JENNIFER v. EFCC (2022)

JENNIFER v. EFCC

(2022)LCN/16937(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Thursday, June 02, 2022

CA/IL/105/2021

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Isaiah Olufemi Akeju Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

MRS. EZENMA OLERE JENNIFER APPELANT(S)

And

ECONOMIC AND FINANCIAL CRIMES COMMISSION RESPONDENT(S)

RATIO

WHETHER OR NOT THE APPELLATE COURT HAS JURISDICTION TO HEAR AN APPEAL BASED ON INCOMPLETE RECORD OF APPEAL

To properly appreciate whether the trial Court was right or wrong in refusing the order sought; I am of the considered view that the order of Court in FHC/IL/CS/14/2021 wherein that interim order of forfeiture/attachment was made and all processes filed leading to the making of that order for interim forfeiture/attachment ought to form part of the record of appeal in this matter. Having not made them part of the record of appeal in this matter, the effect is that the record of appeal upon which this appeal is based is incomplete. It is settled that this Court lacks the jurisdiction to hear any appeal based on incomplete record of appeal. See Ekpempolo v Edremoda (2009) 8 NWLR Pt.1142)116, and Okochi v Animkwoi (2003)18 NWLR (Pt.251)1. Consequently, this appeal ought to be struck out for incomplete record, it is hereby struck out.

However, in view of the admonition of the Supreme Court in Brawal Shipping Company v Onwudikwe Company (2000) 6 SCNJ 508 at 522, that trial and penultimate Courts should determine all issues raised for determination in a case before them and should not limit themselves to the issue that disposes of the entire case, to avoid the case being remitted back to the lower Court for the trial of the issues not determined by it, See also, Ojobue v Nnubia (1972) 6 SC 27 and Katto v CBN (1991) 9NWLR (Pt. 214) 126 at 149. I shall now deal with the merit of this appeal. PER AMADI, J.C.A.

WHETHER OR NOT THE COURT IS ENTITLED TO SPECULATE ON MATTERS NOT BEFORE IT

In Access Bank Vs Onwuliri (2021) LPELR 53078, the Supreme Court Per Kekere- Ekun JSC held that:
“It has always been the settled position of the law that a Court is not entitled to speculate on matters not before it. I have also illustrated elsewhere in this judgment, the binding nature of the record of appeal. The decision of this Court to the effect that on no account must the Court deliberate on an incomplete record, are in recognition of this principle. Without seeing the material that was before the trial Court, the appellate Court would not be in a position to reach a just resolution of the issues brought before it. A decision reached in such circumstances, affecting the rights of the parties, would no doubt lead to a miscarriage of justice. I agree with learned counsel for the respondent that the compilation and transmission of a complete record of appeal is a condition precedent to the assumption of jurisdiction by the Appellate Court.”
It has therefore been universally held that the Court lacks jurisdiction to hear an appeal on the premise of a record of appeal that is incomplete. PER AMADI, J.C.A.

KENNETH IKECHUKWU AMADI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court Ilorin Division, delivered on 22/10/2021, by Hon. I.M. Sani J., in Suit No: FHC/IL/CS/34/2021.

The brief facts of this case that gave rise to this appeal is that the Respondent (EFCC) upon a discrete investigation for cybercrime believed that the husband of the Appellant – Chukwudubem Raphael Ezenma, was involved in Credit card cybercrime fraud and built his house with funds from the crime aforesaid – a four-bedroom bungalow situate at No. 5 Yusuf Akiju Street Off Fate Road Ilorin, Kwara State (land description: Plot 20 Block C Off Fate Road Ilorin) wherein they marked the property with the inscription “KEEP OFF UNDER INVESTIGATION BY EFCC”. It is important to note that the documents of the property are in the name of the Appellant.

The said Chukwudubem Raphael Ezenma together with his wife the Appellant herein took out a Fundamental Rights Application in Suit No: KWS/52M/2021 which failed. Meanwhile, the Respondent applied and obtained an order of Interim Forfeiture of the property Ex-Parte in Suit No: FHC/IL/CS/14/2021.

In an effort to get discharged the Interim Order of the forfeiture, the appellant herein, the wife of the said Chukwudubem Raphael Ezenwa took out this suit at the lower Court by way of Originating Motion for the discharge of the Interim Order for forfeiture made in Suit No: FHC/IL/CS/14/2021.

The Respondent objected on the ground of abuse of Court process in that instead of bringing the Motion on Suit No: FHC/IL/CS/14/2021 wherein that order of interim forfeiture was made, the appellant commenced another suit in this suit now on appeal. The trial Court overruled that objection. Thereafter, considered the Motion on its merit and refused/dismissed same. Aggrieved by that ruling the appellant filed this appeal.

In this Notice of Appeal, the appellant raised 4 grounds of appeal.
GROUND 1
The Federal High Court erred in law and totally misunderstood the provisions of the EFCC Act in particular Sections 28 and 29 of the EFCC Act when it held, “It must be appreciated that the order granted by this Court which order learned counsel for the applicant urged upon the Court to discharge is not a final forfeiture but an interim order allowed by Sections 18 and 29 of the EFCC Act to prevent dissipation or alienation of the house in question before the determination of the criminal trial.
GROUND 2
The Federal High Court erred in law when it held “It should also be noted that the issue of discharge/setting aside an 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 Nigeria 1999 suggests.
GROUND 3
The Federal High Court erred in law when it held “Having linked the property in question to the applicant’s husband who is standing trial before this Court and having considered the statement personally credited to the applicant herself on the said property, it will not be in the interest of justice to discharge the said order properly granted by this Court.
GROUND 4
The ruling of the Federal High Court is against the weight of evidence.

In his Appellant’s Brief of Argument, the learned counsel for the appellant raised 2 (two) issues for determination, thus:
1. Whether or not the trial Court was right in granting an Interim Order of attachment in respect of the appellant’s house/property when same was not derived from proceed of crime and not liable to be attached/forfeited under the Economic and Financial Crime Commission Act.
2. Whether the learned trial judge was right to have refused to set aside its interim order of attachment made Ex-Parte on the 29th of June, 2021, which ordered an interim attachment of the appellant’s property/house.

In his argument in respect of issue one, counsel submitted that a condition precedent is something that must be done or must happen in a particular case, before one is entitled to institute an action. That it is not of the essence for such a cause of action but it has been made essential by law. That in the instant case the conditions precedent for interim attachment were not complied with by the respondent referring to the case of African Natural Resources & Mines Ltd v. SS Minerals Resources Ltd & Ors. (2021) LPELR-55151 (CA), Lawal v. Oke (2001) 7 NWLR (Pt. 711) 88.

That the appellant was not arrested at any point for committing any financial crime or any offence whatsoever neither was there any fact or proof to that effect at the trial Court. That the appellant also is not standing any criminal trial before the Federal High Court or any other Court to justify the granting of the interim order of attachment pending the trial as held by the trial Court.

That the appellant in establishing her ownership of the house/property attached by the respondent in her affidavit at the lower Court exhibited her title document which was marked as Exhibit B to prove her title/ownership of the property, see page 20 to 24 of the record of appeal.

That under the relevant laws, the respondent in an application for interim attachment has a duty to provide prima facie evidence that the property/asset is derived from proceeds of crime before an interim order of attachment can be made which the respondent did not provide in obtaining the interim order but rather suppressed and misrepresented material facts in obtaining the interim order of attachment.

That it is clear going by the relevant laws and authorities that it is only an asset that is derived/acquired through the commission of an offence that can be attached or forfeited. In other words, if a property is not connected to an offence/charge such a property/asset is not liable to be attached. That in the instant case there was no proof/evidence at the trial Court that the appellant’s property was derived from proceed of crime.

Counsel submitted that, having established that the appellant’s house/property was not derived from financial crime and the condition precedent under the Economic and Financial Crime Commission Act was not complied with by the respondent, the trial Court was wrong in granting an interim order of attachment against the appellant’s property.

In respect of the second issue counsel argued that the law is settled that a Court of Law has the inherent power to set aside its decision or that of a Court of co-ordinate jurisdiction in any of the following circumstances/grounds:
(1) Where a misrepresentation is made which influenced the decision
(2) Where there is a suppression of material facts
(3) Where the order is irregularly granted.
(4) Where the order or decision is afflicted by another virus capable of rendering the decision or order ineffective, null and void.

That in the instant case the appellant was able to establish not just one but all of the circumstances/ground for the trial Court to set aside its interim order of attachment made ex-parte. Counsel referred to FRN v Ozekhome (2021) LPELR- 54666 (CA), UBA Plc v Magama Nigeria Limited & Anor (2013) LPELR – 20685 (CA), Obimonure v Erinosho & Anor (1966) LPELR – 25301 (SC) and Alaya v Isaac (2019) LPELR – 46881 (CA).

Furthermore, that the trial Court did not consider the uncontroverted facts in the appellant’s affidavit evidence and the attached documents which establish that the appellant’s house was acquired in August 2019 while the alleged offence which the appellant’s husband is standing trial at the federal high Court was in September 2020. That there is also no other offence the appellant’s husband was arrested for or standing trial neither was there any evidence to that effect at the trial Court. That from the Affidavit evidence, it is uncontroverted that the appellant’s house preceded the alleged financial crime against her husband and her house is not connected to the alleged financial crime the husband is standing trial for.

Counsel submitted that there is no proof or evidence that the appellant’s house was derived from proceed of crime and liable to be attached at the trial Court. That it has further been established that the appellant’s property is not connected to the criminal trial against the husband at the Federal High Court and as such the trial Court acted in speculations, conjectures and allegations without proof in refusing to discharge its interim order of attachment and discountenanced with the uncontroverted facts in the appellant’s affidavit and documentary evidence to the facts that the appellant’s house is not connected or derived from proceeds of crime.

Counsel urged this Court to resolve this issue against the Respondent and to allow this appeal.

The learned counsel for the Respondent in his own Brief of Argument raised 2 issues for determination, thus:
1. Whether the trial Court was not right to have granted the interim attachment order in suit no. FHC/IL/CS/14/2021 in respect of the four Bedroom Bungalow situate at No. 5 Yusuf Aliyu Street Off Fate Road Ilorin Kwara State (land Description: plot 20 Block C off fate Road Ilorin) (Distilled from ground 1 of the Appellant’s Notice of Appeal)
2. Whether the trial Court was not right to have refused the application of the Appellant filed 20th September, 2021 in suit no: FHC/IL/CS/34/2021, seeking for the discharge of the interim attachment order on the four bedroom bungalow situate at No. 5, Yusuf Aliyu Street off Fate Road Ilorin Kwara State (land Description: plot 20 Block C off fate Road Ilorin) made in Suit No. FHC/IL/CS/14/2021 (Distilled from grounds 2 & 3 of the Appellant’s Notice of Appeal)

Counsel argued that the grouse of the Appellant are centered around the facts that the four Bedroom Bungalow situate at no. 5 Yusuf Aliyu Street Off Fate Road Ilorin Kwara State (land Description: plot 20 Block C off Fate Road Ilorin) hereinafter referred to as the property:
a. Was marked “Keep off under investigation”, para 2.2 of the Appellant’s brief.
c. Depositions leading to the grant of the interim attachment order were false (para of the Appellant’s Brief of Argument)
c. The property is owned by the Appellant and not her husband (para 2.6 of the Appellant’s Brief of Argument)
d. The trial Court refused to vacate the interim attachment order.

Counsel submitted that the trial Court has the unfettered powers to grant an order of interim attachment of properties which are a subject of investigation as it did in Suit No: FHC/IL/CS/14/2021 referred EFCC v. Afolabi & Ors. (2018) LPELR- 43565 (CA).

Furthermore, that Section 28 of the Economic and Financial Crimes Commission (Establishment) Act, 2004 provides for the tracing and attachment of assets and properties of individuals acquired as a result of acts of Economic and Financial Crimes and the obtaining of an interim attachment order from the Court.

That Section 28 of EFCC Act is therefore in line with the provision of the Constitution. And in fact, the Respondent also relied on the provisions of Section 329 and 330 of the Administration of Criminal Justice Act. 2015 which also empowers the trial Court to grant an application of this nature pending the enquiry or investigation being caused into the allegations by the Respondent.

That it is of importance to state that the facts leading to the application in Suit No. FHC/IL/CS/14/2021 from which the trial Court made the interim attachment order are those contained in the proceedings in the said suit and not in Suit No. FHC/IL/CS/34/2021. That the said records are however not before this Honourable Court to enable the Court properly determine this appeal.

However, that the facts leading to the filing of the application in Suit No. FHC/IL/CS/14/2021 were that the Respondent upon its arrival to Ilorin, Kwara State, based on intelligence received, commenced an investigation into the suspected acts of the involvement of the Appellant’s husband: Chukwudubem Raphael Ezenma in Cybercrimes activities i.e credit card Cybercrime fraud. The Respondent also later received two other petitions; one was anonymous and the other was by a certain Usman Babatunde Ayinde, requesting it to investigate the means and extent of wealth the said Chukwudubem Raphael Ezenma, for which it caused further investigations and his link to dealings in credit card cyber fraud, for which he was subsequently charged before the Federal High Court, under the Cyber Crimes Prohibition Act 2015.

That the property herein; four Bedroom Bungalow situate at no. 5 Yusuf Aliyu Street Off Fate Road Ilorin Kwara State (land Description: plot 20 Block C off fate Road Ilorin) was traced and placed under investigation while determining the means and extent of wealth of the said Chukwudubem Raphael Ezenma from which he acquired the property in the name of the Appellant and constructed a four-bedroom bungalow thereon. That the business and life style of the said Chukwudubem Raphael Ezenma was also investigated wherein it was discovered that he had an inflow into his Chukwudubem Apple Tech office account N132,974,154.38 in UBA account number 1021764298 between 2019 and 2021; and the sum of N377,243,659.80 in Zenith Bank account number 1017272776 between May 2020 and January, 2021. That these are all actions which are in consonance with the Respondent’s special powers under Section 7(1) (a) & (b), 2(b) of the Economic and Financial Crimes Commission (Establishment) Act, 2004.
That the Appellant whose name appeared on the property document was invited for questioning and she made statements denying knowledge of the source of funds for the purchase of the property as same was given to her as gift by her husband who also singlehandedly raised the funds towards erection of the building. That these were the facts upon which the trial Court was persuaded in granting the interim order of attachment in Suit FHC/IL/CS/14/2021.

That in the consideration of the Appellant’s denial of knowledge of the source of the property and source of the funding of the erection of the four bedroom apartment which were the facts the trial Court relied upon in refusing to discharge its attachment order.

In respect of issue two, that is; whether the trial Court was not right to have refused the application of the Appellant filed 20th September, 2021 in Suit No: FHC/IL/CS/34/2021; seeking for the discharge of the interim attachment order on the four bedroom bungalow situate at No. 5, Yusuf Aliyu Street off Fate Road Ilorin Kwara State (land Description: plot 20 Block C off fate Road Ilorin) made in Suit No. FHC/IL/CS/14/2021(Distilled from grounds 2 & 3 of the Appellant’s Notice of Appeal)

Counsel argued that it is within the trial Court’s powers to entertain an application of this nature; seeking to discharge the order made by it. That the Supreme Court in Felimon Enterprises Limited v. The Chairman, Economic and Financial Crime Commission & Anor (2017) LPELR-43829(SC) 11-12 had this to say “…Firstly the attachment under the relevant Sections, 27, 28 and 29 of the EFCC Act is done upon an ex-parte interim order. That is outside the knowledge of the contending party and so when circumstances are thrown up which would impel the Court for a re-visit of that order, it behooves the Court of trial that made the interim order in the first place to take a second judicial and judicious look at the matter to see whether or not a need for setting aside or refusing to set aside exist. These are within the discretionary powers of the Court subject of course to the availability of sufficient facts and materials to do so”.

The Court also in Felimon’s case further stated the burden to be discharged by an Applicant like in this case thus at pages 12-13: “What I am labouring to put across is that while the EFCC Act has made provisions for the forfeiture or attachment of the properties albeit by an interim order obtained ex-parte, the fact that there are no black and white provisions for a reversal does not foreclose the appellant’s constitutional right to cry out that the earlier order was wrongly made and a reversal should be put in place. For this later situation to apply however, the appellant must provide the material supporting the Court’s change of heart to discharge that interim order or setting aside. Counsel referred to the cases of Kasunmu v Shitta-Bey (2006) 17 NWLR (Pt. 1008) 422, Abacha v state (2002) 11 NWLR (Pt.779) 437, Itauma v. Akpe-Ime (2000) 12 NWLR (Pt.680) 168 at 180.”

That the Respondent has shown clearly that its investigation into the suspected acts of the Applicant’s husband; Chukwudubem Ezenma Raphael linked the property in question to him having paid for same but with the title document in the name of the Appellant. Also the depositions in paragraphs 28 of the Respondent’s Counter-Affidavit in Suit No. FHC/IL/CS/34/2021 (found on page 39 of the records of appeal) are the revelations from the GTbank account of the Appellant’s husband showing the monies paid by him into Appellant’s account for which she later paid back into his account. That the Respondent has also shown how the Appellant was personally confronted with the facts relating to the property, that she denied any knowledge of how it all came about and how the building now standing thereon was constructed from start till finish during the Covid 19 lockdown period. That the statements of the Appellant were placed before the trial Court and the Court considered same.

That the trial Court overruled the Respondent’s preliminary objection raised before it and held thus:
“Having considered the processes filed by the Applicant and the Respondent, I am of the view that the application brought by the Applicant is properly before the Court and will be considered based on the processes filed.”
(See page 79 of the Record of Appeal)

That the trial Court went further to state at the last paragraph of page 79 of the record of appeal thus:
“This Court had in Case No. FHC/IL/CS/14/2021 granted an order for interim attachment of the property in question i.e. Four Bedroom Bungalow situate at No. 5, Yusuf …The order was granted upon careful perusal of the processes filed by the Applicant now Respondent including the statement of the Applicant attached and marked as Exhibit EFCC 5 amongst others.”
(Underlining provided for emphasis)

Counsel urged this Court to hold that, the trial Court properly evaluated the facts presented before it and rightly arrived at the decision of its refusal to discharge the said Interim attachment order.

Continuing, counsel argued that, the Appellant seeks to hide under the cover that the property was purchased before the period her husband allegedly committed credit card cybercrime frauds but again deliberately closed her eyes to the facts alleged by the Respondent that its investigation of her husband extended from 2019 to 2021, with regards to the acquisition and development of the building at Plot No 20 (Block C) Off Fate Road Ilorin.

In summary, counsel submitted that:
a. The investigation carried out on the Appellant’s husband of alleged acts of his involvement in credit card fraud and also the investigation into his lifestyle and extent of his properties including the over N500 Million inflow into his Chukwudubem Apple Tech two accounts between 2019 and 2021 led to the tracing of the four Bedroom Bungalow situate at no. 5 Yusuf Aliyu Street Off Fate Road Ilorin Kwara State (land Description: plot 20 Block C off fate Road Ilorin).
b. The facts elicited at the time in consideration led to the filing of the Application in Suit No. FCF/IL/CS/14/2021 for an interim order of attachment on the property pending conclusion of investigation which the trial Court heard and granted.
c. That the grant of the interim attachment order in Suit No. FHC/IL/CS/14/2021 was within the powers of the trial Court and the Court rightly did.
d. That the Appellant failed vide her Suit No. FHC/IL/CS/34/2021 to provide credible and compellable evidence before the trial Court in persuading him to discharge its order made in Suit No. FHC/IL/CS/14/2021 touching on the four Bedroom Bungalow situate at no. 5 Yusuf Aliyu Street Off Fate Road Ilorin Kwara State (land Description: plot 20 Block C off fate Road Ilorin).
e. That this Honourable Court is urged to uphold the decision of the trial Court and dismiss this appeal.

The learned counsel for the appellant filed Appellant’s Reply Brief on 9/2/2022. I have carefully read through it. It is a further argument of his brief and not any reply on points of law. It is consequently discountenanced.

PRELIMINARY OBJECTION:
The learned counsel for the Respondent filed a Notice of Preliminary Objection, urging the Court to strike out this appeal for want of jurisdiction. The grounds upon which the application is brought are:
1. The Respondent/Objector upon carrying out an investigation on a four Bedroom Bungalow situate at no. 5 Yusuf Aliyu Street Off Fate Road Ilorin Kwara State (land Description: plot 20 Block C off fate Road Ilorin), approached the trial Court for an interim attachment order which it granted in Suit No. FHC/II/CS/13/2021.
2. The Appellant/Respondent before the trial Court instituted Suit No. FHC/II/CS/34/2021 in challenging the order of the Court made in Suit No. FHC/II/CS/13/2021 which attached in the interim; the four Bedroom Bungalow situate at no. 5 Yusuf Aliyu Street Off Fate Road Ilorin Kwara State (land Description: plot 20 Block C off fate Road Ilorin) pending the completion of investigation being carried out by the Respondent/Objector.
3. The preliminary objection raised by the Respondent/Objector; premised on abuse of process whereat the Appellant/Respondent herein challenged the order of Court made in Suit No: FHC/II/CS/14/2021, by instituting Suit No: FCH/II/CS/34/2021 leading to this appeal (see page 79 of the records) was overruled by the Court below.
4. That the trial Court after overruling the Respondent/Objector’s preliminary objection proceeded to consider the substantive application and dismissed the said suit seeking the discharge of its order made in Suit No. FCH/II/CS/14/2021 (see paragraph 3 of page 81 and page 82 of the records)
5. That with success recorded by the Appellant/Respondent on the preliminary Objection, the said records and proceedings therein in Suit No. FHC/II/CS/14/2021 automatically becomes a part of the records necessary for the effectual determination of this appeal.
6. That as it stands, the originating process for this appeal which contain all the facts and complaint of the Appellant/Respondent is not in the record of appeal; compiled and transmitted at the instance of the Appellant/Respondent.
7. The Appellant/Respondent’s main complaint was premised on the fact that the Respondent/Objector obtained the said order through facts said to be misrepresented, suppressed and false.
8. That the record of appeal before this Honourable Court is incomplete and this Honourable Court is devoid of jurisdictional competence to determine this appeal as is constituted.
9. The necessary material required by this Honourable Court to assist her in achieving a hitch free full rehearing based on the entire records of proceedings of the trial Court and evidence adduced is not before the Court.

Also, in support of the objection is an affidavit of 4 paragraphs and a written address. In the said written address, counsel raised one issue for determination, thus:
Whether this appeal as is presently constituted is not incompetent premised on an incompetent record of appeal.

Counsel argued that this appeal is grossly incompetent premised on an incomplete record of appeal. That the Appellant who was not pleased with the order of Court made in FHC/II/CS/14/2021 of her own accord decided to challenge the said order via a new suit in FHC/II/CS/34/2021 for which the trial Court sanctioned. That after benefitting from the ruling of the trial Court permitting her to challenge its order via any means, has now refused to ensure that the proceedings which birthed the suit in FHC/II/CS/34/2021 that is Suit No: FHC/II/CS/14/2021 is not compiled together with the records of appeal.

That the most relevant question which will confront this Court will be to ascertain the evidence/facts presented before the trial Court that led to the grant of the “interim attachment order” contained at page 14 of the record. That the application leading to the said order is not in the record.

That the focal point of the Appellant’s complaint was premised on the fact that the Respondent/Objector obtained the said order through facts said to be misrepresented, suppressed and false. That the question is; how is the Court expected to consider this appeal without a full grasp of the proceedings leading to the making of the order being challenged for which the Appellant now appeals?

That the Court must guide itself against a situation as was considered by the Supreme Court Nwana v. FCDA (2007) LPELR-2101 (SC) where the apex Court stated thus: “…It is also conclusive in this case of the proposition that the lower Court has based its decision on an incomplete record as transmitted to it, that is, without the vital documentary exhibits to contend in the appeal. The lower Court is therefore wrong to have decided this case without having the privilege of seeing these documents i.e. the exhibits and to have based its decision on speculation. See Panalpina v. Wariboko (supra), Oparaji v. Ohanu (supra) and Abacha v. Fawehinmi (supra). This is so here where the lower Court has made serious pronouncements affecting the rights of the parties without the help of material documentary evidence as per the parties without the help of material documentary evidence as per Exhibits ‘A’ to ‘1’. There can be no doubt that the decision has occasioned a miscarriage of justice. See Udeze v. Chibede (1990) 1 NWLR (Pt. 12) 141.”

That while relying on all the above-stated authorities of this Honourable Court as well as that of the Supreme Court, this Court is urged to dismiss or strike out this appeal.

That, from the above decisions, it is evident that the appeal of the Appellant is incompetent and this appeal ought and should be struck-out for incomplete records of appeal. Counsel referred the Court to its decision in Abisoye v. State (2016) LPELR- 40148 (CA) page 7 paras A-B, Foubiri & Anor V. Erizia & Anor (2018) LPELR – 49132 (CA) pp 15 – 19, Regd Trustees of All Christian Fellowship Mission v. Usman & Ors (2020) LPELR – 49877 (CA) as well as the Supreme Court cases in Ekpomupolo & Ors v. Edremoda & Ors (2009) LPELR – 1089 (SC), Chief Okochi & 2 Ors v. Chief Animkwoi & 2 Ors.(2003) 18 NWLR (Pt. 25).

In response, the learned counsel for the appellant opposed the objection relying on a counter-affidavit of 5 paragraphs with a Written Address. Counsel also formulated one issue for determination, thus:
“Whether or not the complete record of appeal in this appeal arising from the decision of the lower Court in Suit Number FHC/IL/CS/34/2021, between Mrs. Ezenma Olere Jennifer v. Economic and Financial Crimes Commission, was duly compiled and transmitted to this Honourable Court by the registry of the lower Court.”

Counsel submitted that the affidavit evidence and the record of appeal of the action before the trial Court leading to this appeal Court was commenced by the appellant by an originating motion dated 20th September, 2021 with Suit No: FCH/II/CS/34/2021 between Mrs. Ezenma Olere Jennifer v Economic And Financial Crimes Commission. That the said originating motion already forms part of the record of appeal before this honorable Court. And can be seen at pages 2-35 of the record of appeal.

That it is trite that record of appeal consists of all the process filed in the suit in which the decision of the trial Court is being appealed, the record of proceedings, the judgment or ruling being appealed against and the notice of appeal amongst others. That in the instant case the action and decision of the trial Court being appealed by the appellant is as clearly stated in the notice of appeal.

That the respondent/objector in their preliminary objection made reference to the suit with number FHC/IL/CS/14/2021 purportedly filed by the respondent. That, the germane question to determine here is;
“a. Was the appellant a party in suit number FHC/II/CS/14/2021 filed by the respondent/objector? The answer to this question is in the negative as the appellant was never a party to the said suit.
b. Was suit FHC/II/CS/14/2021 consolidated with the appellant’s action to warrant a joint record? The answer to this question is also in the negative as the suit was never consolidated with the Appellant’s action.
c. Did the respondent/objector exhibit any of the processes they purportedly filed in the said Suit No. FHC/II/CS/14/2021 in their response to the Appellant’s actions? The answer to this last question is equally in the negative, the respondent/objectors did not exhibit any of the process or document purportedly filled in the said Suit No. FHC/II/CS/14/2021 in defense of the appellant’s action at the lower Court. The registrar of the lower Court cannot possibly manufacture records to compile and transmit when same does not form part of the record in appellant’s Suit Number FHC/II/CS/34/2021 being appealed.

That from the above, it is crystal clear that all the facts in respect of this appeal are contained in the record of appeal and the respondent made several attempts to mislead this honorable Court to the contrary.
Counsel submitted further that the complete record of appeal in this appeal was compiled and transmitted by the registry of the Court below. Furthermore, that before the compilation of the record a notice to settle record was served on the appellant and respondent. See pages 88, 89, 90 & 91 of the record of appeal.

Counsel urged the Court to dismiss the respondent’s/objector’s preliminary objection as lacking in merit and made to delay and truncate the cause of justice.

Resolution:
I shall first of all deal with the Preliminary Objection. There is no dispute that all that this suit set out to achieve at the trial Court was to discharge the order for interim forfeiture of the building – the four Bedroom Bungalow situate at no. 5 Yusuf Aliyu Street Off Fate Road Ilorin Kwara State (land Description: plot 20 Block C off Fate Road Ilorin)

To properly appreciate whether the trial Court was right or wrong in refusing the order sought; I am of the considered view that the order of Court in FHC/IL/CS/14/2021 wherein that interim order of forfeiture/attachment was made and all processes filed leading to the making of that order for interim forfeiture/attachment ought to form part of the record of appeal in this matter. Having not made them part of the record of appeal in this matter, the effect is that the record of appeal upon which this appeal is based is incomplete. It is settled that this Court lacks the jurisdiction to hear any appeal based on incomplete record of appeal. See Ekpempolo v Edremoda (2009) 8 NWLR Pt.1142)116, and Okochi v Animkwoi (2003)18 NWLR (Pt.251)1. Consequently, this appeal ought to be struck out for incomplete record, it is hereby struck out.

However, in view of the admonition of the Supreme Court in Brawal Shipping Company v Onwudikwe Company (2000) 6 SCNJ 508 at 522, that trial and penultimate Courts should determine all issues raised for determination in a case before them and should not limit themselves to the issue that disposes of the entire case, to avoid the case being remitted back to the lower Court for the trial of the issues not determined by it, See also, Ojobue v Nnubia (1972) 6 SC 27 and Katto v CBN (1991) 9NWLR (Pt. 214) 126 at 149. I shall now deal with the merit of this appeal.

In summary, the interim order of forfeiture of the subject matter of this appeal is as a result of the investigation of the Respondent on credit card cybercrime fraud and its findings and belief that the house was built with the proceeds of crime aforesaid. Both parties agreed and there is no doubt that the respondent under Sections 28 and 29 of the EFCC Act 2004 has the power to approach the Court for such interim order. Since there is no provision under the EFCC Act 2004 on the conditions to lift such order. I have to state here and very clearly too; that the moment such an interim order of forfeiture is made against any property, it can be vacated on a simple or singular proof by the owner of the property of his source of income with which he built the house or his source of the money with which the house was built.
The Appellant claimed that it was a gift from her husband. Her husband was being investigated and linked with illicit money flowing from credit card fraud. The fact that it was a gift from her husband would not “clean” the money used in building that house if the money were in fact, from a credit card cyber-crime fraud. I am therefore of the view that the Appellant failed to discharge enough reason to warrant the lifting of the interim order of forfeiture made over that property. This appeal is lacking in merit and it is hereby dismissed.
Judgment is entered accordingly.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the ruling and judgment just delivered by my learned brother, KENNETH IKECHUKWU AMADI, JCA. I agree with his reasoning and final conclusions therein.

In Access Bank Vs Onwuliri (2021) LPELR 53078, the Supreme Court Per Kekere- Ekun JSC held that:
“It has always been the settled position of the law that a Court is not entitled to speculate on matters not before it. I have also illustrated elsewhere in this judgment, the binding nature of the record of appeal. The decision of this Court to the effect that on no account must the Court deliberate on an incomplete record, are in recognition of this principle. Without seeing the material that was before the trial Court, the appellate Court would not be in a position to reach a just resolution of the issues brought before it. A decision reached in such circumstances, affecting the rights of the parties, would no doubt lead to a miscarriage of justice. I agree with learned counsel for the respondent that the compilation and transmission of a complete record of appeal is a condition precedent to the assumption of jurisdiction by the Appellate Court.”
It has therefore been universally held that the Court lacks jurisdiction to hear an appeal on the premise of a record of appeal that is incomplete.

I therefore find the objection of the Respondent to be valid. The objection is upheld and the appeal is hereby struck out.

ISAIAH OLUFEMI AKEJU, J.C.A.: I have read the judgment of my learned brother, KENNETH IKECHUKWU AMADI, JCA, I agree with the reasoning and conclusion therein. I dismiss the appeal and I abide by the consequential order.