KANTIGI v. CHAIRMAN OF THE EFCC (2022)

KANTIGI v. CHAIRMAN OF THE EFCC

(2022)LCN/16983CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, October 31, 2022

CA/A/650/2019

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

ALHAJI BABACHADO KANTIGI (Claimant In Respect Of House No. 10 Kinshasha, Street Wuse Zone 6, Abuja) APPELANT(S)

And

CHAIRMAN OF THE ECONOMIC AND FINANCIAL CRIME COMMISSION (EFCC) RESPONDENT(S)

RATIO

WHETHER OR NOT THERE IS A LIMIT TO WHEN THE ISSUE OF THE COMPETENCE TO BE RAISED IN COURT

In law whenever the issue of competence either of a Suit or the adjudicating body is raised it is always in time. It is never ever too late to raise the issue of competence. This is so because it is better that a Court decides on the competence of the matter before it first than proceeding to determine on the merit a matter lacking in competence, which would amount to nothing but an exercise in futility. See Osafile V. Odi (1990) 3 NWLR (Pt. 137) 130. See also Bellview Airlines Limited V. Carter Harris (Proprietary) Limited (2016) LPELR – 40989 (CA), per Georgewill JCA, Elephant Group Plc. V. National Security Adviser & Anor (2018) LPELR – 45528 (CA), per Georgewill JCA. PER GEORGEWILL, J.C.A.

WHETHER OR NOT THE CAPACITY TO SUE OR BE SUED WHERE A BODY OR OFFICE CREATED BY STATUTE CAN BE INFERRED FROM THE STATUTE

Having considered all the varying submissions of the parties, it does appear to me that it has long been settled in law that where a body or Office is created by Statute, and notwithstanding the absence of an express provision thereon as to its capacity to sue or be sued, the right to sue and be sued may be inferred from the Statute after a careful and close reading of the provisions of the relevant Statute, and therefore, to infer a right to sue the Officer or body eonomine regard may well be had to the nature of the powers and functions vested in the Office or body, the extent to which such powers and functions may affect or impinge on the rights of other persons. It is also pertinent to consider the injustice that would arise from unavailability of means of redress should the Office exercising such powers or performing such function not be subject to any kind of proceedings. Thus, where by the inability to sue or be sued would render the enforcement of the powers and functions of the Office ineffective, then the law is that a right to sue eonomine would readily be inferred. See The Chairman Economic and Financial Crimes Commission & Anor V. FRN & David Little child & Anor (2015) LPELR – 25199 (CA) AT. pp. 24 -25. See also African Ivory Insurance Co. Ltd V. Commissioner for Insurance (1998) 1 NWLR (Pt. 532) 50, Kpebimoh V. The Board of Governor Western Ijaw Teachers Training College (1966) 1 NMLR 130, Thomas V. Local Government Service Board (1965) 1 All NLR 168, Solicitor General Western Nigeria V. Adedoyin (1973) UILR 143. PER GEORGEWILL, J.C.A.

THE POSITION OF LAW ON THE COMPLAINT OF BREACH OF THE RIGHT TO FAIR HEARING

The complaint of breach of the right to fair hearing is one which must be made bona fide and must therefore, not be the product of mala fide or merely that a party lost his case. It is a question of fact whether the right to fair hearing has been breached or not and therefore, once an allegation of breach of fair hearing is made against a Court, it is the facts as alleged that must be considered on the totality of the proceedings to see if it was made out by the party who made it. Thus, each allegation of fair hearing must be proved as fact by the party who alleges it against the Court. I have taken a calm review of the entire proceedings and ruling of the lower Court and the decision made therein in favour of the Respondent against the Appellant and ordering a final forfeiture of No. 10 Kinshasa Street, Zone 6 Wuse, Abuja. Truly, I find that the lower Court not only duly reviewed all the processes filed by the parties but also had a firm grip of the facts and totality of the cases as presented before it by the respective parties. See pages 1601 – 1606 in Vol. II of the RecordS of Appeal. PER GEORGEWILL, J.C.A.

WHETHER OR NOT THE ISSUE OF JURISDICTION CAN BR RAISED AT ANY TIME

Now, it was also contended by the Appellant that the Respondent’s Suit lacked reasonable cause of action against the Appellant and ought to be struck out by this Court for being incompetent. It is true that over the years the issue of lack of reasonable cause of action has been elevated to a threshold issue of jurisdiction, and therefore, can be raised at any stage of the proceedings and once raised, and being a jurisdictional issue, it is the law that it must be considered and determined by the Court before which it was raised one way or the other before the merit or otherwise of the substantive suit can be determined. See Madukolu & Ors V. Nkemdilim (1962) 1 All NLR (Pt. 4) 587. See also NDIC V. CBN & Anor (2002) 7 NWLR (Pt. 766) 272 AT p. 296, Nigerian Agip Oil Co. Ltd V. Kemmer (2001) NWLR (Pt. 716) 506 AT pp. 521 – 523, Shell Petroleum Development Co. Nig. Ltd V. Goodluck (2008) 14 NWLR (Pt. 1107) 294 AT p. 299. PER GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court of Federal Capital Territory, Abuja, Division, Coram: Babatunde O. Quadri J, in Suit No. FHC/ABJ/CS/985/2017: Chairman of the Economic and Financial Crime Commission (EFCC) V. Alhaji Babachado Kantigi (Claimant In Respect of House No. 10 Kinshasha, Street Wuse Zone 6, Abuja) delivered on 28/6/2019, in which it granted a final forfeiture order on the property situate at No. 10 Kinshasa Street, Wuse Zone 6, Abuja in favour of Respondent against the Appellant.

The Appellant was dissatisfied with the said decision and had appealed to this Court vide his Notice of Appeal filed on 1/7/2019 on Six Grounds of Appeal. See pages 1641 – 1646 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 16/7/2019. Subsequently, with the leave of Court an Amended Notice of Appeal on Nine Grounds of Appeal was filed on 9/3/2022 and was properly deemed on 14/3/2022. A Supplementary Record of Appeal was compiled and transmitted to this Court on 22/8/2019. The parties filed and exchange their briefs, which were duly adopted as their arguments at the hearing of this appeal on 19/9/2022. The Appellant was represented by M. J. Numa Esq, appearing with B. J. Tabai Esq. The Respondent was represented by Aliyu M. Yusuf Esq, appearing with C. D. Dennis Esq.

BRIEF STATEMENT OF FACTS
The case of the Respondent as Applicant before the lower Court inter alia was that sometime in 2017, it received intelligence that one Alh. Liman Kantigi, a onetime Commissioner in Niger State Government under the administration of Governor Babangida Aliyu, allegedly bought some landed properties, including House No. 10 Kinshasha Street, Wuse Zone 6, Abuja listed as Nos. 4 in the schedule to the Respondent’s application with proceeds of crime, specifically monies siphoned from the treasury of Niger state Government. The Respondent carried out relevant investigations and sought and obtained an order interim forfeiture on 26/1/2018, which said order was duly published for any interested person to show cause within 14 days why the said properties should not be forfeited to Federal Government of Nigeria. However, it was only on 5/3/2018 outside the 14 days as ordered by the lower Court that the Appellant a notice to show cause seeking to set aside the order of interim forfeiture and an order of injunction against the Respondent. On 5/3/2018, the Respondent filed an application seeking an order of final forfeiture of the said property. See pages 316 – 320 of the Record of Appeal.

The case of the Appellant as Respondent before the lower Court inter alia was that on 5/3/2018, he filed a notice to show cause supported by an affidavit of 5 paragraphs praying the lower Court to set aside the order of interim forfeiture as affecting the Appellant’s property listed as No. 4 in the schedule to the Respondent’s application, attached to which were Exhibit A, a Certificate of Occupancy issued by the Minister of FCT to one Alhaji Ahmadu Umaru Sidi on 2/7/2005, and Exhibit B, a Deed of Assignment dated 3/2/2009 and executed between the Appellant and Alh. Ahmadu Umaru Sidi. However, in in response to the Respondent’s application for order of final forfeiture of the said property, the Appellant filed a counter-affidavit to the Respondent’s application on 12/3/2018, attached to which were Exhibit A, a Certificate of Occupancy issued on 2/7/2005; B, a Deed of Assignment dated 3/2/2009; and C, an Irrevocable Power of Attorney donated by Alh. Ahmadu Umaru Sidi to Alhaji Baba Chado Kantigi (Appellant herein) dated 3/2/2009. See pages 610 – 628 of the Record of Appeal.

Upon the joinder of issues between the parties as above, the lower Court proceeded to hear the applications, and in its’ decision delivered on on 28/6/2019, it granted the final forfeiture order on the Property situate at No. 10 Kinshasa Street, Wuse Zone 6, Abuja in favour of Respondent against the Appellant, hence this appeal. See pages 1641 – 1646 and 1598 – 1640 in Vol. II pages 1598-1640 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief five issues were formulated for determination in this appeal, namely:
1. Whether the lower Court possesses jurisdiction to entertain this Suit, having been instituted by a non-juristic person? (Distilled from Ground 1)
2. Whether the lower Court was right to have assumed jurisdiction in a Suit which is an abuse of Court process? (Distilled from Ground 2)
3. Whether the lower Court ought to have dismissed the Suit filed against the Appellant’s property for lack reasonable cause of action? (Distilled from Ground 3)
4. Whether or not the Appellant’s fundamental human rights to fair hearing as guaranteed under Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) was not breached by the lower Court having failed to consider the entire defense of the Appellant? (Distilled from Ground 4, 5, 6, 7 and 9).
5. Whether or not the lower Court erred in law when it misinterpreted the Supreme Court’s decision in the case of Dame Patience Jonathan V. FRN (2019) LPELR SC 41/2018 or (2019) 2 – 3 SC (Pt. 1) 158 and failed to follow and apply same cited before him and proceeded to make an order of final forfeiture of the Appellant’s property without the Appellant being found guilty or first convicted of any crime? (Distilled from Ground 8)

In the Respondent’s brief, five issues were also formulated for determination in this appeal, namely:
1. Whether the Chairman of EFCC was a non-juristic person to have instituted the action culminating in this appeal and whether the suit constitute an abuse of Court process as there was no reasonable cause of action?
2. Whether the Appellant’s right to fair hearing as provided for under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) was breached by the lower Court in arriving at the decision to forfeit the property known as House No. 10 Kinshasa Street, Wuse Zone 6, Abuja listed as Nos. 4 in the schedule to the Respondent’s application at the lower Court?
3. Whether the lower Court raised the issue of validity, non-certification and non – attestation of the Exhibits attached to the Appellant’s processes suo motu and whether the Appellant was deprived of any opportunity to address the Court on the said Exhibits?
4. Whether the lower Court failed to pronounce on the facts presented in Appellant’s notice and affidavit showing cause filed in opposition to Respondent’s application for final forfeiture of the property known as House No. 10 Kinshasa Street, Wuse Zone 6, Abuja listed as Nos. 4 in the schedule to the Respondent’s application at the lower Court?
5. Whether the lower Court erroneously applied the Supreme Court decision in Dame Patience Jonathan V. FRN (2019) LPELR SC41/2018 or (2019) 2-3 SC Pt. 1 @ p. 158 in ordering final forfeiture of the property known as House No. 10 Kinshasa Street, Wuse Zone 6, Abuja listed as Nos. 4 in the schedule to the Respondent’s application at the lower Court?

My Lords, I have reviewed the affidavit and counter-affidavit evidence of the parties and scrutinized the documentary Exhibits annexed thereto. I have also considered the submissions of learned counsel for the parties in the light of the proceedings and decision of the lower Court appealed against, and I am of the view that the proper issues for determination in this appeal are the five issues for determination as formulated in the Appellant’s brief, a consideration of which would involve a consideration of the five issues as formulated in the Respondent’s brief. However, I shall consider the Appellant’s issues one, two and three together with the Respondent’s issue one. Thereafter, I shall consider the Appellant’s issue four together with the Respondent’s issues two, three and four. I shall then consider the Appellant’s issue five together with the Respondent’s issue five.

ISSUES ONE, TWO AND THREE
(TAKEN TOGETHER)
APPELLANT’S COUNSEL SUBMISSIONS
On issue one, learned counsel for the Appellant had submitted inter alia that it is the law, only a person with legal capacity can sue and/or institute legal action against another person and contended that the Consequence of a non-juristic person instituting an action is that it robs the jurisdiction of the Court to entertain such a Suit and urged the Court to hold that the Respondent, being the ‘Chairman of the Economic and Financial Crimes Commission’ is not a juristic person and therefore, has no legal capacity to institute an action Court and to allow the appeal, set aside the decision of the lower Court and strike out the Respondent’s Suit for being incompetent. Counsel relied on The Admin. & Exec. Of The Estate Of Abacha V. Eke – Spiff & Ors (2009) LPELR – 3152 (SC) 52, Nurses Association V. Attorney General (1981) 11 – 12 SC 1 AT pp. 21 – 22, Access Bank Plc V. Agege Local Government & Anor (2016) LPELR – 40491(CA) AT pp. 16 – 17, Shell Petroleum Development Company & Anor V Daniel Pessu (2014) LPELR – 23325 (CA).

It was also submitted that the only body recognized as a juristic person is the ‘Economic and Financial Crimes Commission’ as created by law vide the Economic and Financial Crimes Commission Act 2004 and contended that the juristic personality of the EFCC does not extend to the various departments and composition of the EFCC to institute actions mala – fide and urged the Court to hold that in law an action or Suit can only be instituted in the name of the EFCC and to allow the appeal, set aside the decision of the lower Court and strike out the Respondent’s Suit for being incompetent. Counsel relied on Calabar Municipal Government V Etubom Eyo Honesty (2022) 2 NWLR (Pt. 1815) 435, Bank of Baroda V. Iyalabani Coy Ltd. (2002) 13 NWLR (Pt. 785) 551, J.K Randle V. Kwara Breweries Ltd (1986) 6 SC 1.

On issue two, it was submitted that in law an improper use of judicial process or bringing a Suit mala – fide amounts to an abuse of Court process and contended that the Respondent’s Suit bordering on the allegation that the affected property was proceeds of crime derived from Niger State Government by one Alhaji Liman Isah Katingi, which same issue was the subject matter of several litigations leading to the decision of this Court in Appeal No. CA/A/453/2018: Attorney General of Niger State V. The Executive Chairman Of The Economic & Financial Crimes Commission & Ors delivered on 18/3/2022, wherein it was held that none of the allegations against Alhaji Liman Isah Kantigi were proved and therefore, in law to institute the Respondent’s Suit over the same subject matter constituted an abuse of Courts process and urged the Court to hold that since it has been decided by a Court of law that there since there was no proof that there were any missing monies from Niger State which found its way into the hands of the Appellant, coupled with the pendency of an appeal before the Supreme Court between the same parties in Appeal No. SC/1112/2017: OLalekan Olakehinde V. Economic and Financial Crimes Commission(EFCC), it amounted to abuse of Court process for the Respondent to institute the present Suit over the same subject matter and to allow the appeal, set aside the perverse decision of the lower Court and dismiss the Respondent’s Suit for being an abuse of Court process. Counsel relied on Chief Great Ovedje Ogboru & Anor V. Dr. Emmanuel Ewetan Uduaghan & Ors (2013) LPELR – 20805 (SC) 9, Lokpobiri V. Ogola & Ors (2015) LPELR – 40838 (SC) AT pp. 67 – 68; Ojo V. Olawore (2008) 6 -7 SC (Pt. 2) 541; African Reinsurance Corp. V. JDP Construction Nig. Ltd. (2003) 4 SCM 1, First Bank Plc. V. TSA Industries (2012) 14 NWLR (Pt.1320) 326, Conoil V. Vitol SA (2018) 9 NWLR (Pt. 1625) 463 AT pp. 495 – 597, Ukachukwu V. PDP (2013) 10 – 12 SC 5 AT p. 24, Senator Amange Nimi Barigha V. Peoples Democratic Party & Ors (2012) LPELR – 19712 (SC) 36, Kalu V. FRN (2016) 11 SCM 67 AT pp. 78 – 79.

On issue three, it was submitted that in law for a Suit to disclose reasonable cause of action, there has to be real issues capable of success as can be seen from the averments of the Claimant in his Statement of Claim and contended that the Respondent’s Suit did not disclose any reasonable cause of action in that not only did the lower Court failed to address the issue the lack of reasonable cause of action in the Respondent’s Suit but the Respondent did not also demonstrate any prima facie connection between monies relating to Niger State Government with the Appellant’s property sought to be forfeited since the alleged property was already purchased prior to the allegations from Niger State Government which has already been adjudged unproven before this Court and urged the Court to hold that the Respondent’s Suit having not disclosed any cause of action is incompetent and to allow the appeal and strike out the Respondent’s Suit for being incompetent. Counsel referred to Section 44 (1) and (2) of the Constitution of the Federal Republic of Nigeria,1999 (as amended), and relied on Rinco Construction Co. Ltd V. Veepee Industries Ltd. & Anor (2005) LPELR – 2949(SC) 14.

RESPONDENT’S COUNSEL SUBMISSIONS
On his issue one, it was submitted that the issue of the competence of the Chairman of the EFCC to institute a legal action has long been settled to the effect that where a body or Office is created by Statue notwithstanding the absence of an express provision thereon as to its capacity to sue or be sued, the right to sue and be sued may be inferred from the Statute after a careful and close reading of the provisions of the relevant Statute, and therefore, to infer a right to sue the Officer or body eonomine regard may well be had to the nature of the powers and functions vested in the Office or body, the extent to which such powers and functions may affect or impinge on the rights of other persons and the injustice that would arise from unavailability of means of redress should the office exercise such powers or performing such function not be subject to any kind of proceedings and contended that where however, the inability to sue in order to enforce the powers and functions would be rendered ineffective then a right to sue eonomine would readily be inferred and urged the Court to so hold and to dismiss the misconceived contentions of the Appellant and dismiss the appeal for lacking in merit. Counsel relied on The Chairman Economic and Financial Crimes Commission & Anor V. FRN & David Littlechild & Anor (2015) LPELR – 25199 (CA) AT pp. 24 -25; African Ivory Insurance Co. Ltd V. Commissioner for Insurance (1998) 1 NWLR (Pt. 532) 50, Kpebimoh V. The Board of Governor Western Ijaw Teachers Training College (1966) 1 NMLR 130, Thomas V. Local Government Service Board (1965) 1 All NLR 168, Solicitor General Western Nigeria V. Adedoyin (1973) UILR 143.

It was also submitted that both ground two and issue two based on a purported charge in Charge No. FHC/ABJ/CR/11/2018: Federal Republic of Nigeria V. Musa Datti & Ors as bordering on the same subject matter with Chairman of EFCC v SADIQ Air Ltd., does not arise and so also the issue of lower Court assuming jurisdiction despite a pending appeal in SC/1112/2007: Olalekan Olakehinde V. EFCC does not also arise from the issues as joined between the parties and as pronounced upon by the lower Court and contended that all such issues not related to and arising from the issues as joined by the parties and pronounced upon by the lower Court are incompetent and in law liable to be struck out and urged the Court to hold that the Respondent’s Suit does not constitute an abuse of Court process and to strike out issue two and Ground 2 for being incompetent. Counsel relied on Lambert V. Nigeria Navy (2006) 7 NWLR (Pt. 980) 514, Peter V. Okoye (2002) FWLR (Pt.110) 1864, Ugo V. Obiekwe (1989) 1 NWLR (PT. 99) 514, Okafor V. Abumofuani (2016) JELR – 54967 (SC), Amaefule V. State (1988) NWLR (Pt. 75) 238.

It was further submitted that the Respondent’s Suit disclosed reasonable cause of action in that by Section 17 of the AFF and Other Fraud Related Offences the Respondent’s case was for forfeiture of the effected property situate at No. 10 Kinshasa Street, Wuse Zone 6, Abuja as being proceeds of crime or unlawful activities in line with the requirements of the law and contended that both parties duly joined issues in their affidavit and counter – affidavit and which the lower Court properly evaluated and considered in arriving at its correct decision and urged the Court to hold that the contention by the Appellant that the Respondent’s Suit had no cause of action is misconceived and should be discountenanced and the appeal dismissed for lacking in merit. Counsel relied on Egbue V. Araka (1988) 1 NWLR (Pt. 84) 598, Adimora VS. Ajufo (1988) 3 NWLR (80) 1, (1988) LPELR-182 (SC), Akilu v. Fawehinmi (No.2) (1989) 2 SC (Pt. II), 1, (1989) 2 NWLR (102) 122, Owodunni v. Reg. Trust, C. C. C. (2000) 6 SC (Pt. III) 60, (2000) 10 NWLR (675) 315 AT 365.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned counsel for the Appellant had submitted inter alia that the case of Chairman Economic and Financial Crimes Commission & Anor V. FRN & David Littlechild & Anor (2015) LPELR – 25199 (CA) was on the facts clearly distinguishable and inapplicable to the present case in that in that case the acts complained of where acts done by the of the Chairman of the EFCC in his Official and or personal capacity unlike in the instant case in which the Respondent’s Suit was instituted for and on behalf of the EFCC, which is the proper party empowered by law to sue as it falls within the functions of the EFCC and contended that the Chairman EFCC lacks the juristic competence to institute the present Suit and urged the Court to hold that the Respondent’s Suit was incompetent and to allow the appeal, set aside the decision of the lower Court and strike out the Respondent’s Suit for being incompetent. Counsel relied on EFCC V. Olowonihi (2020) LPELR-50701(CA) AT pp. 50 – 51.

It was also submitted that the issue of abuse of Court process is an issue of jurisdiction and therefore, can be raised at any time even for the first time on appeal and contended that in law abuse of Court is not merely an irregularity that can be pardoned but constitutes a fundamental defect, the effect of which will lead to dismissal of the process which is abusive and urged the Court to hold that the ground of appeal and issue for determination based on abuse of Court process were both competent and to allow the appeal, set aside the decision of the lower Court and dismiss the Respondent’s Suit for being an abuse of Court process. Counsel relied on Dingyadi V. INEC (2011) 10 NWLR (Pt. 1255) 389, Arubo V. Aiyeleru (1993) 3 NWLR (Pt. 280) 126, Esabunor & Anor V. Faweya & Ors (2019) LPELR – 46961 (SC) AT pp. 38 – 41, New Nig Bank Ltd V. Edoma (2001) NWLR (Pt. 695) 541, Ogunbadejo V. Owoyemi (1993) 1 NWLR (Pt. 271) 517.

RESOLUTION OF ISSUES ONE, TWO AND THREE
My lords, issue one deals with whether or not the Respondent on record, Chairman of the EFCC is a juristic personality with the competence to institute a legal action in a Court of law. While, issue two deals with whether or not the Respondent’s Suit constitutes an abuse of Court process, issue deals with whether or not the Respondent’s Suit disclosed any reasonable cause of action against the Appellant. The sum total of these three issues is whether or not the Respondent’s Suit is competent, and if incompetent should be struck out and or dismissed. I have taken time to review the processes filed by the Respondent before the lower Court and considered the submissions of counsel for the parties on these three issues, noting carefully the several authorities, both statutory and judicial relied upon by them.

In law whenever the issue of competence either of a Suit or the adjudicating body is raised it is always in time. It is never ever too late to raise the issue of competence. This is so because it is better that a Court decides on the competence of the matter before it first than proceeding to determine on the merit a matter lacking in competence, which would amount to nothing but an exercise in futility. See Osafile V. Odi (1990) 3 NWLR (Pt. 137) 130. See also Bellview Airlines Limited V. Carter Harris (Proprietary) Limited (2016) LPELR – 40989 (CA), per Georgewill JCA, Elephant Group Plc. V. National Security Adviser & Anor (2018) LPELR – 45528 (CA), per Georgewill JCA.

Now, whilst the Appellant contended vehemently that the Respondent on record is not a juristic personality and therefore, not competent to institute the Suit against the Appellant, it was also contended with equal vehemence that the Respondent on record is by law clothed with the right to institute an action in Court in some well – defined circumstances, including the circumstances of the instant case. These are no doubt very interesting and highly illuminating submissions.

Having considered all the varying submissions of the parties, it does appear to me that it has long been settled in law that where a body or Office is created by Statute, and notwithstanding the absence of an express provision thereon as to its capacity to sue or be sued, the right to sue and be sued may be inferred from the Statute after a careful and close reading of the provisions of the relevant Statute, and therefore, to infer a right to sue the Officer or body eonomine regard may well be had to the nature of the powers and functions vested in the Office or body, the extent to which such powers and functions may affect or impinge on the rights of other persons. It is also pertinent to consider the injustice that would arise from unavailability of means of redress should the Office exercising such powers or performing such function not be subject to any kind of proceedings. Thus, where by the inability to sue or be sued would render the enforcement of the powers and functions of the Office ineffective, then the law is that a right to sue eonomine would readily be inferred. See The Chairman Economic and Financial Crimes Commission & Anor V. FRN & David Littlechild & Anor (2015) LPELR – 25199 (CA) AT pp. 24 -25. See also African Ivory Insurance Co. Ltd V. Commissioner for Insurance (1998) 1 NWLR (Pt. 532) 50, Kpebimoh V. The Board of Governor Western Ijaw Teachers Training College (1966) 1 NMLR 130, Thomas V. Local Government Service Board (1965) 1 All NLR 168, Solicitor General Western Nigeria V. Adedoyin (1973) UILR 143.
It follows therefore that there can be no doubt where an action is to protect rights claimed in public law from threaten infringement, the law considers such Office vested with powers and functions, which may in their exercise and performance lead to such infringement, amenable to legal proceedings eononime, not necessarily through the body corporate only. I have no doubt in my mind, and I so hold that the the Respondent, the Chairman of EFCC is a person vested with so much powers not only to determine whether a person should be arrested and detained but also whether his property should be forfeited, and that such an Office is one against or by which legal proceedings would lie eonomine. It therefore seems very obvious to me, and I am of the firm view, that the powers conferred on the Respondent, the Chairman of EFCC under the EFCC Act 2004 are so enormous that they are constantly in direct confrontation with the fundamental human rights as guaranteed to the citizen by the Constitution of the Federal Republic of Nigeria 1999 and this no doubt engenders every justification to hold that the Respondent, the Chairman of EFCC with such enormous powers can sue and be sued eonomine. See The Chairman Economic and Financial Crimes Commission & Anor V. FRN & David Littlechild & Anor (2015) LPELR – 25199 (CA) AT pp. 24 – 25, per Samuel Chukwudumebi Oseji, JCA (as he then was but later JSC, and may God bless his gentle soul). My Lords, our attention has been brought to two of our earlier decisions, namely: Chairman Economic and Financial Crimes Commission & Anor V. FRN & David Littlechild & Anor (2015) LPELR – 25199 (CA) and EFCC V. Olowonihi (2020) LPELR-50701(CA) AT pp. 50 – 51. I have taken time to go through each of these decisions and having considered the reasons for the decisions in the light of the issues in both cases and in the present appeal, I find the reasoning in the earlier case as far more compelling, more so when it does appear that the attention of the Court in the latter case was not brought to the decision in the earlier case. I shall, and do hereby prefer the decision in the earlier case and shall apply it to the present appeal. In the circumstances therefore, I have no doubt in my mind that in law, in the proved circumstances of this appeal, the Respondent, the Chairman EFCC can sue and be sued eonomine, and such a Suit, such as the instant case, would be and is competent before the lower Court as well as before this Court, and I so hold.

Now, it was also contended that the Respondent’s Suit constitutes an abuse of Court process, and I have asked myself what in law constitutes an abuse of Court process and whether or not the facts and circumstances of the instant case would fit the bill of an abuse of Court process as contended by the Appellant? In Appeal No. CA/A/453/2018: Attorney General of Niger State V. The Executive Chairman Of The Economic & Financial Crimes Commission & Ors delivered on 18/3/2022, the issue was the forfeiture of monies found in the accounts of the 1st and 2nd Respondents therein in which this Court affirmed the decision of the lower Court that the allegation was not proved. This is so different from the subject matter of the present Suit relating to forfeiture of No. 10 Kinshasa Street, Wuse Zone 6, Abuja. So, also it was not in any way demonstrated that the subject matter of this appeal is the same with the subject matter of the appeal in Appeal No. SC/1112/2017:Olalekan Olakehinde V. Economic and Financial Crimes Commission (EFCC).

I have looked considered the issues, parties and subject matter in the instant case and those Charge No. FHC/ABJ/CR/11/2018: Federal Republic of Nigeria V. Musa Datti & Ors as well as in Chairman of EFCC V. Sadiq Air Ltd., and those in the pending appeal in SC/1112/2007: Olalekan Olakehinde V. EFCC. Honestly, the unique issue in the instant case is not so much as to the commission of and conviction of the Appellant for any offence but rather strictly whether or not the Appellant was able to show cause why the property situated at No. 10 Kinshasa Street, Zone 6 Wuse, Abuja should not be forfeited to the Federal Government as sought by the Respondent without any conviction for any predicate offence pursuant to the provisions of Section 17, particularly Subsection (6) of the Advance Fee Fraud and Other Fraud Related Offences Act 2006, thus:
“An order of forfeiture under this section shall not be based on conviction for an offence under this Act or any other law.”

In law, it is not the mere pendency of two Suits that constitutes an abuse of Court process but the institution of multiple actions over the same subject matter and between the same parties and or their privies. Having considered the peculiar facts and circumstances of the instant case, I am unable to agree with the contention of the Appellant that the subject matter and issues in the instant case and in those other cases are the same even if some of the parties and or their privies may be the same. In the circumstances, I find as fact and I so firmly hold, that the instant case does not in any way constitute an abuse of Court process but rather it was competent to be heard and determined on the merit as was done by the lower Court, and quite rightly too.

However, as an aside and merely thinking aloud and without so deciding, but for the correct finding of the lower Court that the subject matter of the Respondent’s Suit, being No. 10 Kinshasa Street, Wuse Zone 6, Abuja is not covered by Exhibits A, B and C relied upon for its ownership by the Appellant, I would have ordered that the order of status quo made by the lower Court, at pages 1620 – 1622 Vol. I of the Record of Appeal, pending the determination of the appeal in Appeal No. SC/1112/2017: Olalekan Olakehinde V. Economic and Financial Crimes Commission (EFCC) should stand to abide by the determination of the Supreme Court in the said appeal solely for the preservation of the res. See University of Ilorin V. Akinyanju (2007) All FWLR 1767 AT p. 1777.

Now, it was also contended by the Appellant that the Respondent’s Suit lacked reasonable cause of action against the Appellant and ought to be struck out by this Court for being incompetent. It is true that over the years the issue of lack of reasonable cause of action has been elevated to a threshold issue of jurisdiction, and therefore, can be raised at any stage of the proceedings and once raised, and being a jurisdictional issue, it is the law that it must be considered and determined by the Court before which it was raised one way or the other before the merit or otherwise of the substantive suit can be determined. See Madukolu & Ors V. Nkemdilim (1962) 1 All NLR (Pt. 4) 587. See also NDIC V. CBN & Anor (2002) 7 NWLR (Pt. 766) 272 AT p. 296, Nigerian Agip Oil Co. Ltd V. Kemmer (2001) NWLR (Pt. 716) 506 AT pp. 521 – 523, Shell Petroleum Development Co. Nig. Ltd V. Goodluck (2008) 14 NWLR (Pt. 1107) 294 AT p. 299.

So, what would constitute in a given cause a reasonable cause of action as would suffice to render a Suit competent to be heard and determined on the merit by a Court of law?

In Rinco Construction Co. Ltd V. Veepee Industries Ltd. & Anor (2005) LPELR – 2949(SC) 14, the Supreme Court per Niki Tobi JSC (God bless his soul), had stated inter alia thus:
“Reasonable cause of action means a cause of action with some chances of success. For a statement of claim to disclose a reasonable cause of action, it must set out the legal rights of the Plaintiff and the obligations of the Defendant. It must then go on to set out the facts constituting infraction of the Plaintiff’s legal right or failure of the Defendant to fulfill his obligation in such a way that if there is no proper defence, the Plaintiff will succeed in the relief or remedy he seeks.”
Now, the Respondent’s Suit going by the depositions in the affidavit in support and the principal relief claimed before the lower Court was one founded principally on the provisions of Section 17, particularly subsection (6) of the Advance Fee Fraud and Other fraud Related Offences Act 2006. It sought the forfeiture of the property situate at No. 10 Kinshasa Street, Wuse Zone 6, Abuja as being proceeds of crime or unlawful activities in line with the requirements of the law. The Appellant upon becoming aware of the publication of the interim order of forfeiture sought to set same aside as well as show cause why the said property should not be finally forfeited to the Federal Government of Nigeria as sought by the Respondent.
Looking at and going through the various copious and contending affidavit and counter-affidavit filed by the parties before the lower Court in the instant case as in the Records of Appeal and the various issues joined by them, it is surprising to see the Appellant argue in this appeal, by way of a volt face in my view, that the Respondent’s Suit which he had hotly contested before the lower Court did not disclose any reasonable cause of action and ought to be struck out. I think, and I so hold, that this issue is neither well thought out nor of any substance as it is without any iota of merit. The parties duly joined several issues in their affidavit and counter – affidavit and which the lower Court evaluated and considered in arriving at its decision, whether rightly or wrongly and which is the subject matter of issues four and five and which shall be considered soon in this judgment. I hold firmly therefore, that the Respondent’s Suit, by whatever parameters used, disclosed reasonable cause of action and was eminently competent to be heard and determined on the merit as was done by the lower Court. See Rinco Construction Co. Ltd V. Veepee Industries Ltd. & Anor (2005) LPELR – 2949(SC) 14. See also Egbue V. Araka (1988) 1 NWLR (Pt. 84) 598, Adimora VS. Ajufo (1988) 3 NWLR (80) 1, (1988) LPELR-182 (SC), Akilu v. Fawehinmi (No.2) (1989) 2 SC (Pt. II), 1, (1989) 2 NWLR (102) 122, Owodunni v. Reg. Trust, C. C. C. (2000) 6 SC (Pt. III) 60, (2000) 10 NWLR (675) 315 AT 365.

ISSUE FOUR
APPELLANT’S COUNSEL SUBMISSIONS
On issue four, it was submitted that the the law guarantees the right to fair hearing to every citizen in any judicial proceedings and contended that the lower Court by its failure to consider the affidavit evidence, written address and submissions made by counsel to the Appellant while considering and evaluating the processes and submissions of counsel for the Respondent with regards to subject matter of this appeal, the property situate at No. 10 Kinshasa Street., Wuse Zone 6, Abuja, clearly acted in breach of the right to fair hearing of the Appellant and urged the Court to hold that such a breach vitiated the entire proceedings and decision of the lower Court and to allow the appeal, set aside the null proceedings and decision of the lower Court and dismiss the Respondent’s Suit. Counsel referred to Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and relied on Gov. Imo State V. E. F. Network (Nig) Ltd (2019) 9 NWLR (Pt. 1676) 95 AT p. 111, Nyesom V. Peterside (2016) 7 NWLR (Pt. 1512) 452, Ezewanji V. UNN (2017) 5-6 SC (Pt. II) 73, Thomas V. FJSC (2018) 2 – 3 SC (Pt. I) 10 AT p. 55, MTN V. Hassan (2017) 6 SC (Pt. VI) AT pp. 32 – 33, Owuru V. Adigwu (2017) 6 – 7 SC (Pt. III) 67, Ilorin East LG V. Alasinrin (2012) 23 WRN 114.

It was also submitted that the photocopy of Exhibit A, the Certificate of Occupancy even though issued by the FCT Minister is not a public document requiring certification in order to be valid and contended that in law it is a private document being a private communication between the FCT Minister and the holder and urged the Court to so hold and to set aside the erroneous conclusion of the lower Court that Exhibit A was a public document that required certification to be legally admissible and relied upon in judicial proceedings as well as Exhibit B, which being a Deed of Assignment requires only due execution and does not require any attestation by a Notary Public to be valid as was also erroneously held by the lower Court and to allow the appeal. Counsel referred to Section 2 of The Illiterate Protection Act, and relied on Anagbado V. Faruk (2018 6 – 7 SC (Pt IV) 111 AT p. 131, Abiodun Adelaja V. Olatunde Fanoiki & Anor (1992) 2 NWLR (Pt. 13) 137, Ilori & Anor V. Ishola & Anor (2018) LPELR – 44063 (SC), Wilson V. Oshin (2000) 6 SC (Pt. 111) 1, Okoye V Dumez Nig. Ltd (1985) 1 NWLR (Pt. 94) 783, HRH Umeanadu V. AG. Anambra (2008) 34 NSCQR 1 AT p. 24, Oroja V. Adeniyi (2017) 1 SC (Pt. III) 35.

RESPONDENT’S COUNSEL SUBMISSIONS
On his issues two and three, learned Counsel for the Respondent had submitted inter alia that the Appellant was afforded and duly heard by the lower Court on the case as presented by him in his affidavit to show cause and counter–affidavit to the Respondent’s application for final order of forfeiture of No. 10 Kinshasa Street, Wuse Zone 6, Abuja and contended that the lower Court considered the evidence of all the parties as placed before it and on which proper evaluation it came to the conclusion that Exhibit A relied upon by the Appellant did not relate to the affected property and thereby ordering its final forfeiture in line with the applicable statutory and judicial principles and urged the Court to hold that the lower Court was right in its decision and did not in any way breached the Appellant’s right to fair hearing and to dismiss the appeal for lacking in merit and affirm the correct decision of the lower Court. Counsel referred to Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, Sections 36(1) (2), and 44(1) of the constitution of the Federal Republic of Nigeria 1999 (as amended), and relied on Ogundoyin V. Adeyemi (2001) 13 NWLR (Pt. 730) 403, UBA Ltd V. Achoru (1990) 6 NWLR (Pt. 156) 254, Mohammed V. Kano Native Authority (1968) 1 All NLR 424, Salu V. Efebon (1994) 6 NWLR (Pt. 348) 23.

It was also submitted that it was the Appellant who presented Exhibits A, B and C as valid documents of title to the affected property and therefore, the lower Court was under a duty to act on only admissible and valid documents which it found that Exhibits A, B and C were not upon closer scrutiny and contended that in law the Appellant having put his own title to the affected property in issue was under a duty, which duty he flunked, to prove the title he claimed when all that was before the lower Court was simply the acquisition of the affected property and urged the Court to hold that the lower Court was right to have upon proper evaluation rejected the unverified Exhibits A, B and C relied upon by the Appellant, which were even mere photocopies and thus inadmissible in evidence, and to have proceeded to grant the final order of forfeiture of the said property and to dismiss the appeal for lacking in merit and affirm the correct decision of the lower Court. Counsel referred to Section 18 of the Notary Public Act 2004, Sections 89(e) and 90(c) of the Evidence Act 2011, and relied on Onwudinjo V. Dimobi (2006) 1 NWLR (Pt. 961) 318, Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248, Oje V. Babalola (1991) 4 NWLR (Pt. 185) 267, AG. Enugu State V. Avop Plc (1995) 6 NWLR (Pt. 399) 90, Igwe v. A.I.C.E. (1994) 8 NWLR (Pt. 363) 459.

It was further submitted that on the face of the failure of the Appellant to show cause as to how the affected property was genuinely acquired and not being as proceeds of crime, there was no further duty on the Respondent to file any further affidavit and or counter-affidavit to the affidavit of the Appellant and contended that in law the adverse party need not respond to an issue of fact which is not proved by the party relying on such fact and urged the Court to hold that the Respondent was not under any duty to respond further to the false facts relied upon by the Appellant which raised no issue to be responded to and to dismiss the appeal for lacking in merit and affirm the sound decision of the lower Court. Counsel relied on Globe Fishing Industries Ltd V. Coker (1990) 7 NWLR (Pt. 162) 265, Bedding Holdings Ltd. V. NEC (1992) 8 NWLR (Pt. 260) 428, Pan Atlantic Shipping Transport Agencies Ltd. V. Babatunde (2007) 13 NWLR (Pt. 1050) 113, Ojengbede V. Esan (2001) 92 LRCN 3326, SPDC Nig. Ltd V. Cole (1978) LPELR – 3051(SC) 1 AT p. 15.

RESOLUTION OF ISSUE FOUR
My Lords, issue four raises the very fundamental question of adherence to the provisions of Section 36 of the Constitution of Nigeria 1999 (as amended) as part of Chapter IV of the Constitution of Nigeria which guarantees the fundamental right to fair hearing to the citizen of this Country in the determination of his civil rights and obligations. By Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), it is provided thus:
“In the determination of his Civil rights and obligation, including any question or determination by or against any government or authority a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

The complaint of breach of the right to fair hearing is one which must be made bona fide and must therefore, not be the product of mala fide or merely that a party lost his case. It is a question of fact whether the right to fair hearing has been breached or not and therefore, once an allegation of breach of fair hearing is made against a Court, it is the facts as alleged that must be considered on the totality of the proceedings to see if it was made out by the party who made it. Thus, each allegation of fair hearing must be proved as fact by the party who alleges it against the Court. I have taken a calm review of the entire proceedings and ruling of the lower Court and the decision made therein in favour of the Respondent against the Appellant and ordering a final forfeiture of No. 10 Kinshasa Street, Zone 6 Wuse, Abuja. Truly, I find that the lower Court not only duly reviewed all the processes filed by the parties but also had a firm grip of the facts and totality of the cases as presented before it by the respective parties. See pages 1601 – 1606 in Vol. II of the RecordS of Appeal.

Now, whilst it is true that the lower Court formulated for its resolution in its ruling three issues for determination, including the third issue, namely; ‘whether by the combination of the provision of Section 17 (1), (2), (3), (4), and (6) of the Advanced Fee Fraud, Section 36(1) (2), and Section 44(1) of the 1999 Constitution and the prevailing circumstances, this Court is inclined to grant the Order of final forfeiture’ and which issue three may not have been to the satisfaction of the Appellant, yet it is clear that these three issues as formulated by the lower Court, which in law had the plenitude of power to do so, were in my view apt and germane to the real issues in controversy between the parties. See pages 1607 – 1608 in Vol. II of the Record of Appeal. Honestly, I cannot see how this alone would constitute a breach of the right to fair hearing of the Appellant, when the ruling appealed against showed a demonstration of the fair understanding of the cases of the respective parties and a decision, whether rightly to wrongly, which is the real issue in this appeal, reached by the lower Court. I can neither see nor find how the lower Court omitted and/or failed to consider the case of the Appellant as strenuously but erroneously contended by learned counsel for the Appellant, a contention which I hereby discountenance and overrule in its entirety.

Now, the fact that Mr. Kebordih had seriously contended in his forceful argument that the Appellant through his affidavit and Exhibits attached to his affidavit of 5/3/2018 and counter-affidavit of 12/3/18 has shown his legitimate title to the property and that the property has nothing to do with Liman Kantigi, the EFCC claim it is suspecting or investigating and/or any bank account linked to Niger State Government fund does not necessarily mean that the lower Court must find as contended or that the said contention was made out by the evidence before the lower Court. Indeed, looking at Exhibits A, B and C, having no linkage to the property No. 10 Kinshasa Street, Wuse Zone 6, Abuja, the lower Court had no other option that find as it did and quite correctly too that the Appellant did not show any cause why the said property should not be finally ordered forfeited as sought by the Respondent.

The lower Court had stated inter alia that it was evidently clear to it that the Appellant’s, as part of the several Claimants before it, to the ownership of the affected properties listed as Nos. 1 – 8 on the EFCC Schedule raised serious doubts which rendered their claims unbelievable in that it discovered from its evaluation that most of the documents relied upon as their title documents in claim for ownership were void of due attestation and certification which rendered their authenticity and genuiness very doubtful. See pages 1634 – 1635 in Vol. II of the Records of Appeal.

Now, whether the above finding and or observation of the lower Court was correct or wrong cannot in law form the basis of any valid allegation of breach of the right to fair hearing by the Appellant and I so firmly hold, and it is therefore, very clearly misconceived so to contend by the Appellant. Indeed, the Appellant was afforded and duly heard by the lower Court on the case as presented by him in his affidavit to show cause and counter-affidavit to the Respondent’s application for final order of forfeiture of No. 10 Kinshasa Street, Wuse Zone 6, Abuja. Indeed, the lower Court considered the evidence of all the parties as placed before it and on which proper evaluation it came to the conclusion that Exhibit A relied upon by the Appellant did not relate to the affected property and thereby ordering its final forfeiture in line with the applicable statutory and judicial principles. The lower Court having followed all the procedural steps for considering and determining issues presented before it, the allegation of breach of fair hearing by the Appellant is unfounded and having not been proved, it is hereby discountenanced. See Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act. See also Sections 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See Ogundoyin V. Adeyemi (2001) 13 NWLR (Pt. 730) 403, UBA Ltd V. Achoru (1990) 6 NWLR (Pt. 156) 254, Mohammed V. Kano Native Authority (1968) 1 All NLR 424, Salu V. Efebon (1994) 6 NWLR (Pt. 348) 23.

ISSUE FIVE
APPELLANT’S COUNSEL SUBMISSIONS
On issue five, learned counsel for the Appellant had submitted inter alia that the lower Court erred gravely in law and misconstrued and misapplied the decision of the Supreme Court in Dame Patience Jonathan V. FRN (2019) 2 – 3 SC (Pt. 1) 158 relating to issues of interim forfeiture to issues of final forfeiture and thereby arrived at a perverse decision ordering the final forfeiture of the affected property in the instant case without any prior conviction for any offence and contended that in law whilst an order of interim forfeiture of subject property may be granted but an final order of forfeiture cannot be granted against a citizen to confiscate his property finally and/or absolutely without first being tried and convicted for a crime or found linked to any unlawful activity and urged the Court to hold that the lower Court misinterpreted and misapplied the decision in Dame Patience Jonathan V. FRN (2019) 2 – 3 SC (Pt. 1) 158 and to allow the appeal, set aside the decision of the lower Court and dismiss the Respondent’s Suit for lacking in merit. Counsel referred to Section S. 17 of the AFF Act 2006, Sections 28 and 29 of the EFCC Act 2004 and relied on Dame Patience Jonathan V. FRN (2019) 2 – 3 SC (Pt. 1) 158, Lawari Furniture & Baths Ltd V. FRN (2019) 3 SC (Pt. 1) 109 AT p. 133, Akeredolu V Abraham (2018) 3 (SC Pt. III) 106 AT p. 137.

RESPONDENT’S COUNSEL SUBMISSIONS
On his issue five, learned Counsel for the Respondent had submitted inter alia that the provision of Section 29 of the Economic and Financial Crimes Commission (Establishment) Act 2004 is distinct from the provisions of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act 2006 and contended that whilst on the one hand, Sections 29 of the EFCC Act deals with procedure for application to Court for preservatory order of properties connected to a pending criminal trial and thus only activated at the investigation stage, on the other hand, Section 17 of the Advance fee Fraud Act 2006 deals clearly with non – conviction based or civil forfeiture of assets in line with the procedure as spelt out therein and urged the Court to hold that in law there is no basis for comparing these two provisions as they run on parallel line for whilst the former is criminal procedure, the later procedure is civil and to dismiss the appeal for being misconceived and to affirm the correct decision of the lower Court. Counsel referred to the United Nation Convention Against Corruption, Section 17(6) of the Advance Fee Fraud and Other Fraud Related Offences Act 2006, and relied on See Arcuri & Ors V. Italy (Dec) No 52024/99 ECHR 2001 – VI, United State V. Ursery (95 – 345) 518 US 267 (1996), Bennis V. Michigan, (94 – 8729) 517 US 1163 (1996), Giilligan V. Criminal Asset Bureau (2011) 1ESC 82, Dame Patience Jonathan V. FRN (2019) 2 – 3 SC (Pt. 1) 158.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply submissions, learned counsel for the Appellant had virtually rehashed and reiterated his earlier submissions and basically re-argued his appeal under the guise of a reply brief. The reply brief, it must be reiterated is not and cannot be an avenue for an Appellant to re-argue his appeal or merely to have a second bite at the cherry. The reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed just as a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. See Order 19 Rules 5 (1) of the Court of Appeal Rules 2021. See also Edo State House of Assembly & Ors V. Igbinedion & Ors(2021) LPELR – 55990 (CA) per Sir Biobele Abraham Georgewill JCA, Obasuyi V. Eguagie (2021) LPELR – 56119 (CA) per Sir Biobele Abraham Georgewill JCA, Enosegbe V. Enizode – Aiwize & Ors (2021) LPELR – 54200 (CA), per Sir Biobele Abraham Georgewill JCA, Olafisoye V. FRN 2004 1SC Pt. 11 27, Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94, Longe V. FBN (2010) 2 – 3 SC 61, Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR – 47373 (CA).

Be the above as it may, it was submitted in reply by learned counsel for the Appellant that a Certificate of Occupancy is usually identified by its number and file number and the property was properly described in the schedule and contended that it was not the case of the parties before the lower Court that Exhibit A does not relate to the affected property and therefore, cannot be raised as that would amount to change the nature of the Respondent’s case and urged the Court to hold that the lower Court was in grave error when it proceeded to order the final forfeiture of the Appellant’s property when the Respondent failed to provide sufficient nexus between the affected property and the crime alleged and to allow the appeal, set aside the decision of the lower Court and dismiss the Respondent’s Suit for lacking in merit.

RESOLUTION OF ISSUE FIVE
My Lords, issue five is the real deal in this appeal. it is the crux of this appeal. It deals with the question whether or not the lower Court carried out proper evaluation, applied the applicable principles of law and arrived at correct findings and conclusions. I have earlier set out in details the respective cases of the parties before the lower Court. The Respondent had sought and obtained an interim order of forfeiture of No. 10 Kinshasa Street, Zone 6, Wuse, Abuja. As required of it by law, it had published the order of interim forfeiture of the said properties. It was the Appellant who had sought not only to set aside the said order of interim forfeiture but also to show cause why a final order of forfeiture of the said property should not be made by the lower Court. It therefore, seem clear to me, as it seemed clear to the lower Court, that the Appellant who had presented himself before the lower Court claiming the ownership of the property situated at No. 10 Kinshasa Street, Zone 6, Wuse, Abuja was under a duty to show cause why the said property should not be finally forfeited as sought by the Respondent. Thus, the only issue to my mind was simply whether or not the Appellant succeeded to show cause why the order of final forfeiture should not have been made by the lower Court. The lower Court found as fact that the Appellant failed to show cause and had proceeded to make the final order of forfeiture of the said property, and the Appellant cried foul! This is the real crux of this appeal.

I have reviewed the entirety of the affidavit, counter – affidavit and documentary Exhibits relied upon by the parties. I have also read through the provisions of the Section 17(6) of the Advance Fee Fraud and Other fraud Related Offences Act 2006. The Appellant had in his bid to show cause why the final order of forfeiture of the subject property should not be made had relied on three principal documents annexed to his affidavit as well as his counter-affidavit as Exhibits A, B, and C.

In Exhibit A, it is stated inter alia thus:
“THIS IS TO CERTIFY THAT Ahmadu Umaru Sidi whose address is House 9 Close 50 Satolllc Town Lagos (herein alter called the holder/holders, which term shall include any person/persons in title), Is hereby granted a right of occupancy in and over the land described in the schedule, and more particularly in the plan printed hereto for a term of 99 years commencing from the 13th day of June, 1995 according to the true intent and meaning of the Land Use Act No. 6 M 978 and subject to the provisions thereof and to the following special terms and conditions……” See pages 433 and 614 in Vol. I of the Record of Appeal
In Exhibit B, it is stated inter alia thus:
“BY THIS POWER OF ATTORNEY made this 24th day of March, 2021, Adamu Idris and Company of Suite Bl, Ndamela House Area 3, Garki Abuja (Hereinafter referred to as the Donor) hereby appoint Katah Property and Investments Ltd of No 12, Pipeline Road, Gbazango Extension, Kubwa Abuja (Hereinafter referred to as “the Donee”) as its True and Lawful Attorney to in its name and behalf carry out the following acts and deeds, in respect of property known as Block 7 (old 288) Burundi Street, Zone 5, Wuse Abuja….” See page 537 in Vol. 1 of the Record of Appeal
In Exhibit B, it is stated inter alia thus:
“THIS DEED OF ASSIGNMENT IS made this 24th day of March, 2011 BETWEEN Adamu Idris and Company of Suite B1, Ndamela House, Area 1, Garki Abuja (Hereinafter referred to as “the Assignor” AND KATAH PROPERTY AND INVESTMENT LTD of No 12 Pipeline Road, Sbazango Extension, Kubwa Abuja (Hereinafter referred to as “the Assignee”….the Assignor hereby ASSIGNS ALL THAT PROPERTY known as Block 7 (old 288) Burundi Street, Zone 5, Wuse Abuja, TO HOLD unto the Assignee for the entire residue granted in the letter of grant or Certificate of Occupancy. The Assignor shall deliver all original copies and photocopies of all title documents relating to the property to the Donee at the execution of this deed.” See page 539 in Vol. 1 of the Record of Appeal.

In law, a party who pleaded and tendered a document cannot be heard to complain that the Court before who it was tendered had proceeded to evaluate such a document as that is the duty of a Court to properly evaluate and appraise every piece of evidence, oral or documentary as are tendered before it by the parties before reaching its decision thereon. See Onwudinjo V. Dimobi (2006) 1 NWLR (Pt. 961) 318, Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248, Oje V. Babalola (1991) 4 NWLR (Pt. 185) 267, AG. Enugu State V. Avop Plc (1995) 6 NWLR (Pt. 399) 90, Igwe v. A.I.C.E. (1994) 8 NWLR (Pt. 363) 459.

Now, the lower Court had held inter alia that not only are the Exhibits A, B and C are of doubtful authenticity and inadmissible but more importantly they did not establish the claim of the Appellant to the subject property situate at No. 10 Kinshasa Street, Zone 6 Wuse, Abuja there being no nexus between these Exhibits and the said property. See pages 1620 – 1622 in Vol. II of the Record of Appeal

So, did the lower Court misapplied the decision of the Supreme Court in Dame Patience Jonathan V. FRN (2019) 2 – 3 SC (Pt. 1) 158 to the instant case as vehemently contended by the learned counsel for the Appellant when it stated as follows:
“On the premise of the above, it is therefore my decision that having not been satisfied with the explanation and claims by the Claimants in respect of the properties in custody of the applicant as listed in the EFCC schedule in this suit I hereby order that the application for final forfeiture in respect of the items listed in the above listed EFCC schedule is hereby granted in favour of the applicant.” See pages 1636 – 1639 in Vol. II of the Records of Appeal.
I think not!

In my finding, the lower Court was very explicit in its reason for its decision which include very sundry reasons ranging from the obvious lack of authenticity and inadmissibility of the several documents relied upon by the Appellant as Exhibits A, B, and C, to the most important being the lack of any linkage and or nexus between the property No. 10 Kinshasa Street Zone 6 Wuse, Abuja and the several Exhibits A, in particular, and Exhibits B and C, relied upon by the Appellant as his claim of title to the affected property. I have myself calmly looked and scrutinized these documents, part f which I had earlier set out in this judgment, and I cannot but agree with all the doubts observed and expressed by the lower Court as to the genuineness and authenticity of the lower Court as regards Exhibits A, B, and C relied upon by the Appellant as proof of title to No. 10 Kinshasa Street, Zone 6 Wuse, Abuja.

In law, documents are not tendered in evidence by parties for the fun of it but for the serious purpose of their scrutiny, evaluation and appraisal in relation to the subject matter and issues in the litigation. Thus, a trial Court, such as the lower Court, that does that has, in my view, done nothing wrong or unusual to be deprecated by an appellate Court as is being sought in this appeal by the Appellant. There was therefore, in my finding and I so hold, no misapprehension or misconstruing and or misapplication of the decision of the Dame Patience Jonathan V. FRN (2019) 2 – 3 SC (Pt. 1) 158 by the lower Court, which only averted its mind to the principles enunciated in that decision and then returned to the proved facts and circumstances before it in arriving at the decision, and quite rightly too in my finding, that the Appellant who laid claim of title to the affected property had failed woefully to link the title documents, which in themselves were of doubtful genuineness, to the property situate at No. 10 Kinshasa Street, Zone 6 Wuse, Abuja, and therefore, finding nothing inhibiting the granting the order of final forfeiture without any prior conviction for any offence.

However, it would have been otherwise and I would have readily intervened to set aside the order of final forfeiture made by the lower Court had the lower Court found any linkage between the affected property and the documents, Exhibits A, B and C relied upon by the Appellant, and if they were also found or at least perceived by it to be genuine, and it had still proceeded to order final forfeiture without any prior conviction of the Appellant for any predicate offence. Some of the discrepancies that warranted the lower Court to disbelieve the case of the Appellant includes the fact that the Appellant deposed that the property evidenced by Certificate of Occupancy, Exhibit A was assigned to him by one Alhaji Ahmadu Umaru Sidi at paragraph 3(d) of his affidavit to show cause at pages 441 – 442 in Vol. I of the Records of Appeal, yet the Exhibit A on page 443 in Vol. I of the Records of Appeal was not issued in respect of House No. 10 Kinshasha Street, Wuse Zone 6, Abuja or any property at all. So, on what basis was the lower Court supposed to have found for the Appellant on his notice to show cause as to the ownership of the affected property situate at No. 10 Kinshasa Street, Wuse Zone 6, Abuja as is being strenuously contended in this appeal by the Appellant? No basis at all in my finding!

It is elementary that evaluation of evidence would entail and demand that the evidence proffered by the parties are assessed, appraised and weighed impartially on the imaginary scale of justice by the Court so as to give probative value or quality to it and there must be on the record, and very important too, how the Court arrived at its choice of preference of one piece of evidence to the other. It cannot just be merely a product of the whims and caprices of the judge. No! He must show on record his reason for so doing. See Amu & Anor V. Okeaya Inneh & Anor (2021) LPELR-55660(CA) per Sir Biobele Abraham Georgewill JCA. See also Alake V. State (1992) 9 NWLR (Pt. 265) 260, Dantiye & Anor V. Kanya & Ors (2008) LPELR – 40094 (CA), Afemai Microfinance Bank Ltd V. Seacos Nig. Ltd (2014) LPELR – 22583 (CA).

Now, from the depositions of the Appellant, Exhibits A, B and C were presented as valid documents of title to the affected property but the lower Court was under a duty to act on only admissible and valid documents which it found that Exhibits A, B and C were not upon closer scrutiny. It would appear, and I so firmly hold, that the Appellant having put his own title to the affected property in issue was under a duty, which duty he flunked, to prove the title he claimed when all that was before the lower Court was simply the genuine acquisition of the affected property. Thus, the lower Court was, in my view, right to have upon proper evaluation rejected the unverified Exhibits A, B and C relied upon by the Appellant, which were even mere photocopies and thus inadmissible in evidence.

Thus, in cases in which the contentions of parties on an issue are divergent both by their pleadings and evidence led thereon, but there are documentary Exhibits tendered by them, it is the law, that since parties are bound by the documents tendered by them in evidence and are thus obliged to either swim or sink with the contents of such documents tendered by them, such documentary evidence can be used as hangers on which to assess the veracity of the oral evidence led by the parties. In law, documents are the barometer with which the truth of oral evidence can be safely measured. See Amu & Anor V. Okeaya Inneh & Anor (2021) LPELR – 55660(CA) per Sir Biobele Abraham Georgewill JCA. See also Kimdey V. Military Governor, Gongola State (1988) 2 NWLR (Pt. 77) 445, Fashanu V. Adekoya (1974) 6 SC. 83, UBA Plc. V. Jargaba (2002) 2 NWLR (Pt. 750) 200, Dawodu Vs Majolagbe (2001) 3 NWLR (Pt. 703) 234.

My Lords, so much heavy weather was made of whether or not the lower Court was right to have discountenanced Exhibits A, B and C for the sundry reasons it gave for doing so and I had thought I should state it right away that with the correct finding by the lower Court that there was no nexus between these Exhibits and the property situate at No. 10 Kinshasa Street, Zone 6 Wuse, Abuja, the subject matter of the order of final forfeiture sought by the Respondent, the issue of whether these Exhibits were admissible or even genuine or not became completely insignificant and of no moment to the proper determination of the issue whether the Appellant showed cause why the final order of forfeiture should not be made by the lower Court since such irrelevant Exhibits, without any nexus or link, cannot even in the least have supported the Appellant’s notice to show cause.

Be the above as it may, it is true that a Power of Attorney as well as a Deed of Assignment need not be notarized to be rendered valid yet where the issue before the lower Court was not of title to the affected property but rather as to the legality or otherwise of its acquisition and or procurement then of course issues as to the legitimacy of documents relied upon in support of its acquisition and or procurement would deserve a closer scrutiny to ascertain their genuineness or otherwise. I therefore see nothing wrong in the lower Court doing so to satisfy itself of the status of these Exhibits A, B and C, which at any rate were not even related to the affected property, as was also rightly found by the lower Court, to ascertain whether or not support the claim of the Appellant. However, in law to notarize a document essentially means to assure the genuineness of that document and to affirm that the facts contained in it are reasonably free of misrepresentation and fraud. This is usually done by the Notary Public.

The Appellant having by the Exhibits tendered and relied upon by him to show cause failed to show any cause as to how the affected property was genuinely acquired by him, there was in my finding no further duty on the Respondent to file any further affidavit and or counter-affidavit to the affidavit of the Appellant since in law an adverse party need not respond to an issue of fact which is not proved by the party relying on such fact. See Globe Fishing Industries Ltd. V. Coker (1990) 7 NWLR (Pt. 162) 265. See also Bedding Holdings Ltd. V. NEC (1992) 8 NWLR (Pt. 260) 428, Pan Atlantic Shipping Transport Agencies Ltd V. Babatunde (2007) 13 NWLR (Pt. 1050) 113, Ojengbede V. Esan (2001) 92 LRCN 3326, SPDC Nig. Ltd V. Cole (1978) LPELR – 3051(SC) 1 AT p. 15.
It is true in law that a denial must be direct, positive with detail of particulars of denial to amount to effective traverse, yet one party is not under any duty to positively deny facts which are squarely within the personal knowledge of the other party. He may put the other party to strict proof of facts averred as within his own personal knowledge and that was the fate of Exhibits A, B and C. There was nothing in them to warrant any further response from the Respondents. They were by themselves hallow and of doubtful genuineness as well as having no connection with No. 10 Kinshasa Street, Zone 6, Wuse Abuja to be of any significance to merit or warrant any rebuttal by the Respondent. The Appellant who tendered and relied upon them, Exhibits A, B and C, simply sank with them, no more no less! The contents of Exhibit A, speaks for itself and in law cannot be varied or contradicted by oral evidence of the Appellant. See Amu & Anor V. Okeaya Inneh & Anor (2021) LPELR-55660(CA) per Sir Biobele Abraham Georgewill JCA. See also Aja V. Okoro (1991) 7 NWLR (Pt. 203) 260 AT p. 282, Ogunsaki V. Ajidara (2010) All FWLR (Pt. 507) 109 AT p. 129, Attorney General, Enugu State V. Avop Plc. (1995) 6 NWLR (Pt. 399) 90.

Now, the provision of Section 29 of the Economic and Financial Crimes Commission (Establishment) Act 2004 is distinct from the provisions of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act 2006 in that whilst on the one hand, Sections 29 of the EFCC Act 2004 deals with procedure for application to Court for preservatory order of properties connected to a pending criminal trial and thus only activated at the investigation stage, on the other hand, Section 17 of the Advance Fee Fraud Act 2006 deals clearly with non – conviction based on civil forfeiture of assets in line with the procedure as spelt out therein. Thus, in law, there is in my view, no basis for comparism between these two provisions as they run on parallel line for whilst the former is criminal procedure, the later procedure is civil and does not require any prior conviction for any predicate offence as was erroneously thought by the Appellant in this appeal. See Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act 2006. See also The United Nation Convention Against Corruption.
My Lords, on the face of the above very clear provision of the relevant and applicable law under which the Respondent’s application for final forfeiture was made and on which the decision of the lower Court was based, what is the worth in law of the strenuous contention of the learned counsel for the Appellant in the absence of any conviction of the Appellant for any predicate offence, the lower Court ought not to have made the final order of forfeiture of the property situate at No. 10 Kinshasa Street, Zone 6 Wuse, Abuja? I can find neither any basis nor legal justification and or support for these strenuous but clearly misconceived submissions of the learned counsel for the Appellant, which is hereby without much ado discountenanced. See Arcuri & Ors V. Italy (Dec) No 52024 /99 ECHR 2001 – VI, United State V. Ursery (95 – 345) 518 US 267 (1996), Bennis V. Michigan, (94 – 8729) 517 US 1163 (1996), Giilligan V. Criminal Asset Bureau (2011) 1ESC 82, Dame Patience Jonathan V. FRN(2019) 2 – 3 SC (Pt. 1) 158.
My noble Lords, in the final analysis, and indeed the truth of the whole matter is that, what was finally ordered to be forfeited by the lower Court, and not confiscated, it must be pointed out at once, is not any property shown to belong to the Appellant but property suspected to have been acquired by unlawful activities and or from proceeds of crime and for which no person, including the Appellant was able to show cause that it is a property that belonged to him and was acquired by him from any legitimate fund, In the circumstances therefore, all the principles of law in issues of conviction based confiscation and or forfeiture were all most inapposite to the proper considerations, as was carried out by the lower Court, in the instant case, which decision is correct, good and sound and must be allowed to stand as it neither offended nor misapplied the principles in the decisions of the Supreme Court in Dame Patience Jonathan V. FRN (2019) 2 – 3 SC (Pt. 1) 158. See also Lawari Furniture & Baths Ltd V. FRN (2019) 3 SC (Pt. 1) 109 AT p. 133.

In the light of all I have stated and found as above, issues one, two, three, four and five for determination are hereby resolved against the Appellant in favour of the Respondent.

On the whole therefore, having resolved all the issues one, two, three, four and five for determination against the Appellant in favor of the Respondent, I hold firmly that this appeal lacks merit and is liable to be dismissed. Consequently, it is hereby so dismissed.

In the result, the judgment of the Federal High Court of Federal Capital Territory, Abuja, Division, Coram: Babatunde O. Quadri J, in Suit No. FHC/ABJ/CS/985/2017: Chairman of the Economic and Financial Crime Commission (EFCC) V. Alhaji Babachado Kantigi (Claimant In Respect Of House No. 10 Kinshasha, Street Wuse Zone 6, Abuja) delivered on 28/6/2019, in which it entered judgment for the Respondent as Claimant against the Appellant as Respondent is hereby affirmed.

There shall be no order as to cost.

STEPHEN JONAH ADAH, J.C.A.: I was availed a copy of the draft of the judgment just delivered by my learned brother, Sir, Biobele Abrahram Georgewill, JCA.

I am in full agreement with the reasoning and the conclusion which I adopt as mine. I, for the said reasons dismiss this appeal and I abide by the consequential orders as made in the lead judgment.

BATURE ISAH GAFAI, J.C.A.: I was privy to the reasonings expressed in the leading judgment just delivered by my learned brother, Sir Biobele Abraham Georgewill, JCA. I adopt those reasonings as mine by which I find no merit in this appeal, liable to be and is hereby dismissed by me too.