EZE & ANOR v. EFCC
(2022)LCN/16506(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Tuesday, December 13, 2022
CA/E/155/2021
Before Our Lordships:
UzoIfeyinwaNdukwe-Anyanwu Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Joseph EyoEkanem Justice of the Court of Appeal
Between
1. OLISAEBUKA O. EZE 2. BERLUS RESOURCES LIMITEDAPPELANT(S)
And
THE ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC)RESPONDENT(S)
RATIO:
THE CONCEPT OF ABUSE OF THE PROCESS OF COURT HAS ATTRACTED SOME FAIR AMOUNT OF JUDICIAL ATTENTION AS TO ILLUMINATE ANY LINGERING OPACITY
Generally speaking, the concept of abuse of process is somewhat imprecise. It relates to proceedings wanting in bona fides and designed to frustrate or irritate the opponent by embarking on multiplicity of actions on the same subject matter. It is basically the improper use of the judicial process to interfere with the due administration of justice. See R-BENKAY NIGERIA LTD VS CADBURY NIGERIA LTD (2012) LPELR-7820 (SC), OGAR & ORS VS IGBE & ORS (2019) LPELR-48988(SC). On an earlier occasion, I had cause to expound a bit on the subject as follows:
The concept of abuse of the process of Court has attracted some fair amount of judicial attention as to illuminate any lingering opacity. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
MULTIPLICITY OF ACTIONS ON THE SAME MATTER MAY CONSTITUTE AN ABUSE OF THE PROCESS OF THE COURT
It is the law that multiplicity of actions on the same matter may constitute an abuse of the process of the Court. But this is so only where the action is between the same parties with respect to the same subject matter. The Court has a duty in such a situation to interfere to stop an abuse of its process. See Okorodudu v. Okoromadu (1977) 3 S.C. 21. This is not such a case. The motion to set aside the judgment, and the appeal to the Supreme Court, now withdrawn, but in respect of the same subject matter were not instituted by the same parties. – See Oyegbola v. Esso West Africa Inc. (1966) 1 All N.L.R.170. See OKAFOR & ORS VS. AG & COMMISSIONER FOR JUSTICE & ORS (1991) LPELR-2414(SC) at 34. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
THE CONCEPT OF ABUSE OF JUDCIAL PROCESS IS IMPRECISE
OGUNDARE, JSC further expounded the position of the law on the subject thus:
In Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 this Court dealt exhaustively with what constitutes abuse of process of Court. In his lead judgment in the case, Karibi-Whyte, JSC observed at pages 188-189:
“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice.
It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu v. Okoromadu (1977) 3SC 21; Oyegbola v. Esso West African Inc (1966) 1 All NLR 170. Thus the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, per se. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court of Nigeria, Enugu Judicial Division, holden at Enugu, delivered on the 23rd July, 2021 by BUBA, J.
The Respondent had approached the trial Court via a Motion Ex Parte and obtained interim orders of civil forfeiture of assets listed in the schedule to the said application said to have been acquired from proceeds of alleged criminal conduct of the Appellants herein. On becoming aware of the said orders, the Appellants approached the trial Court with an application dated and filed on the 2nd July, 2021 wherein they sought the following reliefs:
1. An order of this honourable Court discharging the interim order of forfeiture made on the 22nd day of June 2021 with respect to the ex-parte application made in SUIT NO. FHC/EN/CS/83/2021.
2. An order of the honourable Court dismissing this suit for being incompetent, as it amounts to forum shopping, as well as, abuse of the processes of this honourable Court.
The application was contested by the two parties through their various affidavits and after hearing arguments from their counsel, the learned trial Judge delivered a considered ruling wherein the application was found unmeritorious and was accordingly dismissed with costs.
Apparently dissatisfied, the Appellants filed a notice of appeal against the said decision on the 26th July, 2021 containing two grounds. The said Notice of Appeal was subsequently amended with the Amended Notice and Ground of Appeal filed on the 27th May, 2022 but deemed properly filed and served on the 23rd November, 2022 still containing two grounds. At the hearing of the appeal Mr. Buba, learned counsel for the Respondent drew attention to his preliminary objection which was argued in his Respondent’s brief filed on the 17th June, 2022 and urged the Court to strike out the appeal for being incompetent. For the Appellants, Mr. Nnadozie adopted the arguments in response to the preliminary objection contained in the Appellants’ Reply brief and urged the Court to dismiss the said preliminary objection.
The said preliminary objection of the Respondent is as follows:
That ground one of the amended grounds of appeal and the sole issue for determination raised by the Appellants in their brief, and the argument canvassed thereunder are incompetent and liable to be struck out.
The grounds for the said objection are as follows:
a. That the decision/order in Suit No. FHC/ABJ/CS/1613/2020 referred to in the ground one of the amended notice and grounds of appeal as well as Appellants’ issue for determination was never brought to the attention of the trial Judge.
b. That there is no finding of the trial Court touching on the order in Suit No. FHC/ABJ/CS/1613/2020 for it to constitute a valid ground of appeal.
c. That the Appellants tendered the order in Suit No. FHC/ABJ/CS/1613/2020 for the first time before this Honourable Court pursuant to the leave granted to them by the Court.
d. It is therefore incorrect to state that the said decision/order in Suit No. FHC/ABJ/CS/1613/2020 was brought to the attention of the trial Judge during the proceedings of the lower Court.
e. The Appellants’ ground of appeal and issue for determination which categorically suggest that the decision/order in Suit No. FHC/ABJ/CS/1613/2020 was brought to the attention of the trial Judge are grossly incompetent.
The gravamen of the objection is that ground one of the Notice and Grounds of Appeal was based on the orders made by another division of the Federal High Court in a ruling delivered in Suit No. FHC/ABJ/CS/1613/2020 which said ruling was not produced before the trial Court and therefore did not form part of the materials upon which the decision appealed against was made. Learned counsel argued that a ground of appeal must complain against a decision of the Court and that ground one is accordingly incompetent which fatally affects the sole issue for determination which was distilled therefrom. He therefore urged the Court to strike out the appeal and referred to UGWU VS STATE (2012) LPELR-20616(SC), CO-OPERATIVE AND COMMERCE BANK PLC VS EKPERI (2007) LPELR-876(SC) and THOR LTD VS FIRST CITY MERCHANT BANK LTD (2002) LPELR-8061(SC).
The counter-argument of Mr. Nnadozie was that the issue relating to the orders in the said Suit No. FHC/ABJ/CS/1613/2020 relates to the issue of jurisdiction which can be brought any time especially as parties had joined issues before the trial Court on the issue of whether or not the Respondent’s action constituted abuse of Court’s process. He argued that once an issue of jurisdiction is raised it cannot be ignored even if the ground of appeal raising it was lumped with an incompetent ground of appeal. He referred to AKINLADE VS AYINDE (2021) 1 NWLR (PT 1758) 407 at 434, AKPAN VS BOB (2010) 17 NWLR (PT 1223) 421, AJE PRINTING (NIG) LTD VS EKITI LOCAL GOVERNMENT AREA (2021) 13 NWLR (PT 1794) 498, OSUDE VS AZODO (2017) 15 NWLR (PT 1588) 293 at 320 and UTIH VS ONOYIVWE (1991) 1 NWLR (PT 166) 166. He contended that the present stance of the Respondent differed from their position at trial which according to the learned counsel was not permissible. He referred to NYAKO VS ADAMAWA STATE HOUSE OF ASSEMBLY (2016) LPELR-41822(SC) and AJIDE VS KELANI (1985) NWLR (PT 12) 251. He urged the Court to dismiss the objection.
To fully appreciate the contentions of the parties in respect of this objection it is apposite to reproduce the vexed ground one of the Notice of Appeal and its particulars as follows:
GROUND 1: ERROR IN LAW
The learned trial Judge at the Court below erred in law when he declined or failed to discharge the interim order of forfeiture made on the 22nd day of June, 2021, upon the ex-parte application of the Respondent which application was an abuse of the process of the Court and pro tan to the Court below lacked the jurisdiction in the first place to have made the Order, and ought ex debitojusticia to discharge them.
PARTICULARS OF ERROR
1. The Respondent had earlier made the same Application before the Federal High Court of the Federal Capital Territory Abuja division in another forfeiture proceeding in Suit No. FHC/ABJ/CS/1613/2020, which application is still pending.
2. While the said Suit No. FHC/ABJ/CS/1613/2020 was still pending at the Federal High Court Abuja, the Respondent brought the same forfeiture proceedings in the instant suit against the same properties of the Appellants.
3. The Respondent failed to disclose to the learned trial Judge at the Court below the pendency of the same application before the Federal High Court Abuja in Suit No. FHC/ABJ/CS/1613/2020 and failed to disclose any reason for leap-frogging from the Federal High Court Abuja to the Court below while the application before the Federal High Court Abuja was still pending.
4. Suit No. FHC/ABJ/CS/1613/2020 was adjourned to 20/1/2021 for report, the Respondent did not discontinue or terminate the said Suit No. FHC/ABJ/CS/1613/2020 before commencing this instant suit.
5. The learned trial Judge at the Court below failed to exercise its jurisdiction judiciously to arrest the abuse of its process by discharging the order wrongfully obtained by the Respondent through abuse of judicial process.
Running through ground one reproduced above is a complaint against the failure of the trial Court to hold that the action of the Respondent from which the present appeal emanated was an abuse of the Court’s process in view of the existence of Suit No. FHC/ABJ/CS/1613/2020 where according to the Appellants, orders similar to the present ones had been sought. A perusal of the entire affidavits and attached exhibits placed before the trial Court in the course of the arguments of the Appellants’ application did not disclose any reference to Suit No. FHC/ABJ/CS/1613/2020. As was well submitted by Mr. Buba, a ground of appeal must necessarily complain against a decision of the Court whose decision is appealed against. Issues not canvassed before the trial Court cannot form part of the Notice of Appeal except with leave of Court as a fresh issue. It cannot be overlooked however that the major contention before the trial Court was whether the action was an abuse of Court’s process. That being so, faulting this appeal and striking it out on the strength of the failure to adduce the ruling in Suit No. FHC/ABJ/CS/1613/2020 as additional ground constituting the abuse already put in play, will amount to paying undeserved obeisance to the false god of technicality. The objection is therefore overruled and accordingly dismissed. I shall then proceed to the merits of the appeal.
Mr. Nnadozie adopted the Appellants’ Amended brief of argument filed on the 8th June, 2022 and the Reply brief filed on the 28th September, 2022 both briefs having been deemed properly filed and served on the 23rd November, 2022, as the arguments of the Appellants in furtherance of this appeal. While for the Respondent, Mr. Buba adopted the Respondent’s brief filed on the 17th June, 2022 but deemed properly filed and served on the 23rd November, 2022 as the arguments of the Respondent in contesting the appeal.
The Appellants distilled a lone issue for determination from the two grounds of appeal thus:
Whether it was right for the Court below to have failed or declined to discharge the interim order of forfeiture made on 23/7/2021 despite the fact that the learned trial Court’s attention was drawn to the subsisting decision and orders made in Suit No. FCT/HC/M/12894/2020 and Suit No. FHC/ABJ/CS/1613/2020 (Grounds 1 & 2).
A similar lone issue was distilled by the Respondent as follows:
Whether the trial Judge was right to have declined to discharge the interim order of forfeiture made on 22nd June, 2021 based on the fact that the Ex-parte Application leading to the interim order was not an abuse of Court process notwithstanding the order and decision made in Suit No. FHC/ABJ/CS/1613/2020 and FCT/HC/12894/2020(Grounds 1 and 2).
Considering that the issues are basically the same, I shall adopt the version of the Appellant.
Mr. Nnadozie referred to the orders made by Hon. Justice Suleiman Belgore of the High Court of the Federal Capital Territory (hereinafter called FCT) in Suit No. FCT/HC/M/12894/2020 which were brought to the attention of the learned trial Judge but which the learned trial Judge distinguished before dismissing the Appellant’s application. He argued that the learned trial Judge was in error to have interpreted the judgment of a Court of coordinate jurisdiction and referred to RACE AUTO SUPPLY CO. LTD VS AKIB (2006) LPELR-2937(SC). He submitted that the trial Court lacked the jurisdiction to vary or set aside the decision of a Court of coordinate jurisdiction and referred to AKPORUE VS ISICHERI OKEI (1973) 12 SC 111. He contended that it constitutes an abuse of the Court’s process for a party to disregard a previous decision on a matter and seek to re-litigate the same issue as the only option open to such a dissatisfied party was to appeal. He referred to ABUBAKAR VS BEBEJI OIL (2007) 2 SCNJ 170, BABATUNDE VS OLATUNJI (2000) 2 SCNJ 26 at 34, N.I.M.B. VS UBN PLC (2004) 12 NWLR (PT 888) 599 at 623-624 and MAINA VS EFCC (2020) 2 NWLR (PT 1708) 230 at 261.
Mr. Nnadozie pointed out that when the Respondent obtained the interim order of forfeiture against assets of the Appellants at the trial Court, it failed to disclose the existence of the proceedings and orders in Suit No. FHC/ABJ/CS/1613/2020 and FCT/HC/M/12894/2020. He submitted that Appellants having brought the other proceedings and orders to the attention of the learned trial Judge, it was erroneous of the learned trial Judge to have failed to discharge the interim order of forfeiture made ex parte. He urged the Court to hold that the entire proceedings at the trial Court was an abuse of process and dismiss it accordingly. He referred to CBN VS AHMED (2001) 11 NWLR (PT 724) 369 and ARUBO VS AIYELERU (1993) 3 NWLR (PT 280) 126 at 142.
Contrariwise, Mr. Buba argued that the learned trial Judge was right in holding that the action was not an abuse. He outlined the legal principles involving abuse of Court’s process and referred to UME & ANOR VS IWU & ORS (2008) 8 NWLR (PT 1089) 225 (SC). He pointed out that the averment of the Respondent that it did not file any previous application for forfeiture under Section 17 of the Advance Fee Fraud Act, 2006 prior to the action now on appeal, was not controverted by the Appellants thereby indicating admission thereof. He referred in this regard to DANA AIRLINES LTD VS NBONG & ORS (2017)LPELR-43052(CA) and BADEJO VS FEDERAL MINISTRY OF EDUCATION (1996) 8 NWLR (PT 464) 15. Learned counsel submitted that none of the processes in the two cases referred to by the learned counsel for the Appellants relate to forfeiture proceedings under Section 17 of the Advance Fee Fraud Act (supra). He contended that the failure of the Appellants to place any material in this regard before the trial rendered their submissions speculative and unsupported by evidence. He referred to UTB (NIG.) LTD VS AJAGBULE (2006) 2 NWLR (PT 965) 447.
With specific reference to the orders made by the Federal High Court Abuja Division in Suit No. FHC/ABJ/CS/1613/2020, Mr. Buba submitted that the said orders relate to interim forfeiture pending the conclusion of investigation/prosecution under the Economic and Financial Crimes Commission Act, 2004 which is totally different from the non-conviction-based forfeiture under the Advance Fee Fraud Act (supra). In this regard, he referred to OTI VS EFCC & 1 ANOR (2020) 14 NWLR (PT 1743) 48 and AIR VICE MARSHAL JACOB BOLAJI ADIGUN VS EFCC & 2 ORS (citation not provided).
The learned counsel further submitted that the interim orders in Suit No. FHC/ABJ/CS/1613/2020 were made to last for 21 days which period had lapsed before the commencement of the present forfeiture proceedings thereby indicating that the properties involved were no longer subject to any forfeiture order after 3rd January, 2021 while the present proceedings which commenced on 22nd June, 2021 cannot constitute abuse of process. He referred to NWAWUBA VS EZEABASIRIM & ORS (2018) LPELR-46273(CA) and SKYE BANK PLC VS HARUNA & ORS (2014) LPELR-41078(CA).
With regards to the orders made by the FCT High Court, Mr. Buba submitted that the said orders emanated from an application filed by the Appellants for the enforcement of his fundamental rights and that the listed properties restrained in the said order were not included in the present forfeiture order on appeal. He therefore argued that the forfeiture proceedings before the trial Court could not constitute abuse of process on account of the FCT High Court orders. He submitted that the orders made by the said FCT High Court could not be expanded to cover the proceedings before the trial Court and that the trial Court was entitled to pronounce on issues canvassed before it which included the said judgment of the FCT High Court.
He urged the Court to dismiss the appeal.
In his Reply brief, Mr. Nnadozie reiterated his earlier arguments that the interim forfeiture proceedings before the trial Court constituted an abuse of Court and that the appeal should be allowed.
Generally speaking, the concept of abuse of process is somewhat imprecise. It relates to proceedings wanting in bona fides and designed to frustrate or irritate the opponent by embarking on multiplicity of actions on the same subject matter. It is basically the improper use of the judicial process to interfere with the due administration of justice. See R-BENKAY NIGERIA LTD VS CADBURY NIGERIA LTD (2012) LPELR-7820 (SC), OGAR & ORS VS IGBE & ORS (2019) LPELR-48988(SC). On an earlier occasion, I had cause to expound a bit on the subject as follows:
The concept of abuse of the process of Court has attracted some fair amount of judicial attention as to illuminate any lingering opacity. According to KARIBI-WHYTE, JSC:
It is the law that multiplicity of actions on the same matter may constitute an abuse of the process of the Court. But this is so only where the action is between the same parties with respect to the same subject matter. The Court has a duty in such a situation to interfere to stop an abuse of its process. See Okorodudu v. Okoromadu (1977) 3 S.C. 21. This is not such a case. The motion to set aside the judgment, and the appeal to the Supreme Court, now withdrawn, but in respect of the same subject matter were not instituted by the same parties. – See Oyegbola v. Esso West Africa Inc. (1966) 1 All N.L.R.170. See OKAFOR & ORS VS. AG & COMMISSIONER FOR JUSTICE & ORS (1991) LPELR-2414(SC) at 34.
OGUNDARE, JSC further expounded the position of the law on the subject thus:
In Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 this Court dealt exhaustively with what constitutes abuse of process of Court. In his lead judgment in the case, Karibi-Whyte, JSC observed at pages 188-189:
“The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice.
It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu v. Okoromadu (1977) 3SC 21; Oyegbola v. Esso West African Inc (1966) 1 All NLR 170. Thus the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, per se.
The abuse consists of the intention, purpose, and aim of the person exercising the right to harass, irritate and annoy the adversary, and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different Courts, even though on different grounds. See Harriman v. Harriman (1989) 5 NWLR (pt. 119) 6.
Similarly so held was where two similar processes were used in respect of the exercise of the same right. Namely a cross-appeal, and a respondent’s notice, – See Anyaduba v. N.R.T. Co. Ltd. (1990) 1 NWLR (Pt.127) 397; Jadesimi v. Okotie-Eboh (No.2) (1986) 1 NWLR (Pt.16) 264. This Court has also held as an abuse of the process, an application for adjournment by a party to an action to bring an application to Court for leave to raise issues of fact already decided by Courts below, – See Alade v. Alemuloke (1988) 1 NWLR (Pt.69) 207. Hence as I have observed, it is not the exercise of the right per se, but its improper and irregular exercise which constitutes an abuse. Essentially, it is the inconvenience, inequities involved in the aims and purposes of the application which constitute the abuse. Otherwise, where there is a right to bring an action the state of mind of the person exercising the right cannot affect the validity or propriety of its exercise. The proposition has been aptly expressed by Lord Halsbury in Mayor & City of Bradford v. Pickles (1895) AC 587 at p.594 when he said,
‘If it was a lawful act, however ill the motive might be, he had a right to do it. If it was an unlawful act however good his motive might be, he would have no right to do it. Motives and intentions in such a question as is now before your Lordships seem to me absolutely irrelevant.’
The above words apply mutatis mutandis to the facts of the case before us. The motive of the defendant in bringing the application is irrelevant. He is entitled to exercise his constitutional right to appeal.” See CBN V. AHMED & ORS (2001) LPELR-837(SC) at 62-64. Furthermore, AUGIE, JSC succinctly captured the essence of what constitutes an abuse of Court process thus:
What is an abuse of Court process first off, it is settled that the employment of judicial process is only regarded as an abuse when a party improperly uses the judicial process to the irritation and annoyance of his opponent – see A.G., Anambra State V. UBA (2005) 15 NWLR (Pt. 974) 44 SC, Arubo V. Aiyeleru (supra) and Saraki V. Kotoye (supra) where this Court per Karibi-Whyte, JSC. aptly observed that the common denominator with the concept of abuse of Court process “is the improper use of the judicial process in litigation to interfere with the due administration of justice”.
The bottom line is that an abuse of Court process is where a litigant chooses to use the Legal process improperly to annoy and embarrass another through the filing of multiple actions in one or several Courts against the same Parties and on the same Issues – see Umeh& Anor V. Iwu & Ors (2008) 8 NWLR (Pt. 1089) 225 SC. In that case, Umeh & Anor V. Iwu & Ors (supra), this Court per Chukwuma-Eneh JSC, painted a clear picture of what it means.
Abuse of Court process simply, in practical sense denotes a situation where a party has instituted a multiplicity of suits against the same opponent in respect of the same subject matter and on the same issues. This matter of using Court process which is obviously lacking in bona fide leads to the irritation and annoyance of the other party and thus impeding due administration of justice … Therefore to sustain a charge of abuse of process there must co-exist inter alia – (i) A multiplicity of suits (ii) between the same opponents (iii) on the same subject matter and (iv) on the same issues. All these pre-conditions are mutually inclusive as they are conjunctive. See NWOSU VS. PDP & ORS (2018) LPELR-44386(SC) at 22-23.See AQUITANE OIL & GAS LTD VS. AMCON (2020) LPELR-50573(CA) at 8-13.
Two previous actions, one initiated by the Appellant and the other by the Respondent are said to have rendered the present action an abuse of the Court’s process. It is therefore noteworthy to examine these two cases. The first is Suit No. FCT/HC/M/12894/2020 initiated by the Appellants against the Respondent at the High Court of the FCT, Abuja wherein Hon. Justice S.B. Belgore delivered judgment on the 13th June, 2021. The action was for enforcement of the fundamental rights of the Appellants and in addition to damages awarded for violation of their rights, the Court granted eleven other reliefs of the Appellants which are worth reproducing thus:
1. A declaration that the arrest and subsequent detention of the 1st Applicant variously at the Headquarters of the Economic and Financial Crimes Commission, Jabi and Idiagbon House No. 5 Formella Street, Off Ademola Adetokunbo Crescent, Wuse 11 Abuja on Wednesday the 11th day of November, 2020 till date by the Economic and Financial Crimes Commission EFCC and its officers/operatives at the behest and instigation of the 2nd Respondent, is unlawful, unwarranted and unconstitutional being in contravention of the 1st Applicant’s Fundamental Right to personal liberty as preserved and enshrined in Section 35 of the 1999 Constitution.
2. A declaration that the continued detention of the 1st Applicant since Sunday the 15th day of November, 2020 at the said Headquarters and the Wuse 11 offices of the Economic and Financial Crimes Commission (EFCC) by the Economic and Financial Crimes Commission at the behest and instigation of the 2nd Respondent without arraigning him before a Court of competent jurisdiction is unlawful, unwarranted and unconstitutional being in contravention of the 1st Applicant’s Fundamental Human Right to personal liberty as preserved and enshrined in Section 35 of the 1999 Constitution.
3. A declaration that the seizure and subsequent withholding of the 1st Applicant’s International Passport by the 2nd Respondent with the concurrence/assistance of the Economic and Financial Crimes Commission (EFCC) is unlawful and unconstitutional being in contravention of the 1st Applicant’s Fundamental Right to freedom of movement as enshrined and preserved under Section 41 of the 1999 Constitution.
4. A declaration that the 1st and 2nd Respondents’ insistence that the 1st Applicant must surrender and sign over his landed property and personal property/chattel to the 2nd Respondent as a condition precedent to the release of the Applicant from EFCC’s detention is unlawful, unwarranted and unconstitutional being a contravention of the 1st Applicant’s Fundamental Right to fair hearing as enshrined in Section 36 of the 1999 Constitution.
5. A declaration that the seizure and detention/withholding of the 1st Applicant’s personal property/chattel, to with phones, jewelries, and one Samsung laptops, etc. by the EFCC at the behest of the 2nd Respondent, is unlawful and unconstitutional being a contravention of the 1st Applicant’s Fundamental Right to fair hearing and right against compulsory acquisition of property as enshrined in Section 36 and 44 of the 1999 Constitution.
6. A declaration that the invasion of the 1st Applicant’s home on the 11th day of November, 2020 with a multitude of men/officer and ransacking of same by a team of officers/operatives of the EFCC at the behest and instigation of the 2nd Respondent without presenting a search warrant to the Applicant is unlawful and unconstitutional being in contravention of the 1st Applicant’s Fundamental Right to private/family life as preserved in Section 37 of the 1999 Constitution.
7. A declaration that the freezing of the 1st Applicant’s Bank Accounts with Ecobank Nig. Ltd, Fidelity Bank Ltd and Guaranty Trust Bank, by the 1st Respondent at the instigation of the 2nd Respondent on the mere suspicion by the 2nd Respondent that the Applicant misappropriated his funds, is unwarranted, unlawful and unconstitutional being in contravention of the 1st Applicant’s Fundamental Right to fair hearing as preserved by Section 36 of the 1999 Constitution.
8. An order directing the immediate and unconditional release of the 1st Applicant from the EFCC’s custody pending when the 1st Respondent is ready to charge him to Court for whatever offence conceived by it.
9. An order compelling the Respondents to immediately release to the 1st Applicant his International Passport, and personal chattel, including phones, laptops and jewelries.
10. An order of injunction restraining the Respondents from deploying the facilities of the 1st Respondent to infringe howsoever on the Fundamental Rights of the 1st Applicant to fair hearing, freedom of movement, right to private/family, right to personal liberty and freedom from compulsory acquisition of property on account of the 2nd Respondent’s fabled suspicion of misappropriation of his funds.
11. An order directing the 1st Respondent to unfreeze the Bank Accounts of the 1st Applicant with these Banks to wit: Ecobank Nig. Ltd, Fidelity Bank Ltd and Guaranty Trust Bank Plc; or at all; the particulars of which accounts are listed on grounds upon which the reliefs are sought.
The ex parte order upon which the trial Court adjudicated was brought pursuant to Section 17(1),(2),(3) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006, 6(d),7(2), 24, 27(4), 28 and 29 of the Economic and Financial Crimes Commission (Establishment) Act, 2004 and Sections 44(2) (B & K)(3)and 251 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), sought the following reliefs:
1. An order of this Honourable Court forfeiting in the interim to the Federal Government of Nigeria the properties set out herein in the schedule to this Application.
2. And order of the Honourable Court directing the Applicant to give fourteen days’ notice via publication in any National Daily to the Respondents or any person who may have interest in the property contained in the schedule to this application to showcase why the properties should not be forfeited to the Federal Government of Nigeria.
3. And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.
The grounds upon which the said application was brought were stated as follows:
1. The properties in respect of which the reliefs are sought are subject matters of investigation, enquiry and examination by the EFCC which are reasonably suspected to be proceeds of unlawful activities of theft, criminal breach of trust and money laundering allegedly committed by the Respondents.
2. That there is need to preserve the properties from dissipation or disposal by the Respondents.
3. That Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 and Section 29 of the EFCC (Establishment Act) 2004 empower the Applicant or any officer authorized by him to seize the properties and cause an ex-parte application to be made to this Court for an interim order forfeiting the properties to the Federal Government.
The schedule of properties covered by the interim order of forfeiture made by the trial Court contains the following:
1. 4 Bedroom terrace duplex located at No. 9 Ugwuanyi Close off Iva-Valley Riad, Gold Estate Enugu, Enugu State.
2. 5 Units of 3 bedroom flat located at 174B Ukpata Crescent Golf Estate Enugu State.
3. A 6 No. 3 bedroom flat, located at off Amangwu Road Nkwo Nike, Enugu, Enugu State.
4. A six 4 bedroom semi-detached duplex at Plot H5A and H5B New Haven East Layout Enugu located at No. 30B, Uduma Street.
5. A Plot of land at No HR571 Heliewa Estate Enugu, Enugu State.
6. A plot of land located at No. 194 at Golf Estate Annex Abor Enugu, Enugu State.
I have gone to this elaborate extentto demonstrate the possible similarities between the actions presided over by the learned trial Judge and the suit adjudicated by the FCT High Court. It is however evident that while parties may be similar, the two suits differed in subject matter and reliefs sought. While the earlier action instituted by the Appellants at the FCT High Court was a fundamental rights action which involved listed assets of the Appellants, the later action before the trial Court was a non-conviction-based forfeiture application. The two actions are totally unrelated except for the parties and the latter action cannot therefore constitute an abuse on account of the former. Furthermore, the fundamental rights of the Appellants cannot be infringed by the procedure for civil forfeiture contained in Section 17 of the Advance Fee Fraud Act (supra) as it is action against rem which guarantees the rights to fair hearing. See JONATHAN VS FRN (2019) 10 NWLR (PT 1681) 533.
This takes us to the order made in Suit No: FHC/ABJ/CS/1613/2020 which was tendered before us as additional evidence on appeal. This presupposes that the said document was not availed the learned trial Judge and didnot form part of the materials upon which his judgment was based. In this action at the Federal High Court initiated by the Respondent, the following reliefs were sought:
1. An order of this Honourable Court granting the Chairman of the Commission or any officer authorized by him power to issue an order as specified in Form B of the Schedule to the EFCC Act 2004 to the bank managers or any person having control of the Banks where the accounts listed in the schedule hereunder are domiciled to freeze the said accounts.
2. An order of this Honourable Court granting power to the Chairman of the Commission or any officer authorized by him to direct the banks shown in the schedule to supply any information and to produce account documents relating to the accounts, the statements of account and bank instruments, and to stop all outward payments, operations or transactions (including any bill of exchange) in respect of the accounts listed in the schedule hereto.
3. An order of interim forfeiture to the Federal Government of Nigeria of properties and vehicles contained in the list attached hereto as exhibit EFCC B which were allegedly acquired with theproceeds of alleged financial crimes.
4. And for such further or other orders as this Honourable Court may deem fit in the circumstances.
A perusal of these two processes discloses instantly that while Suit No. FHC/ABJ/CS/1613/2020 sought preservatory orders pending the conclusion of criminal prosecution as envisaged under the EFCC Act (supra), the action filed before the trial Court was a civil action for recovery of proceeds of financial crimes. In line with the preservatory nature of the order in Suit No: FHC/ABJ/CS/1613/2020, the duration was made specific by the Court in the following words:
1. Prayers one, two and three on the Motion Ex-parte dated 1/12/20 but filed on 2/12/20 are hereby granted.
2. The freezing order made herein shall last for only three weeks (21 days) after which an application may be brought for extension of the life span of the order upon good reasons shown.
3. It is also directed that any person that is aggrieved with the freezing order herein made is entitled to approach the Court to seek to be heard notwithstanding that the 21 days given for the order has not lapsed.
This Court was not availed of anyprocess indicating that the orders made in the said Suit No: FHC/ABJ/CS/1613/2020 were extended beyond 21 days from the 14th day of December, 2020 when the said orders were made. It is therefore safe to conclude that the said orders lapsed in the first week of January, 2021 as submitted by Mr. Buba. This further implies that apart from the difference in the nature of the two proceedings, all the properties involved in the freezing orders in Suit No: FHC/ABJ/CS/1613/2020 were free from the said attachment several months before the ex-parte application for interim forfeiture adjudicated upon by the trial Court was filed on the 21st June, 2021. Once again, I cannot agree with Mr. Nnadozie that there is incidence of abuse of Court’s process herein.
Mr. Nnadozie contended that the learned trial Judge exceeded jurisdiction in reviewing and interpreting the judgment of a Court of coordinate jurisdiction in coming to a conclusion that the action before him was not an abuse of process. With due respect to the learned counsel, I do not agree with him. The law is clear that where the jurisdiction of a Court is challenged that Court has jurisdiction to decidewhether it has jurisdiction. See OLANIYI VS AROYEHUN & ORS (1991) LPELR-2566 (SC). In coming to a decision on the issue, the Court whose jurisdiction was challenged must of necessity consider all the materials placed before it. In this regard, the learned trial Judge was in order to have considered the judgment exhibited by the Appellants as having previously decided the subject matter of the action filed by the Respondent.
The action of the Respondent now on appeal is an action in rem directed at recovering proceeds of financial crimes as provided by Section 17 of the Advance Fee Fraud Act (supra). It is of the genre classified as civil forfeiture proceedings. It is not a criminal proceeding whereby any person is on trial with the possibility of conviction. The process is predicated on the illegal acquisition of the asset involved and on balance of probabilities the property involved would be discharged once acquisition thereof is shown to have been legal. See JONATHAN VS FRN (supra). In filing the present application to discharge the interim order of forfeiture the Appellants embarked on a convoluted course which would only lead them into a cul de sacwhereas all they needed to have done by affidavit evidence was to show the legal and untainted acquisition of the properties involved. See JONATHAN VS FRN (supra).
I accordingly resolve the sole issue for determination against the Appellants and in favour of the Respondent.
In totality therefore, I see no merit in this appeal and I therefore dismiss it.
Cost of N200,000.00 is awarded against the Appellants and in favour of the Respondent.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had read in draft form, the judgment just delivered by my learned brother J. O. K. OYEWOLE, JCA. I agree with his reasoning and final conclusions in the determination of the sole issue in this appeal.
I also find no merit in this appeal. It is dismissed. I abide by all the consequential orders contained in the lead judgment including that as to costs.
JOSEPH EYO EKANEM, J.C.A.: I agree with my learned brother, Oyewole, JCA, that the appeal is devoid of merit. I adopt the reasoning and conclusion of my learned brother in dismissing the appeal.
I abide by the consequential orders made in the lead judgment.
Appearances:
Mr. C. J. Nnadozie For Appellant(s)
Mr. M. I. Buba For Respondent(s)
