FRANK AMAH & ORS v. ECONOMIC AND FINANCIAL CRIMES COMMISSION
(2019)LCN/12761(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of February, 2019
CA/L/934/08
RATIO
APPEAL: EX-PARTE APPLICATION
“The law is well settled on the nature of Ex-parte applications. In PROVISIONAL LIQUIDATOR, TAPP IND Vs. TAPP IND [1995] 5 NWLR (Pt. 393) 9; (1995) LPELR-2928 (SC) Pg. 41, Paras A – D, OGUNDARE JSC stated that: an ex parte application is one made and could be granted without notice to the party affected by the order sought in the application See also, PDP Vs. UGBA & ORS (2011) LPELR-4838 (CA) Pg. 35-36, Paras G – C where this Court held that: By its nature, ex parte application is for one party only. Ex parte refers to those proceedings where one of the parties has not received notice and therefore is neither present nor represented? So ex-parte motion is a motion made to the Court by one party to a lawsuit without prior notice to any other party. By its inherent character and disposition therefore, ex-parte is one side only; done by, for, or on the application of one party alone.” The law is well settled on the nature of Ex-parte applications. In PROVISIONAL LIQUIDATOR, TAPP IND Vs. TAPP IND [1995] 5 NWLR (Pt. 393) 9; (1995) LPELR-2928 (SC) Pg. 41, Paras A – D, OGUNDARE JSC stated that: an ex parte application is one made and could be granted without notice to the party affected by the order sought in the application See also, PDP Vs. UGBA & ORS (2011) LPELR-4838 (CA) Pg. 35-36, Paras G – C where this Court held that: By its nature, ex parte application is for one party only. Ex parte refers to those proceedings where one of the parties has not received notice and therefore is neither present nor represented? So ex-parte motion is a motion made to the Court by one party to a lawsuit without prior notice to any other party. By its inherent character and disposition therefore, ex-parte is one side only; done by, for, or on the application of one party alone.” PER TIJJANI ABUBAKAR, J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1. FRANK AMAH
2. CHYFRANK NIGERIA LTD
3. CHUKWU AMAH
4. STANLEY C. AMAH
5. UGONNA J. STANLEY AMAH Appellant(s)
AND
ECONOMIC AND FINANCIAL CRIMES COMMISSION Respondent(s)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment):
This appeal is against the Ruling of the Federal High Court sitting in the Lagos Judicial Division delivered by M. L. SHUAIBU J. (as he then was) (Now JCA) on the 28th day of February, 2008 in Suit No: FHC/L/CS/92/07 contained at pages 74 – 81 of the Records of Appeal wherein the learned trial Judge dismissed the Appellants’ Application seeking an Order of the Court to strike out the suit for want of Jurisdiction.
The suit was commenced by an Ex-parte Originating Summons filed by the Respondent before the lower Court as found at pages 1 – 39 of the Records of Appeal wherein the Applicant (Respondent herein) sought for the forfeiture of the properties listed in the Affidavit in support of the Ex-parte Originating Summons. The learned trial Judge found merit in the Ex-parte Originating Summons and therefore granted the said Application; the Order of the lower Court is at pages 44 – 46 of the Records of Appeal. The Appellants in response filed a Motion on Notice praying the lower Court to strike out the suit for want of Jurisdiction. In a well-considered
Ruling which is the subject of this Appeal, the learned trial Judge refused the Appellants’ application seeking to strike out the suit for want of Jurisdiction. The Appellants therefore became miffed by the decision of the lower Court and therefore headed to this Court armed with Notice of appeal filed on the 14th day of March, 2008 found at pages 82 – 87 of the Records of Appeal.
The Appellants’ Brief of Argument was filed by learned Counsel James C. Ezike Esq., on the 13th day of August, 2009. On the part of the Respondent, Learned Counsel A.M. Olatule filed Notice of Preliminary Objection on the 13th day of August, 2009 challenging the competence of the Notice of Appeal. The Respondents through the same Counsel also filed the Respondents brief filed on the 14th day of September, 2009. The Appellants then filed a Reply Brief on the 27thday of October, 2011. The learned Counsel for the Appellants nominated a sole issue for determination reproduced as follows:
Whether in the circumstances, the Court below had the jurisdiction to make the said ex parte and gratuitous Order against the Defendants? property and assets when the Defendants were not served or meant to be served the Originating Process in which no address for service was indicated?
Learned counsel for the Respondent on the other hand formulated 3 (three) issues for determination as follows:
1. Whether the respective grounds of appeal filed in this case are competent in law.
2. Whether the order of Hon Justice M. L. Shuaibu of the Federal High Court, Lagos Division dated 23rd day of February, 2007 permanently and unconditionally forfeited the Assets and property of the Appellant listed in the Schedule.
3. Whether the grant of an ex-parte interim attachment or forfeiture of property established by prima facie evidence to be proceeds of crime pending conclusion of prosecution infringes right to fair hearing.
RESPONDENT?S PRELIMINARY OBJECTION
Learned counsel for the Respondent challenged the competence of this appeal through a Notice of Preliminary Objection filed on the 13th day of August, 2009 pursuant to Sections 240 – 244 of the Constitution of the Federal Republic of Nigeria, 1999; Order 6 Rules 1, 2, 3 and 6; and Order 7 Rule 1 of the Court of Appeal Rules, 2007 and the inherent jurisdiction of this Court. The Learned Counsel for the Respondent premised his objection on eight grounds as set out in the Notice of preliminary objection. Learned Counsel dedicated issue No. 1 in the Respondent’s Brief of argument to his contention in support of the said Preliminary Objection. The said issue No. 1 is: ‘Whether the respective grounds of appeal filed in this case are competent in law.’ Learned counsel argued that the grounds of this appeal are incompetent because they are not complaints against the Ruling of the Federal High Court dated 28th February, 2008, the subject of this appeal.
Learned counsel for the Respondent argued that the first ground of appeal was not against any finding of the lower Court because there was nowhere in the Ruling where the learned trial Judge ordered the permanent forfeiture of the assets and properties of the Appellants; and that the issue of whether the ex-parte order of the lower Court was a permanent and/or unconditional order of forfeiture neither arose before the lower Court nor did the lower Court make any pronouncement on it in the said Ruling the subject of this appeal. Learned Counsel referred to BABALOLA Vs. STATE [1989] 4 NWLR (Pt. 115) Pg. 264 at 294; SARAKI Vs. KOTOYE [1992] 9 NWLR (Pt. 264) Pg. 156; SAUDE Vs. ABDULLAHI [1989] 4 NWLR (Pt. 116) Pg. 387 at 431 and ILALE Vs. LEVENTIS & CO LTD (1959) 4 FSC 108 to submit that the first ground of appeal not being a challenge against any direct findings of fact by the lower Court is incompetent and ought to be struck out.
Learned counsel further referred to the second ground of appeal and argued that the trial Court never made any findings with respect to the constitutionality or otherwise of Sections 28 and 29 of the EFCC Act, 2004 and that same was not an issue before the lower Court. Referring to the findings of the lower Court at pages 80 -81 of the Records of Appeal, the Respondent’s counsel argued that the learned trial Judge only interpreted Section 44 (2) (k) of the Constitution. Counsel argued further that the question of the constitutionality or otherwise of Section 28 and 29 of the EFCC Act, 2004 was being raised by the Appellant for the first time on appeal without the requisite leave of Court thereby becoming incompetent. Counsel relied on NALSA & TEAM ASSOCIATE Vs. NNPC [1991] 8 NWLR (Pt. 212) Pg. 652 and KATE ENTERPRISES LTD Vs. DAEWOO NIGERIA LTD [1984] 6 SC 267 to urge this Court to strike out the grounds set out in the Notice of Appeal for reasons of being incompetent.
The learned Counsel for the Appellants in reply to the preliminary objection argued that this appeal is against the ratio decidendi and findings of the lower Court; that Ground 1 of the Notice of Appeal is against the clear findings of the lower Court at pages 80 – 81 of the records of appeal which was also referred to by the Respondent. Counsel further argued that the appeal is against the holding of the lower Court that it derived the jurisdiction to make its orders from the Constitution and Sections 28 and 29 of the EFCC Act. With respect to Ground 2, learned counsel for the Appellants argued that the lower Court clearly pronounced on the constitutionality of Sections 28 and 29 of the EFCC Act, 2004; and that the issue of the constitutionality or otherwise of Sections 28 and 29 of the EFCC Act, 2004 was before the lower Court and argued by the parties at pages 72 – 73 of the Records of Appeal.
Counsel referred to UKWU Vs. BUNGE [1997] 8 NWLR (Pt. 518) Pg. 527 at 541-542 to submit that the Appellants need no leave to appeal against a decision of the Court on an issue bordering on jurisdiction which can be raised at any time and in any manner. Relying further on NWAIGWE Vs. FRN [2009] 16 NWLR (Pt. 1166) Pg. 169 at 190-192, counsel urged this Court to discountenance the preliminary objection and the Respondent?s Brief in its entirety.
RESOLUTION OF PRELIMINARY OBJECTION
I have carefully considered the arguments canvassed by the respective counsel. The sole issue formulated by the Appellant in the substantive appeal borders on the jurisdiction of the lower Court to make the Order made on the 23rd day of February, 2007 which is the subject of the Appellants appeal. The law is settled on a number of authorities that the issue of jurisdiction can be raised for the first time before this Court and even at the Supreme Court.
The Supreme Court of Nigeria per OGUNTADE JSC stated in ELUGBE Vs. OMOKHAFE [2004] 18 NWLR (Pt. 905) 319; (2004) LPELR-1121 (SC) Pg. 19, Paras F ? G that: ‘The issue of jurisdiction of a Court to entertain a matter is very important in all forms of litigation. It is a threshold issue. It can be raised at any stage of the proceedings and even for the first time on appeal.’ In my opinion therefore this appeal is competent and must be determined on its merit since the subject of the Ruling before the lower Court was whether the lower Court had the jurisdiction to make the Order of 23rd February, 2007 and the Appellants have also formulated a sole issue bordering on the jurisdiction of the lower Court to make the said order.
I find no merit in the Respondent’s preliminary objection it is accordingly discountenanced. I will proceed to consider the submissions of the parties on all the issues raised in the substantive appeal and determine same one way or the other on the merit.
SUBMISSIONS OF COUNSEL FOR THE APPELLANTS
Learned counsel for the Appellants submitted that only the 1st Appellant (1st Defendant at the lower Court) was served with the ex-parte Order made on the 23rd of February, 2007; and that when the Appellants challenged the jurisdiction of the lower Court to make the said Order, the learned trial Judge failed to consider the issue of fair hearing arising from non-service of the originating process. Counsel further referred to the findings of the lower Court at pages 77 and 80 ? 81 of the Records of Appeal and submitted that the learned trial Judge was wrong in holding that the Order complained of is within the contemplation of the 1999 Constitution. Learned counsel further submitted that the lower Court was completely silent on the challenge to its jurisdiction on the ground that the Defendants were denied their constitutional right to be heard before the said Order was made.
Learned counsel referred to Sections 36, 43 and 46 of the Constitution of the Federal Republic of Nigeria, 1999; UGO Vs. OBIEKWE [1989] 1 NWLR (Pt. 99) Pg. 566 at 582; OKOYE Vs. CENTRE-POINT MERCHANT LIMITED; NATIONAL BANK Vs. GUTHRIE [1993] 3 NWLR (Pt. 284) Pg. 643 at 659-660; MADUKOLU Vs. NKEMDILIM (Supra) and ATANDA Vs. AJANI [1989] 3 NWLR (Pt. 111) Pg. 51 at 545-546 to submit that by failing to serve any Originating process on any of the Defendants, they have been denied their right to fair hearing; and that since the principles of natural justice which entitle the parties herein to fair hearing is enshrined in the Constitution, the reliance by the lower Court on the provisions of the EFCC Act, 2004 is of no importance.
Learned counsel further referred to Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999; UWAIFO Vs. A.G., BENDEL STATE & ORS [1982] 7 SC Pg. 124 at 209-210; ADESANYA Vs. THE PRESIDENT OF THE FEDERAL REPUBLIC & ANOR [1981] 1 All NLR (Pt. 1) Pg. 25; A.G. BENDEL STATE Vs. A.G. FEDERATION & 22 ORS [1982] 10 SC Pg. 36-37and the opinion of Professor B. O. Nwabueze in his book, Judicialism in Common-Wealth Africa at Pg. 109-110. Counsel argued that there was no justification for the lower Court to have evaded or declined to pronounce on the challenge to its jurisdiction which was based on the alleged violation of the Appellant s? right to fair hearing which is guaranteed by the Constitution. Learned counsel further relied on ADEJUMO Vs. AYANTEGBE [1989] 3 NWLR (Pt. 110) Pg. 417 at 451; MCFOY Vs. UAC LTD [1961] 3 WLR Pg. 1405 at 1409-1410 and NORTON Vs. SHELBY COUNTY 118 U.S. 425, 442 (1886) to submit that the violation of the Appellants’ right to fair hearing renders the entire proceedings and the said exparte Order null and void.
Learned counsel further argued that in the instant case, none of the Appellants had been prosecuted and convicted of any offence as contemplated in Section 44(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999; that the Constitution does not permit forfeiture of properties for the purpose of preservation; and that the condition precedent to an Order of forfeiture was not satisfied before the lower Court made the said Order because none of the Appellants was convicted or even arraigned for any offence. Learned Counsel contended that the order of the lower Court conflicted with the Appellants? right to property as provided in Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999 which conflicts with Sections 28 and 29 of the EFCC Act. Learned counsel further argued that Section 44(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999 only contemplates taking into possession for the purpose of any examination, investigation and enquiry and not forfeiture for the purpose of preservation as ordered by the lower Court.
Learned counsel further argued that Section 44(2)(k) of the Constitution of the Federal Republic of Nigeria, 1999 relied upon by the lower Court does not deal with forfeiture of assets. Counsel referred to A.G ABIA Vs. AGF [2002] 6 NWLR (Pt. 763) Pg. 264 at 432; TUKUR Vs. GOVERNMENT OF GONGOLA STATE [1989] 4 NWLR (Pt. 117) Pg. 517 at 579; HILL Vs. WILLIAM HILL (PARKLANE) LTD [1949] AC Pg. 530 at 545-546; IDEHEN Vs. IDEHEN [1991] 6 NWLR (Pt. 198) Pg. 382 at 429 and ORUBU Vs. N.E.C [1988] 5 NWLR (Pt. 94) Pg. 323 to submit that based on the canons of interpretation, the word ‘forfeiture’ in Section 44(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999 cannot mean ‘temporary taking possession’ within the meaning of Section 44(2)(k) of the same Constitution and that ‘attachment’ or ‘seizure’ used under Sections 28 and 29 of the EFCC Act are unconstitutional.
Learned counsel further referred to the definition of ‘forfeit’ in the Black’s Law Dictionary, 6th Ed., Pg. 650 to reiterate that forfeiture and the ‘temporary taking possession’ do not have the same meaning or connotation; and that the Order forfeiting the property and securities of the Appellants is therefore not within the contemplation of Section 44 of the Constitution. Learned Counsel referred to LAKANMI Vs. ADENE [2003] 10 NWLR (Pt. 828) Pg. 353 at 374; A.G. FEDERATION Vs. ABUBAKAR [2007] 10 NWLR (Pt. 1041) Pg. 1 at 93; OSADEBEY Vs. A.G., BENDEL [1991] SCNJ Pg. 102 at 218; A.G. BENDEL STATE Vs. A.G. FEDERATION & 22 ORS (Supra) at Pg. 132-134; IMB Vs. TINUBU [2001] 16 NWLR (Pt. 740) Pg. 670 at 690 and UTIH Vs. ONOYIVWE [1991] 1 NWLR (Pt. 116) Pg. 166 at 221 to submit that if the decision of the lower Court were allowed to prevail, then the Appellants? right to property protected under Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999 would be snatched away; and that Sections 20, 21 and 30 of the EFCC Act support the Appellants? position that forfeiture of properties can only follow a conviction for an offence.
Learned counsel further argued that assuming without conceding that Sections 28 and 29 of the EFCC Act was applicable, the lower Court still failed to follow the conditions precedent to the application of the said sections.
Counsel argued that Section 28 of the EFCC Act demands that the assets of the Defendant should have been attached and thereafter an interim order of attachment should be obtained from the Court; but that in the instant case, the property of the Appellants were never attached, nor did the Respondent ever seek to obtain any interim attachment order from any Court. Learned counsel further argued that under Section 29 of the EFCC Act, the condition precedent to seeking for an order of interim forfeiture is the prior seizure of the assets of mere suspects whether they have been arrested or not; but that in the instant case, there is nothing on record to show that any property or assets of the Appellants was ever seized before the said Orders of forfeiture were sought and granted or at all. Counsel submitted that the said Sections 28 and 29 of the EFCC Act are therefore ?legislative judgments? because they confer on an agency of the executive branch of government the unconstitutional and judicial powers to attach and seize assets of citizens.
Learned counsel placed reliance on ADAMAWA STATE Vs. A.G., FEDERATION [2005] 18 NWLR (Pt. 958) Pg. 581 and MILITARY GOVERNOR OF LAGOS STATE Vs. OJUKWU [1986] 1 NSC (Pt. 304) Pg. 310 to submit that the effect of the powers granted to the Respondent under Sections 28 and 29 of the EFCC Act amounts to a contempt of Court because it gives the Respondent power to first seize or attach any property by self-help before making an application to the Court. Counsel further referred to PAUL UNONGO Vs. APER AKU [1983] 11 SC Pg. 129 at 171-72; MINISTER OF INTERIOR Vs. HARRIS [1952] 4 (5A) Pg. 769 at 777 and HARRIS Vs. DONGES [1952] TLR 1242 SA A.P DIV to submit that the powers of attachment and seizure which could be exercised without an arrest, trial and conviction also violates the Appellants? right to be presumed innocent until proven guilty as guaranteed by Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999.
Learned counsel for the Appellants further argued that the fact that the lower Court has jurisdiction to try criminal cases does not empower it to act pursuant to a possible criminal case that was yet to be initiated. Citing MADUKOLU Vs. NKEMDILIM [1962] 1 All NLR Pg. 587 at 595, counsel submitted that the reliance by the lower Court on Section 19(1) of the EFCC Act is totally unwarranted and that the lower Court could not have exercised jurisdiction over a criminal case that was not initiated and did not come before it. Learned counsel relied on OLUROTIMI Vs. IGE [1993] 8 NWLR (Pt. 311) Pg. 257 at 271 to contend that juxtaposing the drawn up Order of the lower Court at pages 44-46 and 54-56 of the Records of Appeal with the Respondent’s prayers in the Originating summons at pages 1-2 of the Records of Appeal; the lower Court clearly granted the Respondent more than what was prayed for.
Learned counsel further contended that the case of NWUDE Vs. FRN (2006) relied on by the lower Court at page 81 of the Records of Appeal was unreported; citing YUSUF Vs. TOLUHI [2008] 14 NWLR (Pt. 1107) Pg. 237 at 243-244; CLEMENT Vs. IWUANYANWU [1989] 3 NWLR (Pt. 107) Pg. 39 at 54 and UBA LTD Vs. STAHLBAU GMBH [1989] 6SCNJ (Pt. 1) Pg. 1 at 21 counsel further argued that this Court cannot take judicial notice of an unreported case and that the facts of the said case were not stated nor were the issues involved therein discussed by the lower Court. Learned counsel further cited OLUROTIMI Vs. IGE (Supra); EKPENYONG Vs. NYONG & ORS (1975) 2 SC Pg. 71 at 81-82; A.G. LAGOS STATE Vs. DOSUNMU [1989] 6 SCNJ (Pt. II) Pg. 136 at 140-141; ADEYEMI Vs. OPEYORI [1976] 9 & 10 SC 31 at 51-52 and A.G., ANAMBRA STATE Vs. AGF & ORS [1993] 6 NWLR (Pt. 302) Pg. 692 at 741 to reiterate that the lower Court lacked the power and jurisdiction to grant the reliefs that were not sought for by the Respondent. Counsel urged this Court to allow this Appeal.
SUBMISSIONS OF COUNSEL FOR THE RESPONDENT
Learned counsel for the Respondent, as earlier mentioned, distilled three issues for determination; however, the first issue contained arguments in respect of the Notice of Preliminary Objection which had already been determined. I will therefore consider the submissions of learned Counsel in respect of the 2nd and 3rd issues which will be treated as the Respondent?s issues No. 1 and 2 respectively. With respect to the first issue herein, which is: ‘Whether the order of Hon Justice M. I. Shuaibu of the Federal High Court, Lagos Division dated 23rd day of February, 2007 permanently and unconditionally forfeited the Assets and property of the Appellant listed in the Schedule.’; learned for the Respondent referred to OGOJA L.G. Vs. OFFOBOCHE [1996] 7 NWLR (Pt. 447) and OKOKHUE Vs. OBADAN [1989] 5 NWLR (Pt. 120) Pg. 185 to contend that a judgment is only final when it is obtained in an action by which an existing liability of the defendant to the plaintiff is determined on the merit and vice versa. Counsel further referred to BOZSON ALTRINCHEM URBAN DISTRICT COUNCIL (1905) 1 KB 547 at 548 and Halsbury’s Law of England, 4th Ed. Vol. 26, Para. 504 to argue that a judgment will only be considered as final where the determination of the matter by the Court disposes of the rights of the parties and not merely an issue in the case.
Learned counsel further argued that in determining whether the Order of the lower Court under consideration herein was permanent or interlocutory, the Respondent?s ex-parte application before the lower Court which is contained at pages 1 – 39 of the Records of Appeal must be considered. Counsel submitted that the prayer of the Respondent was for an order of the lower Court pending the prosecution of the Appellant for money laundering; and that the basis of the Respondent’s ex-parte Application as contained in the Affidavits in support thereof was simply to preserve the properties allegedly purchased with proceeds of crime pending when the Respondent would conclude the prosecution of the 1st & 2nd Appellants herein. Learned counsel contended that the said ex-parte Order was to last until the conclusion of the trial of the 1st and 2nd Appellants respectively; and that where the cases end in acquittal, the Order would lapse, and where it ends in conviction, the order would equally lapse, subject to a final order of forfeiture that the trial Court may eventually make.
Citing7 UP BOTTLING CO. LTD Vs. ABIOLA & SONS LTD [1989] 4 NWLR (Pt. 114) Pg. 229 at 237, learned counsel submitted that the ex-parte Order made in the instant case, not being a final order did not permanently forfeit the properties and assets of the Appellants. Counsel further submitted that it was wrong for the Appellants to submit that the trial Court’s Order unconditionally forfeited their assets and properties. Counsel referred to the said Order at pages 44-46 of the Records of Appeal to submit that the Order was given on the condition that the Respondent (Applicant therein) shall execute an undertaking to indemnify the Appellants (Respondents therein) in the event that the Order turns out to be obtained mala fide; that any money realized by the said Order be put in an interest yielding account in the name of the Respondent; and that the 1st and 2nd Respondents shall be prosecuted for money laundering. Learned counsel submitted that the first and second conditions for which the Order was granted had been fulfilled; but that the third condition is being frustrated by the Appellants. Learned counsel for the Respondent urged this Court to hold that the Order of the lower Court did not permanently and unconditionally forfeit the property of the Appellant; Learned Counsel urged this Court to resolve this issue in favour of the Respondent.
ISSUE TWO
Submitting on the third issue, learned Counsel for the Respondent contended that in ex-parte proceedings, only the Applicant is usually heard before the Order is made except where the Court orders that the other party be put on notice; and that where the Court orders that the other party be put on Notice, the proceedings ceases to be ex-parte. Learned Counsel further submitted that the power or jurisdiction of the Courts to make ex-parte orders are derived from statutes and rules of Court, and as such, an exercise of jurisdiction by the Court in granting an ex-parte order cannot be said to amount to a violation of the constitutional right to fair hearing of a party who by the provisions of the law or rules is not to be heard in the first place.
Learned counsel for the Respondent referred to Order 9 Rule 11 of the Federal High Court (Civil Procedures) Rules, 2000 and 7UP BOTTLING CO. LTD Vs. ABIOLA & SONS LTD (Supra) to submit that a party affected by an ex-parte Order under the rules of the lower Court is not without remedy; that the aggrieved party has the right to present an application within the stipulated time to ask the lower Court to set aside the said orders. Counsel submitted that the Appellants did not exercise the rights available to them and that the Application to set aside which was filed by the Appellants was unilaterally withdrawn by the Appellants counsel. Learned counsel further submitted that an ex-parte Order would only be discharged where it is shown that beneficiary of the said ex-parte order made misrepresentations of facts and/or misled the Court in giving the Order.
Learned counsel referred to Section 6(6) of the Constitution of the Federal Republic of Nigeria, 1999 and 7UP BOTTLING CO. LTD Vs. ABIOLA & SONS LTD (Supra) to submit that the power of the lower Court to grant ex-parte Orders is not limited to its civil jurisdiction. Counsel further submitted that the cases relied upon by the Appellants? counsel are not helpful to the case of the Appellants; and that granting an ex-parte Order of interim attachment or forfeiture of property pending the conclusion of prosecution does not infringe on the Appellants? right to fair hearing. Learned counsel urged this Court to dismiss this appeal and hold that it is incompetent, misconceived and lacking in merit.
APPELLANTS’ REPLY
In the Reply Brief, learned counsel for the Appellants submitted that in the light of the decision inNWAIGWE Vs. FRN (Supra), the Respondents issues are merely academic. Counsel argued that forfeiture as held in NWAIGWE Vs. FRN (Supra) amounts to unconstitutional divesture and punishment without trial and conviction. Counsel cited ADESANYA Vs. OTUEWU [1993] 1 NWLR (Pt. 270) Pg. 414 at 456 to submit that Respondent is deemed to have admitted having failed to answer or refute the Appellants contention that the Order of forfeiture without trial is unconstitutional. Appellants’ counsel further submitted that the lower Court unconditionally and permanently forfeited the assets and property of the Appellants; and that the decision was final. Citing ONWUKA Vs. MADUKA [2002] 18 NWLR (Pt. 799) Pg. 586 at 601 and IGUNBOR Vs. AFOLABI [2001] 1 NWLR (Pt. 723) Pg. 148, the Appellants counsel also argued that the Order of the lower Court was not based on any ex-parte application by the Respondent as there was no ex-parte application before the lower Court, and that the process before the lower Court was an Ex-Parte Originating Summons which was not served on the Appellants and therefore the decision in 7UP BOTTLING CO. LTD Vs. ABIOLA & SONS LTD (Supra) is inapplicable.
The Appellants’ counsel relied on WESTERN STEEL WORKS LTD Vs. IRON STEEL WORKERS UNION OF NIGERIA [1986] SC Pg. 35 at 52 to further argue that the Appellants right of appeal is not dependent on whether the decision was final or interlocutory since the sole issue brought before this Court by the Appellants bordered on whether the lower Court had jurisdiction to make the Orders subject matter of this appeal. Learned Counsel reiterated the submissions made in the Appellants brief and argued that the order made by the lower Court violated the Appellants’ right under Section 44(2)(k) of the Constitution of the Federal Republic of Nigeria, 1999. Learned counsel urged this Court to allow the Appeal.
RESOLUTION
The brief facts of the matter leading to this appeal is that pursuant to an ex-parte application filed by the Respondent, the lower Court made an Order on the 23rd of February, 2007; the Appellants aggrieved by the said Order, filed an Application challenging the competence of the lower Court to make the said Order. In determining the Appellants’ application which challenged its jurisdiction to make the Order it made on the 23rd of February, 2007, the lower Court found that it had the requisite jurisdiction to make the said Order. Aggrieved by the Ruling contained at pages 74 – 81 of the Records of Appeal, the Appellants filed the instant appeal. The summary of the Appellants’ contention is that the learned trial Judge failed to consider the issue of fair hearing arising from the failure to serve the originating process on any of the Defendants which amounts to a denial of their right to fair hearing; that since the principles of natural justice entitles the parties to fair hearing as enshrined in the Constitution, the reliance by the lower Court on the provisions of the EFCC Act, 2004 is of no effect; that the violation of the Appellants? right to fair hearing renders the entire proceedings and the said exparte Order null and void.
It was further submitted that none of the Appellants was prosecuted and convicted of any offence as contemplated in Section 44(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999; that the Constitution does not permit forfeiture of properties for the purpose of preservation; and that the condition precedent to an Order of forfeiture was not satisfied before the lower Court made the said Order because none of the Appellants was convicted or even arraigned for any offence in Court. It was also contended that assuming, without conceding that Sections 28 and 29 of the EFCC Act was applicable; the lower Court still failed to follow the conditions precedent to the application of the said sections; that the effect of the powers granted to the Respondent under Sections 28 and 29 of the EFCC Act amounts to a contempt of Court because it gives the Respondent powers to first seize or attach any property by self-help before making an application to the Court; that juxtaposing the drawn up Order of the lower Court with the Respondent?s prayers in the Originating summons, the Appellant submitted that the lower Court clearly granted the Respondent more than what was prayed for; and that the lower Court lacked the power and jurisdiction to grant the reliefs that were not sought for by the Respondent.
I subjected the Respondent’s ‘Ex-parte Originating Summons’ and the Affidavits in support of same as contained at pages 1 – 39 of the Records of Appeal; the said Order of the lower Court made on the 23rd of February, 2007 contained at pages 44 – 46 of the Records of Appeal; the Appellants’ Application challenging the Jurisdiction of the lower Court and the supporting Affidavits and Exhibits as contained at pages 47 – 71 of the Records of Appeal; then the Ruling of the lower Court which is the subject of this appeal as contained at pages 74 – 81 of the Records of Appeal to detailed scrutiny; and I am convinced that from all these processes, which form the Records of proceedings before the lower Court, the sole issue for determination is “whether the lower Court had a jurisdiction to make the Order as it did on the 23rd of February, 2007”. In determining this sole issue, the said Order will be considered again to determine its nature considering the contention of the Appellants that it is an Order of permanent forfeiture of the properties listed in the schedule to the Order.
The law is well settled on the nature of Ex-parte applications. In PROVISIONAL LIQUIDATOR, TAPP IND Vs. TAPP IND [1995] 5 NWLR (Pt. 393) 9; (1995) LPELR-2928 (SC) Pg. 41, Paras A – D, OGUNDARE JSC stated that: an ex parte application is one made and could be granted without notice to the party affected by the order sought in the application See also, PDP Vs. UGBA & ORS (2011) LPELR-4838 (CA) Pg. 35-36, Paras G – C where this Court held that: By its nature, ex parte application is for one party only. Ex parte refers to those proceedings where one of the parties has not received notice and therefore is neither present nor represented? So ex-parte motion is a motion made to the Court by one party to a lawsuit without prior notice to any other party. By its inherent character and disposition therefore, ex-parte is one side only; done by, for, or on the application of one party alone.
It therefore follows that being an ex-parte application, the Respondent’s ‘Ex-parte Originating Summons’ and the Affidavits in support of same as contained at pages 1 – 39 of the Records of Appeal which did not include an address of service for the Appellants was perfectly in order and qualifies as an ex-parte application. I am of the opinion that the Appellants’ contention to the effect that they ought to have been put on notice is without valid legal basis; and that the contention that the said application is an ‘originating summons’ is an attempt to erect a pillar of technicality in sustaining submission that is bereft of legal foundation. The Appellants cannot elect to resort to designing legal maneuvers to circumvent the true intent of ‘Ex-parte’ by harping and persistently sticking on ‘originating summons’ and carefully circumventing the preceding word; ‘Ex-parte’. What distinguishes an Ex-parte Application from an Application/Motion on notice is the fact that the Ex-parte Application is made by one party without Notice to the other party or parties to be affected. See UNIBIZ (NIG) LTD Vs. COMMERCIAL BANK CREDIT LYONNAIS LTD [2003] 6 NWLR (Pt. 816) 402; (2003) LPELR-3380 (SC) Pg. 25, Paras A – E. It must be noted, as stated by WALI JSC in PROVISIONAL LIQUIDATOR, TAPP IND Vs. TAPP IND (Supra) at Pg. 45, Paras E – F that: An ex parte order properly made is always provisional and for a limited period and does not decide the civil rights of the parties involved in the litigation.
The powers of the Court to hear and determine ex-parte applications can by no means be declared as unconstitutional or constitute a violation of fair hearing merely because the Court grants the Order without recourse to the affected party. The grant or refusal of an ex-parte application is an exercise which falls within the Jurisdiction of the Court where the ex-parte application is brought and the Court will determine the said application on the strength of the facts deposed to in the supporting affidavits. The Court will only grant the said ex-parte application upon being satisfied that it is expedient and justifiable so to do; however, where the Court considers that it is in the interest of justice to put the other party on notice, then the ex-parte application will be converted to a Motion on Notice and the Respondent(s) will be caused to be put on Notice. I am of the view that the hearing and determination of an ex-parte application without putting the affected party/parties on notice does not amount to a violation of the constitutional rights to fair hearing of the affected party. See SUSWAM Vs. UGBA & ORS (2011) LPELR-4180 (CA) Pg. 10, Paras D – G and PROVISIONAL LIQUIDATOR, TAPP IND Vs. TAPP IND (Supra) at Pg. 48, Paras C ? D. This is more so because an Order obtained ex-parte is not a final Order; it is an interim Order and the purpose for which it will be granted is to preserve the res and the status quo pending the determination of the issues between the contending parties.
The contention of the Appellants herein that failure to put them on Notice before the hearing and determination of the Ex-parte application brought by the Respondent robbed the lower Court of jurisdiction and violated their right to fair hearing has no footing in law, it is therefore without foundation or semblance of legal justification because, the Order is not final as erroneously contended by the Appellants. As rightly held in PROVISIONAL LIQUIDATOR, TAPP IND Vs. TAPP IND (Supra), it is always ‘provisional and for a limited period and does not decide the civil rights of the parties involved in the litigation.’
In the instant case, the Orders sought by the Respondent were for the interim forfeiture of the assets and properties belonging to the Appellants pending the prosecution of the 1st and 2nd Appellants for their alleged involvement in money laundering. The Appellants counsel also noted that the orders sought by the Respondents were for temporary Orders but argued that the trial Court granted more than the Respondent sought by making permanent and unconditional Orders for the forfeiture of the assets and properties as listed in the schedule to the Respondent’s application as well as in the Order of the lower Court. It is expedient to conduct a microscopic examination of the said Order to determine if it is indeed a permanent and unconditional Order of forfeiture as contended by the learned Counsel for the Appellants, or even if it appears to be, or can be construed or misconstrued asa permanent and unconditional Order.
In the said Order dated the 23rd of February, 2007 at pages 44 – 46 of the Records of Appeal the lower Court ordered as follows:
1. THAT an Order is hereby granted to the Applicant forfeiting all the items listed in the schedule.
2. THAT the Applicant shall however execute an undertaking to indemnify the Respondents in the event that the Order turns out to be obtained mala fide.
3. THAT any money realized be put in the interest yielding account in the name of the ECONOMIC & FINANCIAL CRIMES COMMISSION.
Reading the said Orders, I do not see any indication of permanence in the Order made by the lower Court. The learned trial Judge had in the said Order reproduced the orders sought by the Applicant (Respondent herein) which clearly stated that the Orders being sought were for temporary forfeiture of the assets and properties pending the prosecution of the Appellants. Although the lower Court merely mentioned in the first paragraph that: ?an Order is hereby granted to the Applicant forfeiting all the items listed in the schedule? the said order cannot be construed to mean an order of permanent forfeiture against the Appellants because the lower Court went further to order that, the Applicant for the order of forfeiture shall file undertaking to pay damages if it turned out that the ex-parte order ought not be made in the first instance. It needs not be over stressed that the order has the character of interim order, the purpose of making an order for undertaking to pay damages is to secure the interest of the party against whom the order is made, this to my mind shows beyond any doubt that the order is temporary, and makes it explicit that ex-parte order must not be granted unless there is undertaking by the applicant to pay damages, see: DRESSER INC Vs. ANATRADE LIMITED (2003) LPELR-12400 (CA).
From the plain face of the order made by the lower Court, I found no evidence of the lower Court granting orders in excess of what the Applicant sought for. The law is fairly settled that a Court is bound by and must confine itself to the relief(s) sought by a party before it. See EAGLE SUPER PACK (NIGERIA) LTD Vs. ACB PLC [2006] 19 NWLR (Pt. 1013) 20 SC; OLORUNTOBA-OJU Vs. DOPAMU [2008] 7 NWLR (Pt. 1085) 1 SC. It is discernible from page 44 of the records of appeal that the relief(s) sought by the Respondent are specifically for temporary forfeiture of the Appellants’ properties, by virtue of the Motion Ex-parte filed on the 26th of January, 2007, the Respondent/Applicant sought for the following orders:
1. AN ORDER that the 720,000 (Seven Hundred and Twenty Thousand) Units of the IBTC Chartered Bank Shares in the name of the 3rd, 4th and 5th Respondent be forfeited temporarily to the Economic and Financial Crimes Commission for and on behalf of the Government of the Federal Republic of Nigeria pending the prosecution of the 1st and 2nd Respondents for their alleged involvement in money laundering.
2. AN ORDER that all accruable income/dividend on the said shares unpaid be unpaid into an interest yielding account in the name of the Chairman of the Economic and Financial Crimes Commission on behalf of the Federal Government of Nigeria.
3. AN ORDER that the Chairman of the Economic and Financial Crimes Commission on behalf of the Federal Government of Nigeria shall take over and administer the property at No. 22 Thompson Avenue, Ikoyi, Lagos pending the prosecution of the 1st and 2nd Respondents for Money Laundering now pending at the Federal High Court, Lagos.
4. AN ORDER that any money realize as rent/lease on the land property at No. 22 Thompson shall be paid into an account under the Chairman of Economic and Financial Crimes Commission, on behalf of the Federal Republic Government of Nigeria.
5. AN FOR SUCH ORDER OR OTHER ORDERS as the Honourable Court may deem fit to make in the circumstances of this suit.
It is obvious from the above prayers that the relief(s) sought by the Respondent are well defined and are not permanent. For the avoidance of doubt, all the relief(s) sought including the forfeiture, were temporary in nature and granted in favour of the Respondent pending the conclusion of the criminal trial on the offence of money laundering which was pending before the lower Court. The fact that in granting the application the learned trial Judge did not expressly state in the order that the relief(s) granted in favour of the Respondent are not sufficient to warrant reversing the decision of the lower Court.
“It appears that the basis for challenging the order by the Appellants is the misconception that the learned trial Judge suo motu permanently and unconditionally ordered the forfeiture of the Assets and properties of the Appellants.”
The nature of an ex-parte application has been extensively discussed in this appeal, the law is settled that an ex-parte application can be heard and granted without recourse to the affected party/parties and such an Order will not constitute a violation of the right to fair hearing of the Appellants as provided under the Constitution of the Federal Republic of Nigeria 1999.
The lower Court found at page 80 of the Records of Appeal that it has the jurisdiction to try offenders under the EFCC Act; the Appellant did not challenge this finding neither did the Appellants contest the powers of the Court to try them for the alleged offences. In fact, in the affidavit in support of the Appellants’ application before the lower Court, the 1st Appellant stated at paragraph 3 that he was arraigned in ‘Charge No. FHC/L/89C07: Federal Republic of Nigeria Vs. Frank Amah & Anor. The said Charge dated 29th day of March, 2007 was attached and found at pages 52 – 53 of the Records of Appeal. The Appellants’ challenge was that they were not put on notice before a permanent order of forfeiture was made against them this is a misconception on the part of the Appellants because the said Order was an interim and conditional Order.
In the light of all I said therefore, it is my view that having established that the Order made by the lower Court on 23rd of February, 2007 is not a permanent or unconditional Order. The fact that the Appellants were not put on notice did not in my view violate or foreclose their right to be heard. The Order clearly stated that the Appellants shall be indemnified if the Order was found to be obtained mala fide. The issue nominated for determination is therefore resolved against the Appellants in favour of the Respondent. Having resolved this issue in favour of the Respondent, it therefore follows that Appellants appeal is devoid of merit and deserves to be and is hereby dismissed. The Ruling of the Federal High Court delivered by M. L. SHUAIBU J. (as he then was) (Now JCA) on the 28th day of February, 2008 in Suit No: FHC/L/CS/92/07 is affirmed by me.
Parties in this appeal shall bear their respective costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had the opportunity of reading in draft the judgment of my learned brother TIJJANI ABUBAKAR, JCA just delivered.
He has comprehensively addressed all the issues in contention in this appeal. I agree with his reasoning and conclusion.
I also dismiss the appeal for lacking in merit and accordingly affirm the decision of the lower Court.
I also abide by all other consequential orders in the lead judgment.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother TIJJANI ABUBAKAR, JCA afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.
Appearances:
Appellant AbsentFor Appellant(s)
G. G. Chia TaiwaFor Respondent(s)
Appearances
Appellant AbsentFor Appellant
AND
G. G. Chia TaiwaFor Respondent
