ADELEKE KUDIRAT IYABO v. FEDERAL REPUBLIC OF NIGERIA (2019)

ADELEKE KUDIRAT IYABO v. FEDERAL REPUBLIC OF NIGERIA

(2019)LCN/12950(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/IB/280C/2017

RATIO

INTERIM ATTACHMENT AND FORFEITURE: NATURE
The order of interim attachment and forfeiture is not indefinite or permanent, but only interim in nature to last till the end of the charge preferred. The purpose is to preserve the property in question. It does not amount to a final determination of the rights and obligations of the Appellant in respect to the property. See Nwude v. Chairman EFCC (2005) All FWLR (pt. 276) 740 and Dangabar v. FRN (2012) LPELR 19732 (CA).PER ABUBAKAR MAHMUD TALBA, J.C.A.

CONFISTICATION CHARGE: NATURE
In some foreign Jurisdictions the confiscation order was held not to amount to a criminal charge. And therefore the process does not violate the right to fair trial, and the right to presumption of innocence. See Her Majesty v. McIntosh (2001) 2 All ER 638; Phillips v. United Kingdom (2001) 11 ERHC 280 and Regina v. Rezvi (2001) 1 All ER 801.PER ABUBAKAR MAHMUD TALBA, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria

Between

ADELEKE KUDIRAT IYABO Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Justice Oyo State delivered by M. L. Abimbola J, on the 24th day of January, 2017. The Ruling is at pages 117 ? 131 of the Records. At the hearing of this Appeal R. A. Ogunwole (SAN) with O.O. Adefunye and O.D. Fatola appeared for the Appellant. The Respondents were not in Court and they were not represented. The Court Registrar informed the Court that the Respondents were served with a hearing notice on 10th of January, 2014 at their Lagos office.
The Appellant?s counsel informed the Court that the Respondent did not file anything. It is trite that the rule of fair hearing or audi alterem partem does not envisage that the Court must wait without end for a party who was duly served with hearing notice until such a time that he finds it convenient to show up in Court. It is in view of this settled principle of law that the Appellant senior counsel was asked to proceed.

?The summary of the facts of the case as presented by the Appellant is that, the Appellant and some others were charged to Court by the

EFCC in charge NO: I/6EFCC/2013. When the case is pending in Court the Respondent filed an Ex-parte application for interim attachment and interim forfeiture of Appellant property at Plot 4, Oba Adesoji Aderemi Road, Agodi G.R.A Ibadan Oyo State.

The Respondent falsely swore to an Affidavit that the proceeds realized from the crime was channelled by the Appellant to develop and purchase the Appellants property, referred to as No 4, Oba Adesoji Aderemi Road, Agodi GRA, Ibadan Oyo State and sought to be attached and/or forfeited.

?When the Appellant travelled to London for post operation treatment, the Respondent broke and entered Appellant?s said property, searched and carted away the original title documents, money and valuable properties from the House including a Land Rover Jeep which was a gift from Oyo State Government after her tenure as Head of Service of Oyo State. The Respondent suppressed and or concealed and or misrepresented facts to the lower Court despite all Appellant?s title documents which are with the Respondent. The original title document shows that the Appellant purchased the property in 2007. It was duly

registered in 2008, the Architectural or Building Plan was made and approved in 2008. The Building was completed sometimes in September, 2008 and the Appellant started living in the house since the completion of the Building.

The alleged crime which the Appellant has been charged along with others was allegedly committed in September, 2010 and January, 2011.

The Appellant applied to the lower Court to set aside the Ex-parte order of attachment and forfeiture of her property, made against her on 6th day of February, 2014. The order is contained on pages 37 ? 42 of the records. In its Ruling delivered on the 24th day of January, 2017, the lower Court refused to set aside the order of interim forfeiture, dated the 6th day of February, 2014.

Being dissatisfied with the Ruling, the Appellant filed a Notice of Appeal on the 24/4/17, see pages 136 ? 312 of the records. The record was transmitted on the 20/7/17 and it was deemed on the 17/10/17. The Appellant?s brief was filed on the 30/10/17.

The Notice of Appeal contains Six (6) grounds of Appeal thus:
GROUNDS OF APPEAL
1. The learned trial judge erred in law when he held as follows:

?Applying the condition precedent thereafter will be totally out of place within the con of the usage in Section 28 of the Act. I am not so persuaded on the respective argument that a condition precedent existed which made order of interim attachment made by a Court a nullity. It is within this con that I hold that the order made by my Lord Esan Judge was not a nullity?. A decision that is contrary to the interpretation of the said Section 28 of the Act and/or a misinterpretation of the intent of the law maker of the said Section 28 of the Act.
PARTICULARS OF ERROR
(i) Section 28 of Economic and Financial Crime Commission Act, 2004 is clear and unequivocal but it has been wrongly interpreted.
(ii) Section 28 of Economic and Financial Crime Commission Act, 2004 provided for condition precedent which the Respondent has failed to fulfill.
(iii) The Honourable Court lacks jurisdiction to entertain the action and the order made by the Honourable trial Judge was a nullity.
2. The learned trial Judge erred in law when he held that:
The attachment of the property being investigated is

not subject to any condition precedent relying on Section 44 (2)(k) of the Constitution. a decision that is contrary to law.
PARTICULARS OF ERROR
(i) The time of the commission of the offences of which the accused were being charged were clearly stated in the information filed before the Court and of which the accused has been arranged.
(ii) Section 36 of 1999 Constitution of the Federal Republic of Nigeria (As Amended) which contains the provision of fair hearing is very clear and unambiguous.
(iii) Section 44 (2)(k) is also clear and unambitious. The accused has not been arrested for a fresh offence of which she was been investigated and/or examined upon apart from the offence of which she has being arraigned.
(iv) It is trite law that the accused must be well informed of any charge against her which must be laid bare and the nature of offence leveled against her which relates to her building that was attached.
(v) Section 44 (2)(k) of the 1999 Constitution (As Amended) does not override Section 28 of Economic and Financial Crime Commission (Establishment) Act, 2004 and Section 36 of the 1999 Constitution of Federal Republic of Nigeria (As Amended).

3. The learned trial Judge erred in law when he held that:
Once a Court gives an interim order of attachment or forfeiture it is assumed that a prima facie case has been established. A decision that is contrary to law when:
(i) The order was a nullity for failure to follow a condition precedent.
(ii) The interim attachments offends Section 28 of Economic and Financial Crime Commission (Establishment) Act, 2004 and Section 36 of 1999 Constitution of the Federal Republic of Nigeria (As Amended).
(iii) The learned trial Judge failed to consider properly or at all the Appellant?s Affidavit, Further Affidavit and the Exhibits attached.
(iv) No prima facie case has been made out against the Appellant.
4. The learned trial Judge erred in law when he held that:
There is no rule provided for setting aside orders of interim attachment. A decision that is contrary to law when:
(i) When the order was a nullity and the Court on its own can set aside its Judgment if it is a nullity.
(ii) When the application is brought under proper law which is germane for setting aside the Judgment.

5. The learned trial Judge erred in law for failure to consider properly or at all the Appellant?s Affidavit Evidence, Further Affidavit Evidence and Exhibits attached which are clear and unequivocal.
PARTICULARS OF ERROR
The issues involved have nothing to do with the charge and/or crime alleged to have been committed and for which the Appellant has been arraigned.
6. The learned trial Judge erred in law when he held that there is no procedure for setting aside order obtained ex-parte for interim attachment under Section 28 of the Economic and Financial Crime Commission Act, 2004. The simple procedure is to go all hog of trial to establish non culpability as charged leading to the order and attachment of the property a decision that is contrary to law.
PARTICULARS OF ERROR
(i)The order was a nullity
(ii)The order offends Section 36 of the 1999 Constitution of Federal Republic of Nigeria (As Amended)
Reliefs sought from the Court of Appeal:
1. To allow the Appeal.
2. To set aside the ruling of the High Court delivered on the 24th of January, 2017 in Suit No. I/1EFCC/2011 as it relates to the Appellant.

3. An order to grant the Appellant?s application for setting aside the ex-parte order of forfeiture order made against the Appellant on the 6th of February, 2014 in Suit No. 1/1EFCC/2014 pending the hearing and determination of the case.

From the Six (6) Grounds of Appeal the Appellant?s counsel distilled three (3) issues for the determination of this Appeal viz:
1.Whether or not the lower Court was right when he held that the order of Interim Attachment and Forfeiture made by the Honorable Justice Esan is not a nullity as provided under Section 28 of Economic and Financial Crimes Commission Act, 2004 and or under Section 44 (2)(k) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (Grounds 1 and 2).
2.Whether or not the lower Court was right when he held that a prima facie case has been established against the Appellant before the interim order of attachments and or forfeiture was made against her (Ground 3).
3. Whether or not the lower Court properly considered the Appellant?s application and or the issues raised by the Appellant in the Appellant?s application (Grounds 4, 5 and 6).

Argument on Issues
On issue one learned senior counsel submitted that the Respondent filed an Ex-parte application asking for the following orders against the Appellant and others at the lower Court.
1. An order of this Honorable Court granting interim attachment and forfeiture of the properties of the persons listed in schedule 1- 9 of this application to the Federal Government of Nigeria pending the hearing and final determination of charge No: I/6EFCC/2013, Federal Republic of Nigeria v. Mulli Hakeem Aderemi and 11 Others.
2. An order of this Honorable Court granting interim attachment and forfeiture of the properties to the Federal Government of Nigeria pending conclusion of investigation into other acts of fraud and criminal allegation being carried out against them by the Economic and Financial Crimes Commission. See pages A2 of the record. The Appellant is listed as No.7 in the schedule. She owns a Bungalow on plot 4, Oba Adesoji Adeyemi Road, Agodi GRA Ibadan Oyo State.

The Ex-parte application is supported by a Twelve (12) paragraphs affidavit and some Exhibits. See pages 1 ? 36 of the record. The lower Court granted the orders sought. See pages 37 ? 42 of the record.

The Appellant filed an application before the lower Court to set aside the order on the grounds that the orders made were a nullity, the condition precedent to filing the Ex-parte application not having been satisfied under Section 28 of the EFCC Act, 2004.
Section 28 of the EFCC Act, 2004 provides.
?Where a person is arrested for an offence under this Act, the commission shall immediately trace and attach all the assets and properties of the person acquired as a result of such economic or financial crime and shall thereafter cause to be obtained an interim attachment order from the Court?.

Learned Senior Counsel submitted that the meaning of the words are very clear, unequivocal and requires no other interpretation. He cited the following cases: NNPC v. Famfa Oil Ltd (2012) 17 NWLR (pt. 1328) 148 at 194 and Fidelity Bank Plc v. Monye (2012) 10 NWLR (pt. 1307) 1 at 31.

Learned Senior Counsel submitted that the law require the Respondent to do the following:
1. First attach all the assets and properties of the person acquired as a result of such Economic or Financial Crime.

2. Thereafter apply to Court for interim order of attachment.

The Respondent did not take the 1st step before they took the second step and thereby putting the cart before the horse which is contrary to law and renders the orders a nullity. The Court jumped the 1st step which is a condition precedent and proceeded to hold ?that orders is not a nullity because there is no condition precedent before the Respondent can file the Ex-parte application?. He referred to page 128 of the records where the lower Court held as follows:
?In my view characterize ?attachment? in the superlative more than mere identification and/or annexation as a condition precedent to obtaining the order is a total misconception of the word ?attachment?. To me attachment and obtaining an order of Court by way of interim attachment are words to be read together only purposively. An order of interim attachment is therefore impracticable without the attachment first made which simply is identifying the property and linking same with a crime to be investigated or charged, applying the concept of condition precedent thereafter will be totally out of

place within the con of the usage in Section 28 of the Act. I am not so persuaded in the respective argument that a condition precedent existed which makes order of interim attachment made by Court a nullity. It is within this con that I hold that the order made by my lord Esan Judge was not a nullity. Similarly and in the same vein I am constrained to hold that the power to obtain such interim order of attachment of property under investigation is not constrained by any condition precedent?.

On this note the Learned Senior Counsel submitted that the lower Court has misinterpreted the Section. He referred to the case of Nwaigwe v. FRN (2009) 16 NWLR (pt. 1166) 169 where the Court of Appeal held that the EFCC must have traced and attached the assets and properties before applying to the Court for an order of interim forfeiture and that where this is not done, the order of interim forfeiture will be improper.

Learned Senior Counsel also submitted that the lower Court was wrong when it held that no condition precedent is necessary because of Section 44 (2) (k) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

He said Section 44 (2) (k) does not provide the procedure. The general law is referable to Sections 28 and 29 of EFCC Act, 2004. Hence the interim order of attachment and forfeiture is a nullity as provided under Section 28 of EFCC Act, 2004, which is an offshoot of Section 44 (2)(k) of the Constitution of the FRN (1999) as amended.
On the second issue as to whether or not the lower Court was right when he held that a prima facie case has been established against the Appellant before the interim order of attachment and forfeiture was made against her. Learned Senior Counsel referred to paragraph 5(ii) of the Respondent?s Affidavit in support of the Ex-parte application it reads:
?That between 2010 and 2011, the Respondents along with others conspired and fraudulently obtained colossal sums of money running into several Billions of Naira from various accounts of Oyo State Local Government Staff Pension Board domiciled at different banks. Attached and marked Exhibits EFCC 3 (A) ? (D), 4, 5, 6, 7, 8, 9, 10,11 and 12, (A) ? (D), 13, 14, 15, 16 and 17 are evidence to this effect?.

?The Learned Senior Counsel also referred to the

2nd relief sought by the Respondents at the lower Court, it reads:
?An order of this Honourable Court granting interim attachment/forfeiture of the properties to the Federal Government of Nigeria pending conclusion of investigation into other acts of fraud and criminal allegation being carried out against them by the Economic and Financial Crimes Commission?.

Learned Senior Counsel submitted that the Respondents in their affidavit in support of the Ex-parte application has not established any fact against the Appellant which shows that a prima facie case has been established against her for attachment and forfeiture of her only house which is a bungalow even having risen to the status of Permanent Secretary and Head of Service. The lower Court was wrong to hold as follows:
?In my view once a Court gives an interim order of attachment or forfeiture it is assumed that a prima facie has been established before the Court?.

On the definition of prima facie, the learned senior counsel referred to the case ofKalu v. FRN (2014) 1 NWLR (pt. 1389) 479 at 527 paras C ? H.

?On the third issue thus: whether or not the

lower Court properly considered the Appellant application and or the issues raised by the Appellant in the Appellant?s application. The learned senior counsel adopted his submission on issue No. 2. Learned Senior Counsel referred to page 44 of the Record of Appeal which contains the grounds of application to set aside the ex-parte order of forfeiture. And he submitted that when issues and or grounds are raised in an application it is the duty of the Court to decide on all the issues/grounds raised in the said application. But the lower Court did not decide on all the issues and or grounds that were raised particularly grounds 1, 2, 4, 5 and 6.

The Learned Senior Counsel submitted that the lower Court avoided deciding the issues because according to the lower Court there were conflicting Affidavit, Counter Affidavit, Further Affidavit which cannot be resolved at an interlocutory stage. He said the Appellant has not been given fair hearing as provided under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He submitted further that the lower Court was wrong to hold that there is no provision for setting aside the

order of attachment and forfeiture, when the Appellant has alleged that the decision is a nullity and the Court has no jurisdiction to entertain the action when the condition precedent has not been performed.

The Learned Senior Counsel finally submitted that having regard to the Affidavit and Further Affidavit of the Appellant the lower Court ought to have set aside the decision of Hon. Justice Esan. He urged the Court to set aside the order of attachment and forfeiture made against the Appellant and allow the Appeal.

Now having considered the issues raised by the Appellant?s counsel and his submissions thereon, I shall treat all the issues at the same time beginning with the first issue, thus, whether or not the lower Court was right when he held that the order of Interim Attachment and Forfeiture made by the Hon justice Esan is not a nullity as provided under Section 28 of the EFCC Act 2004 and or under Section 44 (2) (k) of the Constitution of the FRN 1999 (as amended). The starting point would be to refer to Section 28 of the EFCC Act and 44 (2)(k) of the 1999 Constitution of the FRN (as amended). Section 28 EFCC Act 2004 provides:<br< p=””

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?Where a person is arrested for an offence under this Act, the commission shall immediately trace and attach all the assets and properties of the person acquired as a result of such Economic and Financial Crime and shall thereafter cause to be obtained an interim attachment order from the Court?.
It will be necessary to also refer to Section 29 of the EFCC Act, 2004. It provides:
?where:
(a)The assets or properties of any person arrested for an offence under this Act has been seized or
(b)Any assets or property has been seized by the Commission under this Act, the commission shall cause an application to be made to the Court for an interim order forfeiting the property concerned to the Federal Government and the Court shall if satisfied that there is a prima facie evidence, make an interim order forfeiting the property to the Federal Government.?
And Section 44 (2) (k) of the Constitution of the FRN 1999 (as amended) provides:
(2)Nothing in Subsection (1) of this Section shall be construed as affecting any general law.
(k)Relating to the temporary taking of possession of property for the purpose of any examination investigation or inquiry.

It is crystal clear that Sections 28 and 29 of the EFCC Act, 2004 states that upon an arrest the EFCC shall immediately trace and attach all the assets and properties of the person which were acquired as a result of such Economic and Financial Crimes. And shall thereafter cause an exparte application to be made to the Court for an order of interim forfeiture of the said properties. And the Court shall if satisfied that there is a prima facie evidence that the property concerned is liable to forfeiture, grant the order of interim forfeiture.
In Nwaigwe v. FRN (2009) 16 NWLR (pt. 1166) 169, the Court of Appeal held that Section 28 is a condition precedent to exercise of the power in Section 29. In other words, that the EFCC must have traced and attached the assets and properties before applying to the Court for an order of interim forfeiture. And that where this is not done, the interim order of forfeiture will be incompetent.
?It should be noted however that Section 44 (2) (k) of the Constitution of the FRN 1999 (as amended) is not a condition precedent to the exercise of the power in Section 28 and 29 of the EFCC Act, 2004.

Rather Section 44 (2) (k) makes exemption in respect of the temporary taking of possession of property for the purpose of examination, investigation or inquiry. See the case of Dangabar v. FRN (2012) LPELR 19732 (CA) and Nigeria Copyright Commission v. Musical Copyright Society of Nigeria Ltd GTE (2016) LPELR 42264 (CA).
The condition precedent as required by Section 28 of the EFCC Act, 2004, before the exercise of the power in Section 29 of same is that:
1. The EFCC must have traced and attached the assets and properties of the person acquired as a result of such Economic or Financial Crime.
2. Then apply to Court for an order of interim attachment/forfeiture.
The learned senior counsel contended that the Respondent did not take the 1st step before they took the second step thereby putting the cart before the horse which is contrary to law and renders the order a nullity. Applying the above stated Section 28 of the EFCC Act, 2004, to the instant case, it clearly shows that there was due compliance with the said law by the Respondents before applying to Court for an order of interim attachment/forfeiture.

This position has been accepted by the Appellant. It is apt at this stage to look at pages 46 ? 49 of the record which is the affidavit in support of the application to set aside the Ex-parte order of forfeiture made against the Appellant on the 6th day of February, 2014. Paragraph 7 of the said Affidavit reads:
?That I travelled to London for post Operation Assessment in London Hospital after previous surgery in August, 2013, when the operatives of the EFCC invaded my house and carted away all the original title documents relating to the said property in the course of their investigation and other valuable properties.?
The implication of the above paragraph is that the EFCC had traced and/or identified the property first before applying to Court for interim attachment.
Essentially what the law provides is that the EFCC shall immediately trace and attach all the assets and properties of the person which were acquired as a result of such economic and financial crimes or assets and properties which has a link with such Economic and Financial Crimes. Either through purchase, development improvement or management.

In paragraph 6 of the Affidavit in support of the ex-parte application the deponent deposed to the following facts thus:
6. ?That physical inspection of the properties was carried out by Operatives of the Commission who posted notices of investigation on them. Attached and marked Exhibits EFCC 19 (A) ? 19 (Y), 20, 20 (A) ? 20 (D) and 21 are evidence to this effect?.
On the strength of the above paragraphs of the Affidavit I am satisfied that the Respondent has duly complied with Section 28 of the EFCC Act before exercising the power in Section 29 of same. See pages 6 ? 11 of the record.
The learned trial Judge was in error when he made a finding at page 128 of the record that:
I am not so persuaded in the respective argument that a condition precedent existed which makes the order of interim attachment made by a Court a nullity
?The learned trial Judge did not advert his mind to the fact that the Respondent had indeed complied with Section 28 of the EFCC Act, 2004. And therefore the order of interim attachment and forfeiture made by Honourable Justice

Esan is not a nullity. But all the same the learned trial Judge was right when he refused to set aside the order of interim attachment and forfeiture made against the Appellant. Based on the above findings issue one is resolved against the Appellant.

The second issue is whether or not the lower Court was right when he held that a prima facie case has been established against the Appellant before the interim order of attachment and or forfeiture was made against her. The learned senior counsel contended that the Respondents in their Affidavit in Support of the Ex-parte application has not established any fact against the Appellant which shows that a prima facie case has been established against her for attachment and forfeiture of her only house which is a bungalow even having risen to the status Permanent Secretary and Head of Service. Section 29 (b) of the EFCC Act, 2004 states that where any assets or property has been seized by the Commission under this Act, the Commission shall cause an application to be made to the Court for an interim order forfeiting the property concerned to the Federal Government and the Court shall if satisfied that there is

prima facie evidence that the property concerned is liable to forfeiture make an interim order forfeiting the property to the Federal Government.
Now in deciding whether or not there exist a prima facie evidence to warrant the making of an interim order of forfeiture, the Court would normally have regard to the provisions of the Act relating to properties or assets which are liable or subject to forfeiture.
In other words the Court must be satisfied that the property or assets represents the proceeds of an offence under the Act. The Court must consider the Affidavit in support of the Ex-parte application in order to satisfy itself that there is a prima facie evidence linking the assets or properties with such economic or financial crime.
?That is whether there is admissible evidence linking the defendant?s property with the offence with which he is charged. It calls for an exercise of judicial and legal discretion. It is not the indulgence of a judicial whim but the exercise of judicial judgment based on facts and guided by law or the equitable decision of what is just and proper under the circumstances.

Therefore when a Court is called upon to exercise discretion the Court must necessarily weigh the balance of justice between the parties bearing in mind the right of the parties. See Sam Fam Financiers Ltd v. Aina (2004) 2 NWLR (pt. 857) 297 at 304 and Nwobodo v. Nwobodo (1995) 1 NWLR (pt. 370) 203.

In this instant case would it be correct to say that the lower Court did exercise its discretion judicially and judiciously based on the circumstances.

In paragraph 5 (ii) of the Respondents affidavit in support of the Exparte application, the deponent deposed to the fact that between 2010 and 2011, the Respondents (now Appellant) along with others conspired and fraudulently obtained colossal sums of money running into several billions of Naira from various accounts of Oyo State Local Government Staff Pension Board, domiciled at different banks.

And in paragraph 5 (v) of the Affidavit in support of the Ex-parte application the Respondents/Applicants deposed to the following facts thus:
5. Enquiry conducted by the commission in respect of the Criminal complaints revealed.
v. That monies realized from the criminal enterprise were channelled by the Respondents

directly or through intermediaries to the purchase, development improvement and administration of the under listed properties:
(g) 7 Respondent
Description of property
Well fenced fully detached luxurious bungalow.
Location of property
Plot 4, Oba Adesoji Aderemi Road Agodi GRA Ibadan Oyo State.
See pages 1 – 11 of the record.

Now from the affidavit evidence presented before the lower Court in support of the application to set aside the interim order of forfeiture, the Appellant deposed to the fact that the original title documents which are in possession of the Respondent. It also reveals that the Appellant purchased the property in 2007. It was duly registered in 2008. The Architectural or building plan was made and approved in 2008. The building was completed sometimes in September, 2008 and the Appellant started living in the house since the completion of the building.

Consequent upon the above facts and the fact that the alleged offence was committed by the Appellant between 2010 and 2011, it would be wrong to hold that there was a prima facie evidence before the learned trial Judge sufficient

enough to persuade the learned trial Judge to grant the interim order of attachment and forfeiture. I am in agreement with the learned senior counsel that the lower Court was wrong to hold as follows:
In my view once a Court gives an interim order of attachment or forfeiture it is assumed that a prima facie has been established before the Court.

The issue is not one that can be left to assumption but on facts as presented before the Court. There was no prima facie evidence that linked the Appellant?s property that was purchased in 2007 and building completed in 2008 with the offence that was alleged to have been committed between 2010 and 2011. Issue two is resolved in favour of the Appellant.

The third issue is whether or not the lower Court properly considered the Appellant?s application and or the issues raised by the Appellant in the Appellant?s application.
The learned senior counsel argued and submitted that the Appellant on page 44 of the record of Appeal raised the following issue or grounds for setting aside the order of attachment and or forfeiture. I must put the records properly,

that is to say that page 44 of the record of appeal contain the grounds of application, accompanying the motion on notice to set aside the order of attachment and forfeiture. They are by no means issues as canvassed by the learned senior counsel. The issues raised for the determination of the lower Court are contained in page 53 of the record of Appeal. The issues were raised in the written address in support of the Applicants/Appellants application ? See pages 50 ? 57 of the record of appeal. It is settled law that what counsel are normally required to argue are the issues raised in the briefs thereof. Ground of application are not expressly argued in brief. But such issues raised in the brief must relate to the grounds of application. The trial Court and indeed the Appellate Courts have a duty to pronounce on all the issues raised for determination before it. But failure to do so is not necessarily fatal to a Judgment if such failure did not occasion a miscarriage of Justice. Also a Court is not bound to pronounce on an issue which has been subsumed in another issue that has been determined. SeeAdesina v. Ojo (2012) 10 NWLR (pt. 1309) 552 and Okonji v. Njokanma (1991) NWLR (pt. 202) 131.

The learned senior counsel contended that the lower Court did not decide on all the issues and or grounds that were raised particularly grounds 1, 2, 4, 5 and 6. For the sake of emphasis let me repeat that the Court can only decide on the issues that were raised from the grounds.
The following issues were raised for determination by the lower Court, thus:
1. Whether the 1st Respondent?s application offends against Section 28 of the EFCC Act 2004 as to render the order made by this Honourable Court void.
2. Whether or not Section 29 of EFCC Act 2004 constitutes an infraction on the right of the Applicant under Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 and/or in conflict with it as to render the order made by this Honourable Court a nullity.
3. Whether or not the 1st Respondent has concealed and/or suppressed and/or misrepresented material facts to this Honourable Court as to entitle the Applicant to a discharge of the order made by this Honourable Court against the Applicant.
4. Whether in all the circumstances of this case the Appellant is entitled to a fair hearing.

A careful examination of the Ruling of the trial Court, contained at pages 117 – 131 of the record, it will reveal that the lower Court decided only on the first issue and no more. The 2nd and the 4th issues can be treated at the same time.

The 2nd issue is challenging the constitutionality of Section 29 of the EFCC Act 2004 in relation to Section 36 (5) of the Constitution of the FRN 1999 (as amended). While the 4th issue is challenging the constitutionality of the procedure for obtaining the interim forfeiture order by an ex-parte application on the ground that the Appellant is entitled to fair hearing. Section 36 (1) deals with the Right to fair hearing, while Section 36 (5) deals with the presumption of innocence.
?This Court have held that the procedure is constitutional and does not breach the Appellant?s right to fair hearing and by extension the Appellants right to be presumed innocent.
The order of interim attachment and forfeiture is not indefinite or permanent, but only interim in nature to last till the end of the charge preferred. The purpose is to preserve the property in question. It does not amount to a

final determination of the rights and obligations of the Appellant in respect to the property. See Nwude v. Chairman EFCC (2005) All FWLR (pt. 276) 740 and Dangabar v. FRN (2012) LPELR 19732 (CA).
In some foreign Jurisdictions the confiscation order was held not to amount to a criminal charge. And therefore the process does not violate the right to fair trial, and the right to presumption of innocence. See Her Majesty v. McIntosh (2001) 2 All ER 638; Phillips v. United Kingdom (2001) 11 ERHC 280 and Regina v. Rezvi (2001) 1 All ER 801.
On this note I hold that the process did not violate the Appellant?s right to fair hearing and presumption of innocence as guaranteed by Section 36 (1) and 36 (5) of the Constitution of the FRN 1999 (as amended).

The third issue is whether or not the Respondent has concealed and/or suppressed and/or misrepresented material facts to this Honourable Court as to entitle the Applicant to a discharge of the order made by this Honourable Court against the Applicant.
Appellants contention is that she bought the land situate and lying at Agodi GRA Ibadan in the year 2007, prepared the architectural drawing in

2008 and completed the building of the property in August, 2009. And the alleged fraud in charge No: I/6EFCC/2013 FRN. V. MUILI HAKEEM ADEREMI & 11 ORS. was allegedly committed in September 2010 and January 2011 over a year after she lived in her property.
If the above facts were presented before the lower Court, it would have entitled the Appellant to a discharge of the order made by the lower Court against the Appellant because what the law require is that the property should be linked with the alleged offence for which the Defendant is standing trial. On this note I hold that the lower Court did not properly consider the Appellants application and or the issues raised by the Appellant. Issue No.3 is also resolved in favour of the Appellant.
In conclusion this appeal succeeds in part. The ruling of the lower Court delivered on the 24th of January, 2017 in suit No: I/1EFCC/2011 as it relates to the Appellant is hereby set aside. The exparte order of forfeiture made against the Appellant on the 6th of February, 2014 in suit No: I/1EFCC/2014 pending the hearing and determination of the case is equally set aside.
The appeal is allowed.

JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft a copy of the lead Judgment of my learned brother ABUBAKAR MAHMUD TALBA, JCA, just delivered and I agree with my Lord’s reasoning and conclusion.

I am also of the view that the appeal succeeds in part. Therefore the appeal is meritorious and it is allowed by me. I abide by the consequential orders made in said lead Judgment.

HARUNA SIMON TSAMMANI J.C.A.: I had the benefit of reading before now, the judgment delivered by my learned brother, A. M. Talba, JCA.

My learned brother has comprehensively and with clarity considered and adequately resolved all the issues that came up for determination in this appeal. I have nothing else to add that will enhance the reasoning and conclusion as arrived at by my learned brother.

I therefore agree that the appeal be allowed in part, issues are having been resolved against the Appellant. However, with the resolution of issues two and three in favour of the Appellant, the Ruling of the Court below delivered on 24/1/2017 is hereby set aside as affects the Appellant. I abide by the consequential order made by my learned brother.

Appearances:

R. A. Ogunwole, SAN with him, O. O Adefuye and O. O. Fatola
For Appellant(s)

Respondent Counsel was absent
For Respondent(s)

Appearances

R. A. Ogunwole, SAN with him, O. O Adefuye and O. O. FatolaFor Appellant

AND

Respondent Counsel was absentFor Respondent