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A.G. OF NIGER STATE v. EXECUTIVE CHAIRMAN OF EFCC & ORS (2022)

A.G. OF NIGER STATE v. EXECUTIVE CHAIRMAN OF EFCC & ORS

(2022)LCN/15932(CA) 

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, March 18, 2022

CA/A/453/2018

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Ugochukwu Anthony OgakwuJustice of the Court of Appeal

Between

ATTORNEY-GENERAL OF NIGER STATE APPELANT(S)

And

1. THE EXECUTIVE CHAIRMAN OF THE ECONOMIC AND FINANCIAL CRIMES COMMISSION 2. KATAH PROPERTY AND INVESTMENT LIMITED 3. SADIQ AIR TRAVELS AGENCY LIMITED RESPONDENT(S)

 

RATIO

THE ROLE OF THE RESPONDENT IN AN APPEAL

Now, Order 19 Rule 4 (2) of the Court of Appeal Rules, 2021 provides:
“The Respondent’s brief shall answer all material points of substance contained in the Appellant’s brief and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall, mutatis mutandis, also conform to Rule 3 (1), (2), (3), (4), (5) and (6) of this Order”.
The above provision captures the role of the respondent in an appeal; which is to defend the decision appealed against. See PDP vs. ORANEZI (2017) LPELR (43471) 1 at 4-5, KAYILI vs. YILBUK (2015) LPELR (24323) 1 at 82-83 and BAKARI vs. OGUNDIPE (2020) LPELR (49571) 1 at 12-13.
PER OGAKWU, J.C.A.

WHETHER OR NOT ONCE  PROCESS IS AMENDED, THE ORIGINAL PROCESS IS DEEMED DISCARDED

By all odds, it was held in GARAN vs. OLOMU (supra) relied on by the 2nd and 3rd Respondents, that once a process is amended, the original process is deemed discarded, non-existent and extinct. A similar decision was also reached in other cases such as AFRIBANK vs. AKWARA (2006) 5 NWLR (PT 974) 619 at 640, OKWULEHIE vs. OBASI (2014) LPELR (24292) 1 at 49-50 and 12 BASKET FOODS LTD vs. FCMB (2020) LPELR (50281) 1 at 7-9, to mention a few. Contrariwise, in decisions such as SALAMI vs. OKE (1987) 4 NWLR (PT 63) 1 at 9 or (1987) 2 NSCC 1167 at 1173, AGBAISI vs. EBIKOREFE (1997) 4 NWLR (PT 502) 630 at 647-649 and AGBAHOMOVO vs. EDUYEGBE (1999) LPELR (224) 1 at 13-15, it was held that the fact that a process was amended does not mean that it ceases to exist or that it was expunged or struck out. That it still remained part of the records of the Court and the Court cannot shut its eyes against it.
This is how Iguh, JSC stated the legal position in AGBAHOMOVO vs. EDUYEGBE (supra) at 24-25:
“There can be no doubt that once pleadings are duly amended by the order of Court, what stood before amendment is no longer material before the Court and no longer defines the issues to be tried before the Court… This, however, is as far as this proposition of law goes. It does not and has laid down any such principle that an original pleading which has been duly amended by an order of Court automatically ceases to exist for all purposes and must be deemed to have been expunged or struck out of the proceedings. The clear principle of law established is that such original pleading which has been duly amended is no longer material before the Court in the sense that it no longer determines or defines the live issues to be tried before the Court, not that it no longer exists. It does certainly exist and is before the Court. It is however totally immaterial in the determination of the issues to be tried in the proceedings … The issues to be tried will depend on the state of the final or amended pleadings…”
PER OGAKWU, J.C.A.

WHETHER OR NOT THE EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE THERETO IS THE PRIMARY DUTY OF THE TRIAL COURT

The evaluation of evidence and ascription of probative value thereto is the primary duty of the trial Court. An appellate Court is loath to interfere with the findings of facts made by the trial Court except where the findings are perverse or are not supported by the evidence: TERIBA vs. ADEYEMO (2010) LPELR (3143) 1 at 15-16, ATOLAGBE vs. SHORUN (1985) LPELR (592) 1 at 30 and ANYANWU vs. UZOWUAKA (2009) LPELR (515) 1 at 17-18. 

However, when as in this case the evidence is documentary, this case having been heard on affidavit evidence; an appellate Court is in as good a stead as the trial Court in the evaluation of the documentary evidence as no question of credibility of witnesses arises. See UNION BEVERAGES LTD vs. PEPSICOLA INT’L LTD (1994) LPELR (3397) 1 at 11-12, GONZEE (NIG) LTD vs. NERDC (2005) LPELR (1332) 1 at 16, IWUOHA vs. NIPOST (2003) 4 SC (PT II) 37 and ECOBANK (NIG) LTD vs. ANCHORAGE LEISURES LTD (2020) LPELR (52128) 1 at 24. PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, Abuja Division, Coram Judice: Dimgba, J. in SUIT NO. FHC/ABJ/CS/359/2017. The decision was in respect of the application by the 1st Respondent herein for the final forfeiture to the Federal Government of Nigeria, of the sum of N6billion, found in four bank accounts operated by the 2nd and 3rd Respondents herein.

​The facts of the matter which are simple, straightforward and amenable to concision disclose that pursuant to the provisions of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, the 1st Respondent herein obtained an interim order for the forfeiture of the sum of N6billion recovered in the accounts of the 2nd and 3rd Respondents for being proceeds of crime and products of unlawful activities. In keeping with the stipulations of Section 17 (2) of the Advance Fee Fraud and Other Related Offences Act (hereinafter Advance Fee Fraud Act), the lower Court ordered that any person who may have any interest in the money is to show cause why the money should not be forfeited to the Federal Government of Nigeria. Thereafter, the 1st Respondent filed a Motion On Notice for an order for the final forfeiture of the money as required by Section 17 (4) of the Advance Fee Fraud Act; while the Appellant and the 2nd and 3rd Respondents filed processes to show cause why the money should not be forfeited to the Federal Government of Nigeria.

The lower Court heard the matter on the myriad of processes filed by the parties and in its ruling which was delivered on 25th April, 2018, the lower Court declined to make an order for the final forfeiture of the money to the Federal Government of Nigeria. It also held that the Appellant herein, which laid claim to the money as belonging to it, did not discharge the evidential burden upon it in order for the money to be forfeited to it. 

The lower Court accordingly refused and dismissed the Appellant’s claim to the money and then set aside the interim order it had previously made for the forfeiture of the money. The 1st Respondent was evidently sated with the decision of the lower Court as it did not appeal against the same. However, the Appellant was dissatisfied with the decision and appealed against the same. It filed two Notices of Appeal, both filed within time. The first Notice of Appeal was filed on 25th April 2018, while the second Notice of Appeal was filed on 2nd May 2018. The ruling of the lower Court is at pages 1550-1574 of Volume 2 of the Records, while the Notice of Appeal filed on 2nd May 2018 at pages 1579-1587 of Volume 2 of the Records. The Appellant further filed an Amended Notice of Appeal on 11th June 2020, but which was deemed as properly filed on 29th January 2021. However, in its brief of argument, the Appellant stated that its brief was predicated on the Notice of Appeal filed on 2nd May 2018.

The Records of Appeal were compiled and transmitted and briefs of argument were filed and exchanged by the parties. The extant briefs on which the appeal was argued are:
1. Appellant’s Amended Brief of Argument filed on 11th June 2020 but deemed as properly filed on 29th January 2021.
2. 1st Respondent’s Brief of Argument filed on 23rd November 2021 but deemed as properly filed on 7th December 2021.
3. 2nd and 3rd Respondent’s brief of Argument filed on 3rd December 2021 but deemed as properly filed on 7th December, 2021.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Now, Order 19 Rule 4 (2) of the Court of Appeal Rules, 2021 provides:
“The Respondent’s brief shall answer all material points of substance contained in the Appellant’s brief and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall, mutatis mutandis, also conform to Rule 3 (1), (2), (3), (4), (5) and (6) of this Order”.
The above provision captures the role of the respondent in an appeal; which is to defend the decision appealed against. See PDP vs. ORANEZI (2017) LPELR (43471) 1 at 4-5, KAYILI vs. YILBUK (2015) LPELR (24323) 1 at 82-83 and BAKARI vs. OGUNDIPE (2020) LPELR (49571) 1 at 12-13. I have already stated that the lower Court refused to make the order applied for by the 1st Respondent, for the final forfeiture of the said sum of N6 billion to the Federal Government of Nigeria. The 1st Respondent did not appeal against the decision. However, in its brief it has urged this Court to hold that the lower Court was wrong by refusing to make a final forfeiture order sought for by the 1st Respondent and for this Court to hold that the lower Court ought to have forfeited the money in the accounts held by the 2nd and 3rd Respondents to the Federal Government of Nigeria. This is a clear abandonment of the role of a respondent. It is fundamentally wrong. If the 1st Respondent was not satisfied with the decision of the lower Court, it should have appealed against the same: NEW NIGERIA BANK PLC vs. EGUN (2001) 7 NWLR (PT 711) 1, IBE vs. ONUORAH (1999) 14 NWLR (PT 638) 340, ADEFULU vs. OYESILE (1989) 5 NWLR (PT 122) 377 at 417 and OBI vs. INEC (2007) LPELR (2166) 1 at 107. In the circumstances, the 1st Respondent’s brief of argument which is an abdication of the traditional role of a respondent is discountenanced and would not be considered in this judgment. The said brief is accordingly struck out. See BAKARI vs. OGUNDIPE (supra), DAHIRU vs. APC (2016) LPELR (42089) 1 at 3 and GTB PLC vs. INC. TRUSTEES OF THE M. M. M. NIGERIA (2020) LPELR (51628) 1 at 3-5.

​The 2nd and 3rd Respondents embedded a preliminary objection in their brief of argument. The Appellant duly replied to the preliminary objection in its Reply Brief. Our odyssey towards the resolution of this appeal will start with the preliminary objection which was argued at the hearing of the appeal.

THE PRELIMINARY OBJECTION
The preliminary objection is argued on pages 8-11 of the 2nd and 3rd Respondent’s Brief. The Court was urged to strike out the appeal on the ground that the Appellant does not have a competent Appellant’s Brief of Argument. It was stated that the extant Notice of Appeal is the Amended Notice of Appeal, but that the Appellant’s Amended Brief of Argument is predicated on the Notice of Appeal filed on 2nd May, 2018 and not on the Amended Notice of Appeal. It was posited that when a process is amended, the original process is deemed discarded vide GARAN vs. OLOMU (2013) 11 NWLR (PT 1365) 227 at 254.

​It was further contended that the jurisdiction of the lower Court under Section 17 (1) of the Advance Fee Fraud Act is only to order forfeiture to the Federal Government of Nigeria and not in favour of any State. It was stated that where several parties claim ownership of property subject of forfeiture proceedings, and the forfeiture is not made out; that the Court is to dismiss the proceeding and not embark on the determination of which claimant owns the property as the claim to ownership is to be pursued in independent proceedings.

It was consequently opined that the appeal is incompetent since it is predicated on the refusal of the lower Court to grant a final forfeiture order in favour of the Appellant. It was asserted that a Court has no jurisdiction to expand its jurisdiction. The case of AFRICAN NEWSPAPERS vs. NIGERIA (1983) 2 NWLR (PT 6) 137 at 159-160 was relied upon. It was further posited that ground seven of the grounds of appeal and the issue distilled therefrom were hypothetical and academic, since even if it succeeds, it would not sustain the appeal which is on the failure to prove that the money in the accounts of the 2nd and 3rd Respondents were proceeds of crime.

​Still in argument of the preliminary objection, the 2nd and 3rd Respondents contend that the appeal is incompetent because the Appellant appealed against the decision in an application that was initiated by the 1st Respondent, which did not itself, appeal against the decision dismissing its application. It was stated that where a party chooses not to appeal a decision that is against him, that the said decision remains binding. The cases of SCC (NIG) LTD vs. ANYA (2012) 9 NWLR (PT 1305) 213 at 222 and AKERE vs. GOVERNOR OF OYO STATE (2012) 12 NWLR (PT 1314) 240 at 278 were referred to.

It was stated that the Appellant did not confine its appeal to the findings against it, but took up issues that were decided against the 1st Respondent which did not appeal. It was asserted that a party only has the locus to complain about the decision against him and cannot appeal against the decision that affects another party. The case of MOBIL PRODUCING (NIG) UNLTD vs. MONOKPO (2003) 18 NWLR (PT 852) 346 at 398 was cited in support. It was further opined that in its argument, the Appellant lumped together findings which affect it, with findings which affect the 1st Respondent; such that the argument cannot be easily separated from the other, which in any event is a surgical operation that the Court is not to do. The cases of IKPEAZU vs. OTTI (2016) 8 NWLR (PT 1513) 38 at 95, INEC vs. AC (2009) 2 NWLR (PT 1126) 524 at 584, YAKUBU vs. OMBUAGU (2013) 7 SC 171 at 208-209 and ARIBO vs. CBN (2011) 12 NWLR (PT 1260) 133 at 160 were called in aid.

​In replication to the preliminary objection, the Appellant concedes that the Appellant’s Amended Brief refers to the Notice of Appeal filed on 2nd May 2018, but asserts that the Court order of 29th January 2021 granting an amendment to the brief in order to bring it in line with the Amended Notice of Appeal has put paid to the 2nd and 3rd Respondents’ argument since the deeming order of the Court depicts that the Appellant is no longer relying on the Notice of Appeal of 2nd May 2018. It was asserted that the Notice of Appeal of 2nd May 2018 is substantially the same as the Amended Notice of Appeal as the only amendment effected was in the name of the 3rd Respondent. It was therefore maintained that the contention of the 2nd and 3rd Respondents was a mere technicality which the Courts have moved away from. The cases of UNION BANK vs. RAVIH ABDUL & CO LTD (2018) LPELR-46333 (SC) and FAYOSE vs. THE STATE (2010) LPELR-8658 (CA) were referred to.

​It was further submitted that the interpretation placed on Section 17 of the Advance Fee Fraud Act by the 2nd and 3rd Respondents to the effect that forfeiture can only be in favour of the Federal Government of Nigeria is not holistic as it does not take cognisance of Section 17 (2), (3) and (4) of the Advance Fee Fraud Act which provides that interested parties can show cause why an order of forfeiture should not be made in favour of the Federal Government of Nigeria, such that where a party successfully shows cause, an order can be made for the property to be forfeited to him.

It was further argued that it is trite law that a party to a proceeding has the right to appeal against the whole decision of a Court, in so far as he is not satisfied with the decision vide OSHO vs. FOREIGN FINANCE CORPORATION (1991) LPELR-2801 (SC) and KYOS vs. KWATURU (2015) LPELR-25937 (CA). In conclusion, the Court was urged to dismiss the preliminary objection for being misconceived, idle and frivolous.

RESOLUTION OF THE PRELIMINARY OBJECTION
The preliminary objection has presented a three-pronged attack on the competence of the appeal. The first prong is predicated on the contention that since the Appellant’s Amended brief of argument is on a notice of appeal that has been amended, that there is no proper and valid brief of argument. The second prong contends that the jurisdiction under Section 17 of the Advance Fee Fraud Act is for the Court to order forfeiture in favour of the Federal Government of Nigeria, but where such a case is not made out, any claimant to the property has to pursue his claim by independent proceedings. Finally, that the Appellant has lumped its argument in the decision appealed against together with contentions in respect of findings made against the 1st Respondent, which did not appeal, and accordingly it is not for the Court to separate the disparate contentions.

Now, on the first prong, it is effulgent that the extant Notice of Appeal is the Amended Notice of Appeal filed on 11th June 2020 but deemed as properly filed on 29th January 2021. It has not been confuted that the Appellant’s Amended Brief on which the appeal was argued, professes that the submissions in the said brief are predicated on the Notice of Appeal filed on 2nd May 2018, and not on the extant Amended Notice of Appeal. It is this state of affairs that has informed the 2nd and 3rd Respondent’s stance that there is no competent Appellant’s brief of argument.
​By all odds, it was held in GARAN vs. OLOMU (supra) relied on by the 2nd and 3rd Respondents, that once a process is amended, the original process is deemed discarded, non-existent and extinct. A similar decision was also reached in other cases such as AFRIBANK vs. AKWARA (2006) 5 NWLR (PT 974) 619 at 640, OKWULEHIE vs. OBASI (2014) LPELR (24292) 1 at 49-50 and 12 BASKET FOODS LTD vs. FCMB (2020) LPELR (50281) 1 at 7-9, to mention a few. Contrariwise, in decisions such as SALAMI vs. OKE (1987) 4 NWLR (PT 63) 1 at 9 or (1987) 2 NSCC 1167 at 1173, AGBAISI vs. EBIKOREFE (1997) 4 NWLR (PT 502) 630 at 647-649 and AGBAHOMOVO vs. EDUYEGBE (1999) LPELR (224) 1 at 13-15, it was held that the fact that a process was amended does not mean that it ceases to exist or that it was expunged or struck out. That it still remained part of the records of the Court and the Court cannot shut its eyes against it.
This is how Iguh, JSC stated the legal position in AGBAHOMOVO vs. EDUYEGBE (supra) at 24-25:
“There can be no doubt that once pleadings are duly amended by the order of Court, what stood before amendment is no longer material before the Court and no longer defines the issues to be tried before the Court… This, however, is as far as this proposition of law goes. It does not and has laid down any such principle that an original pleading which has been duly amended by an order of Court automatically ceases to exist for all purposes and must be deemed to have been expunged or struck out of the proceedings. The clear principle of law established is that such original pleading which has been duly amended is no longer material before the Court in the sense that it no longer determines or defines the live issues to be tried before the Court, not that it no longer exists. It does certainly exist and is before the Court. It is however totally immaterial in the determination of the issues to be tried in the proceedings … The issues to be tried will depend on the state of the final or amended pleadings…”
I take due cognisance of the portion of the above dictum wherein it is stated that the original process no longer determines or defines the live issues, which live issues will depend on the state of the amended processes.
​Facts are the fountainhead of the law. This is so because it is the facts as presented that will determine how the legal principle in decided cases will apply to the latter case. It has to be remembered that what the earlier decisions establish is only a principle and not a rule. Rules operate in an all or nothing dimension. Principles do not. Principles merely incline decisions one way or the other. They form a principium or a starting point. Where one ultimately lands from that starting point will largely depend on the peculiar facts and circumstances of the case in hand. See FAWEHINMI vs. NBA (NO. 2) (1989) LPELR (1259) 1 at 139, SAHARA ENERGY RESOURCES LTD vs. OYEBOLA (2020) LPELR (51806) 1 at 43-44 and ADEMOK CONTINENTAL LTD vs. OGUN STATE GOVT. (2022) LPELR (56418) 1 at 34-37.
​Now, what are the facts of this matter as it relates to the amendment of the Notice of Appeal in this matter? In aliis verbis, was there any change in the live issues in the appeal consequent upon the amendment of the Notice of Appeal? It would not seem to be so. From the records of Court, the amendment to the Notice of Appeal was only as it relates to the name of the 3rd Respondent on record. The grounds of appeal which present the complaint the Appellant has against the decision appealed against were not affected by the amendment. The complaint and issues raised in the grounds of appeal remain the same. Indeed, the grounds of appeal in the Notice of Appeal filed on 2nd May 2018 are verbatim ac literatim of the grounds of appeal in the Amended Notice of Appeal filed on 11th June 2020 but deemed as properly filed on 29th January 2021. The live issues in the appeal, whether on the Notice of Appeal filed on 2nd May 2018 or the Amended Notice of Appeal, remain one and the same, no whit of difference.
The legal fiction in the amendment process is that the amended process dates back to the date of the process amended. In this case, the Amended Notice of Appeal dates back to 2nd May 2018 being the date of the original Notice of Appeal. See TSOKWA OIL MARKETING CO. NIG. LTD vs. BANK OF THE NORTH LTD (2002) LPELR (3268) 1 at 47, ADEWUMI vs. A-G EKITI STATE (2002) LPELR (3160) 1 at 24 and SIMEON vs. COLLEGE OF EDUCATION, EKIADOLOR (2014) LPELR (23320) 1 at 27-28. So, by this legal fiction, the Amended Notice of Appeal became effective as at 2nd May 2018.
​In matters of construction and interpretation of enactments, Section 4 (1) of the Interpretation Act provides that a reference in an enactment to another enactment shall, if the other enactment has been amended, be construed as a reference to the other enactment as amended. By parity of reasoning or analogous reasoning, the reference in the Appellant’s Amended Brief to the Notice of Appeal filed on 2nd May 2018 is to be construed as a reference to the Amended Notice of Appeal that amended it, more so, when the legal fiction is that the said Amended Notice of Appeal dates back to 2nd May 2018!
Be that as it may, I iterate that the grounds of appeal in both the Notice of Appeal of 2nd May 2018 and the Amended Notice of Appeal are the same two and tuppence and so the issues and complaints raised remain the same and the 2nd and 3rd Respondents are not in any way prejudiced. Undoubtedly, the current disposition of the Courts is to eschew technicality in pursuit of substantial justice. The law is admittedly a technical discipline, so what the Courts frown at is not technicality per se, but resort to undue technicality: A-G ENUGU STATE vs. AVOP NIG PLC (1995) 6 NWLR (PT 334) 90 at 123-124, UNION BANK vs. BEAR MARINE SERVICES LTD (2018) LPELR (43692) 1 at 24-25 and ADEMOK CONTINENTAL LTD vs. OGUN STATE GOVT. (supra) at 30-31.
I daresay that the law is now ensconced like the Rock of Gibraltar that the days when the whirligig of technicalities rendered justice grotesque are long gone. The Courts, having worked their way in the mass exodus from the Egypt of undue technicality to the promised land of substantial justice, will not embark on the regressive step, at the behest of the 2nd and 3rd Respondents, to the forgone days of undue technicality. In the diacritical facts and circumstances of this matter, the 2nd and 3rd Respondent’s quest to scuttle the hearing and determination of this matter on the merits is a resort to undue technicality, which this Court will not sanction. See generally AFOLABI vs. ADEKUNLE (1983) 2 SCNLR 141, NNEJI vs. CHUKWU (1988) 3 NWLR (PT 81) 184 and BANKOLE vs. DENAPO (2019) LPELR (46444) 1 at 20. In a coda, I am unable to agree with the 2nd and 3rd Respondents that this appeal is to be defenestrated on the ground that there is no competent Appellant’s brief of argument.

​The second prong of the objection interrogates whether in the light of the stipulations of Section 17 (1) of the Advance Fee Fraud Act, which stipulates forfeiture of property to the Federal Government of Nigeria, whether the Court has jurisdiction as hankered after by the Appellant, for the property to be forfeited to it, a State Government. It seems to me that the short answer is warehoused in Section 17 (2) of the Advance Fee Fraud Act. It provides:
“Notwithstanding the provision of Subsection (1) of this Section, the High Court shall not make an order of forfeiture of the property or the proceeds from the sale of such property to the Federal Government of Nigeria until such Notice or publication as the High Court may direct has been given or made for any person, corporate or financial institution in whose possession the property is found or who may have interest in the property or claim ownership of the property to show cause why the property should not be forfeited to the Federal Government of Nigeria.” (Emphasis supplied)
​The above provision is lucent that the Court has jurisdiction to order that a property should not be forfeited to the Federal Government of Nigeria where any person in whose possession the property is found, any person who may have an interest in the property or any person who claims ownership of the property, successfully shows cause why the property should not be forfeited to the Federal Government of Nigeria. In the circumstances of this case, the Appellant has claimed an interest and ownership of the N6billion in question; the Court definitely has jurisdiction pursuant to Section 17 (2) of the Advance Fee Fraud Act to order that the money be released to it, if it successfully shows cause why that is to be done. The lower Court held that it did not successfully show cause; this is the gravamina and substance of the appeal. It suffices to state for now that the Court has jurisdiction to order forfeiture of the property to the Appellant in proceedings under Section 17 of the Advance Fee Fraud and it does not require an independent proceedings for that purpose.

​Turning to the third prong of the preliminary objection which complains that the Appellant appealed against the whole decision of the lower Court instead of only the aspects that affected it and that in the course of argument of the appeal, the Appellant lumped together argument on findings which affect it as well as those which affect the 1st Respondent and that it is not easy to separate the argument one from the other. Let me start by saying that I am wary of deciding the merits of issues that are to be properly considered in the main appeal in this preliminary objection. The issue of argument having been lumped together would involve a consideration of the merits of the submissions and it would be prejudging the appeal if I were to consider the same at this stage of the preliminary objection.

For now, let me state that the Appellant was a party in the proceedings at the lower Court, having claimed interest or ownership of the property which was sought to be forfeited to the Federal Government of Nigeria. The Appellant’s claim was not granted by the lower Court, so being dissatisfied with the decision, it has a right of appeal and the locus standi to challenge the decision pursuant to the stipulations of Section 241 (1) (a) and 243 (1) (a) of the 1999 Constitution (as amended). See OLAKEHINDE vs. EFCC (2020) LPELR (50246) 1 at 12-19. 

I iterate that a determination of whether the Appellant exceeded the bounds of what he could legally argue in the appeal, is for consideration in the main appeal and not at the interlocutory stage of the preliminary objection. I will therefore not prejudge the matter. See FIRST BANK vs. AGBARA (2020) LPELR (50632) 1 at 11-12, A-G FEDERATION vs. A-G ABIA STATE (2001) LPELR-24862 1 at 48-49 and LAUTECH vs. ABIODUN (2021) LPELR (53349) 1 at 34.

In a summation, I am unable to uphold the preliminary objection on any of the three prongs on which the 2nd and 3rd Respondents sought to upbraid the appeal. The preliminary objection is therefore dismissed. Having dismissed the preliminary objection, I can see my way clear to the stable door to mount the stallion and ride the substance of the appeal. We now segue to the appeal proper.

THE APPEAL
Having discountenanced and struck out the 1st Respondent’s brief, the relevant briefs for consideration in the resolution of this appeal are the Appellant’s Amended Brief of Argument, the 2nd & 3rd Respondent’s Brief of Argument and the Appellant’s Reply Brief. At the hearing of the appeal, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal.

The Appellant nominated two issues for determination, namely:
“1. Was the learned trial Judge right to invoke the doctrine of presumption of innocence in favour of the 2nd and 3rd Respondents, placed the burden of prove [sic] in this non-conviction based asset forfeiture proceedings under Section 17 of Advance Fee Fraud Act on the Appellant and then refused to make final forfeiture orders in favour of the Appellant on the ground that Appellant did not prove her claim as required by law even when credible evidence exist for the final forfeiture orders to be made in favour of the appellant. (Distilled from Grounds 1, 2, 3, 4, 5, 6, 8 and 9 of the Notice and Grounds of Appeal).
2. Whether the Learned trial Judge was right when [he] did not consider the issue of incompetence of the affidavits of the 2nd and 3rd Respondents and proceeded to made [sic] orders that favour the 2nd and 3rd Respondents based on affidavits that were incurably defective. (Distilled from ground 7 of the notice and grounds of appeal)”

​On their part, the 2nd and 3rd Respondents equally crafted two issues for determination as follows:
“i. Whether on the materials placed before the Court, the learned trial Judge was not right in his decision dismissing the claim of the appellant. Covers grounds 1, 2, 3, 4, 5, 6, 8 and 9.
ii. Whether the trial Court was wrong to have considered the affidavit filed by the 2nd and 3rd respondents in support of their claim to the money sought to be forfeited. Covers ground 7.”

The decision of the lower Court appealed against as it affects the Appellant is at pages 1566-1573 of Volume 2 of the Records. The lower Court expressly held at pages 1570-1571 that the Appellant did not discharge the evidential burden on it as to entitle it to an order for the funds found in the accounts of the 2nd and 3rd Respondents to be forfeited to it. It accordingly refused and dismissed the Appellant’s claim. 

It is rudimentary law that an appellate Court is concerned with whether the decision appealed against is the correct decision and not whether the reasons given for the decision are correct. See NDAYAKO vs. DANTORO (2004) 13 NWLR (PT 889) 189 at 220, DAIRO vs. UBN PLC (2007) 16 NWLR (PT 1059) 99 at 161 and VODACOM BUSINESS (NIG) LTD vs. FIRS (2019) LPELR (47865) 1 at 25. 

In this wise, the concern of this Court in this appeal should not be on the invocation of the presumption of innocence; it is strictly on whether the lower Court is correct in its decision that the Appellant did not establish its claim to entitle it to the forfeiture of the funds in question. It is in the light of this that I find idoneous the issues as distilled by the 2nd and 3rd Respondents and it is therefore on the basis of the said issues that I will review the submissions of learned counsel and resolve this appeal.

ISSUE NUMBER ONE
Whether on the materials placed before the Court, the learned trial Judge was not right in his decision dismissing the claim of the Appellant.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the lower Court erred by invoking the presumption of innocence in favour of the 2nd and 3rd Respondents and proceeding to place the burden of proof in non-conviction based asset forfeiture proceedings on the Appellant as though it were a criminal proceedings. It was stated that Section 36 (5) of the Constitution enacts the presumption of innocence in criminal trials, but that the proceedings under Section 17 of the Advance Fee Fraud Act is not a criminal trial. It was asserted that in such proceedings, the burden is on the person who asserts that the property in issue belongs to him, to prove how the property was legitimately acquired.

It was contended that the 1st Respondent in its processes contended that the monies found in the accounts of the 2nd and 3rd Respondents were proceeds of crime committed against the Appellant, while the 2nd and 3rd Respondents contended that the money legitimately belonged to them. It was opined that the burden of proof is on the person who asserts the positive vide NSEFIK vs. MUNA (2007) 10 NWLR (PT 1043) 502 at 514 and AD vs. FAYOSE (2005) 10 NWLR (PT 932) 154. The 2nd and 3rd Respondents, it was stated, did not prove their positive assertion of having legitimately earned the money. The lower Court was said to have erred when it placed the burden on the Appellant and the 1st Respondent to prove, beyond reasonable doubt, that the money found in the accounts of the 2nd and 3rd Respondents were proceeds of crime. The case of JONATHAN vs. FRN (2018) LPELR-43505 (CA) at 60-61 and 57-58 were relied upon.

It is the further contention of the Appellant that even if the burden of proof was on it, that it discharged the burden; but that the lower Court did not consider and appraise the cogent, forceful, overriding and positive evidence placed before it by the Appellant. The case of MOGAJI vs. ODOFIN (1978) 3-4 SC 65 at 67 and ANEKWE vs. NWEKE (2014) 9 NWLR (PT 1412) 393 at 418-419 were referred to on evaluation of evidence by a Court. It was argued that it was based on its complaint to the 1st Respondent that the money was traced to the accounts of the 2nd and 3rd Respondents and the Appellant immediately claimed the money as belonging to it and asked for its return; while the alter ego of the 2nd and 3rd Respondents disclaimed ownership of the money. It was maintained that the Appellant’s affidavit gave chronological facts on the political offices held by the alter ego of the 2nd and 3rd Respondents in Niger State Government, as well as facts showing that the monies found in the accounts were looted by their said alter ego from the Appellant. It was opined that this is made manifest by the fact that after the said alter ego left office in Niger State, no further lodgements were made into the accounts. The Court was urged to hold that the Appellant had established that the money belongs to it and to make a final forfeiture order in its favour pursuant to Section 15 of the Court of Appeal Act.

SUBMISSIONS OF THE 2ND & 3RD RESPONDENT’S COUNSEL
It is the submission of the 2nd and 3rd Respondents that the Appellant failed to prove that the money in their accounts formed part of monies unlawfully siphoned by their alter ego. It was stated that the Further Affidavit of the 1st Respondent shows that the officials of the Appellant who were interrogated by the 1st Respondent stated that no money of Niger State Government was paid into the accounts of the 2nd and 3rd Respondents, nor was any money transferred to their alter ego. It was posited that under Section 17 (1) of the Advance Fee Fraud Act, before a Court can make an order for final forfeiture, it has to be reasonably satisfied that the property is unclaimed property or proceeds of crime. The case of EFCC vs. DAUDA LAWAL SC/CR/212/2020 delivered on 12th March 2021 was cited in support. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

It was contended that the finding of the lower Court that the 1st Respondent did not provide evidence for the money to be forfeited to the Federal Government of Nigeria has not been appealed against. It was stated that in the absence of a challenge to the said finding, the Appellant’s appeal amounts to nothing since forfeiture proceedings under Section 17 (1) of the Advance Fee Fraud Act is not a proceeding to determine the right of rival claimants to the asset sought to be forfeited. It was maintained that where the forfeiture proceedings fail, what is open to the rival claimants will be to litigate over ownership of the asset.

Still in argument, it was stated that the lower Court rightly held that from the interrogation of the Appellant’s officials by the 1st Respondent, that they did not indict the alter ego of the 2nd and 3rd Respondents and so the Appellant’s claim rests on a foundation of speculation.

APPELLANT’S REPLY ON LAW
The Appellant posits that the contention of the 2nd and 3rd Respondents that forfeiture proceedings is not to determine the rights of rival claimants is a fresh issue that was not raised at the lower Court, and which they also did not obtain leave to raise on appeal vide OBAJIMI vs. OLOYE (2017) LPELR-42709 (CA). It was stated in any event, that by Section 17 (2), (3) and (4) of the Advance Fee Fraud Act, the Court can make an order in favour of a rival claimant who produces credible evidence of entitlement to the property.

RESOLUTION OF ISSUE NUMBER ONE
For ease of appreciation, it is imperative to properly contextualise the position of the Appellant in the proceedings which spawned this appeal. Upon the application of the 1st Respondent, the lower Court made an interim order of forfeiture of the sum of N6billion found in the accounts of the 2nd and 3rd Respondents. Consequent upon this order and publication of the same in a national newspaper as ordered by the lower Court, pursuant to Section 17 (2) of the Advance Fee Fraud Act, the Appellant claiming an interest in, and ownership of the money filed an affidavit to show cause why the money should be forfeited to it and not to the Federal Government of Nigeria. So, on these set of facts, the Appellant as a claimant who made the positive assertion of interest and ownership of the money had the evidential burden of establishing its claim. It was bound to succeed on the strength of its case and not on any defect or weakness in the case of the 1st Respondent or the 2nd and 3rd Respondents. So on the peculiar set of facts of this matter, even though the interim order of forfeiture was neither made in favour of nor against the Appellant, the Appellant had by having laid claim to the money, subject of the forfeiture proceedings, placed itself in a position where it became obligated to establish its claim to the money. Therefore the question of rival claimants raised by the 2nd and 3rd Respondents does not arise. The Appellant laid claim as provided under Section 17 (2) of the Advance Fee Fraud Act. The Appellant correctly stated the legal position when at paragraph 4.03 on page 6 of the Appellant’s Amended Brief of Argument, it was submitted as follows:
“However, in a non-conviction based asset forfeiture proceedings as provided under S.17 of Advance Fee Fraud Act Cap. A6, Laws of the Federation of Nigeria, 2004 (herein referred to AFFA), which is not a criminal trial, the burden is on the person who asserts that the property in dispute is his or her legitimate property to prove how he or she acquires [sic] the property legitimately devoid of crimes”.

The lower Court held that the Appellant did not discharge the evidential burden on it. The Appellant however contends that the lower Court did not appraise and consider the evidence “before coming to the view that the Appellant did not prove its claim”.

The evaluation of evidence and ascription of probative value thereto is the primary duty of the trial Court. An appellate Court is loath to interfere with the findings of facts made by the trial Court except where the findings are perverse or are not supported by the evidence: TERIBA vs. ADEYEMO (2010) LPELR (3143) 1 at 15-16, ATOLAGBE vs. SHORUN (1985) LPELR (592) 1 at 30 and ANYANWU vs. UZOWUAKA (2009) LPELR (515) 1 at 17-18. 

However, when as in this case the evidence is documentary, this case having been heard on affidavit evidence; an appellate Court is in as good a stead as the trial Court in the evaluation of the documentary evidence as no question of credibility of witnesses arises. See UNION BEVERAGES LTD vs. PEPSICOLA INT’L LTD (1994) LPELR (3397) 1 at 11-12, GONZEE (NIG) LTD vs. NERDC (2005) LPELR (1332) 1 at 16, IWUOHA vs. NIPOST (2003) 4 SC (PT II) 37 and ECOBANK (NIG) LTD vs. ANCHORAGE LEISURES LTD (2020) LPELR (52128) 1 at 24.

​I will set out in extensor, the evaluation of the materials supplied by the Appellant and the ascription of probative value thereto by the lower Court. Hear the lower Court at pages 1567-1569 of Volume 2 of the Records:
“Having very carefully reviewed the materials provided by Niger State Government, I do not believe that they should succeed, and that a sufficient case has been made for the funds in the subject accounts to be permanently forfeited to them. What I have seen are assertions without sufficient proof. In fact, I see a number of cracks in the position of Niger State Government; questions for which insufficient answers have been provided. For instance, if the funds are ‘proceeds of funds siphoned out of Niger State’, at the very least the burden is on Niger State to provide evidence of how much was the allocation and income of Edati Local Government in the period in which Alhaji Liman Katingi was the chairman of the Local Government. How much was missing from this income and allocation, and how much of the missing funds, if any, are traceable directly or indirectly to the account of Katah Property and Investment Ltd, and Sadiq Air Travel Agency Ltd, which companies Alhaji Liman Katingi is the alleged promoter? Also, it behoves Niger State Government to provide evidence of how much was allocated to the Ministry of Local Government and Chieftaincy Affairs in the period in which Alhaji Katingi was Commissioner, how much was missing from it, and how much is traceable to the accounts of Katah Property and Investment Ltd, and Sadiq Air Travel Agency Ltd. The same ought to be done for the Hajj activities of Niger State too in the period in which Alhaji Katingi was said to have superintended over it. None of these was done. The attempt made was a revelation that the total sum of N176,545,486,572.71 (One Hundred and Seventy Six Billion, Five Hundred and Forty Five Million, Four Hundred and Eighty Six Thousand, Five Hundred and Seventy Two Naira, Seventy One Kobo) was allegedly the total allocation to the Ministry of Local Government in the period in which Alhaji Liman Katingi held sway.

However, a review of Exhibit R9 supplied by the Honourable Attorney General of Niger State, shows that this allocation relates to something else other than a specific allocation to the Ministry of Local Government and Chieftaincy Affairs. The Exhibit R9 relates to the Niger State Local Government Joint Account domiciled with the Ministry of Finance, Niger State and appears to be allocations for the entire local governments in Niger State, rather than specific budgetary allocation for the Ministry of Local Government and Chieftaincy Affairs, or specifically to Edati Local Government, or even allocation to Hajj pilgrims. In any event, Exhibit R9 still does not supply any link between the N176,545,486,572.71 (One Hundred and Seventy Six Billion, Five Hundred and Forty Five Million, Four Hundred and Eighty Six Thousand, Five Hundred and Seventy Two Naira, Seventy One Kobo) and the N6Billion found in the accounts of Katah Property and Investment Ltd, and Sadiq Air Travel Agency Ltd, sought to be forfeited permanently to Niger State Government. As a matter of fact, the various evidence from the investigation, Exhibits EFCC13, EFCC15, EFCC16, EFCC17, EFCC18, EFCC19, and EFCC20 showed that the officials of the Niger State Government interviewed by the EFCC and whose statements were taken, never indicted the said Alhaji Katingi in the manner claimed by the Claimant and the Applicant, and in any event, never said that the funds to the tune of the N6B found in the accounts of the 2 companies, Katah Property And Investment Ltd, and Sadiq Air Travel Agency Ltd, were taken by Alhaji Katingi, and who must have lodged them there. It thus appears that the claim of the Honourable Attorney General of Niger State rests on a foundation of speculation.”

The lower Court then conclusively held as follows at pages 1570-1571 of Volume 2 of the Records:
“In totality, I do not believe that the Honourable Attorney General of Niger State has discharged the evidential burden placed on it by law in this proceedings, as to entitle it to an order that the funds in the bank accounts of Katah Property And Investment Ltd, and Sadiq Air Travel Agency Ltd should be permanently forfeited to the Government of Niger State. I accordingly hereby refuse and dismiss the claim made by the Honourable Attorney General of Niger State.”

I have painstakingly gone through the affidavit evidence on record with the finery of a judicial toothcomb and I am not in any doubt whatsoever that the lower Court properly considered the evidence, justifiably appraised the same and unquestionably evaluated the evidence. The findings arrived at flow from the affidavit evidence and they are not perverse. 

There is no basis for an appellate Court to embark on a fresh appraisal of the evidence when the lower Court has unquestionably evaluated and appraised the evidence. See AYANWALE vs. ATANDA (1988) 1 NWLR (PT 68) 22 or (1988) LPELR (671) 1 at 21, AWOYALE vs. OGUNBIYI (1986) 4 SC 98 and BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47.

​It is pertinent to refer to the Appellant’s submission that the 1st Respondent in its processes contended that the monies found in the accounts of the 2nd and 3rd Respondents were proceeds of crime committed against the Appellant. In the first place, the fact that the 1st Respondent had made the said contention or allegation does not make it correct or proven. This is underscored by the fact that the lower Court held that the 1st Respondent did not establish its case for the forfeiture of the money to the Federal Government of Nigeria. Instructively, the 1st Respondent did not appeal against the decision of the lower Court, so the said finding remains valid, subsisting and binding, thus rendering otiose the contention or the allegation made that the money was proceeds of crime committed against the Appellant. 

In the second place, the lower Court duly evaluated the investigation activities of the 1st Respondent relative to the Appellant’s officials and the lower Court held that the statements made by the Appellant’s officials, never indicted the alter ego of the 2nd and 3rd Respondents, nor did it state that the funds were taken by the said alter ego and lodged in the accounts of the 2nd and 3rd Respondents. It is indeed a speculation as held by the lower Court and in fact a conjecture for the Appellant to submit that the unproven allegation of the 1st Respondent that the money was proceeds of crime committed against the Appellant would amount to proof that the said money belongs to it. Definitely not!

​I equally gave due consideration to the issue raised in the preliminary objection that the argument of the Appellant was lumped together with findings made against both it and the 1st Respondent, which did not appeal. This is not correct. The lower Court in its decision separately evaluated and considered the 1st Respondent’s case at pages 1561-1566 of Volume 2 of the Records and thereafter evaluated the Appellant’s case from pages 1566-1571 of the Records. Understandably being a joint hearing, it is inevitable that the Appellant made references to the submissions made by the 1st Respondent at the lower Court, just in the same manner as the 2nd and 3rd Respondents did. This does not connote lumping submissions on findings made against the Appellant with submissions on findings made against the 1st Respondent.

In conflation, based on the fact that the lower Court properly evaluated the evidence on record and arrived at the correct decision when it held that the Appellant did not prove its case; this issue number one is resolved against the Appellant.

ISSUE NUMBER TWO
Whether the trial Court was wrong to have considered the affidavit filed by the 2nd and 3rd respondents in support of their claim to the money sought to be forfeited.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the affidavit of the 2nd and 3rd Respondents were incompetent as the deponent of the affidavits is not an employee of the 2nd and 3rd Respondents. The lower Court, it was stated, failed to pronounce on the incompetence of the affidavits. It was further stated that the deponent of the affidavits failed to state the name of the person in the 2nd and 3rd Respondent companies that gave him the authority to depose to the affidavits, thus making the affidavits hearsay and defective vide SODIPO vs. LEMMINKAINEN (1986) 17 NSCC (PT I) 79 at 85, FGN vs. AIC LTD (2006) 2 NWLR (PT 970) 337 at 357, NIDB vs. FEMBOR (NIG) LTD (1997) 2 NWLR (PT 489) 543 561 among other cases. It was posited that the public documents attached to the affidavits of the 2nd and 3rd Respondents were not certified and ought to be struck out, thereby leaving the Appellants with bare depositions. The cases of ARAKA vs. EGBUE (2003) 17 NWLR (PT 848) 1 at 19, MINISTER OF LANDS, WESTERN NIGERIA vs. AZIKIWE (1969) 1 ALL NLR 49, UMOGBAI vs. AIYEMHOBA (2002) 8 NWLR (PT 770) 694 among other cases were referred to.

SUBMISSIONS OF THE 2ND AND 3RD RESPONDENTS’ COUNSEL
It is submitted that the contention that the documents attached to their affidavits are public documents which were not certified were fresh issues for which leave was required to raise and that no leave was obtained thereby making the issue incompetent. The case of RIVERS STATE vs. UDE (2006) 6-7 SC 131 at 137 was cited in support. It was contended that the order of the lower Court for any person interested to show cause did not envisage an attack on a claim filed by another claimant to the funds and that it was therefore not necessary for the lower Court to pronounce on the Appellant’s attack on the 2nd and 3rd Respondent’s processes, since the attack was not a way of showing cause and was therefore not properly placed before the Court. The cases of OSOLU vs. OSOLU (2003) 6 SC (PT I) 1 at 8 and AKINBINU vs. OSENI (1992) LPELR-341 (SC) were relied upon.

​It was further stated that it is only the 2nd and 3rd Respondents that can complain that the deponent of their affidavits did not have their authorisation and not for the Appellant to complain. The cases of ZAKARIA vs. MOHAMMED (2017) 17 NWLR (PT 1594) 181 at 213 and OHAKIM vs. AGBASO (2010) 19 NWLR (PT 1226) 172 at 223 were called in aid. It was maintained that the deponent of their affidavits disclosed his authorisation and also indicated who gave him the facts that were not within his personal knowledge. It was consequently asserted that the affidavit complied with Section 115 (1) of the Evidence Act vide CEDAR STATIONERIES LTD vs. IBWA (2000) 15 NWLR (PT 690) 338 at 350. It was conclusively submitted that the documents attached to their affidavits are private documents which do not require certification since they have the originals of the said documents in their custody. The cases of UKANA vs. C.O.P. (1995) 8 NWLR (PT 416) 705 at 718, ABUUL vs. BENSU (2003) 16 NWLR (PT 845) 59 at 76-77 and SHYLLON vs. UNIV. OF IBADAN (2007) 1 NWLR (PT 1014) 1 at 16 were relied upon.

APPELLANT’S REPLY ON LAW
The Appellant maintains in the Reply Brief that it vehemently challenged the competence of the 2nd and 3rd Respondents’ affidavits at the lower Court. Page 1537 of volume 2 of the Records was referred to on the address by learned counsel challenging the said affidavits.

RESOLUTION OF ISSUE NUMBER TWO
The crux of the Appellant’s complaint in this issue number two is the failure by the lower Court to resolve the challenge it raised that the 2nd and 3rd Respondents did not have a competent affidavit. Doubtless, the Appellant’s counsel in addressing the lower Court as shown on page 1537 of Volume 2 of the Records submitted that the 2nd and 3rd Respondents’ affidavits violate Section 115 of the Evidence Act. However, as evident from the Records, the lower Court did not make a pronouncement on the issue in its ruling.

It is trite law that a Court must give a full and dispassionate consideration of the issues raised and canvassed before it: C. N. OKPALA & SONS LTD vs. NIG BREWERIES PLC (2017) LPELR (43826) 1 at 17, BRAWAL SHIPPING (NIG) LTD vs. F. I. ONWADIKE CO. LTD (2000) 6 SCNJ 508 at 522 and SIFAX NIGERIA LTD vs. MIGFO NIG LTD (2018) LPELR (49735) 1 at 56-57. However, it is not in all instances where a Court fails to make a pronouncement on an issue raised that it is fatal. In NCC vs. MOTOPHONE LTD (2019) 4 NWLR (PT 1691) 1 at 37, it was held that where there is a failure to pronounce on all issues submitted before a Court, it would not amount to a denial of fair hearing unless it is shown that a miscarriage of justice was occasioned. Furthermore, in BRAWAL SHIPPING (NIG) LTD vs. F. I. ONWADIKE CO. LTD (2000) LPELR (802) 1 at 13, Uwaifo, JSC stated as follows:
“It is no longer in doubt that this Court demands of, and admonishes, the lower Courts to pronounce, as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal… Failure to do so may lead to a miscarriage of justice and certainly will have that result if the issues not pronounced upon are crucial.”
Equally, in ORIANWO vs. OKENE (2002) 14 NWLR (PT 786) 156 at 182-183, Ogundare, JSC stated:
“If the issue was vital to the resolution of the dispute between the parties, they would be expected to either order a retrial or resolve the issue themselves upon the evidence available if the question of credibility of witnesses would not arise.”
​See also OVUNWO vs. WOKO (2011) LPELR (2841) 1 at 19, ONIFADE vs. OLAYIWOLA (1990) LPELR (2680) 1 at 25 and OGUNDARE vs. ALAO (2013) LPELR (21845) 1 at 39-42.
The above dicta from the apex Court sets out several parameters that are meant to act as a beacon for the attitude of an appellate Court where a Court does not consider all the issues raised before it. These parameters include whether the issue was properly raised, whether the issue is vital, crucial and substantial. In simple terms, it would appear that failure to consider and pronounce on all issues before the Court will not, per se, be fatal unless such omission occasioned a miscarriage of justice: BAMAIYI vs. THE STATE (2001) 8 NWLR (PT 715) 270. Kalgo, JSC expressed the position in the following words in OSASONA vs. AJAYI (2004) LPELR (2790) 1 at 20:
“It is trite law that a Court or Tribunal should consider all issues for determination brought before it but failure to consider and pronounce on all issues submitted to the Court or Tribunal may not necessarily amount to a miscarriage of justice or denial of fair hearing.”
See also UBA vs. NWAOKOLO (1995) 6 NWLR (PT 400) 127 and KOLOKO vs. NKWONTA (2020) LPELR (52195) 1 at 29-31.
It seems that in order to conclude that there was a miscarriage of justice, the issue which the Appellant contends that the lower Court did not pronounce upon ought to have been properly before the lower Court, vital, crucial and substantial. Now, did the failure of the lower Court to pronounce on the competence of the 2nd and 3rd Respondents’ affidavits occasion a miscarriage of justice in the diacritical circumstances of this case? It would not seem to be so.

​I had earlier stated that it is for the Appellant to establish its case on the claim it made to having an interest and ownership of the money on which it showed interest. It was to discharge the evidential burden on it, irrespective of any defects, weaknesses, or lapses in the case of any other party. I have already held that the lower Court rightly held that the Appellant did not discharge the evidential burden on it. The competence vel non of the 2nd and 3rd Respondents’ affidavits was not a factor in the Appellant not having by its own processes discharged the burden of proof on it. The concomitance is that the failure by the lower Court to pronounce on the said issue did not occasion a miscarriage of justice. It therefore does not have any fatal consequences on the correct decision of the lower Court.

In GARAN vs. OLOMU (supra) at 246-247, the apex Court held that an issue in an appeal distilled from a ground of appeal in the appellant’s notice, complaining about any lapse in the decision being appealed against, is only resolved in favour of the appellant not only on the basis of the actual occurrence of the alleged error, but on the further proof by the appellant that the occurrence of the error has occasioned a miscarriage of justice. In the circumstances of this case, even though the lower Court erred by not pronouncing on the issue of the competence of the 2nd and 3rd Respondents’ affidavits, the error did not occasion a miscarriage of justice: UOR vs. LOKO (1988) 2 NWLR (PT 77) 430 and BAYOL vs. AHEMBA (1999) 10 NWLR (PT 623) 381 at 393.
In ADEKUNLE vs. ADEGBOYE (1992) 2 NWLR (PT 223) 305 at 322, Ogundere, JCA, after stating the meaning of miscarriage of justice asseverated:
“Finally, no Judge had ever written a perfect judgment such that no mistake or fault can be found in or with it, if put under judicial microscope. Bakare v. Apena (1986) 4 NWLR (Pt. 33) 1 at 13-15.”
It is not every error in the decision of a Court that would result in the decision being set aside. It has to be an error that occasioned a miscarriage of justice in the sense that the decision of the Court would have likely been different if not for the error. See OGAR vs. IGBE (2019) LPELR (48998) 1 at 16-17, IPINLAIYE II vs. OLUKOTUN (1996) LPELR (1532) 1 at 35 and REGD TRUSTEES OF AUTO SPARE PARTS AND MACHINERY DEALERS ASSOCIATION vs. JOHN (2020) LPELR (49541) 1 at 35. Indubitably, this issue number two must be resolved against the Appellant.

​The concatenation of the resolution of the two issues formulated for determination in this appeal against the Appellant signposts that there is no merit in the appeal. The appeal consequently fails and it is hereby dismissed. The decision of the lower Court in SUIT NO. FHC/ABJ/CS/359/2017 delivered on 25th April 2018 is hereby affirmed. The 2nd and 3rd Respondents are entitled to the costs of the appeal which I assess and fix at N200,000.00 against the Appellant. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Ugochukwu Anthony Ogakwu, JCA gave me the benefit of reading in advance, the draft of the judgment just delivered.

On the preliminary objections, I am in complete agreement that the three pronged objection lacked merit. Particularly on the 2nd Ground for the Objection. In the suit as constituted before the trial Court, the Appellant had the locus under Section 17(2) to seek for the order of Court that the sum subject of the dispute be forfeited to it; and the trial Court had the vires to make that order provided the Appellant was successful in establishing its entitlement to that claim.

Now, upon a careful consideration of the affidavit evidence of the parties and the documents attached thereto, the Appellant was unable to establish any link to the ownership of the sum of Six billion Naira (N6 billion) or any part thereof, of the sum the subject of the claim in the trial Court.

​Having thus found, I am in agreement with my learned brother that the Appellant was unable to prove its claim as to entitle the trial Court make the forfeiture order in its favour. The end result is that, the appeal lacks merit and it is accordingly dismissed. I abide by the order on costs.

HAMMA AKAWU BARKA, J.C.A.: His Lordship Hon. Justice Ugochukwu Anthony Ogakwu JCA obliged me with a copy of the lead judgment in the appeal. On reading same, I find that the reasoning and conclusion reached therein are in accord with mine that the appeal is lacking in merit and deserved to be dismissed. I have no hesitation pronouncing that this appeal fails and it is hereby dismissed by me, and I endorse the order of costs made against the Appellant.

Appearances:

J. S. Okutepa, Esq., SAN, with him, Ms. Helen J. Apeh and Emodgyaje Paul Galumje, Esq. For Appellant(s)

Ms. Hadiza Afegbua – for 1st Respondent
Olumide Olujinmi, Esq., with him, Emmanuel Olafusi, Esq. – for 2nd and 3rd Respondents. For Respondent(s)