ESAI DANGABAR v. FEDERAL REPUBLIC OF NIGERIA
(2012)LCN/5820(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 24th day of July, 2012
CA/A/256/2012
RATIO
WORDS AND PHRASES: MEANING OF INVESTIGATE AND INVESTIGATION
The word investigate is defined by Black’s Law Dictionary, 6th Edition to mean to examine and inquire into with care and accuracy, to find out by careful inquisition, examination, the taking of evidence, a legal inquiry.
Also, Legal and Commercial Dictionary 6th Edition by Tapash Gan Choudhury defines ‘investigation’ at page 479 as:-
Careful search, study, closes inquiry, scrutiny, detail examination, collection of facts, inquiry to ascertain facts, inquiry, exhaustive study, and systematic search . PER JIMI OLUKAYODE BADA, J.C.A.
WORDS AND PHRASES: MEANING OF EXAMINATION AS IT RELATES TO CRIME
The same Black’s Law Dictionary 6th Edition at page 558 defines examination as it relates to crime as follows:-
“An investigation by a Magistrate of a person who has been charged with crime and arrested or of the facts and circumstances which alleged to have attended the crime in order to ascertain whether there is sufficient ground to hold him to bail for his trial by the proper Court. The preliminary hearing to determine whether person charged with having committed a crime should be held for trial.” PER JIMI OLUKAYODE BADA, J.C.A.
WORDS AND PHRASES: MEANING OF ENQUIRY
Enquiry as defined by Legal and Commercial Dictionary 6th Edition means:- Investigation of a matter from the various sources in order to find the truth ( Dr K. C. Malhotra vs. The Chancellor A. P. University Shimla AIR 1995 HP (156) Enquiry covers the hearing of the case i.e. recording evidence, admitting documents and generally completing the record upon which a finding would be based. It is only after all the material has been placed on record by both sides that the stage of reporting a finding would arise.
Dr M. N. Dasanna v. State of A. P. (1973) 2 SCC Page 378: (1973) 1 SCWR Page 932 . PER JIMI OLUKAYODE BADA, J.C.A.
Before Their Lordships
ZAINAB ADAMU BULKACHUWAJustice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADAJustice of The Court of Appeal of Nigeria
HUSSEIN MUKHTARJustice of The Court of Appeal of Nigeria
Between
ESAI DANGABARAppellant(s)
AND
FEDERAL REPUBLIC OF NIGERIARespondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the
Leading Judgment): This is an appeal against the
Ruling of the High Court of Justice, Federal Capital
Territory Abuja in Motion No: M/11005/2012
FEDERAL REPUBLIC OF NIGERIA V. ESAI
DANGABAR & 5 OTHERS delivered on the 3rd day
of May 2012 upon an Ex-parte application to forfeit
the assets of the Appellant to the Federal
Government of Nigeria pending the hearing and
determination of the Criminal Charges against the
Appellant before the High Court of Justice, Federal
Capital Territory, Abuja.
Briefly the facts of this case are that on the 29th
day of March 2012, the Appellant and 5 other
persons were arraigned before the High Court of
11
Justice, Federal Capital Territory Abuja on 16
counts charge for offences of criminal breach of
trust punishable under Section 315 of the Penal
Code Act Cap 532, Laws of the Federal Capital
Territory, Abuja, acceptance of valuable thing
without consideration contrary to Section 119 of
the Penal Code Act Cap 532, Laws of the Federal
Capital Territory Abuja etc.
The charges were read to the accused/appellant
and he pleaded not guilty. He was then granted bail
pending the hearing and determination of the said
charges.
On 3rd day of May 2012 the Respondent by an
Ex-Parte application to the High Court of Justice,
Federal Capital Territory presided over by Hon.
Justice L. H. Gummi (Chief Judge) sought for the
following orders:-
(1) An Order of the Court granting interim
attachment/forfeiture of the assets of the persons
listed in respect of the assets and properties in the
schedule to this application pending the hearing
and final determination of Charge No: FCT/CR
/64/2012 between Federal Republic of Nigeria vs.
Esai Dangabar & 5 others.
(2) An Order of this Honourable Court freezing the
bank accounts of the persons referred to as the
account holders/or their bank accounts set out in
the schedule to this application pending the hearing
and final determination of Charge No: FCT/CR
/64/2012 between Federal Republic of Nigeria vs.
Esai Dangabar & 5 others .
The application was heard and granted by the
12
learned trial Chief Judge of the High Court of
Justice, Federal Capital Territory, Abuja.
The Appellant who was dissatisfied with the said
order now appealed to this Court. Two notices of
appeal were filed; the first notice of appeal
containing four grounds of appeal was filed on
10/5/2012 while the second notice of appeal
containing six grounds was filed on 16/5/2012.
The learned Senior Counsel for the Appellant
applied to abandon the notice of appeal filed on
10/5/2012 and he adopted the notice of appeal,
filed 16/5/2012 for the determination of the
appeal.
The learned Counsel for the Respondent did not
react to the application made by learned Counsel
for the Appellant.
In the circumstance the application by learned
Counsel for the Appellant to abandon the notice of
appeal filed on 10/5/2012 is hereby granted and
the said notice is hereby struck out.
The learned Senior Counsel for the Appellant
formulated three issues for the determination of
the appeal. The issues are reproduced as follows:-
(1) Whether the Court violated the rights of the
Appellant to fair hearing in granting the orders
attaching and forfeiting his assets pending the
hearing and final determination of the criminal
charges pending before the Court against the
Appellant.
(2) Whether the order of the Court
attaching/forfeiting the assets of the Appellant
pending the hearing and final determination of
13
Charge No: FCT/CR/64/2012 between the Federal
Republic of Nigeria and the Respondent (Appellant)
is not inconsistent with the provisions of the
Constitution of the Federal Republic of Nigeria 1999
(as amended).
(3) Whether the order of the Court which froze the
accounts of the Appellant is consistent with the
provisions of Section 34 of the Economic and
Financial Crimes Commission Act (EFCC Act).
On the other hand the learned Counsel for the
Respondent also formulated three issues for the
determination of the appeal. The issues are as
follows:-
“(1) Whether the lower Court breached the
Appellant’s right to fair hearing as enshrined in
Section 36(1) of the 1999 Constitution in granting
the order attaching and forfeiting the Appellant’s
assets in Suit No: M/11005/12 pending the hearing
and final determination of the criminal charges
preferred against the Appellant in Charge No
FCT/CR/64/2012 at the High Court of the Federal
Capita Territory, Abuja.
(2) Whether the interim order of attachment and
the forfeiture of the assets of the Appellant made
on 3rd May 2012 by the lower Court pending the
hearing and final determination of Charge No:
FCT/CR/64/2012 is inconsistent with the provisions
of the Constitution of the Federal Republic of
Nigeria 1999 (as amended).
(3) Whether the freezing order made by the lower
Court on 3rd May 2012 against the accounts of the
Appellant is inconsistent with the provisions of
14
Section 34 of the Economic and Financial Crimes
(Establishment) Act 2004.”
At the hearing, the learned Senior Counsel for
the Appellant referred to the Appellant’s brief of
argument filed on 17/5/2012 and the Appellant’s
reply brief filed on 8/6/2012.
He adopted the said briefs in urging that the appeal
be allowed.
The learned Counsel for the Respondent also
referred to the Respondent’s brief of argument filed
on 4/6/2012.
He adopted the said Respondent’s brief as his
argument in urging that the appeal be dismissed.
He relied on the case of:-
– Dr Erastus B. O. Akingbola v. The Chairman
Economic and Financial Crimes Commission
(Unreported) CA/A/L/388/10 delivered on the 2nd
day of March 2012.
The issues formulated by Counsel on behalf of
the parties are similar, however I will rely on the
issues as formulated on behalf of the Appellant in
the determination of the appeal.
ISSUE 1
Whether the Court violated the rights of the
Appellant to fair hearing in granting the orders
attaching and forfeiting his assets pending the
hearing and final determination of the criminal
charges pending before the Court against the
Appellant.
The learned Counsel for the Appellant contended
that when the lower Court granted the order
15
against the Appellant, it made no other order
directing that the Appellant and all the persons
listed in the schedule be given notice to be heard in
the determination of their rights, obligations and
interests.
He reiterated that the nature and limitations of
ex-parte application/order as it relates to the rights
of citizen under the Constitution has been given
judicial exposition in several cases. He relied on the
following cases:-
-Kotoye v. Central Bank of Nigeria (1989) 1 NWLR
Part 98 Page 419:
-7Up Bottling Company Ltd vs. Abiola & Sons Ltd
(1995) 3 NWLR Part 383 Page 257.
He submitted that the application before the
learned Chief Judge was made pursuant to Section
28 of the Economic and Financial Crimes
Commission Establishment Act 2004.
He stated that the application before the Court
was to attach/forfeit all the properties listed in the
schedule and he submitted that the Court in
making such orders had the duty to hear the
Appellant because the interim
attachment/forfeiture was not limited to a date
named.
It was contended on behalf of the Appellant that
the orders made are in the form and nature of
interlocutory attachment and forfeiture which in
effect last until the determination of the right and
obligations of the Appellant in the criminal trial. It
was contended further that this is inconsistent with
the intendment of Section 36(1) of the 1999
16
Constitution of the Federal Republic of Nigeria (as
amended).
Learned Counsel for the Appellant also submitted
that the powers of the Court to order interim
attachment and forfeiture of assets is limited under
Section 28 of the EFCC Act to properties acquired
as a result of the economic and financial crimes in
which the suspect was being investigated or
detained.
It was submitted further that there is no evidence
before the Court that the properties listed in the
schedule were such properties.
He argued further that the list before the Court
did not show the dates when the properties of the
Appellant were acquired and that they were from
the resources traceable to the alleged financial
crimes.
He went further in his argument that if the
learned trial Chief Judge had adverted his mind to
the obligation for fair hearing preserved by Section
36(1) of the 1999 Constitution, he would have
ordered that the Appellant be heard before making
the orders.
On the legal effect of breach of right of fair
hearing, he relied on the following cases:-
-Adigun v. A.G. Oyo State (1987) 1 NWLR Part 53
Page 678;
-Alhaji Raufu Gbadamosi vs. Olaitan Diaro &
another (2007) (NSCQLR) Volume 29 Page 134.
He finally urged that this issue be resolved in
favour of the Appellant.
?
On his own part the learned Counsel for the
17
Respondent referred to the reliefs sought and part
of the Ruling of the lower Court. He stated that the
lower Court made a preservative order on the
properties of the Appellant allegedly acquired by
him with the proceeds of his alleged crime. It was
further stated on behalf of the Respondent that the
order sought for and obtained by the Respondent at
the lower Court is akin to a freezing injunction or
mareva injunction which the lower Court is
empowered to grant.
He relied on the case of:-
-Nwaigwe v. FRN (2009) 16 NWLR Part 1166 Page
169 at 190 – 192.
The learned Counsel for the Respondent
submitted that once the basic requirement of the
law has been met by the Respondent as to the
manner of seeking preservative order on the
proceed of crime, there can be no infraction of the
Appellant’s right to fair hearing as enshrined in
Section 36(1) of the 1999 Constitution.
He submitted further that the right of the Appellant
to fair hearing was not breached by the Ex-Parte
order.
He finally urged the Court to resolve this issue in
favour of the Respondent.
The learned Counsel for the Appellant in his reply
brief of argument contended as follows:-
(1) That there was no evidence before the learned
Chief Judge of the date, amount of purchase of the
property and the evidence that the properties were
bought with the proceeds of crime.
(2) That the Court of Appeal has nullified Section
18
29 of the EFCC Act.
(3) That Section 33 and 36 of the 1999
Constitution of the Federal Republic of Nigeria (as
amended) which require that every person accused
of an offence shall be presumed innocent until
otherwise proven guilty and that in the
determination of his right and obligation shall be
entitled to fair hearing.
(4) The procedure which led to the decision
appealed against is one of such that the Appellant
must be heard before a decision is taken.
(5) What the Appellant is complaining about is that
the order of which is interlocutory under the
determination of the criminal trial was not before
the Hon. Chief Judge but before another Court, for
a time indefinite ought to be on notice not
ex-Parte.
He argued further that the stipulation of ex-parte
proceeding by Section 28 of EFCC Act is
unconstitutional.
He relied on the case of-
-Chidolue vs. FRN (2012) 5 NWLR Part 1229 Page
160.
It was further stated on behalf of the Appellant
that all the Respondent had for the order of
forfeiture was evidence of mere circumstances of
suspicion and not a decision of a Court of
competent jurisdiction that all the property of the
Appellant were procured from the proceeds of
crime.
?
He urged that this issue be resolved in favour of
the Appellant.
19
In this case under consideration it was contended
on behalf of the Appellant that his right to fair
hearing has been breached by the lower Court
because-
(i) The order of attachment and forfeiture was
made pursuant to an ex-parte application without
hearing him.
(ii) That there is no evidence before the lower
Court that the properties were proceeds of crime
pursuant to Section 28 of the EFCC Act.
(iii) That the order is void for lack of fair hearing in
that it is meant to last till the hearing and final
determination of the charge.
(iv) That Section 29 of the EFCC Act did not
prohibit notice to the suspect or the Respondent.
(v) That the interim order made by the lower Court
which is meant to last till the end of the trial is
oppressive and hereby violated Section 36 of the
1999 Constitution.
Earlier in this Judgment I have reproduced the
reliefs sought in the ex-parte originating summons
filed at the lower Court. After hearing the
application the learned trial Chief Judge granted it.
(See pages 24-35 of the Record of Appeal).
A careful reading of the Ruling of the learned
trial Chief Judge would reveal that the order sought
for and obtained by the Respondent at the lower
Court is similar to mareva injunction which the
lower Court is empowered to make under Section
28 of the Economic and Financial Crimes
Commission (Establishment) Act 2004 hereinafter
20
referred to as EFCC Act of 2004 and Section 15 of
the High Court of the Federal Capital Territory Act.
Furthermore, in Common Law Jurisdiction, the
Court is empowered to grant interim reliefs
including freezing injunction or mareva injunctions,
where proceedings between the same parties are
pending in the other Courts including Courts of
other countries.
See the case of:-
-The Siskina (1979)1 A.C. Page 210.
The Court can make freezing order against assets
within the Jurisdiction and outside the Jurisdiction
including the assets in the name of third parties if it
can be established that those assets are beneficially
issued by a Defendant. See the following cases:-
-Derby vs. Weldon No. 2 (1989) 1 All E.R. Page
1002:
-TSB vs. Chabra (1992) 1 NWLR Page 231 .
In Nigeria, Sections 28 and 29 of the EFCC Act
empowers the Commission upon the arrest of any
person suspected to have committed economic and
financial crimes to first administratively trace and
attach all the assets and properties of the accused
person and cause, by way of an ex-parte
application, an interim order of attachment or
forfeiture to be obtained in Court in respect of the
assets.
For ease of reference I hereby reproduce the
provisions of the Sections 28 and 29 of the EFCC
Act 2004 which provides as follows:-
“(28) Where a person is arrested for an offence
21
under this Act, the Commission shall immediately
trace and attach all the assets and properties of the
person acquired as a result of such economic and
financial crime and shall thereafter cause to be
obtained an interim attachment order from the
Court.
(29) Where:-
(a) the assets or properties of any person arrested
for an offence under this Act has been seized;
(b) any assets or property has been seized by the
Commission under this Act, the Commission shall
cause an ex-parte application to be made to the
Court for an interim order forfeiting the property
concerned to the Federal Government and the
Court shall, if satisfied that there is prima facie
evidence that the property concerned is liable to
forfeiture, make an interim order forfeiting the
property to the Federal Government.”
It could be seen from the provisions set out above
that Section 28 confers authority on the EFCC to
attach or seize any property suspected by it to have
been acquired by committing any offence under the
EFCC Act.
In this case under consideration the Respondent
followed the procedure as stated in Sections 28 and
29 of the EFCC Act, earlier set out in this
Judgment.
As soon as the Appellant was arrested along with
other accused persons, the proceeds of crime were
immediately traced and attached. See paragraphs
10 to 14 of the affidavit in support of the ex-parte
originating summons. The Appellant and the other
22
accused person were investigated for economic and
financial crimes, subsequently arrested and charged
to Court in charge No: FCT/CR/64/2012. Their
assets which were alleged to have been acquired
with the proceeds of crime were immediately
traced.
In view of the fact that the Respondent had
complied with the provisions of Sections 28 and 29
of the EFCC Act the lower Court ordered as
follows:-
“I am satisfied that the applicant has satisfied the
requirements of Sections 28 and 29 of the EFCC
Act. I am further convinced by the arguments that
there is a need to preserve the various properties
allegedly acquired by the Respondents from the
proceeds of the alleged crimes. Accordingly, I grant
the application as prayed.”
The issue under consideration here is whether
the Court violated the rights of the Appellant to fair
hearing in granting the orders attaching and
forfeiting the assets of the Appellant pending the
hearing and determination of the criminal charges
pending before the Court against the Appellant.
It was contended on behalf of the Appellant that
the Court order violated his right to fair hearing
because he was not given notice to be heard in the
determination of his rights.
The learned Counsel for the Respondent on the
other hand contended that the right of the
Appellant to fair hearing was not breached.
I have to point it out at this stage that the power
conferred on the Court under Sections 28 and 29 of
23
the EFCC Act is a special jurisdiction. It is a
statutory power which is superior to the Rules of
the lower Court . The interim order of attachment
made by the lower Court pursuant to Sections 28
and 29 of the EFCC Act was not meant to be
indefinite but only to last till the final
determination of Charge No: FCT/CR/64/2012
preferred against the Appellant which is pending at
the High Court of Federal Capital Territory, Abuja.
Therefore I do not see how the ex-parte order
granted by the lower Court violated the Appellant’s
right to fair hearing because the order was in the
nature of a preservatory order. The order is in my
view in the interest of both parties. This is because
it will prevent dealing with the properties in such a
way that could render the final Judgment of the
Court nugatory. The order therefore operates until
the determination of the civil rights and obligations
of the parties with regard to the properties under
consideration.
See the case of:-
-Nwude v. Chairman EFCC (2005) All FWLR Part
276 Page 740 .
I have said earlier that the order made by the
lower Court is preservatory. This is consistent with
the intendment of Section 44(2)(k) of the
Constitution of the Federal Republic of Nigeria 1999
which provides as follows:-
“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
24
or inquiry.”
The lower Court made the order in issue in order
to preserve the properties suspected of being
proceeds of crime in view of the fact that the
Appellant may take steps to defeat the purpose of
the relevant provisions of the EFCC Act which deals
with forfeiture.
In Chief Constable of Kent v. V. & another (1982)
3 All E.R. page 36 one of the issues for
consideration was the extent of the Court’s power
to grant an 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 as
follows 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 E. R. Page 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
25
right or at any rates 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.”
In 7up Bottling Company Ltd. vs. Abiola & Sons
Ltd (Supra) Page 257 Adio JSC at Page 277 stated
as follows:-
“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 trial 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 JSC (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 injunctions….. It is in respect of such
cases that provisions are made in Court Rules to
26
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 .”
It is therefore my view that mere granting of an
ex-parte application to preserve the properties of
the Appellant pending the final determination of
the criminal case filed against him cannot violate
the Appellant’s fundamental right to fair hearing.
Another important thing to note is the final order
which the Court can make after the trial of the
appellant, if found guilty. Section 30 of the EFCC
Act provides thus:-
“Where a person is convicted of an offence under
this Act, the Commission or any authorized officer
shall apply to the Court for an Order of Confiscation
and forfeiture of the convicted persons assets and
properties acquired or obtained as a result of the
crime subject to an interim order under this Act.”
Also, where the accused is discharged and acquitted
by a Court of the offences charged, the Court is
empowered under Section 33 of the EFCC Act to
revoke the Interim Order of Attachment.
All that I have been saying boiled down to the
fact that the object of Court’s Jurisdiction to make a
freezing injunction at the interlocutory stage is to
keep the accused’s assets available to satisfy any
confiscation order which may be made in the event
of conviction.
?In the final analysis on this issue, it is my view
27
that what Sections 28 and 29 of the EFCC Act
intend to achieve is to be able to preserve the
assets of accused persons pending trial. It is after
an accused has been convicted that the assets can
be finally confiscated or forfeited and if acquitted
the properties will be returned to him. And until the
stage of determination of the criminal liability of an
accused person is reached, there is no
determination of the right of the accused.
In view of the foregoing it is clear that the lower
Court did not breach the Appellant’s right to fair
hearing as enshrined in Section 36(1) of the 1999
Constitution of the Federal Republic of Nigeria in
granting the order attaching and forfeiting the
Appellant’s assets in Suit No: M/11005/2012
pending the hearing and determination of the
criminal charge filed against the Appellant in
Charge No: FCT/CR/64/2012 in the High Court of
the Federal Capital Territory, Abuja.
This issue No. 1 is resolved in favour of the
Respondent against the Appellant.
ISSUE NO.2
Whether the order of the Court
attaching/forfeiting the assets of the Appellant
pending the hearing and final determination of
Charge No: FCT/CR/64/2012 between the Federal
Republic of Nigeria and the Appellant is not
inconsistent with the provisions of the Constitution
of the Federal Republic of Nigeria 1999 (as
amended).
The learned Counsel for the Appellant relied on the
28
facts as presented in the argument of issue 1.
He stated that out of the 16 Counts Charge at the
lower Court, the Appellant pleaded only to 11
Counts. It was also stated that there is no evidence
before the learned trial Judge that the Appellant
pleaded guilty to any of the Counts. He went
further that there is no evidence before the Court
that the Appellant admitted during investigation
that any of the properties listed against his name in
the schedule of properties were products of or
represent the gross receipt obtained directly as a
result of the violation of the EFCC Act.
He referred to Section 24(a) of the EFCC Act on the
definition of property.
He submitted that the power to order attachment
and forfeiture of properties of a Nigerian Citizen
under the Constitution is circumscribed by Sections
28 and 29 of the EFCC Act.
He also submitted that the Court should not have
relied on the provisions of Section 29 of the EFCC
Act because it had been struck down in Chinelo
Nwaigwe & 16 Others vs. Federal Republic of
Nigeria (Supra).
It was contended on behalf of the Appellant that
the Court in the interest of Justice should not have
read and interpreted the EFCC Act in isolation,
rather the Provisions of Section 28 of the EFCC Act
ought to have been read subject to Section 36(5),
43, 44(1) (2)(b) and (K) of the 1999 Constitution
of the Federal Republic of Nigeria (as amended).
The learned Counsel for the Appellant submitted
that the EFCC Act cannot take away the
29
presumption of innocence under Section 36(5) of
the Constitution.
He relied on the case of:-
-State v. Akaa (2002) 10 NWLR Part 774 at 157.
He argued further that a person charged for an
offence also enjoys the right to own property as
guaranteed under Sections 43 and 44 of the 1 999
Constitution (as amended).
He relied on the case of:-
A.G. Bendel vs. Aideyan (1989) 4 NWLR Part 118
Page 646 at 674.
It was further submitted on behalf of the
Appellant that the order of the learned trial Judge
which generally dispossessed and forfeited the
Appellant’s properties while standing trial
completely negates the presumption of innocence.
He also argued that the facts of this case are not
consistent with the Provision of Section 44(2)(K) of
the Constitution.
He went further in his submission that the
community reading of Section 36(1)(5), 43,44(1)
(2)(b) and (K) of the 1999 Constitution of the
Federal Republic of Nigeria will show that the
Provision of Section 28 of the EFCC Act as
interpreted and applied by the Respondent and the
Court was wrong and misconceived.
He finally submitted that in this type of situation
the Court should hold that the violation of the
Appellant’s right to fair hearing rendered the orders
of the lower Court null and void.
In his response, the learned Counsel for the
Respondent submitted that the order of interim
30
attachment and forfeiture of the assets of the
Appellant pending the hearing and final
determination of the criminal case against him in
charges No: FCT/CR/64/2012 is not inconsistent
with the Constitution of the Federal Republic of
Nigeria 1999 (as amended).
He submitted further that the right granted to
the Appellant under the 1999 Constitution of the
Federal Republic of Nigeria is not absolute. He
relied on Section 44(2) (K) of the Constitution. He
went further that the Constitution should not be
interpreted narrowly so as not to defeat its purpose
or intendment.
He referred to the case of:-
– Bronik Motors vs. Wema Bank (1983) 1 SCNLR
Page 296 at 321 .
He therefore urged this Court to reject the
narrow interpretation placed on Section 44(2)(K) of
the Constitution by the Appellant.
He relied on the case of:-
-A. G. Ondo State vs. A.G. Federation (2002) 9
NWLR Part 772 Page 222 at 309 – 310.
On the contention by the Appellant that there
was no evidence that the properties or assets of the
Appellant attached were obtained directly as a
result of the violation of the EFCC Act.
The learned Counsel for the Respondent
submitted that the issue being raised is outside
issue No. 2 and therefore incompetent.
He went further that the argument of the
31
Appellant lacks substance because paragraph 10 of
the affidavit in support of the ex-parte originating
summons which stated that properties and assets
attached were proceeds obtained or acquired from
crime alleged against the Appellant was not denied
and he failed to apply to the lower Court to
discharge the ex-parte order.
On the issue of presumption of innocence under
Section 36(5) of the 1999 Constitution by the
Appellant the learned Counsel for the Respondent
submitted that the interim order by its nature does
not finally determine the right of party, and it is
not permanent. He relied on the case of:-
-Nwaigwe v. F.R.N. (Supra).
He finally submitted that the interim order
preserving the assets and properties allegedly
acquired from the Economic and Financial Crimes
would not violate the presumption of innocence
guaranteed under Section 36(5) of the 1999
Constitution.
In his reply brief of argument the learned Counsel
for the Appellant submitted that the reliance placed
on the cases of:-
-Nwude vs. EFCC (2000) All FWLR Part 276 Page
270
and
– Akingbola vs. EFCC (Unreported) CR/4/388/2010
delivered on 2/3/2012 is unfounded.
He went further in his submission that the crime
has not been proved, there was no pending motion
on notice but there was a decision which made the
Court to become functus officio.
32
He finally urged the Court to dismiss the
argument of the Respondent and resolve the issues
in this appeal in favour of the Appellant.
The learned Senior Counsel for the Appellant also
contended that the ex-parte order of attachment
and forfeiture made against the properties and
assets of the Appellant is unconstitutional because;
(a) Under Section 36(5) of the 1999 Constitution,
the Appellant is presumed innocent and the
attachment of his property is a punishment which
violates the said presumption of innocence.
(b) Under Sections 33 and 34 of the 1999
Constitution, the Appellant enjoys the right to
property which is sacrosanct and inviolate.
(c) There was no evidence that the properties
attached were obtained directly as a result of
violation of the EFCC Act.
?
In this Appeal under consideration, the interim
order of attachment made by the lower Court is a
restraining order to stop the Appellant from dealing
with the properties in issue pending the
determination of the criminal case filed against
him. The EFCC Act recognizes that any suspect who
is detected by the Police and who may potentially
face a confiscation or forfeiture order may attempt
to dispose of the said properties before the
determination of the criminal case pending against
him so that the law would not be able to deprive
him of the properties. In this respect, the Court has
been empowered to make restraining orders such
as interim order of attachment, or mareva
injunction which have the effect of freezing the
33
property thereby preventing the suspect or accused
person as the case may be from dealing with the
proceeds of crime held by him or the third parties
on his behalf.
See Section 20 – 27 of the EFCC Act.
The trend all over the world is to prevent the
accused person from retaining the proceeds of his
crime and to deprive him of whatever benefit he
may have derived from his criminal conduct.
The
pertinent question at this juncture is whether the
practice of temporarily depriving the accused
person from dealing with the assets suspected to be
proceeds of crime pending the final determination
of the criminal case against him is unconstitutional?
There is no doubt that pursuant to Sections 43 and
44 of the 1999 Constitution of the Federal Republic
of Nigeria (as amended) all Citizens of this country
have the right to acquire and own property
anywhere in Nigeria and their property should not
be compulsorily acquired without payment of
compensation. However there is a caveat, this right
to property is not absolute. Section 44(2)(K) of the
said Constitution creates exception and it states as
follows:-
“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.”
The above stated provision showed the intention of
the law maker is to validate any law such as
Sections 28 and 29 of the EFCC Act which allows
34
temporary taking over of assets of the accused
persons pending the hearing and determination of a
criminal case that has been pending against him.
See the case of:-
– Dr. B. O. Akingbola vs. The Chairman. Economic
and Financial Commission (Unreported) Appeal No:
CA/L/388/10 delivered on 2/3/2012 .
In my own view, the intention of Sections 28 and
29 of the EFCC Act is merely to get a preservative
order on the property suspected to be proceeds of
crime so as to prevent the accused person or
suspect from dissipating the assets and thereby
create a situation of a fait accompli upon his
conviction.
The learned Senior Counsel for the Appellant
argued that the reference to examination
investigation or enquiry referred to in Section
44(2) (K) of the 1999 Constitution could not be
extended to criminal trial.
It would therefore be necessary to understand the
meaning of the words used under the said Section
of the Constitution.
The word investigate is defined by Black’s Law
Dictionary, 6th Edition to mean to examine and
inquire into with care and accuracy, to find out by
careful inquisition, examination, the taking of
evidence, a legal inquiry.
Also, Legal and Commercial Dictionary 6th Edition
by Tapash Gan Choudhury defines ‘investigation’ at
page 479 as:-
Careful search, study, closes inquiry, scrutiny,
detail examination, collection of facts, inquiry to
35
ascertain facts, inquiry, exhaustive study, and
systematic search .
The same Black’s Law Dictionary 6th Edition at
page 558 defines examination as it relates to crime
as follows:-
“An investigation by a Magistrate of a person who
has been charged with crime and arrested or of the
facts and circumstances which alleged to have
attended the crime in order to ascertain whether
there is sufficient ground to hold him to bail for his
trial by the proper Court. The preliminary hearing
to determine whether person charged with having
committed a crime should be held for trial.”
Enquiry as defined by Legal and Commercial
Dictionary 6th Edition means:-
Investigation of a matter from the various sources
in order to find the truth ( Dr K. C. Malhotra vs. The
Chancellor A. P. University Shimla AIR 1995 HP
(156) Enquiry covers the hearing of the case i.e.
recording evidence, admitting documents and
generally completing the record upon which a
finding would be based. It is only after all the
material has been placed on record by both sides
that the stage of reporting a finding would arise.
Dr M. N. Dasanna v. State of A. P. (1973) 2 SCC
Page 378: (1973) 1 SCWR Page 932 .
After a careful examination of the above
definitions, it would be clear that allowing
temporary taking of possession of property for the
36
purpose of examination, investigation or enquiry
would perforce, extend to the conduct of a criminal
case. I am of the view that to do otherwise will give
the constitutional provision a very narrow
interpretation which will defeat the purpose of the
Constitution itself.
See – Bronik Motors v. Wema Bank (Supra)
There is also no dispute about the fact that the
Appellant was investigated before the criminal
charge in Charge No: FCT/CR/64/2012 was
preferred against him.
Sections 26, 27, 28 and 29 and 30 of the EFCC Act
envisage that the interim order for the preservation
of assets is obtainable immediately after the
commencement of the investigation and to last till
final determination of the criminal charge that may
be initiated against the accused persons.
The learned Senior Counsel for the Appellant
argued that there was no evidence that the
properties are proceeds of crime.
It must not be forgotten that the Appellant has
failed to apply to the lower Court to discharge the
ex-parte order, paragraph 10 of the affidavit in
support of the ex-parte originating summons stated
that the properties and assets attached by the
lower Court were proceeds acquired from the crime
alleged against the Appellant. The said paragraph
10 was not denied, it is therefore deemed admitted.
The Appellant cannot be heard to deny the
existence of that fact.
Consequent upon the foregoing it is my view that
the order of interim attachment and forfeiture of
37
the assets of the Appellant pending hearing and
final determination of the criminal case against him
in Charge No: FCT/CR/64/2012 is not inconsistent
with the Constitution of the Federal Republic of
Nigeria 1999 (as amended).
See the case of:-
-A. G. Ondo State vs. A.G. Federation (Supra).
In the circumstance this issue No. 2 is resolved
against the Appellant and in favour of the
Respondent.
ISSUE 3
Whether the order of the Court which froze the
accounts of the Appellant is consistent with the
provisions of Section 34 of the Economic and
Financial Crimes Commission Act (EFCC Act).
The learned Senior Counsel for the Appellant
referred to the order of the lower Court which
temporarily froze the account of the Appellant and
submitted that the powers of the Court to grant
ex-parte order of interim attachment under Section
28 of the EFCC Act does not extend to bank
accounts.
He argued further that the provision of Section
34 of the EFCC Act is clear and unambiguous. He
went further that the Court acted unlawfully in
issuing an order which froze the account of the
Appellant.
He finally urged the Court to resolve the issue in
favour of the Appellant.
The learned Counsel for the Respondent
submitted that by Section 34(1) of the EFCC Act,
38
the Chairman of the EFCC or his authorized
officers, if satisfied that the money in the account
of a person is made through the commission of an
offence under the Act or under any enactment
specified in Section 7(2)(a) of the Act including
offences under Penal Code, may apply ex-parte to
inter alia freeze the account. Likewise, an order
may be issued under Subsection (2) of Section 34
of the EFCC Act to the bank or other financial
institutions to supply any information and produce
books and documents relating to the account and
stop all onward payments, operation, transactions
in respect of the account of the person.
He finally urged this Court to dismiss the
Appellant’s Appeal and hold that the freezing order
made by the lower Court on 3/5/2012 is consistent
with the provisions of Section 34 of the EFCC Act.
Under Section 28 of the EFCC Act the
Commission is empowered not only to arrest any
person suspected to have committed an offence
under the EFCC Act but also to trace and attach all
his assets and properties which are reasonably
suspected to have been acquired as a result of such
Economic and Financial Crime and thereafter cause
to be obtained, an interim attachment order.
In the instant appeal it is my view that if the
accounts frozen by the order of the lower Court
belong to the Appellant, then such accounts and
the moneys in them would be qualified as
properties and assets envisaged under Section 28
of the EFCC Act.
?In this case the money inside the accounts of the
39
Appellant which is alleged to be proceeds of crime
is qualified as assets and properties under the said
Section.
Furthermore by Section 34(1) and (2) of the
EFCC Act, the account of a person may be frozen
even when he is not arrested and made a party to
criminal proceedings.
It is only when an ex-parte order has been made
by the Court that the Chairman of the EFCC will
issue an order specified in Schedule B to the Act
addressed to the Manger of the Bank or person in
control of the account to freeze the account .
In this appeal under consideration the Chairman
of EFCC did not first of all approach the bank
without obtaining the freezing order and it is clear
that from the materials placed before the Court,
the provision of Section 34 of the EFCC Act was
substantially complied with.
This issue No. 3 is resolved in favour of the
Respondent.
I cannot conclude this Judgment without stating
my mind on the issue of corruption in Nigeria.
Corruption has eaten deep into our system that this
country is almost at a standstill. There is lack of
transparency in every sector and it is about to
assume a normal way of life which is dangerous for
the existence of this country.
The way forward is for all of us as citizens of this
country to be transparent and accountable in all
that we do and obey the laws of the land.
?
Finally, with the resolution of all the three issues
40
for determination of this appeal against the
Appellant, it is my view that the Appeal lacks merit
and it is hereby dismissed.
ZAINAB ADAMU BULKACHUWA, J.C.A.: I have
read the draft of the judgment just delivered by my
learned brother, BADA, JCA. I agree entirely with
his reasoning and the conclusion reached that the
appeal is completely bereft of merit. I adopt same
in dismissing the appeal and abide by the
consequential orders as contained in the judgment.
?HUSSEIN MUKHTAR, J.C.A.: I have had the
advantage of a preview of the leading judgment just
rendered by my learned brother BADA, J.C.A. I am
in complete agreement with his admirable
exposition of the law, the entire reasoning therein
and the conclusions which thereby adopt as mine.
The appeal is glaringly bereft of substance. I too
would dismiss it. I abide by the other orders made
in the judgment.
41
42
Appearances
Chief Adegboyega Awomolo SAN and Dr. O. Ikpeazu SAN, with them are E. Fatogun, Ebuka Nwaeze, Feyisayo Folorunso (Mrs), A. Ogunleye, C. Amaeze, A. Arosanyin, A. Agbaje (Mrs), O. Onya and Nick OkonkwoFor Appellant
AND
Mr. Rotimi Jacobs with him, Andrew AkojaFor Respondent
Share
RATIO DECIDENDI
1. WORDS AND PHRASES – “ENQUIRY”: Definition of “enquiry” (…read in con)
2. WORDS AND PHRASES – “EXAMINATION”: Definition of “examination” as it relates to crime (…read in con)
3. WORDS AND PHRASES – “INVESTIGATE”: Definition of “investigate” and “investigation” (…read in con)
4. CONSTITUTIONAL LAW – BREACH OF RIGHT TO FAIR HEARING: Whether the grant of an ex parte application to preserve the property of a party pending the final determination of a criminal case amount to breach of fair hearing (…read in con)
5. GOVERNMENT AGENCY – ECONOMIC AND FINANCIAL CRIMES COMMISSION: Power of the Economic and Financial Crimes Commission to attach or seize any property suspected to have been acquired by committing any offence under its Act (…read in con)
6. GOVERNMENT AGENCY – ECONOMIC AND FINANCIAL CRIMES COMMISSION: Power of the Economic and Financial Crimes Commission to attach or seize any property suspected to have been acquired by committing any offence under its Act (…read in con)
7. JUDGMENT AND ORDER – EX-PARTE ORDER: Limitation of an order granted by a court (…read in con)
8. JUDGMENT AND ORDER – EX-PARTE ORDER: Nature and effect of an ex-parte order (…read in con)
9. JUDGMENT AND ORDER – GRANT OF A FREEZING ORDER: Circumstance when a court can grant interim reliefs including freezing injunction or mareva injunctions (…read in con)
10. JUDGMENT AND ORDER – ORDER TO FREEZE AN ACCOUNT: When the Chairman of the EFCC can issue an order to freeze the account of an accused (…read in con)
11. COURT – POWER OF COURT: Extent of a court’s power to grant an interlocutory injunction to the police for the preservation of the proceeds of crime in the public interest (…read in con)
12. COURT – POWER OF COURT: Whether the power conferred on the court by the provision of Sections 28 and 29 of the EFCC Act is superior to the Rules of the lower Court (…read in con)
13. COURT – POWER OF COURT: Power of Court to grant interim reliefs (…read in con)
14. CONSTITUTIONAL LAW – RIGHT TO ACQUIRE AND OWN PROPERTY: Circumstance under which the Constitutional right to own property anywhere in Nigeria by its citizen can be deprived (…read in con)
15. INTERPRETATION OF STATUTE – SECTIONS 28 AND 29 OF THE EFCC ACT, 2004: Interpretation of sections 28 and 29 of the Economic and Financial Crimes Commission (Establishment) Act 2004 (…read in con)
16. CRIMINAL LAW AND PROCEDURE – SEIZURE, RESTITUTION, FORFEITURE AND DISPOSITION OF PROPERTY: Whether a Court order dealing with assets suspected to be proceeds of crime pending the final determination of a criminal case against an accused person is unconstitutional (…read in con)
