DR. ERASTUS B.O. AKINGBOLA v. THE CHAIRMAN, ECONOMIC AND FINANCIAL CRIMES COMMISSION (2012)

DR. ERASTUS B.O. AKINGBOLA v. THE CHAIRMAN, ECONOMIC AND FINANCIAL CRIMES COMMISSION

(2012)LCN/5193(CA)

In The Court of Appeal of Nigeria

On Friday, the 2nd day of March, 2012

CA/L/388/10

RATIO

THE POSITION OF THE LAW ON THE APPLICATION FOR MAREVA INJUNCTION MADE EX PARTE

It is necessary to state at the onset that the application which the lower court heard ex – parte was for the grant of a mareva injunction which is a preservatory order. Mareva injunctions prevent the dissipation or dealing with properties (pending the determination of a dispute) that could render the judgment of a court or the resolution of that dispute nugatory. They therefore operate until the determination of the civil rights and obligations of the parties with regard to the subject properties. The application for mareva injunction made ex parte pending the arrest and trial of Dr. Erastus B.O. Akingbola was in order and a lawful practice before the Federal High Court. There is as yet no determination of the civil rights and obligations of the appellant as the trial of the appellant in the criminal charges in case No. FHC/L/CS/443C/2009 has not been determined. Consequently the granting of the ex – parte order for the preservation of the properties which was not done in open court did not infringe on the appellant’s right to fair hearing as enshrined in Section 36(1) and (3) of the Constitution. In 7Up Bottling Company Ltd v. Abiola & Sons Ltd (1995) 3 NWLR (Pt.383) 257, Adio J.S.C stated at page 277 thus: “In the present case, the motion ex – parte was for an interim injunction restraining the appellants from doing certain things to the properties of the respondents… If as it was in this case, the learned judge could not properly determine any contentious issue when the motion ex – parte for an order of interim injunction came before him, the question of giving an opportunity of being heard to the appellant before determining the application could not arise and the provisions of Section 33(1) of the Constitution were not applicable and were not violated” In his own contribution Uwais J.S.C (as he then was) elaborated at page 280 as follows:- “In both criminal and civil proceedings, there are certain steps to be taken which are incidental or preliminary to the substantive case. Such steps include motion for direction, interim or interlocutory injunction it is in respect to such cases that provisions are made in court rules to enable the party affected or likely to be affected to make ex -parte applications. The orders to be made by the court, unlike final decisions, are temporary in nature, so that they do not determine the “civil rights and obligations” of the parties in the proceedings as envisaged by the Constitution.” PER. KUMAI BAYANG AKAAHS, J.C.A.

JURISDICTION: WHETHER A COURT HAS THE JURISDICTION AND POWERS TO MAKE ORDERS TO AFFECT ANOTHER SUIT AND OR PENDING THE DETERMINATION OF ANOTHER SUIT

There is undoubted jurisdiction in the lower court to make an appropriate order as was done in this case affecting the conduct of a separate action. In Kigo v Holman Brothers & Anor (1980) 12 NSCC 204 at 210, the Supreme Court held that the High Court has the jurisdiction and powers to make orders especially preservatory orders to affect another suit and or pending the determination of another suit. It cited, with approval the decision in Wilson v Church (No. 1) II Ch.D 576 where Eso JSC delivering the leading judgment held at pages 210 and 211 as follows: “The wide power of the court to grant stay is further illustrated in the case of Wilson v Church (No.1) II Ch.D. 576. In that case there were two actions but the plaintiffs in Wilson v Church were not parties to the other action. The trustees of the fund in issue were defendants in both cases. The plaintiffs in Wilson v Church on the commencement of the second suit (to which they were not parties) and on which the plaintiffs asked for declaration for the payment out of the trust fund to the plaintiffs in the second case, applied to the Master of the Rolls for an injunction to restrain, the defendants/trustees from parting with any part of the trust funds. The Court of Appeal in England granted injunction against the trustees. The Court held that there would be an injunction to restrain the trustees from parting with any of the fund till the hearing of the appeal. The effect of the judgment is that the court granting the injunction will be binding the defendants/trustees from parting with the money to the plaintiffs in the second case though the plaintiffs in Wilson v Church were not the plaintiffs in that case.” PER. KUMAI BAYANG AKAAHS, J.C.A.

PRINCIPLES GUIDING THE GRANT OF MAREVA INJUNCTION

Some of the principles guiding the grant of mareva injunction are as follows:
(i) There must be a justifiable cause of action against the defendant;
(ii) There must be a real and imminent risk of the defendant removing his assets from jurisdiction of court and thereby rending nugatory any judgment which the plaintiff may obtain;
(iii) The applicant must make a full disclosure of all material facts relevant to the application;
(iv) The application must give full particulars of the assets within jurisdiction;
(v) The balance of convenience must be on the side of the application; and
(vi) The applicant must be prepared to give an undertaking as to damages.
See EFE FINANCE HOLDINGS LTD V. OSAGIE (2000) 5 NWLR (PT.658) 536; SOTIMINU V. OCEAN STEAMSHIP NIG LTD (1992) 5 NWLR (pt.239) 1; ATC LTD V. NNPC (2005) 1 NWLR (pt.937) 563; IFC V. DSNL OFFSHORE LTD (supra) at 602 paras. C – F. PER. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

THE GENESIS OF THE NAME ‘MAREVA’

Invariably, the genesis of the name ‘Mareva’ is traceable to the locus Classicus MAREVA COMPANIA NAVIERA S.A. V. INTERNATIONAL BULK CARRIERS S.A. (1975) 2 LLOYD’s REPORT 509 to the effect thus: If it appears that the debt is due and owing and there is a danger that the debtor may depose of his assets so as to defeat it before judgment, the court has jurisdiction in a proper case to grant an interlocutory judgment so as to prevent him disposing of those assets. It seems to me that this is a proper case for exercise of this jurisdiction. per Lord Denning, MR at 510. See also SOTIMINU vs. OCEAN STEAMSHIP (NIG) LTD (1992) 5 NWLR (PT.239) 1 AT 25 PARAGRAPH B-H per Nnaemeka – Agu, JSC; DUROJAIYE V. CONTINENTAL FEEDERS (NIG) LTD (2001) 10 NWLR (pt722) 657; EFE FINANCE HOLDINGS LTD V. OSAGIE (2000) 5 NWLR 9pt.658) 536; AIC LTD V. NNPC (2005) 11 NWLR (PT.937) 563, respectively. PER. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

JUSTICES

KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

Between

DR. ERASTUS B.O. AKINGBOLA Appellant(s)

AND

THE CHAIRMAN, ECONOMIC AND FINANCIAL CRIMES COMMISSION Respondent(s)

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court presided over by Abubakar J. of the Lagos Judicial Division delivered on 5th day of March, 2010 dismissing the appellant’s application to set aside, vacate or discharge all the orders granted ex-parte by the Court on 31st December, 2009 in suit No. FHC/L/CS/1492/09.
The facts which gave rise to the appeal may be briefly stated as follows:-
On 23/12/2009, the complainant, the Chairman of the Economic and Financial Crimes Commission filed a motion ex-parte and an ex-parte originating motion at the Federal High Court Lagos seeking to freeze the bank accounts of Dr. Erastus Akingbola, now appellant and to attach his assets within Nigeria on the allegation that they were proceeds of economic crime.
The application was heard and determined by the learned trial judge in Chambers and not in open court. When the appellant became aware of the orders made by the learned trial judge, he filed an application dated 7/1/2010 in which he sought to set aside the said Orders and to restrain the respondent from further executing the orders granted in its favour. The learned trial judge after hearing the motion dismissed the application in its entirely in his ruling delivered on 5/3/2010. Dissatisfied with the said ruling, the appellant appealed against the decision in his Notice of Appeal which was filed on 18/3/2010. Leave to amend the Notice of Appeal was granted on 26/10/2010. The amended notice of appeal contained nine grounds from which the appellant formulated the following six issues for determination:-
1.  Whether the learned trial judge properly applied the ratio decidendi in the case of Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419 to the case before him in coming to the conclusion that the Orders sought to be set aside by the Appellant were not null and void.
2. Whether the learned trial judge was right in refusing to set aside the Orders made in favour of the respondent on the 31st of December, 2009 when the respondent did not comply with all the conditions precedent for the grant of the Orders as stipulated in Section 28 of the Economic and Financial Crimes Commission (Establishment) Act, 2004.
3. Whether the learned trial judge was right in holding that Sections 28 and 34 of the Economic and Financial Crimes Commission (Establishment) Act, 2004 are not unconstitutional?
4. Whether the learned trial judge was right in refusing to discharge the orders granted in favour of the respondent on the 31st of December 2009 based on an alleged criminal charge which was not pending before the learned trial judge?
5. Whether the learned trial judge was right when His Lordship refused and/or failed to consider and pronounce on each of the issues raised by the appellant in the written addresses filed in support of the application dated 7th January, 2010?
6. Whether the lower court had the jurisdiction to hear and determine the respondent’s applications during the Christmas Vacation, when the respondent did not fulfill the condition precedent in that regard?
The respondent raised preliminary objection to grounds 2 and 3 and issues 2 and 3 which were distilled therefrom and urged the court to strike out the said grounds and issues as being incompetent. The basis for the objection is that the ruling of the lower court was one refusing to discharge the orders of mareva injunction and interim attachment made against the appellant but grounds 2 and 3 of the appellants Notice of Appeal and the issues distilled from the appellant’s brief do not arise from or relate to the said Ruling of the lower court. The preliminary objection was argued in the brief. The appellant filed a reply brief. Apart from the preliminary objection, the respondent formulated a sole issue for determination namely:
Whether the learned trial judge was wrong in the circumstances of this case when he refused to set aside the orders made in favour of the respondent in Suit No. FHC/L/CS/1492/09: The Chairman, Economic and Financial Crimes Commission v. Dr. Erastus B.O. Akingbola on the 31st day of December, 2009!
THE PRELIMINARY OBJECTION
Learned counsel for the respondent argued that since the present appeal is against the ruling of the Federal High Court as circumscribed in the amended notice of appeal any appeal challenging that ruling/decision and the issues distilled therefrom must flow from and arise from the ruling. He submitted that the grounds of appeal upon which issues 2 and 3 are based do not arise from the decision being appealed against, the said grounds are incompetent and should be discountenanced. He also argued that issue 3 does not arise from the grounds of appeal and is therefore incompetent. He therefore urged this court to strike out the grounds and the issues which were distilled from them.
The appellant in turn raised objection to the preliminary objection filed by the respondent. Although an appellant is at liberty to urge the court to discountenance a preliminary objection or strike it out, there is no room in the rules of this court giving the appellant the opportunity to also file preliminary objection against the one raised by the respondent. The preliminary objection filed by the respondent complied with the requirements of Order 10 Rule 1 of the Court of Appeal Rules 2011 since the appellant had more than the 3 days notice before the hearing of the appeal. The objection by the appellant is of no moment and it is accordingly struck out.
In the reply brief learned counsel for the appellant reproduced grounds 2 and 3 of the Amended Notice of Appeal and argued that they flow directly from the ruling being appealed against. It is the contention of the learned counsel that the said grounds 2 and 3 are predicated on the ruling in which the lower court refused to set aside the orders made ex-parte. He argued that the issue relating to the proper procedure to be followed by the respondent when seeking to exercise its powers under section 28 of the Economic and Financial Crimes Commission Act, 2004 (“The EFCC Act”) was put before the lower court as well as the unconstitutionality of the said section 28 of the Act. He therefore urged this court to overrule the preliminary objection. The complaints in grounds 2 and 3 of the amended Notice of Appeal are as follows:-
“Ground 2
The lower court erred in law when the learned trial judge refused to discharge the orders made in favour of the Respondent on the 31st of December, 2009, notwithstanding that the condition precedent for the grant of such orders as stipulated by section 28 of the Economic and Financial Crimes (Establishment Act, 2004) were not met by the Respondent.
PARTICULARS
1. The orders made by the lower court in favour of the Respondent on the 31st of December, 2009 was predicated on section 28 of the Economic and Financial Crimes Commission (Establishment) Act, 2004.
2. The said section 28 of the Economic and Financial Crimes Commission (Establishment) Act, 2004, pertains to investigation of assets and properties of a person for an offence under the Act.
3. The Appellant was never arrested by the Respondent or any other law enforcement agency for any offence under the Act.
4. None of the assets or properties of the Appellant was traced or attached for being acquired through an economic or financial crime before the Respondent obtained the orders granted in its favour at the lower court.
5. It is a condition precedent under the said section 28 of the Economic and Financial Crimes Commission (Establishment Act, 2004 that a person must be arrested and the relevant assets and properties attached before an order of interim attachment is obtained from the court.
GROUNDS 3
The learned trial judge erred in law when His Lordship held in paragraph 2 at page 23 of the Ruling as follows:-
“Reading the above section 44 (1)(2)(k) with the provision of sections 28 and 34 of the Economic and Financial Crimes Commission Act of 2004, I hold the view that the powers vested in the Commission by sections 6 and 7 of the Act will be meaningless; unless the right to take steps to   preserve suspected properties is given to the Commission.”
PARTICULARS
1. The powers vested in the Respondent by the provision of sections 6 and 7 of the Economic and Financial Crimes Commission (Establishment) Act 2004 cannot override the Constitution.
2. Both section 28 and 34 of the said Economic and Financial Crimes Commission (Establishment) Act, 2004 are inconsistent with sections 36(5) and 44 of the Constitution of the Federal Republic of Nigeria 1999.
3. The provisions of the Economic and Financial Crimes Commission (Establishment) Act 2004 which enables the Respondent to attach and freeze the assets of individuals without arrest/or conviction have been declared unconstitutional by the Court of Appeal in the case of Nwaigwe V. Federal Republic of Nigeria (2009) 16 NWLR (Pt.1166) 169.
The preliminary objection is predicated on the fact that Ruling of the Lower Court, the subject matter of the present appeal, was one refusing to discharge the orders of mareva injunction and interim attachment made against the appellant and the said grounds 2 and 3 and issues 2 and 3 distilled therefrom are incompetent since they do not arise from or relate to the said Ruling of the Lower Court. Learned senior counsel for the respondent contended that where there is no complaint in respect of a decision that has arisen from a judgment appealed against, such a decision may not form the basis of an issue for determination by an appellate court and submitted that when a ground has not the remotest connection with what the court below decided and which agitated the mind of the appellant to seek for a review and overturn the decision, the appellate court would naturally throw away the incompetent appeal. He relied on the following cases for the submission:
“Atoyebi v Govt of Oyo State (1994) 5 NWLR (pt. 344) 290 at 305; Uhunmwangho v Okojie (1989) 5 NWLR (PT 122) 471 at 491  and M.B.N PLC. V. NWOBODO (2005) 14 NWLR (Pt. 945) 379 at 389. He urged this court to strike out grounds 2 and 3 of the appellant’s amended grounds of appeal and discountenance issues 2 and 3 which were formulated for determination.
Learned senior counsel for the appellant filed an appellant’s reply brief wherein he urged this court to strike out the preliminary objection for being grossly incompetent for the following defects:
(i) The Notice of Motion was incorporated into the respondent’s brief
(ii) The sole issue formulated by the respondent in its brief of argument was not formulated from any of the grounds of appeal contained in the appellant’s amended Notice of Appeal dated 26th October, 2010.
(iii) Notwithstanding the formulation of its own issue for determination, the respondent still went ahead to argue the issues formulated by the appellant in its brief of argument.
What the appellant has done in the reply brief is to also raise a preliminary objection to the one the respondent raised. This is not allowed. All that an appellant is required to do in a reply brief is to debunk the preliminary objection raised by the respondent and urge on the court to either discountenance the said objection or strike it out as being unmeritorious.
Order 10 Rule 1 of the Court of Appeal Rules 2011 provides as follows:-
“A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.”
I find the appellant’s argument that the preliminary objection is grossly incompetent because it was incorporated into the respondent’s brief quite puerile. What Order 10 Rule 1 is emphasising is that the appellant must be given three clear days’ notice to the hearing of an appeal before the respondent can be heard on a preliminary objection. The respondent’s brief which incorporated the preliminary objection was filed on 14/3/2011 and the appeal was argued on 6/12/2011 – a period of over eight months from the date of filing to the date of hearing. Certainly the appellant had notice for a longer period than that stipulated in the Rules.
Where a preliminary objection is filed, the court is required to examine the objection and then decide on the merit and not to find out whether any issue was formulated. In the instant appeal, this court is called to rule upon the competency of grounds 2 and 3 in relation to the appeal.
I have carefully examined Grounds 2 and 3 of the Amended Notice of Appeal. The appeal was filed sequel to the refusal by the lower court setting aside, vacating and/or discharging all the orders granted ex-parte by the said court on 31/12/2009. There is no appeal against the order made on 31/12/2009 but the motion dated 7th January, 2010. The appeal therefore is essentially targeted against the exercise of discretion by the lower court.
Since there is no appeal against the orders granted ex-parte on 31/12/2009, Grounds 2 and 3 in the Amended Notice of Appeal cannot come under the purview of the learned trial judge not exercising his discretion judicially and judiciously. I therefore agree with learned senior counsel’s objection that since the subject matter of the present appeal is against the Ruling refusing to discharge the orders of mareva injunction and interim attachment made against the appellant, grounds 2 and 3 of the appellant’s Notice and issues 2 and 3 distilled therefrom in the appellant’s brief do not arise or relate to the said Ruling: They are incompetent. I uphold the preliminary objection and strike out grounds 2 and 3 in the Amended Notice of Appeal as well as the arguments proffered in respect of issues 2 and 3 in the appellant’s brief. I will now proceed to deal with the remaining issues 1, 4, 5, and 6.
The arguments canvassed by the learned senior counsel for the appellant in respect of issue 1 are that the hearing and determination of the applications of the respondent in chambers is unconstitutional in that same was in gross violation of Section 36(3) of the 1999 Constitution and that the orders granted by the lower court were interlocutory or perpetual in nature and should not have been granted by the learned trial fudge through a motion ex-parte but a motion on notice. He argued that if there are provisions in the Rules of the Federal High Court or any other law which are contrary to the provisions of Section 36(3) of the Constitution of the Federal Republic of Nigeria 1999, such provisions cannot override the provisions of Section 36(3) of the Constitution but rather such provisions would be declared null and void to the extent of the inconsistency.
On issue 4 it is the contention of the appellant that the respondent’s case at the lower court was that due to various financial and economic crimes allegedly committed by the appellant in his capacity as the Executive Vice Chairman and Group Managing Director of Intercontinental Bank Plc he was charged to court on a 28 count charge in charge No. FHC/L/CS/443C/09 which was pending at the Federal High Court Lagos but in the affidavit in support of the application to set aside the orders made on 31st December, 2009 the appellant contended that the case in question was pending before Hon. Justice Abutu, Chief Judge of the Federal High Court and not the learned trial judge. Since the respondent had claimed that the applications relating to the attachment of the assets and properties were predicated on the alleged criminal proceedings, the application should have been made to the Chief judge who was seised of those criminal proceedings for the attachment of the appellant’s properties. Learned Senior Counsel submitted that the processes meant for the alleged criminal proceedings cannot by any stretch of imagination or legal ingenuity be deemed as being properly filed in the Suit before the learned trial Judge.
On issue 5, learned senior counsel referred to paragraph, 15 of the affidavit in support of the appellant’s application dated 7th January, 2010 and submitted that the learned trial judge lacked jurisdiction to grant the injunction since there was no substantive suit upon which the respondent’s motion ex parte for mareva injunction was predicated. He argued that none of the applications referred to his ruling of 31st December, 2009 is recognised as an originating process under Order 3 of the Federal High Court (Civil Procedure) Rules, 2009. He contended that quite apart from the fact that there was no originating process before the learned trial judge at the time the lower court made the relevant orders in favour of the respondent, there was no motion on notice that was adjourned for hearing after the hearing of the motion ex-parte and submitted that it is well settled that a person who seeks an interim order ex-parte must file two motions simultaneously, one ex-parte praying for an interim order and the other on notice, praying for interlocutory injunction. It was further submitted that the absence of both an originating process and/or motion on notice at the time the orders were granted by the lower court was a fundamental irregularity which divested that court of the requisite jurisdiction since the respondent did not fulfill all the conditions precedent to enable the lower court exercise its jurisdiction and relied heavily on Madukolu v. Nkemdilim (1962) N.S.C.C. 374 and Oyegun v. Nzeribe (2010) 7 NWLR (pt.1194) 577 for this submission.
Learned counsel also considered the facts and posited that there was no evidence in respect of the respondent’s contention that the appellant misappropriated the sum of N346,185,841,243.75 and another sum of €1,085,515.00 as stated in the schedule attached to the respondent’s motion ex-parte for mareva injunction. He argued that an analysis of the counts in charge No. FHC/L/CS/443C/09 puts the cumulative sum allegedly misappropriated by the appellant at N12,943,033; the particular period within which the appellant acquired the relevant properties was not given to buttress the contention that the said properties or assets were actually proceeds of economic or financial crimes as alleged and it was therefore inequitable and unjust for the learned trial judge to grant the orders in favour of the respondent with a view to recovering the said sum. Learned counsel also submitted that it was imperative for the learned trial fudge to extract an undertaking to pay damages from the respondent before granting the order of mareva injunction as the said orders were to be predicated upon ex-parte applications and not a motion on notice. He relied on the dicta of Nnaemeka Agu J.S.C. in Kotoye v. C.B.N. (1989) 1 NWLR (Pt. 98) 419 and Sotuminu v. Ocean Steamship (Nig) Ltd (1992) 5 NWLR (Pt. 239) 1
Lastly learned senior counsel argued issue 6 when he submitted that by virtue of section 20 of the Federal High Court Act Cap F12 Laws of the Federation of Nigeria 2004 and Order 46 Rule 4(c) of the Federal High Court (Civil Procedure) Rules, 2009, the dates namely, the 30th and 31st December, 2009, on which the ex-parte applications were heard and granted form part of the Christmas vacation of the lower court. Although Order 46 Rule 5 of the said Federal High Court (Civil Procedure) Rules stipulates that an action may be heard by a judge during the period of vacation where the action is urgent or a Judge at the request of all the parties concerned agree to hear the action such matters can only be heard during that period after an application in that regard has been made by either of the parties by summons. He urged the court to hold that in the absence of the said summons to hear the applications filed by the respondent during the court’s vacation, the entire proceedings including the ruling delivered by the lower court on the 31st December, 2009 are null and void ab, initio. He said that notwithstanding that the learned trial judge has the discretion to determine whether the respondent’s applications should be heard urgently or not, the discretion can only be exercised in favour of the respondent upon the consideration of an application in that regard which must be by summons and not by merely filing an affidavit of urgency.
It is necessary to state at the onset that the application which the lower court heard ex – parte was for the grant of a mareva injunction which is a preservatory order. Mareva injunctions prevent the dissipation or dealing with properties (pending the determination of a dispute) that could render the judgment of a court or the resolution of that dispute nugatory. They therefore operate until the determination of the civil rights and obligations of the parties with regard to the subject properties. The application for mareva injunction made ex parte pending the arrest and trial of Dr. Erastus B.O. Akingbola was in order and a lawful practice before the Federal High Court. There is as yet no determination of the civil rights and obligations of the appellant as the trial of the appellant in the criminal charges in case No. FHC/L/CS/443C/2009 has not been determined. Consequently the granting of the ex – parte order for the preservation of the properties which was not done in open court did not infringe on the appellant’s right to fair hearing as enshrined in Section 36(1) and (3) of the Constitution. In 7Up Bottling Company Ltd v. Abiola & Sons Ltd (1995) 3 NWLR (Pt.383) 257, Adio J.S.C stated at page 277 thus:
“In the present case, the motion ex – parte was for an interim injunction restraining the appellants from doing certain things to the properties of the respondents…
If as it was in this case, the learned judge could not properly determine any contentious issue when the motion ex – parte for an order of interim injunction came before him, the question of giving an opportunity of being heard to the appellant before determining the application could not arise and the provisions of Section 33(1) of the Constitution were not applicable and were not violated”
In his own contribution Uwais J.S.C (as he then was) elaborated at page 280 as follows:-
“In both criminal and civil proceedings, there are certain steps to be taken which are incidental or preliminary to the substantive case. Such steps include motion for direction, interim or interlocutory injunction it is in respect to such cases that provisions are made in court rules to enable the party affected or likely to be affected to make ex -parte applications.
The orders to be made by the court, unlike final decisions, are temporary in nature, so that they do not determine the “civil rights and obligations” of the parties in the proceedings as envisaged by the Constitution.”
At the time the respondent applied for the ex parte mareva injunction, the appellant was still at large as he had not been arrested. It was alleged that he was evading arrest and had abandoned his home at Milverton Street Ikoyi and even absconded from the Country with large sums of money. The respondent had expressed the fear that the assets listed in the schedule for the ex – parte mareva injunction could be frittered away, dissipated, disposed of or removed from the long arm of the law if the injunction was not granted. At the time the appellant was charged to court, he was still at large and it was only after the court granted the ex – parte mareva injunction that he surfaced.
The contention that the hearing of the ex-parte motion offended the appellant’s right to fair hearing as enshrined in Section 36(1) & (3) of 1999 Constitution has therefore overlooked the fact that the appellant was not around to exercise the right and if the respondent waited for him to appear before taking the necessary precaution to safeguard the assets the likelihood of the appellant interfering with the assets could not be ruled out. The orders granted by the court cannot be declared null and void simply because they were not conducted in open court for the same reason that the appellant had evaded arrest and had been charged to court in absentia.
Learned counsel had argued that there was no substantive suit pending before the learned trial fudge at the time the relevant orders were made as the criminal proceedings were not pending before the said fudge but before the Chief judge of the Federal High Court.
The order of ex -parte mareva injunction granted by the lower court was predicated on Section 13 of the Federal High Court Act which stipulates:-
“The Court may grant an injunction or appoint a receiver by an interlocutory order in all cases in which it appears to be just or convenient so to do.”
Since the order was in the nature of a preservatory order pursuant to Section 13 (1) of the Federal High Court Act, it is consistent with the intendment of Section 44(2)(k) of the Constitution of the Federal Republic of Nigeria which provides:-
“Nothing in sub-section (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”
Construing Section 45(1) of the Supreme Court of Judicature (Consolidation) Act 1,925 which is identical with Section 13(1) of the Federal High Court Act, Lord Diplock in the case of The Siskina (1977) 3 All ER 803 said at page 823:
“That subsection speaking as it does of interlocutory orders presupposes the existence of an action actual or potential  claiming substantial relief which the High Court has jurisdiction to grant and to which the interlocutory orders referred to are but ancillary”
The action in existence here is the criminal trial of the appellant in charge No. FHC/L/CS/443C/2009 which is subsisting before the Federal High Court. Contrary to the argument of learned senior counsel for the appellant, it is irrelevant that the criminal charge was not pending before the judge who granted the ex – parte order of injunction since there is no law restricting the exercise of jurisdiction by the court, to make the orders based on the ex-parte application. Having not disputed the pendency of the criminal charge against the appellant, it is of no moment that the application was not brought under the criminal charge proceedings but as a distinct and separate originating process. There is serious thinking which should be encouraged that victims of economic crimes should be compensated and a preservatory order of injunction will enable shareholders or depositors recover their investments after the successful prosecution of a person accused of financial crimes.
There is undoubted jurisdiction in the lower court to make an appropriate order as was done in this case affecting the conduct of a separate action. In Kigo v Holman Brothers & Anor (1980) 12 NSCC 204 at 210, the Supreme Court held that the High Court has the jurisdiction and powers to make orders especially preservatory orders to affect another suit and or pending the determination of another suit. It cited, with approval the decision in Wilson v Church (No. 1) II Ch.D 576 where Eso JSC delivering the leading judgment held at pages 210 and 211 as follows:
“The wide power of the court to grant stay is further illustrated in the case of Wilson v Church (No.1) II Ch.D. 576. In that case there were two actions but the plaintiffs in Wilson v Church were not parties to the other action. The trustees of the fund in issue were defendants in both cases. The plaintiffs in Wilson v Church on the commencement of the second suit (to which they were not parties) and on which the plaintiffs asked for declaration for the payment out of the trust fund to the plaintiffs in the second case, applied to the Master of the Rolls for an injunction to restrain, the defendants/trustees from parting with any part of the trust funds. The Court of Appeal in England granted injunction against the trustees. The Court held that there would be an injunction to restrain the trustees from parting with any of the fund till the hearing of the appeal. The effect of the judgment is that the court granting the injunction will be binding the defendants/trustees from parting with the money to the plaintiffs in the second case though the plaintiffs in Wilson v Church were not the plaintiffs in that case.”
The learned trial judge proceeded on the basis of preservation of the properties suspected of being proceeds of crime in the light of the moves by the appellant to dissipate his assets and defeat the purpose of the relevant provisions of the EFCC Act that deals with forfeiture upon conviction.
In Chief Constable of Kent v V & Anor (1982) 3 All ER 36 one of the issues for consideration was the extent of the court’s power to grant interlocutory injunction to the police for the preservation of the proceeds of crime in the public interest. Lord Denning M.R. expounded the legal position thus at page 41:
“I turn therefore to the crucial question in this case, has the Chief Constable sufficient interest to apply for an injunction?
We considered the position of the Police in R v Metropolitan Police Commissioner ex parte Blackburn (1968) 1 All ER 760 at 763 where I said
“I hold it to be the duty the Commissioner of Police as it is of every Chief Constable to enforce the law of the land. He must take steps so as to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace”
To this I would now add that it is the duty once he knows or has reason to believe that goods have been stolen or unlawfully obtained to do his best to discover and apprehend the thief and to recover the goods. Corresponding to that duty, he has a right or at any rate an interest on behalf of the public to seize that goods and detain them pending the trial of the offender and to restore them in due course to the true owner. In pursuance of that duty and of that right and interest, he can apply to the magistrate for a search warrant and to a High Court for an injunction.”
Learned Senior Counsel for the appellant tried to make heavy weather about the Court’s sitting during the Christmas vacation. Order 46(4) of the Federal High Court Civil Procedure Rules, 2009 which excludes sitting during the period beginning on 23rd December and ending on the 5th January next following is limited to purely civil matters but this is subject to the directions of the Chief Judge. The proceedings which resulted in the grant of the ex parte mareva injunction was not a purely civil matter since the action against the appellant was predicated on the preservation of the properties suspected of being proceeds of crime in the light of the moves by the appellant to dissipate the assets geared towards defeating the purpose of the provisions of the EFCC Act on forfeiture upon conviction. The application was therefore quasi criminal in nature.
It has been argued that there was no evidence in support of the respondent’s contention that the appellant misappropriated the sum of N346,185,841,243.75 and another sum of €1,085,515.00 as stated in the schedule attached to the respondent’s motion ex – parte for mareva injunction. Learned counsel argued that an analysis of the counts in charge No. FHC/L/CS/443C/09 would reveal that contrary to the respective amounts stated in Schedule II of the respondent’s motion ex-parte for mareva injunction, the cumulative sum allegedly misappropriated by the appellant as stated therein was N12,945,033. He therefore contended that it was inequitable and unjust for the learned trial judge to grant the orders in favour of the respondent with a view to recovering the said sum. He went on to state that apart from the fact that the amount stated in the respondent’s motion exparte was at variance with the amounts stated in the criminal charge, the particular period within which the appellant acquired the relevant properties were also not stated by the respondent to buttress the contention that the said properties or assets were actually proceeds of economic or financial crime as alleged.
This argument does not merit any consideration because the court did not make an order of forfeiture of the stated amounts. In a purely civil matter it is what is proved that is awarded as special damages but where the damages are not subject to quantification, in appropriate cases general damages are awarded.
An order of forfeiture would result in specific amounts proved. Having listened to the arguments of counsel for the respondent on the ex-parte application, the learned trial judge made the following orders:
“1. That an order be issued as specified in the form of the Schedule to the Economic and Financial Crime Commission Act, 2009, directing the manager or such persons in control of the financial institutions in Schedule 1 to this application, to freeze all the bank accounts held directly, indirectly by or for the benefit or on behalf of Dr. Erastus B.O. Akingbola within Nigeria being accounts recipients of proceeds of economic crimes by Dr. Erastus B.O. Akingbola pending conclusion of trial of the said Dr. Erastus Akingbola
2. It is ordered that all assets being proceeds of economic crimes held directly by or for the benefit or on behalf of Dr. Erastus Akingbola within Nigeria listed in Schedule II to this application be temporarily attached pending the conclusion of trial of the said Dr. Erastus B.O. Akingbola
3. I grant order of Mareva injunction pending trial of the said Dr. Erastus Akingbola, restraining the said Erastus Akingbola, his wife Dr.Anthonia Tolulope Akingbola, his children, relatives, solicitors, Servants, associates, trustees, agents, privies and companies, from removing, alienating disposing of or dealing with or diminishing the value of assests whether held directly or indirectly or for his benefit within the jurisdiction of this court up to the amount set out in Schedule II
4. I grant an order restraining the said Dr. Erastus Akingbola by himself or through his wife, children, relatives, solicitors, servants, associates, attorneys, trustees and privies from giving instructions or directions for the withdrawal from, transfer out of alienating disposing of and dealing with the money kept in all his Bank accounts in Nigeria, in particular parties named in Schedule III to this application whether solely or jointly owned by him, or whether directly or indirectly for his benefit, located within the jurisdiction of this court.
5. Dr. Erastus B.O. Akingbola “is” also restrained pending his trial from giving directions for sale, transfer, alienation, disposal dealing with stocks, or other forms of securities held or kept by the Central Securities Clearing Systems in Nigeria, or any custodian, stock broker, registrar, held whether directly or indirectly by him
6. …
7.The above interim orders are made pending the conclusion of trial of the said Erastus Akingbola.”
[See pages 306 – 310 of Vol. 1 of Records)
Since no order of forfeiture was made, any irregularity attaching to the processes issued cannot be held to be fundamental to warrant setting aside the orders made. I make bold to say that but for the timely intervention of the lower court in granting the preservative orders, the appellant would have disappeared into thin air.
I find that the entire appeal is a challenge on the exercise of discretion by the lower court’s refusal to set aside the orders it made ex-parte. The appellant has not shown that the lower court failed to act judicially or judiciously. It has not been shown that the lower court acted under a misconception of the law or under a mis-apprehension of the facts or it was influenced by irrelevant matters or failed to take account of relevant matters.
The law is settled that a court of appeal will not interfere with the exercise of discretion by the lower court merely because it would have exercised the discretion differently if it had been faced with similar circumstances. See: Nigeria Liquefied Natural Gas Ltd. v. A.D.I.C Ltd. (1995)8 NWLR (Pt. 416) 677 Ejidike v. Akunyili (1990) 5 NWLR (Pt. 152) 564. Seven-Up Bottling Co. Ltd v. Abiola & Son Ltd. supra at 277.
I find that the appeal has no merit and it is accordingly dismissed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I was privileged to have read, before now, the lead judgment in draft prepared and just delivered by my learned brother, Akaahs, JCA. I have equally perused the briefs of argument of the learned senior counsel to the respective parties vis-a-vis the record of appeal, as a whole. Thus, I cannot but concur with the unassailable reasoning and conclusion reached in the lead-judgment, to the effect that the appeal is lacking in merits.
Undoubtedly, the circumstances surrounding the instant appeal come within the purview of the Mareva principles. By virtue of the nature and objective thereof, a mareva injunction prevents the injustice of a defendant taking away his property or assets from the jurisdiction of the court, which (assets) might otherwise have been able to satisfy a judgment. Thus, a mareva injunction is usually resorted to where it is likely that the plaintiff would obtain judgment against the defendant for a certain sum. see DUROJAIYE vs. CONTINENTAL FEEDERS (NIG) LTD (2001) 10 NWLR (pt.722) 659; IFC v. DSNL OFFSHORE LTD (2008) 7 NWLR (pt.1087) 592 at 601 – 602 paras H – A.

It is indeed a well settled principle, that in all mareva injunction applications, the factors that ought to be borne in mind are that –
(i) The application should be made ex parte. This is absolutely so, because secrecy from the defendant is most fundamental; and
(ii) The application should be made expeditiously (with dispatch).
see IFC vs. DSNL OFFSHORE LTD (supra) at 603 paras F – G. Instructively, that the scope of what is popularly known as mareva injunction was novel even to the English until about three and a half decades ago. See NIPPON YUSEN KAISHA V. KARAGEORIGIS (1975) 1 WLR 1093 AT 1093 where in Lord Denning, MR aptly stated thus:
we are told that an injunction of this kind has never been granted before. It has never been the practice of the English courts to seize assets of a defendant in advance of judgment or to restrain the disposal of them. We are told that Chapman J. in chambers recently refused such an application. In this case also Donalson, J. refused it. We know of course that the practice on the continent of Europe is different.
It seems to me that the time has come when we should revise our practice.
Two days ago we granted an injunction ex parte and we should continue it.
Invariably, the genesis of the name ‘Mareva’ is traceable to the locus Classicus MAREVA COMPANIA NAVIERA S.A. V. INTERNATIONAL BULK CARRIERS S.A. (1975) 2 LLOYD’s REPORT 509 to the effect thus: If it appears that the debt is due and owing and there is a danger that the debtor may depose of his assets so as to defeat it before judgment, the court has jurisdiction in a proper case to grant an interlocutory judgment so as to prevent him disposing of those assets. It seems to me that this is a proper case for exercise of this jurisdiction. per Lord Denning, MR at 510. See also SOTIMINU vs. OCEAN STEAMSHIP (NIG) LTD (1992) 5 NWLR (PT.239) 1 AT 25 PARAGRAPH B-H per Nnaemeka – Agu, JSC; DUROJAIYE V. CONTINENTAL FEEDERS (NIG) LTD (2001) 10 NWLR (pt722) 657; EFE FINANCE HOLDINGS LTD V. OSAGIE (2000) 5 NWLR 9pt.658) 536; AIC LTD V. NNPC (2005) 11 NWLR (PT.937) 563, respectively.
Thus, in the light of the above postulations, it’s not at all in doubt that the court below as a court of equity, has inherent jurisdictional competence or power to grant as it did, the interlocutory injunction pending the trial and determination of the criminal charge (No. FHC/L/CS/443c/2009 Federal Republic of Nigeria vs. Erastus B.O. Akingbola) against by the lower court against the Appellant. And I so hold.
I think it would be apt for me to observe, at this point in time that corruption is the hydra headed monster that has for several decades be devilled the corporate existence of this beloved country, Nigeria, in particular, and the entire African continent, in general. The pandemic of corruption has undoubtedly shamed and deminished us all. As the root of all evils known to man, the pandemic of corruption has virtually brought the country to its knees.
Indeed, it’s a truism, that corruption is antithetic to the well cherished democratic ideals and rule of law. As recently lamented by the Hon Justice Kayode Eso, JSC emiritus –
Again, let us pause. Is it not getting to a stage now that the present generation, that is, those who were, at the time of the prediction, of voting age, hardly know what democracy is having regard to lack of transparency and corruption in practically every sector and wanton acceptance thereof, as a normal way of life? It has come to a stage in this country that every sector is presumed to be corrupt. The onus for the proof of transparency now lies on individuals. Thuggery is an accepted norm. Men in police uniform takes bribes openly and with stinging guns in their hands, they have turned themselves in the highways to legalized armed robbers. Only recently, Jesse Jackson, from the United States of America, talking about corruption in Africa said –
For Africa to move forward corruption must be seen as a crime against humanity as we are rich to be poor.
See JUDICIARY AND ELECTIONS presented at the Obafemi Awolowo Institute of Government And Public policy, 2011.
Hence, having concurred with the reasoning and conclusion reached in the lead-judgment, I have no hesitation in holding that the instant appeal is grossly devoid of merits, and it’s hereby dismissed by me.

RITA NOSAKHARE PEMU, J.C.A.: I have had the privilege of reading in draft, the lead Judgment of my brother KUMAI BAYANG AKAAHS JC.A.
I agree with his reasoning and conclusions, and I adopt same as mine. I abide by the consequential order made that the appeal has no merit and same is accordingly dismissed.

Appearances

Chief. F.O. Fagbohungbe SAN with him Rickey Tarfa SAN, Deji Sasegbon SAN, and Anyalewa Onoja (Miss), Odunola Jegede (Mrs.), Ayodeji Jolaso, Michael Sunbola and W. Enyinnaaya (Mrs)For Appellant

AND

G. Obla with E.C. Okpe Damilola Babalola (Mrs.) A. Arowolo, Adebutu (Mrs.) and A.E. AdetomiwoFor Respondent