
While the fact that a decision of a lower Court is wrong does not mean a party is denied fair hearing but a situation where a Court does not consider the case of any of the parties and subsequently arrives at a decision, the Court will be said to have denied that party fair hearing. In Wilson & Anor vs. Oshin & Ors (2000) 6 SC (Pt. III) 1, the apex Court held in this regard thus: “In the first place not considering one of the many contentions of a party in a case cannot by itself constitute a denial of fair hearing. A denial of fair hearing connotes a refusal to consider the pertinent and relevant issues in the case essential to its determination. In such a situation a fair minded objective observer will come to the conclusion that the hearing of the case has not been fair to the person affected.
The principle of adjudication fundamental to the administration of justice is that the Court is bound to consider every material aspect of a party’s case validly put before it. Hence where the issue placed before the judge is one not relevant or crucial to the determination of the case before the Court, non-reference to it is not a denial of fair hearing. This is because having heard the appellant present his case, the consideration of the relevance vein on of the point will be determined by the judgment deciding the case on the issues and facts before him.”
The presentation of the relevant issue in the case of a party which the Court did not consider can qualify as denial of fair hearing to that party. A case is properly presented when the Court looks at the case of the party in detail looking and considering the relevant issues raised in the case by the parties.
This is now time to ask and answer the question, what case did the Appellants present or put forward and whether the lower Court considered the case so presented before arriving at the decision it took? The counsel to the Appellants submitted that in spite of all the cause the Appellants showed as the source of the monies in the accounts, the lower Court did not consider the unchallenged affidavit evidence and without the backing of the affidavit evidence came to the conclusion that the Appellants did not satisfy the Court with concrete evidence why those monies should not be forfeited to the Respondent. The Learned Counsel for the Appellants had submitted that the lower Court did not give reason for the conclusion so reached and that in the 14 pages judgment, only two pages were set aside for the decision and the reasons thereof. I am resisting the temptation to comment on that. I must however say that there is no hard and fast rule on the style of judgment writing. There is no one acceptable style. The style any Judge adopts is fine and acceptable provided the judgment meets the basic characteristics of a good judgment. What constitute a good judgment has been stated in a cloud of cases. I will just make reference to one. That is the case of Ajiboye vs. FRN (2018) 13 NWLR (Pt. 1637) 430 where the apex Court held as follows:
“Having posited above, it needs to be stressed that judgment writing is an art of itself and there could be numerous ways or methods of writing judgment. The methods normally adopted by judges may vary from one judge to another. The variation could be as many as there are numerous judges and each may have or may adopt the method he wishes to adopt. There is really no particular style approved for judges to adopt in judgment writing since as I stated supra, judgment writing is an art of itself as such there can be multiplicity of ways or method of writing it. See Garuba v Yahaya (2007) 3 NWLR [pt.1021) 390; Mbani v Bosi & Ors (2006)11 NWLR (pt.991) 800. In fact this Court in the case of Alfred Usiobaifo & Anor Vs Christopher Usiobaifo & Anor (2005)1 SC 60 the Court had this to say per Niki Tobi J.S.C. (of blessed memory).
“Judgment writing is not an arithmetical or geometrical exercise which must answer exactly to laid down rules in field of mathematics. A judge is not bound to follow the method or methodology stated by counsel in his brief. Once a judgment of a trial judge states the claim or relief of the plaintiff, the relevant facts and counter facts leading to the claim or relief argument of counsel, if counsel are in the matter, reactions of the judge to the arguments and final order, an appellate Court can not hold that the judgment is not properly written.”
In this instant case I have stated supra, that the learned justice of the Court of Appeal who wrote the lead judgment had in the said judgment summarised the submissions of the learned counsel for the parties and also relied on or endorsed the findings of the trial Court and adopted or endorsed them before resolving the issues as highlighted above. That in my view, could be his own style, approach, or method of writing judgment. In any case, he had considered all the issues raised and resolved them and had drawn conclusions or general inference before resolving those issues in favour of the respondent. I am unable to say that by the approach adopted by the learned justice of the penultimate Court who wrote the judgment had by the said judgment caused miscarriage of justice on the appellant which could be said to have vitiated the judgment in question. See David Omotola & Ors v The State (2009) 2-3 SC 7 or (2009) 7 NWLR [pt.1139)148.”
A judgment is not judged by its length but rather by meeting all the conditions for writing a good judgment stated above. I am not here to score the judgment of the lower Court whether it is good or bad judgment. One point I must however consider is whether the lower Court evaluated the affidavit evidence of the Appellants to show cause and whether the reasons the lower Court gave for the conclusion it reached to the effect that the Appellant did not provide concrete evidence is in line with the evidence before it. I have gone through the 14 pages judgment and noticed that from page 11 of the judgment, the lower Court decided to address the real matter before it. After quoting the provisions of Section 17 of the Act of 2006, the trial Judge on page 772 of the record (page 14 of the judgment) held: “The Respondent in the instant case has failed to satisfy this Court with concrete evidence why these monies suspected to be proceeds of some unlawful activity should not be forfeited to Federal Government of Nigeria.
The Applicant has met the conditions stipulated in Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act.
From the foregoing, I hold that the instant application is meritorious, it is hereby granted as prayed. The final orders of forfeiture sought in prayers one (1) and (2) two contained on the Applicant’s Originating Summons dated the 1st day of March, 2019 but filed on the 4th day of March, 2019 are hereby granted as prayed.
This is my considered judgment.”
The lower Court did not give any reason for the conclusion reached. There is nothing in the judgment that showed that the lower Court evaluated the evidence of the Appellants showing cause why the final forfeiture order should not be granted. This in my opinion is not well done by the lower Court. The basis of the conclusion and the reason for so holding was not stated. The duty of the lower Court or a Court before which evidence is given is to evaluate the evidence and then take a position on same. It is not just enough for a Court to believe or disbelieve the story of a witness without stating the reason for so believing or disbelieving. See Akporiaye vs. Okumagba & Ors (1999) 1 NWLR (Pt. 586) 271.
If the Court fails in evaluating the evidence before it, an appellate Court such as this Court can then under the provision of Section 15 of the Court of Appeal Act assume the position of the lower Court to evaluate the evidence and take a position and make appropriate orders that the lower Court should have made. See Oyo State Paper Mills Ltd & Ors vs. Nibel Co. Nig Ltd (2017) ALL FWLR (Pt. 873) 1683.
The lower failed in its duty to evaluate the affidavit to show cause and the further affidavit to show cause filed by the Appellants found on pages 641-668 of the record filed on 22/3/19 and 1/4/19 respectively. There was a further affidavit to show cause filed on 19/8/19 found on pages 696-736 of the record of appeal. The Appellants in these affidavits to show cause, showed the source of the monies in those account. In those affidavits, the Appellants averred that the accounts are over 20 years old and the sources of the monies stated therein in the account are savings of several years, payment made to his account from Duff House Properties and Investment Limited managing his late father’s properties, sales of his mother’s properties etc. The documents of title of the properties, his status as first son and the Letters of Administration were attached as Exhibits. The exhibits showed the deposits into the various accounts. What is more worrisome is that in spite of all these, the lower Court did not deem it fit to consider the evidence. This is more so that the Respondent did not file any affidavit challenging the averments. The position of the law in this respect is clear. It is that the averments will be treated as unchallenged averment and in law unchallenged evidence is deemed admitted and the Court will act on same. See Kayili vs. Yilbuk & Ors (2015) 1-2 S.C. 124; Lau vs. PDP (2018) 4 NWLR (Pt. 1608) 60.
In the absence of any evidence on the other side of the scale of justice by the Respondent joining issues with the Appellants on the source of the monies in the account, the lower Court should have considered the evidence of the Appellants and give credence to same. The lower Court did not do that. Can the lower Court be said to have given the Appellants fair hearing when it did not consider the evidence stated therein? The answer will be NO. If the lower Court had considered the affidavit evidence, evaluated same and came to the conclusion, the issue of fair hearing will not have risen. What is before me is that the lower Court did not even consider the evidence at all and from the blouse just took a position on the evidence it did not evaluate. Things do not work that way.
I have no difficulty whatsoever in resolving issue 2 in favour of the Appellants.
This now takes me to issue 3, which is on the issue of the burden of proof. I think I will take issues 3 & 4 together. This is because the resolution of issue 3 will to a large extent resolve issue 4. This is on the premise that if I hold that the Appellants did not discharge the burden on them, the implication is that the Appellants did not show reasonable and sufficient justification for the monies in their account. If on the other hand, I hold that the Appellants have discharged the burden on them, then it stands to reason that they have shown reasonable and sufficient justification for the source of the monies in their account.
The lower Court on page 770 of the record had held that the Appellants in this appeal but Respondent at the lower Court failed to appreciate that the burden of proof is on him to show cause to the satisfaction of the Court why the various sums of monies found in their account should not be forfeited. To appropriately address this issue, a little excursion into the law on burden of proof will not be out of place. The law is settled beyond any dispute that the burden of proof lies on a person who will lose the case if no evidence is adduced. SeeNduul vs. Wayo & Ors (2018) LPELR-45151 (SC); Akinbade & Anor vs. Babatunde & Ors (2017) 12 S.C. (Pt. III) 84.
Apart from that aspect of the burden of proof, there is yet another burden of proof that rest on any person who is alleging the existence of any fact. In legal parlance, it is that the burden lies on anyone alleging the existence of a fact. See Union Bank vs. Ravih Abdul & Co. Ltd (2018) LPELR-46333 (SC); Archibong & Ors vs. Ita & Ors (2004) LPELR-535 (SC). Let me also quickly add that the burden of proof in this regard is not static as it can shift as the need arises. See Okoye & Ors vs. Nwankwo (2014) 15 NWLR (Pt.1429) 93
Sounding more specific and relevant as it relates to this appeal, where lies the burden of proof in this case? The point must be made that the appeal before this Court is not the interim order of forfeiture but the decision on the application for the final forfeiture. This distinction is important to make because the answer as to where lies the burden depends on this distinction. For the interim order, the burden rest on the Respondent to show reasonable suspicion that the monies in the account of the Appellants are proceeds of unlawful activities by way of unauthorized withdrawal from the Defence Headquarters’ account. We have passed this stage as the granting of the interim order presupposes that the lower Court was satisfied in line with the provisions of the law with the affidavit in support that the monies found in the account of the Appellants were proceeds of unlawful activity. The Appellants are not challenging that discretion here and so the burden placed on the Respondent ends at that stage. The second stage is the stage where the Respondent is seeking for final order of forfeiture. At this stage, the initial burden is no longer on the Respondent but rather on the Appellants who need to show cause as to why the monies will not be forfeited to the Respondent. The burden thereof is on the Appellants to show cause. To that extent I agree with the lower Court. I however do not agree with the lower Court that the Appellants have not shown cause. The Appellants have filed affidavit to show cause and indeed further affidavit explaining the source of the monies in the accounts sought to be forfeited. The Appellants produced the account statement and the period covered by the accounts. The source of the deposit on the accounts was also explained which the Respondent could not rebut in any way. The Appellants have in my opinion discharged the burden placed on them to explain and show that the monies found in their account are not proceeds of unlawful activities. The 1st Appellant has shown that the deposits in the account among others came from rents from his late father’s properties to which he is an executor of the letter of administration, sale of family properties, dividend payment from shares, gifts from friends etc. The Appellants went on to exhibits documents in proof of the case they have made that the monies in their accounts are not proceeds of unlawful activities. With the Appellants affidavit to show cause and the further affidavit showing cause, the Appellants have discharged the burden placed on them, the burden now shifts to the Respondent to rebut all that and to show that the monies are proceeds of unlawful activities. I cannot see any such rebuttal by the Respondent in the record of appeal before me. Though the lower Court was not wrong in placing the burden of proof on the Appellants but was wrong in holding that the Appellants did not discharge the burden. The Appellants in my opinion discharged the burden placed on them in law by giving verifiable explanation as to the source of the monies found in their account.
The Respondent’s inability to rebut the affidavit to show cause and the further affidavit and all the documents exhibited as proof of the legitimate deposit in the account and the earning of the Appellants including 20 years savings, rent received for the period over family properties, sales of family properties, dividend and gifts from friends which the Respondent cannot rebut that are illegal gifts, I have no difficulty in holding that the Appellants have shown reasonable and sufficient justification for the monies in their account. The Respondent has not discharged the burden placed on it to rebut the affidavit showing cause. In the circumstance, I resolve issues 3 & 4 in favour of the Appellants.
On the whole, this appeal succeeds and it has merit and therefore allowed. The judgment of the lower Court, that is the Federal High Court, Lagos Division in Suit No: FHC/L/CS/1094/2018 –Federal Republic of Nigeria vs. John Onimisi Ozigi & Anor is hereby set aside. In the circumstance, I make a consequential order that the post no debit order placed on the following accounts of the Appellants be removed and discharged forthwith to wit:
(i) John Onimisi Ozigi; Skye Bank Plc number 1060118510
(ii) Diamond Head Ventures & Development Co. Ltd’s Account in Skye Bank Plc Number 4010007344
(iii) Diamond Head Ventures Zenith Bank Plc Number 1010260044; 1010399694; 1000468142.
(iv) John O. Ozigi Fidelity Bank: Numbers 501009861; 5090081727; 5090082401.
I award the cost of N500,000 against the Respondent in favour of the Appellants.
OBANDE FESTUS OGBUINYA, J.C.A.: I agree with the erudite leading judgment delivered by my learned brother: EBIOWEI TOBI, J.C.A.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother EBIOWEI TOBI J.C.A., afforded me the opportunity of reading in draft before today the lead judgment just delivered and I agree with the reasoning and conclusion contained therein, adopt the judgment as mine with nothing further to add.
Appearances:
Wale Balogun, Esq. For Appellant(s)
Nkereuwem Anana, Esq. For Respondent(s)
