FELIMON ENTERPRISES NIGERIA LIMITED v. THE CHAIRMAN, ECONOMIC FINANCIAL CRIMES COMMISSION & ANOR
(2013)LCN/5855(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of January, 2013
CA/L/987/2010
RATIO
FEDERAL HIGH COURT ACT: SECTIONS 10 AND 12 OF THE FEDERAL HIGH COURTS ACT: WHETHER THEY APPLY TO CIVIL MATTERS ONLY
It is my view that Sections 10 and 12, taken together, suggest that these provisions do not apply to criminal matters, as in the present appeal, but to civil matters. PER RITA NOSAKHARE PEMU, J.C.A.
INTERIM ORDER: PURPOSE OF INTERIM ORDER AS PROVIDED FOR UNDER SECTION 28 AND 29 OF THE FEDERAL HIGH COURT ACT
The Interim order of attachment allowed by Sections 28 and 29 of the Act, is to prevent the dissipation or alienation of the properties before the determination of the Criminal trial. At page 25 of the Judgment (page 315 of the Record of Appeal), the learned trial Judge did observe that the application for the order, and the grant of it, was protected by Section 44(2) of the 1999 Constitution. A.G. ONDO STATE VS. A.G. FEDERATION (2002) 9 NWLR Pt.773 22 @ 474.PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
FELIMON ENTERPRISES NIGERIA LTD – Appellant(s)
AND
1. THE CHAIRMAN, ECONOMIC FINANCIAL CRIMES COMMISSION
2. MR. FRANCIS ATUCHE – Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of Honourable Justice A. Ajakaiye delivered on the 6th day of July, 2010, in which he refused to discharge, or set aside, the motion ex-parte for interim attachment of the Appellant’s properties and assets (pages 324-325 of the Record of Appeal).
SYNOPSIS OF THE FACTS
The Appellant was Applicant at the lower Court. Sometime in October 2009, the 2nd Respondent was arraigned on a 26 counts charge. He was granted bail. Thereafter the charge was substituted for an amended charge of 44 counts. The 2nd Respondent was to continue on the former bail terms.
The 1st Respondent filed an application ex-parte, seeking inter alia, to attach and freeze some accounts affiliated to the 2nd Respondent, one of which belonged to the Applicant. The lower Court granted the application on the 1st of March, 2010.
The Appellant filed a motion dated 17th of March, 2010 on the 19th of March, 2010, praying the Court for an order discharging or setting aside the ex-parte order of interim attachment on the ground of misrepresentation and suppression of facts. The learned trial judge refused the application as prayed on the 6th of July, 2010, thereby dismissing the application as being premature.
These facts is what has informed this appeal.
The Appellant, dissatisfied with the decision of the Court, has appealed it, vide Notice of Appeal filed on the 20th of July, 2010, with three Grounds of Appeal of pages 326-328 of the Record of Appeal). Same is hereby reproduced.
GROUND NO. 1
“The learned trial Judge erred in law and therefore caused a miscarriage of justice when he ignored all the legal authorities cited by the Appellant on the effect of suppression and misrepresentation of material facts in an Ex-parte application and went ahead to dismiss the Appellant’s application to discharge the Ex-parte Order of Interim Attachment of its assets and properties on the ground that the application is premature”.
GROUND NO.2
“The learned trial judge erred in law and therefore caused a miscarriage of justice when he held that on the strength of the substantive charge against the 2nd Respondent and the proof of evidence, the name of the Appellant featured prominently and therefore it would be premature to discharge the Ex-parte Order of Interim Attachment”.
GROUND NO. 3
“The learned trial Judge erred in law and therefore caused a miscarriage of justice when he held that the name of the Appellant featured prominently in the substantive charge against the 2nd Respondent, thereby shifting the burden of proof to the Appellant”.
Parties filed their respective briefs of argument. The Appellant filing his brief of argument, on the 8th of November, 2010, with two (2) issues for determination as reflected at page 3 of the brief of argument.
They are:
(1) Whether in view of the materials presented and the legal authorities cited by the Appellant, it has satisfied all the conditions entitling it to a grant of the application for setting aside or discharge of the order of interim attachment against the Appellant.
(2) Whether, considering the materials before the lower Court, and the law, the learned trial Judge was justified in law in refusing the application by the Appellant for the discharge or setting aside of the Order of attachment of the properties and assets of the Appellant on the grounds that the name of the Appellant featured prominently in the Amended Charge No.FHC/369C/2009 dated 14th day of February, 2009 thereby making the application premature.
The Appellant also filed a reply brief on points of law to the 1st Respondent’s brief of argument. The 1st Respondent filed his brief of argument on the 17th of February, 2011, but same was deemed filed on the 20th of April, 2011 with a sole issue for determination.
It is
“Whether the learned trial judge was right in refusing to discharge or set aside the order of Interim attachment granted on the 1st of March, 2010 in respect of the Appellant”.
The 2nd Respondent on record, filed no brief of argument. The Issues raised by the respective parties seem to coalesce and they deal with the same issue. I shall consider them based on the issue which is
“whether the lower court was right in refusing to discharge the order of attachment on the Ground that it was premature, in that the name of the Appellant featured prominently in the Amended charge”
On the 19th of November, 2012, learned counsel for the Appellant and the 1st Respondent adopted their respective briefs of argument.
In considering this issue, it is apparent that the order which the Appellant sought to discharge was made pursuant to the Statutory Provisions of Section 28 of the EFCC Act 2004 which provides thus:
“…where a person is arrested for an offence under this Act, the Commission shall immediately trace and attach all the assets and properties of the person acquired as a result of such illegal act and shall thereafter cause to be obtained an Interim Attachment Order by the Court…”
An ordinary order of Interim Injunction ex-parte, which is normally made until a named date, or pronouncement of a decision on an interlocutory application for injunction, is in my view distinct from the use of the word “interim” in Section 28 of the EFCC Act. I agree with the argument of learned counsel for the 1st Respondent that the word “interim” as used in the provisions of the Act is not the same as used in an application for injunction, but an order of attachment made until the end of the case, when the Court will either finalize the order of forfeiture, or finally discharge it.
At the lower Court, the application of the 2nd Respondent, Mr. Francis Atuche dated 2nd March, 2010 seeks the following reliefs viz:
(1) “An Order of this Honourable Court DISCHARGING all the ex-parte orders procured by the Respondent against the Applicant herein.
(2) An Order setting aside the ex-parte orders made by this Honourable Court on 7th of March, 2010 permitting the Respondent herein to issue Form B of the Schedule to the Economic and Financial Crimes Commission (Establishment) Act 2004.
(3) An Order of this Honourable Court De-Freezing (wholly or partially) all bank accounts allegedly believed to belong or be connected to the Applicant herein.
(4) An Order of this Honouroble Court varying any purported freezing order/directive on the under-listed accounts of the Applicant maintained with Platinum Habib Bank Plc.
(a) 400221000004, 2190001272, 116000011, PNA 001084100002 and 001040100000.
(b) A/C No.10100617051 and C.A. 001020102315 belonging to the Applicant’s wife.
The Grounds for the application are:
(a) The Respondent, in bringing the application that led to the order of Court made on 1st of March, 2010, misrepresented some facts to the Court.
(b) The Applicant’s constitutionally guaranteed rights to own immovable property anywhere within Nigeria, right to choice of counsel, adequate facilities and time to prepare his defence in a criminal charge, presumption of innocence etc. have been greatly infringed upon consequence, upon the ex-parte/interim order made against him.
(c) The Applicant’s constitutionally guaranteed right to life and human dignity has been greatly violated, as the purported freezing order has hindered him from maintaining his family, and discharge his responsibilities accordingly.
d) There was no risk of dissipation or diminution in value of any assets whatsoever.
(e) The Respondents’ application on the basis of which ex-parte orders were obtained against the Applicant was speculative, mala fide and an attempt to harass and arm twist the Applicant.
(f) Material non-disclosure of full and frank facts by the Respondent in applying for the purported freezing order.
(g) The application and acts of the Respondent amount to an abuse of the process of this Honourable Court.
(h) The provisions of the E.F.C.C. Act empowering substantive relief of freezing order against the property of a citizen is fundamentally unconstitutional being against the provisions of Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria.
Other persons filed applications. They are Colonnades Hotels and Resorts Limited, Claremount Asset Management Limited, Anyankwo Francis Okechukwu, Ugo Anyanwu, Grace Atuche and Felimon Enterprises Nigeria Limited. Their applications had to do with seeking Order of Court to set aside/discharge the Interim Orders of the Court dated 1st March, 2010, in so far as it affected them.
They also expressed the fact that the Order of Court was obtained by misrepresentation of facts by the EFCC – the 1st Respondent in this appeal.
The Applicant/Appellant’s application is reproduced at pages 303-305 of the Record of Appeal.
It is the story of the Applicant at the lower Court, that the establishment allegedly involved in complicity in the alleged economic and financial crime, is Felimon Enterprises and not the Appellant, Felimon Enterprises Nigeria Limited.
In answer to this the learned trial judge at pages 34-35 of his judgment – pages 324-325 of the Record of Appeal had this to say
“… The Respondent contends that both are one and the same and that the Company is one of those used as fronts in the economic and financial crimes allegedly committed by Mr. Francis Atuche. As a matter of fact, the name Felimon Enterprises features prominently in count 38 of the criminal charge. I will only say that it is at that stage of the trial that it will be ascertained whether Felimon Enterprises and Felimon Enterprises Nigeria Limited are one and the same. It is also at that stage that it will be determined whether the company is in any way involved in the alleged criminal charge leveled against Mr. Francis Atuche…”
In determining the issues formulated by the Appellant and the 1st Respondent, which I have subsumed into one issue, I am of the view that the issue of interim attachment of property and its setting aside, and discharge, must be considered, in view of what kind of laws are operative in the circumstances. This is because the issue of discharge/setting aside of Interim Order, as regards issues affecting financial crimes as investigated and prosecuted by the Economic and Financial Crimes Commission, is different from an ordinary discharge and or setting aside of interim attachment of property, as the provisions of the EFCC Act and the Constitution of the Federal Republic of Nigeria 1999 suggest.
It is noteworthy that the order which the Appellant sought to discharge was made pursuant to Section 28 of the EFCC Act 2004. It has this to say
“…where a person is arrested for an offence under this Act, the commission shall immediately trace and attach all the assets and properties of the person acquired as a result of such illegal act and shall thereafter cause to be obtained an interim attachment order by the Court…”
I seem to agree with the 1st Respondent’s argument as gleaned from paragraph 4.04 of his brief of argument, that the Appellant seems to have misconceived the use of the word “interim” in Section 28 of the EFCC Act, to equate the order made by the Court on the 1st of March, 2010, to that of an order of interim injunction exparte, which is normally made until a named date, or pronouncement of a decision on an Interlocutory application for Injunction.
He argues that in order to have the order of interim attachment made discharged, it was incumbent on the Appellant to show, not just that the 2nd Respondent does not have any direct relationship with the Appellant, but how the Appellant, who has been alleged to be a front for the hiding of the proceeds of crime, acquired the assets against which the order of interim attachment was made.
He argues, that where the Court has presumed the grant of an Interim order on prima facie evidence placed before it, the party seeking to discharge or set it aside is duty bound to place before the Court sufficient rebuttal evidence that will puncture the prima facie evidence already placed before the Court.
The 1st Respondent further argues that the Appellant has not shown that there is no prima facie evidence, that the property or assets concerned were not liable to interim attachment. Rather, he sought to have the interim order of attachment set aside, on the grounds of suppression, or misrepresentation of facts, or non disclosure of material facts. That the Appellant failed to show what facts were available to the Respondent, which the Respondent suppressed or misrepresented or failed to disclose to the lower Court.
He argues that the onus shifted on the Appellant to show and prove what facts were available to the Respondent, which, if the Respondent had disclosed to the Honourable Court, the Court would not have granted the interim order of attachment or would have discharged same in its Ruling of 6th July, 2010 citing ITANMA v. AKPE-IME (2000) 12 NWLR (Pt.680) Page 168, paragraphs f-h; 180 paragraphs g-h.
That the Appellant is expected to show that there was not sufficient evidence on the basis of which the Court may proceed to exercise its discretion – ABACHA V. STATE (2002) 11 NWLR (Pt.779) 437.
The 1st Respondent was emphatic in his submission, that in varying, setting aside, or discharging the order of interim attachment, the rules applicable to the discharge of an interim order of injunction are totally inapplicable, as the Court having made the order on a conviction of the existence of a prima facie evidence that the property is liable to interim attachment, can only set it aside by the Appellant/Applicant showing that there is no prima facie evidence making the property liable to interim attachment.
The Appellant in his reply brief of argument filed on the 21st of April, 2011, had conceded that an interim order obtained under Section 28 of the Economic and Financial Crimes Commission Act, 2004, is sui generis. He argues however, that the provisions of the Economic and Financial Crimes Commission Act, 2004, does not provide for the procedure for discharge of the interim orders made pursuant to Section 24 and 28 of the Act.
Therefore the Court is expected to fall back on its procedure as provided for in its Rules – which is here Order 26 Rules 11- and 12 of the Federal High Court (Civil Procedure Rules 2009), and the well established legal principles in support. He argues that the Court can only rely on its inherent powers to make an order in the interest of justice referring to Section 6(6) of the 1999 Constitution.
He further argues that one of such principles of law is that an interim order made ex parte can be varied or discharged where the order was granted on concealment or misrepresentation of material facts. He submits that the Court’s discretion to grant or refuse an order for discharge of an interim order, is inherent by virtue of Section 6(6) of the 1999 Constitution. He further submits, that assuming that there is a conflict, the Constitution must prevail citing Section 1(1) and (3) of the 1999 Constitution and EKULO FARMS LTD. VS. UNION BANK LTD. PLC (2006) 4 SC. (Part 11) at page 20, paragraphs 21-26.
I shall reproduce the provisions of Section 10 and 12 of the Federal High Court Act cited by the Appellant, to appreciate how tenable or otherwise his argument is.
Section 10: “Subject to the provisions of this Act, in every civil cause or matter commenced in the Court, law and equity shall be administered by the Court accordingly”
Section 12: “Subject to the express provisions of any other enactment, and in all matters not particularly mentioned in this Act in which there was formerly or there is any conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rules of equity shall prevail in the Court so far as the matters to which those rules relate are cognizable by the Court”
It is my view that Sections 10 and 12, taken together, suggest that these provisions do not apply to criminal matters, as in the present appeal, but to civil matters. Therefore it will be correct to state that these provisions are inapplicable to this present appeal, and I so hold. The Appellant was grossly misconceived to have referred to these provisions. Section 28 of the Economic and Financial Crimes Commission (Establishment) Act Cap E1 Laws of the Federation of Nigeria) has this to say
“Interim forfeiture order where
(a) the assets or properties of any person arrested for an offence under this Act have been seized; or
(b) any assets have or property has been seized by the Commission under this Act, the Commission shall cause an 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”
The Interim order of attachment allowed by Sections 28 and 29 of the Act, is to prevent the dissipation or alienation of the properties before the determination of the Criminal trial. At page 25 of the Judgment (page 315 of the Record of Appeal), the learned trial Judge did observe that the application for the order, and the grant of it, was protected by Section 44(2) of the 1999 Constitution. A.G. ONDO STATE VS. A.G. FEDERATION (2002) 9 NWLR Pt.773 22 @ 474.
Regarding the issue of Felimon Enterprises Nigeria Limited and Felimon Enterprises, I agree with the learned trial Judge, as observed at page 34 of the judgment (page 324 of the Record of Appeal), where he rightly in my view observed inter alia:-
“…. As a matter of fact, the name Felimon Enterprises features prominently in Court 38 of the criminal charge. I will only say that it is at the stage of the trial that it will be ascertained whether Felimon Enterprises and Felimon Enterprises Nigeria Limited are one and the same. It is also at that stage that it will be determined whether the company is in any way involved in the alleged criminal charge leveled against Mr. Francis Atuche”.
I am of the view that the learned trial Judge is right. The Appellant had contended that the establishment allegedly involved in complicity in the alleged economic and financial crime, is Felimon Enterprises, and not the Appellant, Felimon Enterprises Nigeria Limited. But the Respondent contends that both are one and the same and that the company is one of those used as fronts in the economic and financial crimes, allegedly used by Mr. Francis Atuche.
It is apparent from Section 26 of the Economic and Financial Crimes Commission (Establishment) Act, that where a person is arrested for an offence under this Act, the commission shall immediately trace and attach all the assets and properties of the person acquired, as a result of such illegal act, and shall thereafter cause to be obtained an interim attachment order by the Court.
The provisions of the Economic and Financial Crimes Commission [Establishment) Act does not provide for the discharge and or setting aside of interim attachment of properties of culprits. If the Law had envisaged this, it should have stipulated it in its provisions.
Indeed in Section 29 of the Act, it says
“Where an arrested person is convicted of an offence under this Act, the commission or any authorized officer shall apply to the Court for the order of confiscation and forfeiture of the convicted persons’ assets and properties acquired or obtained as a result of the crime already subject to an interim order under this Act”.
In my view, the refusal of the learned trial judge, to set aside, and or discharge, the order, is borne out of the fact that the provisions of the Act do not provide for it, and that refusal was in order, in order to protect the RES.
The sole issue is resolved in favour of the 1st Respondent and against the Appellant.
The appeal is bereft of merit, as the learned trial judge, was right to refuse to discharge, and or set aside the Order of interim attachment as he did.
Accordingly the Ruling of Honourable Justice A.O. Ajakaiye of the 6th of July 2010 is hereby affirmed while the Appeal is dismissed.
No order as to costs.
ADAMU JAURO, J.C.A.: I have been afforded the opportunity of reading in advance, the lead judgment just delivered by my learned brother, R. N. PEMU, J.C.A. I am in complete agreement with the reasoning and conclusion in the said judgment and adopt same as mine.
The appeal is devoid of any merit and is hereby dismissed. The ruling of the lower court delivered on 6th July, 2010 is hereby affirmed.
FATIMA AKINBAMI, J.C.A.: I have read before now the erudite and comprehensive judgment just delivered by my learned brother PEMU, JCA. His lordship has covered extensively all the issues in controversy. I agree with his reasoning and conclusion that the appeal be dismissed. I abide by the orders as to cost.
Appearances
C. V. C. Ihekweazu Esq. with A. C. Eze Esq and T. Micah Esq.For Appellant
AND
Azeem Atanda Esq. for the 1st Respondent and I. Anwuta (Miss) for the 2nd Respondent.For Respondent
