ECONOMIC AND FINANCIAL CRIMES COMMISSION V CHIEF PATRICK T. CHIDOLUE (2018)

ECONOMIC AND FINANCIAL CRIMES COMMISSION V CHIEF PATRICK T. CHIDOLUE

(2018) LCN/4579(SC)

In the Supreme Court of Nigeria

Thursday, December 13, 2018


Case Number: SC. 444/2011

 

JUSTICES:

WALTER SAMUEL NKANU ONNOGHEN

MUSA DATTIJO MUHAMMAD

JOHN INYANG OKORO

AMIRU SANUSI

SIDI DAUDA BAGE

 

APPELLANTS

ECONOMIC AND FINANCIAL CRIMES COMMISSION

RESPONDENTS

CHIEF PATRICK T. CHIDOLUE

 

 

RATIO

COURTS RAISING ISSUES SUO MOTO

“The law is well settled that it is not the function of any court to raise suo motu issues not canvassed in the proceedings before it which does not touch on the jurisdiction of the court to which counsel were not asked to address it on. It is against the principle of fair hearing for a court to raise an issue suo motu and decide on it without inviting parties to address it on the matter. See Mojekwu Iwuchukwu (2004) 11 NWLR (pt 883) 196, Leaders of Company Ltd & anor v Major General Musa Bamaiyi (2010) 18 NWLR (pt 1225) 329, Agbaye & Sons v Ajibola & ors (2002) 2 NWLR (pt 750) 127, Commissioner for Works, Benue State & anor v Devcon Development Consultants Ltd & anor (1988) 3 NWLR (pt 83) 407, Ochonma v Ashirim Unosi (1965) NWLR 321”.

Per J.I. OKORO, J.S.C

CAN THE COURT BE ACCUSED OF RAISING AN ISSUE SUO MOTU

“More often than not, courts are being accused of raising issues suo motu and deciding on same without inviting the parties to address it on the matter. But at what instance will a court be properly accused of raising an issue suo motu? This question was answered by this court in Mathew Okechukwu Enelewe v International Merchant Bank of Nigeria Ltd (2006) 19 NWLR (pt 1013) 146, (2006) LPELR – 1140 (SC) at page 25 paragraphs A – C, per Tobi, JSC (of blessed memory) as follows:- “A Judge has the right in our adjectival law to use particular words or phrases, which, in his opinion, are germane to his evaluation of the facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for counsel to castigate him or accuse him of raising issue suo motu. A judge can only be accused of raising issue suo motu if the issue was never raised by any of the parties in the litigation. A Judge cannot be accused of raising issue suo motu if the issue was raised by both parties or by any of the parties in the proceeding. In other words, the Court of Appeal cannot be accused of raising issue suo motu if the issue was canvassed at the trial or on appeal”

Per J.I. OKORO, J.S.C

MEANING OF COMPOUNDING AN OFFENSE

Compounding of an offence is defined in the Black’s Law Dictionary, 6th Edition as follows: – “Compounding crime consists of the receipt of some property or other consideration in return for an agreement not to prosecute or inform on one who has committed a crime.”

Per J.I. OKORO, J.S.C

(DELIVERED BY JOHN INYANG OKORO, JSC)
This is an appeal against the judgment of the Court of Appeal Abuja, delivered on 7th March, 2011 wherein the lower court ordered the appellant herein to release the Respondent’s Standard Chartered Bank Cheque No. 00052310 for the sum of N100,000,000.00 (One Hundred Million Naira) which was unlawfully collected from him. A synopsis of the facts will suffice.
At the Federal High Court Abuja, the Respondent herein, by an originating summons dated 17th October, 2008, sought the following reliefs: –
1.A declaration that the Defendant’s forfeiture of the Plaintiffs Standard Chartered Bank Cheque No. 00052310 for the sum of N100,000,000= (one hundred million naira) only is a violation of the Plaintiffs right to property guaranteed under section 44 of the Constitution of the Federal Republic of Nigeria, 1999 and is accordingly unconstitutional and void.
2.An order of mandatory injunction directing the Defendant to release forthwith to the plaintiff his Standard Chartered Bank Cheque No. 00052310 for the sum of N100,000,000= (one hundred million naira) only which the Defendant forfeited from the plaintiff without lawful authority.

3. An order of perpetual injunction restraining the Defendant by themselves, their agents/servants or privies from forfeiting the plaintiff’s property in anyway violating the plaintiffs right to property guaranteed under section 44 of the Constitution of the Federal Republic of Nigeria, 1999.
The Respondent herein, who was plaintiff at the trial court also submitted two questions for determination by that court as follows: –
1.Whether the Economic and Financial Crimes Commission (Establishment) Act, Cap E1 LFN 2004 which established the Defendant conferred on it power to compulsorily take possession or forfeit the property of a citizen of Nigeria without a court order first sought and obtained.
2.If the answer to the above is negative, whether the Defendant is bound to return to the Plaintiff the Standard Chartered Bank Cheque No. 00052310 for the sum of N100,000,000= (one hundred million naira) only which the Defendant compulsorily forfeited from the Plaintiff.

The originating summons which was accompanied by a 17 paragraphs affidavit was heard by the Federal High Court Abuja and in a reserved and considered judgment delivered on 11th February, 2010; the learned Trial Judge dismissed the Respondent’s claim on the ground that the claims were not proved.
Dissatisfied with the judgment of the learned trial judge, the Respondent herein appealed to the Court of Appeal which after hearing, allowed the appeal in part and directed the appellant herein to release to the Respondent the Standard Chartered Bank Cheque for the sum of N100,000,000= (one hundred million naira).
Dissatisfied with the decision of the lower court, the Appellant herein has appealed to this court vide its notice of appeal dated 24th Mach, 2011 and filed on 25th March, 2011.

Although the facts as set out by the appellant in its brief of argument are disputed by the Respondent in his own brief of argument, the facts as stated by the court below shows that sometime in 2005, the appellant received a petition against Chief DSP Alamieyeseigha, a former Governor of Bayelsa State. During the investigation which followed the petition, it was found that the former Governor bought the property known as Chelsea Hotel, Abuja with funds belonging to Bayelsa State Government, using one of his companies, Herbage Global Services Ltd. The property was sold to Alamieyeseigha by Panasonic Industries Ltd; a company owned by the Respondent for One Billion, Five Hundred Million Naira (N1.5B) and a sale agreement evidencing the sale was made.

Following the filing of a charge against Chief DSP Alamieyeseigha and Herbage Global Services Ltd, the Appellant herein obtained an order of temporary forfeiture against the properties of the accused persons in the charge. While the said temporary forfeiture was pending and after Alamieyeseigha was impeached, the Respondent entered into another agreement with the new government of Bayelsa State with the sole aim of re-transferring Chelsea Hotel Abuja to Bayelsa State Government and in the process, he misled the government that he sold the property for two billion naira and that he was only paid one and a half billion, leaving a balance of N500, 000,000=. For this wrong advice, a fresh agreement was entered between the Respondent and the Bayelsa State Government for N400, 000,000=. As a result, a cheque of N400,000,000= was issued to the Respondent. The investigation report and the cheque that was issued to the Respondent by the Bayelsa State Government are not part of the evidence in this appeal.
According to the Appellant, its operatives got to know of the foregoing and the Respondent was invited for interview and questioning. A charge was drafted against the Respondent herein for tempering with a property in respect of which temporary forfeiture order had been obtained. Appellant added that the Respondent offered to refund the sum of N400,000,000= he collected from Bayelsa State Government and deposited a cheque of N100,000= as part payment of the said sum. That all these happened in May, 2006.
However, in October, 2008 the Respondent brought an action at the Federal High Court, Abuja seeking for an order of mandatory injunction directing the Appellant to release to him the cheque he deposited.
As I said earlier, the respondent disputes the above facts as presented by the appellant. Rather, he states that he offered the hotel for the sum of N2,000,000,000.00 [two billion naira). That the sale agreement was made in two batches. That the main agreement was for N1.5B (one billion, five hundred million naira) while the second one was for five hundred million naira (N500,000,000=). That both agreement was prepared and executed on the same date. It is further stated that the Respondent continued to keep the title deed after payment of N1,500,000,000= pending when the balance would be paid. That these agreements are with the Appellant.

According to the Respondent he was detained in Appellant’s custody for over 30 days and was later granted administrative bail after a statement under caution, signing of bail bond and payment of N100,000,000= with Standard Bank Cheque No. 00052310. That during this period, there were threats that respondent will not come out of the detention alive unless he refunds the one billion, nine hundred million naira [N 1,900,000,000= that he collected which was later changed to four hundred million naira N400,000,000=). He concluded that the Respondent paid the sum of one hundred million naira (N100,000,000=) under circumstances of threat and fear for his life. Following the Respondents’ release on bail, he wrote several letters to the Appellant to return the money they collected by force to no avail. The Respondent then commenced this action at the Federal High Court Abuja.
The Notice of Appeal alluded to above contains five grounds of appeal. In an amended Appellants’ brief of argument filed on 9th January, 2018 and deemed duly filed on 19th January, 2018 which was adopted by the learned counsel for the appellant, M. D. Adebayo, Esq on 10th October, 2018 at the hearing of this appeal, two issues are distilled from the said five grounds of appeal. The two issues are as follows: –
1. Whether having regard to the facts and the issues submitted for determination by the parties, the Court of Appeal was right when it held that the Appellant collected the Standard Chartered Bank Cheque for the sum of N100,000,000= (one hundred million naira) on behalf of Bayelsa State Government and that the collection was contrary to the provision of section 14(2) of the Economic and Financial Crimes Commission (Establishment) Act, 2004.

2. Whether the Court of Appeal was not wrong to have held that there was no agreement to compound the offence alleged against the Respondent and that the Appellant violated the Respondent’s right by collecting the money as against prosecuting the Respondent.
On pages 3 – 4 paragraph 2.1 of the Respondent’s brief settled by Hammed Ogunbiyi Esq, of counsel, the two issues formulated by the Appellant are adopted though he submits that only issue 2 is germane for the determination of this appeal I shall, in the circumstance be guided by the two issues distilled by the Appellant for the determination of this appeal.
ISSUES 1 AND II TOGETHER: –
In arguing the first issue, the learned counsel for the appellant referred to part of the judgment of the lower court on page 185 of the record and opined that neither the Respondent nor the appellant raised the issue of the illegality or otherwise of collecting the money from the Respondent, and that nobody said that the money was collected on behalf of the Bayelsa State Government. According to learned counsel, the issue of collecting the money on behalf of the Bayelsa State Government formed the basis of the decision which issue was raised suo motu by the lower court. It is his contention that the court below failed to invite the parties to address the learned Justices on the matter. He contended that a court must not decide an issue not raised by the parties and in respect of which they have not been given an opportunity to address the court, relying on the cases of Usman v Umaru (1992) 7 NWLR (pt 254) 377 at 398, Irom v Okimba (1998) 3 NWLR (pt 540) 19 at 25; Eba v Ogodo (1984) 4 SC 84 at 112.
According to learned counsel, had the lower court invited the parties to address it on the point, it would have been made clear that the ownership of any sum of money or property recovered pursuant to section 14(2) of the Economic and Financial Crimes Commission Act is irrelevant. That the lower court gave a narrow interpretation to the provision tending to suggest that only offences in which the Federal Government of Nigeria is the complainant can be compounded. It is his submission that there is nothing in section 14(2) of the Economic and Financial Crimes Commission Act (supra) that forbids the appellant from compounding the offence alleged against the Respondent herein. Learned counsel stressed that the power to prosecute for an offence is not determined by the ownership of the property allegedly stolen or misappropriated, citing the case of Ngame v Federal Republic of Nigeria (2010) 7 NWLR (pt 1193) 344 at 403.
Finally, learned counsel submitted that the position taken by the Court of Appeal that since the subject matter of the offence alleged against the respondent was the fund of a State Government, the Appellant could not have compounded the offence as the money belonging to a State Government cannot be paid into the Consolidated Revenue Fund is misconceived. He urged the court to resolve issue one in favour of the appellant.
On issue 2, he submitted that since the Respondent knew that he had committed an offence, the N100,000,000= he paid was part payment for the compounding of the offence. He submitted that it was wrong for the lower court to hold that the collection of the said sum of N100m was unlawful. He faulted the reliance by the lower court on section 36(4) and (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the case of Dr. Denloye v Medical & Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306 in coming to the decision that the collection of the money from the respondent was unlawful. He urges the court to resolve this issue in favour of the appellant and reprimand the respondent for wanting to reap where he did not sow.
In response, the learned counsel for the Respondent submitted on the first issue that contrary to appellant’s submission that none of the parties raised the issue of illegality of the collection of the cheque, the case of the Respondent right from the trial court and lower court is that the appellant had no power to unilaterally collect the Chartered Standard Bank Cheque for the sum of one hundred million naira (N100,000,000=) only without a court order. He contended that the ratio of the judgment of the lower court is that the collection of that money was certainly not in accordance with the provision of section 14(2) of the Economic and Financial Crimes Commission (Establishment) Act 2004. According to him, the mention of the Bayelsa State Government in the judgment was an obiter and not the ratio decidendi of the judgment. He urged the court to discountenance the appellant’s paragraphs 4.09 to 4.14 of its brief as they seek to give evidence of the transactions leading to the purchase of Chelsea Hotel Abuja.
Learned counsel submitted that issue of section 14(2) of the Economic and Financial Crimes Commission Act was argued by the parties right from the trial court and as such cannot be an issue raised suo motu by the lower court.
On what constitutes compounding of offence, learned counsel referred to the definition in Black’s law Dictionary, 6th Edition. He submitted that the events that transpired between the Appellant and the Respondent on 23rd June, 2016 when the N100,000,000= cheque was forfeited falls short of compounding the purported offence committed by the Respondent. He asked: “where is the agreement?’ to compound the offence. He urged this court to affirm the judgment of the lower court on this issue and resolve same against the appellant.

On the second issue, learned counsel submitted that since both parties agree that an agreement is essential for compounding an offence, the existence of such agreement is essential to the resolution of this matter. Learned counsel asked the court to agree with the lower court that before the appellant can compound an offence, it must be done after the matter is filed in court.
Learned counsel contended that the facts and transaction which led the respondent to part with his money in exchange for his freedom after 30 days in captivity cannot amount to compounding an offence. That at the close of investigation, what was against the Respondent was still an allegation. That the Respondent was still innocent and the appellant ought not to have deprived him of his money without taking him to court. He urged the court to resolve the second issue against the appellant.
The law is well settled that it is not the function of any court to raise suo motu issues not canvassed in the proceedings before it which does not touch on the jurisdiction of the court to which counsel were not asked to address it on. It is against the principle of fair hearing for a court to raise an issue suo motu and decide on it without inviting parties to address it on the matter. See Mojekwu Iwuchukwu (2004) 11 NWLR (pt 883) 196, Leaders of Company Ltd & anor v Major General Musa Bamaiyi (2010) 18 NWLR (pt 1225) 329, Agbaye & Sons v Ajibola & ors (2002) 2 NWLR (pt 750) 127, Commissioner for Works, Benue State & anor v Devcon Development Consultants Ltd & anor (1988) 3 NWLR (pt 83) 407, Ochonma v Ashirim Unosi (1965) NWLR 321.
More often than not, courts are being accused of raising issues suo motu and deciding on same without inviting the parties to address it on the matter. But at what instance will a court be properly accused of raising an issue suo motu? This question was answered by this court in Mathew Okechukwu Enelewe v International Merchant Bank of Nigeria Ltd (2006) 19 NWLR (pt 1013) 146, (2006) LPELR – 1140 (SC) at page 25 paragraphs A – C, per Tobi, JSC (of blessed memory) as follows: –
“A Judge has the right in our adjectival law to use particular words or phrases, which, in his opinion, are germane to his evaluation of the facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for counsel to castigate him or accuse him of raising issue suo motu. A judge can only be accused of raising issue suo motu if the issue was never raised by any of the parties in the litigation. A Judge cannot be accused of raising issue suo motu if the issue was raised by both parties or by any of the parties in the proceeding. In other words, the Court of Appeal cannot be accused of raising issue suo motu if the issue was canvassed at the trial or on appeal”
In the instant appeal, there is no doubt that the central issue is the legality or otherwise of the collection and forfeiture of the Respondent’s cheque worth N100,000,000= being part of transaction fee between the Respondent and the Bayelsa State Government. The learned counsel for the appellant argued that the court below raised the issue of N100m belonging to Bayelsa State Government suo motu. This is not correct. The issue had been in the litigation right from the trial court. Indeed, the trial court even made reference to this issue in its judgment, particularly on page 118 of the record of appeal as follows: –
“In particular, the Defendant (sic) did not file a further and better affidavit to controvert the Defendant averments that the N100,000,000= (one hundred million naira) cheque was deposited as part payment of the total sum of N400,000,000,00 (four hundred million naira) belonging to Bayelsa State Government under an agreement….,” (italics mine for emphasis),
I am surprised that the trial court was never accused of raising the issue suo motu. It is therefore not the Court of Appeal which introduced the issue into the litigation. It can therefore not be accused of raising the issue suo motu.
And in any case, was the observation that the N100m was part of N400m belonging to Bayelsa State Government the reason for the decision. The answer is No. At best it is an obiter dictum which is a statement made in passing which does not reflect the ratio decidendi, that is, the reasoning or ground upon which a case is decided. See Clement Odunuhure v Denis Ofomata & anor (2010) LPELR – 2250 (SC). In fact, an obiter dictum is an expression of opinion made in giving a judgment by the Judge but not necessary to his decision and accordingly cannot form part of the ratio decidendi of the judgment. See Dr. Saraki Oshodi & ors v Yisa Oseni Eyifunmi & anor (2007) 7 SC (pt 2) 145, (2000) LPELR – 2805 (SC).
Let me say that if the issue of collecting money on behalf of Bayelsa State Government was the only argument herein, I would have struck out that issue as being incompetent. However, it is a double barrel issue which also relates to the illegality or otherwise of the appellant collecting the money. In paragraph 4.03 of the appellant’s brief, learned counsel stated that neither the Respondent herein nor the Appellant raised the issue of the illegality or otherwise of collecting the money.
Again, as was pointed out by the learned counsel for the Respondent in their brief, this issue was central to the Respondent’s case both at the trial court and the court below. Issue one in the plaintiffs (now Respondent) written submission on page 69 of the record of appeal states: –
“Whether the Economic and Financial Crimes Commission (Establishment) Act, Cap El Laws of Federation of Nigeria 2004 which established the defendant conferred on it power to compulsorily take possession or forfeit the property of a citizen of Nigeria without a court order first sought and obtained.”
When the Respondent as plaintiff filed this matter at the trial court, the contention was that the collection of the money was not in accordance with the law particularly, section 14(2) of the EFCC Act, and he urged that the cheque bearing the sum of N100m be returned to him. It is therefore wrong to argue that the issue of the illegality or otherwise of collecting the money was never raised by any of the parties.
Part of the decision of the lower court which has given birth to the grounds of appeal from which issue 1 has been distilled is as contained on page 185 of the record of appeal which states thus: –
“The collection of that money is certainly not in accordance with the provision of section 14(2) of the Economic and Financial Crimes Commission (Establishment) Act 2004. Since the Respondent is not empowered under the provisions of section 14(2) of the Act to collect the said money on behalf of Bayelsa State Government, such order to collect the money should have been made by the court only, if the Appellant was arraigned before a court of competent jurisdiction. Subsection (3) of section 14 of the Act provides that all money’s (sic) received by the Commission under the provisions of subsection (2) of this section shall be paid into the Consolidated Revenue Fund of the Federation. This has further strengthen (sic) the fact that the cheque was collected unlawfully as money belonging to Bayelsa State Government cannot be paid into the Consolidated Revenue Fund of the Federation”
Based on the above pronouncement by the lower court, the learned counsel for the appellant made heavy weather on it, submitting that the court of appeal unwittingly limited the scope of the offences which the EFCC can compound to only offences in which the Federal Government of Nigeria is the complainant. I must say without equivocation that there is nothing in the judgment of the lower court appealed against, including the portion reproduced above which suggests and/or support the contention of the appellant alluded to above. The court below never said that only offences which the Federal Government is the complainant which can be compounded. So, that argument does not fly at all. It is of no moment.
Now, section 14(2) and (3) of the Economic and Financial Crimes Commission (Establishment) Act, 2004 states: –
“14(2) Subject to the provisions of section 174 of the Constitution of the Federal Republic of Nigeria, 1999 (which relates to the power of the Attorney – General of the Federation to institute, continue, takeover or discontinue criminal proceedings against any person in any court of law), the commission may compound any offence punishable under this Act by accepting such sums of money as it thinks fit, exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence.
(3) All moneys received by the Commission under the provisions of subsection (2) of this section shall be paid into the Consolidated Revenue Fund of the Federation”

From the above provisions, the appellant is empowered to do the following: –
1.Compound any offence punishable under the EFCC Act (subject to the provision of section 174 of the Constitution of the Federal Republic of Nigeria (as amended).
2.By accepting such sums of money as it thinks fit
3.However, such sums of money must exceed the maximum amount to which that person would have been liable if he had been convicted of that offence.
4.Such money shall be paid into the Consolidated Revenue Fund of the Federation.
My understanding of the above provision is that where a person, be it Federal Government, State Government, Local Government, an institution or an individual complains to the EFCC that someone has defrauded him or it, and the EFCC, in the process of investigation, makes some financial recoveries, such recoveries being part of the monies of the complainant, belongs to the complainant and ought to be paid to the complainant. It is not the money contemplated under subsection (3) which is to be paid into the Consolidated Revenue Fund of the Federation. This is the context which the court below and even the trial court describes the N100,000,000= paid by the Respondent to the appellant as money belonging to Bayelsa State Government.
However, where an offence has been established against an accused person and a charge is prepared against him, and the accused person accepts he has committed the offence, both parties, i.e. the EFCC and the accused may agree to compound the offence. That is to say, the accused accepts to pay a certain sum of money to the EFCC to avoid being prosecuted. This money must of course exceed the maximum amount to which that person would have been liable if he had been convicted of that offence. It is this other money which, by subsection (3) must be paid into the consolidated Revenue Fund of the Federation. Definitely, not the money recovered on behalf of the complainant.
In order to determine whether the N100m collected from the Respondent was part of the N400m allegedly paid to the Respondent by the Bayelsa State Government or for compounding of the offence, I need to examine what compounding of offence means and how it can be properly done.
Compounding of an offence is defined in the Black’s Law Dictionary, 6th Edition as follows: –
“Compounding crime consists of the receipt of some property or other consideration in return for an agreement not to prosecute or inform on one who has committed a crime.”
To properly compound an offence by the EFCC, under the EFCC Act, the following must co-exist: –
1. The accused must not only have knowledge of the offence, there must be the actual commission of crime.
2.There must be an agreement not to prosecute.
3.There must be a receipt of consideration i.e. sums of money exceeding the maximum amount to which that person would have been liable if he had been convicted of the offence.
4.The offence must be punishable under the EFCC Act.
In this case, although the Respondent was arraigned and detained for over 30 days by the appellant on the allegation of commission of some offence, there is no evidence that the Respondent accepted that he committed the offence. It must be noted that the respondent was not tried in court and as such there are no findings by the court on these issues.
Secondly, the court below held that there is no evidence that there was an agreement between the appellant and respondent on the issue of compounding the crime for which the Respondent was to be charged. The view expressed by the Court of Appeal in the case of Romrig Nig Ltd vs Federal Republic of Nigeria (2014) LPELR – 22759 (CA) at page 40 – 41 paragraphs E – A are very persuasive here. It states: –
“Parties cannot expect the court to act on an imaginary agreement Even though there was at that time no procedural law of the Federal High Court or the Criminal Procedure Act regulating plea bargain agreement, I am of the humble opinion that the procedure employed by parties was too casual Even in ordinary out of court settlement issues, parties reduce their settlement terms into writing and present it to the court. The documentation of a plea bargain agreement is not only desirable; it is most logical as it would prevent the inconsistencies that trail oral evidence such as distortion of agreement terms by parties at will”
I share the above thoughts by the Court of Appeal on the issue. The appellant is of the opinion that the N100,000,000= taken from the Respondent was part of money he should pay to facilitate the compounding of the offence he is alleged to have committed. However, the respondent says the money was collected from him under duress in order to secure his bail after being incarcerated for over 30 days. The question now is, where is the agreement? Unfortunately, there is none. In this type of transaction, no matter how small or how big the amount involved, there ought to be a written understanding signed by the parties evidencing the payment and reason for the payment of the money. It cannot be left in the heart or sub consciousness of either party. The courts, not being present at the time parties enter into transaction, rely on evidence of such transaction tendered by the parties. Had an agreement been written and signed by the parties/this controversy would have been easy to resolve, especially as the appellant states in his brief that the respondent agreed to return the N400m he collected from Bayelsa State Government and deposited N100m as part payment of the said sum. On page two of appellant’s brief of argument, particularly paragraph 2.03, the appellant states: –
“The Respondent pleaded with the Appellant and offered to return the sum of N400,000,00.00 (Four hundred million naira) he collected by false pretences from Bayelsa State Government. The Respondent deposited a cheque of N100,000,000.00 (One hundred million naira) as part payment of the said sum of N400,000,000.00 and he further undertook to pay to pay the balance in three instalments. All these happened in May, 2006. (Underlined part is mine for emphasis).
The above quotation is part of statement of facts as submitted by the Appellant in its brief of argument. By the appellant’s showing, it is clear that the sum of N100m collected from the Respondent was part of the N400m he collected from Bayelsa State Government and the said money was a deposit as the Respondent is alleged to have promised to refund the balance at three instalments. Clearly, that sum of N100m was not money for compounding offence but part of money belonging to Bayelsa State Government as stated by the appellant itself. The question may be asked, had the Respondent refunded the entire N400m, could the appellant have paid same into the Consolidated Revenue Fund of the Federation? I do not think so. The reason is that the money contemplated by section 14(2) of the EFCC Act is the fine exceeding the maximum amount to which the Respondent would have been liable if he had been convicted of that offence. Definitely not the monies belonging to the complainant. Conviction takes place in court, not at the EFCC office.
Again, there is no evidence before the court that this money was returned to Bayelsa State Government or paid into the Consolidated Revenue Fund of the Federation. Had it been returned to Bayelsa State Government, the court would have held that the money had been given to the said Government as part of the N400,000,000= it allegedly paid to the Respondent. Conversely, if it was paid into the Consolidated Revenue Fund of the Federation, it would have been deemed to be in accordance with section 14(3) of the Economic and Financial Crimes Commission Act. There is no evidence that either of these steps was taken. The question may be asked: where is the money? The only reasonable guess would be that it is in the custody of the Appellant. This money was paid in 2006 but up to 2008 when the respondent filed his case in court, nothing happened. The Respondent was neither charged to court nor further payments made
The next question which may be asked is what was the maximum amount to which the appellant would have been liable if he had been convicted of that offence?
Evidence of the maximum amount is necessary vis -avis the N100,000,000= collected from the appellant because section 14(2) provides that the amount for compounding of an offence must exceed the maximum amount the accused would have paid had he been convicted of the offence. Unfortunately, evidence of this is also lacking.
All I have endeavoured to say above tend.to, and in fact, do support the decision of the court below that the collection of the N100m from the Respondent by the Appellant was not in accordance with section 14(2) of the EFCC Act.
I need to emphasise that security agencies saddled with the enforcement of certain statutes are bound to do so within the bounds of the rule of law. Those entrusted to enforce the law, should not themselves break the law. Had the EFCC followed the law to the letter, and made a valid agreement to compound the offence the Respondent is alleged to have committed, there would have been no lacuna which the Respondent appears to have exploited in this case. Although the Appellant has an unfettered statutory power to compound offences, it has to do so with an agreement which will show that an offence has been committed, the accused must agree he had committed the offence, the offence must be punishable under the EFCC Act, the accused must agree to pay a certain amount to the EFCC which amount must exceed the maximum sum he would have paid had he been convicted of that offence. The conclusion of the agreement must state that the accused has paid the said sum of money which has been paid into the Consolidated Revenue Fund of the Federation and a receipt thereto attached. Both parties would then append their signatures to the said agreement. These steps are lacking in the present appeal. I agree with the court below that the appellant did not collect the N100m from the Respondent in accordance with section 14(2) of the EFCC Act. I resolve issues 1 and 2 against the appellant.

Having resolved the two issues against the appellant, it is clear that there is no merit in this appeal. It is accordingly dismissed. The judgment of the Court of Appeal delivered on 7th March, 2011 is hereby affirmed. I make no order as to costs.
Appeal Dismissed.

WALTER SAMUEL NKANU ONNOGHEN, CJN: On the 17th day of October, 2008, the Respondent, then Plaintiff, by way of Originating Summons, raised the following questions for determination by the Federal High Court, Abuja:
“QUESTIONS FOR DETERMINATION:
1.Whether the Economic and Financial Crimes Commission Establishment etc Act, Cap EL LFN, 2004 which established the defendant conferred on it power to compulsorily take possession or forfeit the property of a citizen of Nigeria without a court order first sought and obtained?
2.If the answer to the above is negative, whether the defendant is bound **** Standard Chartered Bank cheque, No. 00052310 for the sum of N100,000,000 (One Hundred Million) only which the defendant compulsorily forfeited from the plaintiff”
In expectation that the answers to the above questions will be favourable to his case, the plaintiff urged the court to grant the following reliefs:
“1. A declaration that the defendant’s forfeiture of the plaintiff’s Standard Chartered Bank Cheque No. 00052310 for the sum of N100,000,000 (One Hundred Million Naira) only is a violation of the plaintiff’s right to property guaranteed under section 44 of the Constitution of the Federal Republic of Nigeria, 1999 and accordingly unconstitutional and void.
2.An Order of mandatory injunction directing the defendant to release forthwith to the plaintiff his Standard Chartered Bank Cheque No. 00052310 for the sum of N100,000;000 (One Hundred Million Naira) only which the defendant forfeited from the plaintiff without lawful authority.
3.An Order of perpetual injunction retraining the defendant by (sic) themselves, their agents/servants or privies from forfeiting the plaintiff’s property in any way violating the plaintiff’s right to property guaranteed under section 44 of the Constitution of the Federal Republic of Nigeria, 1999”
The appellant stated the particulars of his reliefs as follows:
“Particulars
1. Sometime in May 2006, the defendant arrested the plaintiff on the allegation that **** to tempering with the evidence in a matter they were investigating and intermeddling with a forfeiture order made by a court.
2.The plaintiff denied the allegation against him.
3.The defendant insisted that the plaintiff is liable and timely detained the plaintiff for a period of 30 days without filing a charge against him in any court of law.
4.The defendant insisted that the plaintiff would not be granted bail unless he (sic) to the defendant the sum of N400,000,000 (Four Hundred Million Naira) only
5.On the 23rd day of June 2006, the plaintiff decided to minimise his suffering and pain in detention, he agreed under duress to forfeit to the defendant the Standard Chartered Bank Cheque No. 00052310 for the sum of N100,000,000 (One Hundred Million Naira) only.
6.On the same day (23rd day of June 2006) the defendant granted bail to the plaintiff.
7.It is against this background that the plaintiff commenced this Originating Summons.”
In support of the Originating Summons, the plaintiff filed a 17 paragraph affidavit to which he exhibited the following documents -Exhibits ‘A’ & ‘A1′ – a copy of each of the statements he made to the defendant each. B – a copy of the bail bond, and Exhibit C. – a copy of a letter demanding of the defendant the return of the cheque No. 00052310 to the plaintiff.
Upon service of the plaintiff’s (now respondent) process on the defendant (now appellant) it filed a notice of preliminary objection predicated on the grounds that;
“1 The defendant objector is a public officer within the meaning of the Public Officers Protection Act
2.The defendant objector acted in the course of her duties as a public officer.
3.This action was not commenced within 3 months of the accrual of the cause of action.
4.The action is statute-barred.”
In support of the grounds of the preliminary objection, the respondent (now appellant) filed “a court affidavit The appellant also filed a 34 paragraph counter affidavit in opposition to the reliefs sought in the Originating Summons” exhibiting some documents it considered relevant to the determination of the issues raised, including a copy of an undated/signed one count charge against the plaintiff and one other as accused persons. Appellant (as respondent) filed “written submission in opposition to the plaintiff’s Originating Summons dated 17th October, 2008.” The plaintiff’s reply on point of law was dated, and filed on the 2nd day of July 2009.
On the 13th day of May 2009, the learned trial Judge, Bello J. indicated to learned Counsel to the parties that the Originating Summons and the Preliminary Objection there-to would be taken together at the hearing of the matter. His Lordship specified times within which learned Counsel would file and exchange their respective written submissions on the matters.
At the hearing on 3rd day of November 2009, learned Counsel for the parties adopted and relied on their respective written addresses in the original summons as well as the preliminary objection and the court adjourned to 15/1/2010 for judgment. In the judgment which was eventually delivered on 11/2/2010, the court overruled the preliminary objection and dismissed the claim. Aggrieved by the judgment, the plaintiff appealed to the Court of Appeal, Abuja Division.
On 7/3/2011, the Court of Appeal allowed the appeal in part and ordered that “the Respondent releases forthwith to the Appellant the Standard Chartered Bank Cheque No. 00052310 for the sum of J4100,000,000 (One Hundred Million Naira) only which the Respondent collected from the appellant within 30 days….”
Aggrieved by the judgment, appellant, by an amended Notice of Appeal filed by leave of this court on 9/1/2018, challenged same on six grounds.
In compliance with the rules of this Court, learned Counsel for the parties filed and exchange briefs of argument. In his brief of argument filed on issues from hi: six grounds of appeal. The issues are hereunder reproduced:
1.Whether having regard to the facts and the issues submitted for determination by the parties the Court of Appeal was right when it held that the appellant collected the Standard Bank cheque for the sum of N100,000,000 on behalf of Bayelsa State Government and that the collection was contrary to the provision of section 14(e) of the Economic and Financial Crimes Commission (Establishment) Act 2004 (see grounds 1 & 2)
2.Whether the Court of Appeal was not wrong to have held that there was no agreement to compound the offence alleged against the respondent and that the appellant violated the respondent’s right by collecting the money as against prosecuting the respondent, (see Grounds 3, 4 & 5).
Though learned lead Counsel for the respondent was of the view that appellant’s Counsel’s issue 2 only has relevant for the determination of the appeal, he- nevertheless adopted the two issues formulated by the appellant.
Arguing issue one in his brief, learned Senior Counsel for the appellant reproduced a portion of the judgment of the court below and deduced the following as the reasons for the decision of the court:
“a. The Court of Appeal held that the Appellant herein collected the money on behalf of Bayelsa State Government.
b.It is oily a Court of Law that can order the collection of the money.

c.The money belonging to the Bayelsa State Government cannot be paid into the consolidated Revenue Fund of the Federation.
d.The appellant acted illegally by collecting the money.”
He pointed out the illegality vel non of collecting the money and/or collecting same on behalf of the Bayelsa State Government was not raised by either party. To drive home his points he reproduced the two issues presented to the court below for resolution, to wit:
“1. Whether in the circumstances of this case the burden of proof that the Appellant made the statements in Exhibits A’ and AY under duress is on the Appellant?
2. Whether it was necessary that the Appellant files a further and better affidavit in answer to new facts in the Respondent’s Counter-Affidavit alleging that Exhibits A and A1 constitute an agreement between the Appellant and Respondent to compound the offence contained in Exhibit AGS?” He referred to page 164 of the record for the sole issue formulated by the Appellant for the lower court to resolve.
Whether having regard to the evidence placed before the lower court, the learned trial Judge was not right to have dismissed the Appellant’s suit.”
He emphasised that the issue that formed the basis of the decision of the lower court was not raised by either party but was raised suo motu and contrary to the admonition of this court, the court below resolved the issue without giving the parties opportunity to address it thereon. He relied on Usman vs Usman **** 398, Irom vs. Ukimba (1998) 3 NWLR (pt 540) 19 at 25 and Eba vs. Ogodo (1984) 4 SC 84 at 112 wherein ESO, JSC restated the principle, thus:
“With utmost respect, it should be place in to the Court of Appeal that where an issue is not placed before it, it has no business whatsoever to deal with it. A Court of Appeal is not a knight errand looking for skirmishes all about the place.”
Placing reliance on Suay Gbagbarisha vs. Achikumo Toruemi & Anor (2013) 6 NWLR (pt. 1350) p. 289 at 310 paras C – D Counsel stated the exceptions to the principle in the cases he relied on as:
“(a) When the issue relates to the court’s own jurisdiction.
(b)When both parties are not aware of or ignored a statute which may have a bearing on the case
(c)When on the face of the record, serious questions of the fairness of the proceedings is in evidence.” He submitted that the case at hand is not within the exceptions.
Learned Counsel further argued that the respondent, in contravention of Section 32(i) of the Economic and Financial Crimes (Establishment) Act 2004 collected the sum of N4400,000,000 (Four Hundred Million Naira) only from the Bayelsa State Government in respect of property which was the subject matter of Interim Order of attachment made by the Court. He added that when the respondent’s attention was drawn to the law he violated he agreed to **** offence by payment of the sum of N400,000,000 to the appellant who had intended to prosecute him for the offence, and that there was no evidence that the money was to be collected on behalf of the Bayelsa State Government; nor is there evidence that the Bayelsa Government approached the appellant to recover the money for the Government. He referred to section 14(2) & (3) of the Economic and Financial Crimes Commission Act and submitted that the ownership of the money or property recovered pursuant to the Act is not relevant, and that the money so recovered is, pursuant to section 2 of the Act to be paid into the consolidated Revenue Fund of the Federation. He urged the court to resolve issue one in favour of the appellant.
On issue 2, learned Counsel reproduced in part, page 185 of the records as follows:
“I have held in this judgment that there was no agreement between the parties to compound the offence. This being so, payment by the Appellant of the money aforesaid amounted to punishment.”
He argued that the power of the appellant to compound an offence is derived from Section 14(2) of the (EFCC Establishment) Act 2004. He referred to the definition of Compounding Crimes and its constituent elements at page 286 of the 6th Edition of Black’s Law Dictionary as;
1. The agreement not to prosecute.
2. Knowledge of the actual commission of a crime and

3. The receipt of some consideration. He faulted the reasoning of the court below to the effects that though the last two elements were present in this case “there is no evidence that there is a valid agreement between the Appellant and the Respondent on the issue of compounding the crime for which the Appellant was charged. (Underlining mine for emphasis) He submitted that appellant complied with the enabling Act in compounding the crime alleged against the Respondent. He argued further that the Court below was wrong in its decision that there was no agreement as to prosecuted the respondent contrary to the facts before the court. He said that the court below erred by ignoring Section 14(2) of the EFCC Act and placing reliance on Section 36(4) & (5) of the Constitution and the case of Dr. Denioye vs. Medical and Dental Practitioners Disciplinary Committee (1968) 1 All NLR 306 in its conclusion that the collection of the money in the circumstance was unlawful. He added that there was no challenge to the Constitutionality of Section 14 (2) of the Act.
Learned Counsel argued that it is unjust and an endorsement of fraud to allow the respondent go away with the money he fraudulently obtained. He urged the court to resolve the issue in favour of the appellant. Finally, he urged the court to allow the appeal and affirm the decision of the trial court dismissing the respondent’s case.

Learned Counsel for the respondent in his submission in relation to issue one urged the court to dismiss the appeal as haven been brought against an obiter dicta and not against a ratio decindi. In response to the argument of the appellant that neither party put the legality vel non of collecting the money by the appellant in issue, learned Counsel argued that the respondent’s case, at the trial court, is that appellant had no power to unilaterally collect the money from the respondent. With regards to the issues formulated by the parties before the lower court, Counsel argued that an appellate court is at liberty to adopt issues presented by the parties or formulate issues that would determine the real grievance in an appeal if not satisfied with the issues so formulated by the parties. He relied on Obiuwuebi vs. Central Bank of Nigeria (2011) 7 NWLR 465 at 490 – 491. In answer to the appellant’s submission that the court below based its judgment on its finding that appellant collected the money on behalf of Bayelsa State Government he submitted that the reference to sub section 14(3) of the EFCC Act that the money was collected on behalf of Bayelsa State Government is obiter dicta and did not form the basis of the lower court’s decision. He submitted further that the basis of the lower court’s decision or the ratio decidendi is the court’s finding that “the collection of that money is certainly not in accordance with the provision of section 14(2) of the Economic and Financial Crime **** Since the Respondent is not empowered under the provisions of section 14(2) of the Act to collect the said money on behalf of Bayelsa State Government, such order to collect the money should have been made by the court on, if the appellant were arraigned before a court of competent jurisdiction.”
Learned Counsel urged the court to ignore appellant’s argument in relation to suits No. FHC/333/10 – Chelsea Hotel & 3 ors v. AG, Bayelsa State & 2 ors, CA/L/507/N/2014 Patnasonic Ind. Ltd v. AG, Bayelsa State & Anor, CA/L/M/2014 which are subjudice.
On issue two, learned Counsel reproduced section 14(2) of the EFCC Act and argued that, contrary to the contention of the appellant it cannot compound an offence “without the involvement of court of law”. (Underlining mine). He is of the view that the law does not give such wide powers without the supervision of the courts. He urged the court to interpret the section in the light of the facts of this case. Upon reliance on paragraphs, 6, 7, and 8 of the affidavit in support of the Originating Summons which he said were unchallenged, he submitted that the Respondent was released on bail only after he agreed to pay the sum of 14400,000,000= to the appellant. In response to the argument that all appellant did was to investigate a case bordering on economic crime, learned Counsel argued that whatever the outcome of the investigation it remained an allegation which cannot deprive the **** Constitutional right of presumption of innocence. He argued that appellant was the investigator and the judge at the same time. He urged that the justice of the case demands the affirmation of the judgment of the court below and urged the court to so “do.
Issue One questions the decision of the court below that appellant:
(1)collected the Standard Chartered Bank cheque for the sum of N100,000,000 (One Hundred Million Naira) only on behalf of the Bayelsa State Government.
(2)The collection violated the provision of Section 14 (2) of the EFCC Act.
A valid decision of a court of trial or appellate, must be based on the issues submitted to it by the parties and canvassed before it. If the court is of the view that the issue before it is not capable of justly settling the dispute between the parties, it can reframe the issue from the grounds of appeal. See Ifeanyichuchu Trading Investment Ventures Ltd & Anor v. Onyesom Community Bank Ltd (2016) Vol. 251 LRCN 80.
I agree with learned Counsel for the respondent and my learned brother OKORO JSC in the lead judgment that the legality vei non of the collection of the cheque for N100,000,000= by the appellant was the respondent’s case at the trial court; the lower court’s findings that appellant collected the money on behalf of Bayelsa State Government, and that only a court of law can authorise the collection of the money or that the money belonged to Bayelsa State Government and so cannot be paid into the consolidated revenue fund of the Federation do bear relation to the issues the parties submitted to the lower court for resolution. The court is limited in its decision making to the issues before it and any pronouncement outside such issues cannot be justified in a court of law or is regarded as obiter dicta.
There is no doubt whatsoever that the pivot of the suit/claim leading to the instant issue in the appeal is the legality or otherwise of the collection of the cheque of the respondent to the tune of N100,000,000= and forfeiture of same being part of the transaction between the respondent and Bayelsa State Government.
While it is the contention of learned counsel for appellant that the lower court raised the issue suo motu and without calling for arguments from counsel for the parties, the record clearly shows, at page 118 of the record that the trial judge made reference to it in its judgment thus:
“……In particular, the Defendant (sic) did not file a further and better affidavit to controvert the Defendant averments that the N100,000,000= (One hundred million naira) cheque was deposited as part payment of the total sum of N100,000,000:00 (Four hundred million naira) belonging to Bayelsa State Government under an agreement……”
It is noteworthy that the above finding by the trial court was never challenged at the lower court as being unsupported by the facts **** joined in the proceedings or that they were raised suo motu by that court. The above being the case it is strange that the lower court which confirmed/affirmed the above findings is now being accused of raising the issue suo motu!
The ownership of the money collected by the appellant, the proper authority to collect the money and its payment into the Revenue Fund of the Federation are issues relevant to the determination of the appeal and were accordingly and correctly, in my considered view, resolved by the lower court.
It is for the above reasons and the more detailed reasons contained in the lead judgment of my learned brother OKORO, JSC just delivered, that I too hold the considered view that the appeal is devoid of merit and ought to be dismissed.
I hereby order accordingly and abide by the consequential orders made in the said lead judgment including the order as to costs.
Appeal dismissed.
SIDI DAUDA BAGE, JSC: I have had the benefit of reading in draft the lead Judgment of my learned brother John Inyang Okoro JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The appeal lacks merit and it is accordingly dismissed. The Judgment of the Lower Court is hereby affirmed.
AMIRU SANUSI, JSC: I read before now the Judgment just delivered by my learned brother J. I. okoro, JSC. His lordship had ably and adequately treated all the salient issues raised and canvassed by learned counsel of the parties in this appeal.
I am in entire agreement with the reasoning and conclusion arrived at by my noble lord in the leading Judgment that this appeal lacks merit and it therefore fails. It is also accordingly dismissed by me for being unmeritorious and for that reason, I affirm the Judgment of the court below. Appeal dismissed
MUSA DATTIJO MUHAMMAD, JSC: I have read in advance the lead judgment of my learned brother JOHN INYANG OKORO JSC. I agree with the reasoning and conclusion therein that the appeal which lacks merit be dismissed. I have nothing useful to add. I adopt the lead judgment as mine in dismissing the appeal. I abide by the consequential orders reflected in the lead judgment including the order on costs.

COUNSELS

M.D. ADEBAYO, ESQ., with O. A. Atolagbe; Esq., for the Appellant.|HAMEED OGUNBIYI, ESQ., for the Respondent.|

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