LAWAL v. EFCC & ANOR (2020)

LAWAL v. EFCC & ANOR

(2020)LCN/13999(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/LAG/CV/480/2019

Before Our Lordships:

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

DAUDA LAWAL APPELANT(S)

And

1. ECONOMIC AND FINANCIAL CRIMES COMMISSION 2. STERLING BANK PLC RESPONDENT(S)

RATIO

COMPETENCE OF A COURT TO EXERCISE ITS ADJUDICATORY POWERS IN RESPECT OF A MATTER BEFORE IT

The law would appear to be settled that the competence of a Court and its jurisdiction to exercise its adjudicatory powers in respect of a matter before it are intervolved. A Court could have the jurisdiction in respect of the subject matter, but lack the competence thereby vitiating the effect of the jurisdiction it has. Jurisdiction and competence of a Court are complementary. They go hand in hand and are dependent on each other. In order to be properly seised of a matter, a Court must have both jurisdiction and competence. Competence of the Court is the handmaiden of the jurisdiction of the Court. SeeIBEANU vs. OGBEIDE (1994) 7 NWLR (PT 359) 697 at 700-701, COTECNA INTERNATIONAL LIMITED vs. IVORY MERCHANT BANK LIMITED (2006) All FWLR (PT 315) 26 at 43 and SOKOTO STATE GOVT vs. KAMDEX NIG. LTD (2007) LPELR (3093) 1 at 16. The authorities seem settled that where a Court is not competent, it cannot exercise jurisdiction.
In considering whether a Court has jurisdiction to entertain a matter, it has to be borne in mind that jurisdiction of a Court is not assumed, but must be based on the provisions of a statute. The jurisdiction of the Court does not derive from the sky or to put it in the Latinism, in nubibus. It is statutory. SeeIKECHUKWU vs. FRN (2015) LPELR (24445) 1 at 16. The jurisdiction of a Court is not something you employ a searchlight to discover, it must be plain for all to see: OBI vs. INEC (2007) 11 NWLR (PT 1046) 565 at 669. The Court’s duty when its jurisdiction to entertain a matter is put in issue is to expound its jurisdiction but not to expand it. See TUKUR vs. GOVT. OF GONGOLA STATE (1962) ALL NLR 587at 549, EGBUE vs. ARAKA (2003) 9 MJSC 17 at 35 and MUDIAGA-ERHUEH vs. INEC (2003) 7 WRN 95 at 112 – 113. PER OGAKWU, J.C.A.

THE INHERENT JURISDICTION OF A COURT

For a complete exposition on the jurisdiction of a Court, it is important to state that in addition to its statutory jurisdiction, a Court of record has its inherent jurisdiction which attaches to, and inheres in it, as an adjudicator and judex. The inherent jurisdiction of a superior Court of record is essential for its existence and necessary for the proper and complete administration of justice. The inherent power is innate in a Court of record, it is not granted by the Constitution or by legislation nor can it be abridged. It is however pertinent to state that Section 6 (6) (a) of the 1999 Constitution has recognised, endorsed and preserved the inherent jurisdiction, powers and sanctions of a Court of record. See AJAYI vs. OMOROGBE (1993) 6 NWLR (PT 301) 512 at 534 and EDE vs. MBA (2011) LPELR (8234) 1 at 51.
What do the inherent powers and sanctions of a Court of law entail? This was discussed in some detail by the apex Court in ADIGUN vs. A-G OYO STATE (1987) 2 NWLR (PT 56) 197. Obaseki, JSC stated therein that “The powers or inherent powers of the Court of law are powers which enable it effectively and effectually to exercise the jurisdiction conferred on it.” In the words of Karibi-Whyte, JSC, “It is clear from the wording in Section 6 (6) (a) of the Constitution 1979 [which is in in pari materia with Section 6 (6) (a) of 1999 Constitution] that the exercise of judicial powers is intended to include all the powers and sanctions which a Court of law ought to exercise in order to do justice and uphold its dignity.” In his own contribution, Oputa, JSC added “… the inherent power of a Court is the power which is itself essential to the very existence of the Court as an institution charged with the dispensation of justice … Inherent powers of the Court are therefore those powers of the Court which are reasonably necessary for the administration of justice in the Court.” See also ERISI vs. IDIKA (1987) LPELR (1160) 1 at 29-32.
Explaining the nature of the inherent jurisdiction of a Court in contradistinction to its general and statutory jurisdiction, Sowemimo, JSC (later CJN) stated as follows in YONWUREN vs. MODERN SIGNS (NIG) LTD (1985) LPELR (3529) 1 at 34-36:
“To understand the nature of the inherent jurisdiction of the Court, it is necessary to distinguish it first from the general jurisdiction of the Court, and next from its statutory jurisdiction. The term ‘inherent jurisdiction of the Court’ does not mean the same thing as ‘the jurisdiction of the Court’ used without qualification or description: the two terms are not interchangeable, for the ‘inherent’ jurisdiction of the Court is only a part or an aspect of its general jurisdiction. The general jurisdiction of the High Court as a superior Court of record is, broadly speaking unrestricted and unlimited in all matters of substantive law, both civil and criminal, except in so far as that has been taken away in unequivocal terms by statutory enactment. The High Court is not subject to supervisory control by any other Court except by due process of appeal, and it exercises the full plenitude of judicial power in all matters concerning the general administration of justice within its area. Its general jurisdiction thus includes the exercise of an inherent jurisdiction. Moreover, the term ‘inherent jurisdiction of the Court’ is not used in contradistinction to the jurisdiction conferred on the Court by statute. The contrast is not between the common law jurisdiction of the Court on the one hand and its statutory jurisdiction on the other, for the Court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of Court, so long as it can do so without contravening any statutory provision. There is, nevertheless, an important difference between the nature of the inherent jurisdiction of the Court and its statutory jurisdiction. The source of the statutory jurisdiction of the Court is of course the statute itself, which will define the limits within which such jurisdiction is to be exercised, whereas the source of the inherent jurisdiction of the Court is derived from its nature as a Court of law, so that the limits of such jurisdiction are not easy to define, and indeed appear to elude definition.”
See also AKILU vs. FAWEHINMI (NO. 2) (1989) LPELR (339) 1 at 138-139, ECHAKA CATTLE RANCH LIMITED vs. NIGERIAN AGRICULTURAL AND CO-OPERATIVE BANK LTD (1998) LPELR (998) 1 at 15 and ESABUNOR vs. FAWEYA (2019) LPELR (46961) 1 at 16-17.
Now, the concept of jurisdiction of a Court can mean two things: (i) the abstract right of a Court to exercise its powers in causes of a certain class; or (ii) the right of a Court to exercise its powers over a particular subject matter, or res in dispute. In the broader sense of the right of a Court to exercise its powers, jurisdiction implies the legal authority or legal capacity to adjudicate at all. It has not been argued that the lower Court, the Federal High Court, does not have the legal capacity to adjudicate. It is therefore the narrower sense of the concept of jurisdiction, id est, the exercise of the Court’s power over the particular subject matter or the res in the case that is in contest. I reiterate that the Appellant’s contention in this regard is that the subject matter, the N9.08billion, was not found in his possession as required by Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act. It is rudimentary law that jurisdiction is determined by the relief claimed. See IZENKWE vs. NNADOZIE (1953) 14 WACA 361 at 363, ADEYEMI vs. OPEYORI (1976) 9-10 SC 31, TUKUR vs. GOVT. OF GONGOLA STATE (supra), A-G KWARA STATE vs. OLAWALE (1993) 1 NWLR (PT 272) 645 at 663, ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD vs. GARBA (2002) 14 NWLR (PT 788) 538 at 563 and JAMES vs. INEC (2015) ALL FWLR (PT 787) 652 at 704. As stated by Tobi, JSC in ONUORAH vs. KRPC LIMITED (2005) LPELR (2707) 1 at 15:
“The law is elementary that in the determination of whether a Court has jurisdiction in a matter or not, the Court will examine or consider the claims or reliefs. This is because only the claims or reliefs donate jurisdiction to the Court.” PER OGAKWU, J.C.A.

THE MEANING OF THE WORD “OVERREACHING”

The Supreme Court on the meaning of the word ‘overreaching’ in AKANINWO & 4 ORS VS NSIRIM & 3 ORS (2008) 9 NWLR (Pt 1093) 439 at 475-476 paragraphs D – A Per Tobi J.S.C. of blessed memory stated ‘if an application is designed to overreach the Respondent, a trial judge will not grant it. This principle or factor is related to the one I have just considered. Overreaching means to circumvent, outwit or get the better of by cunning or artifice; that is by a clever trick. In the context of amendment of pleadings, it connotes or conveys a situation where a party, fully aware of the case of the adverse party, applies to amend his pleadings, with trick or craftiness, to put the Respondent or adverse party in a state of hopelessness or helplessness that cannot meaning fully respond for the good of his case. By the amendment, the Respondent or adverse party is no more in a position to respond positively because the Applicant has pre-empted or forestalled his possible reply in exculpation of the amendment. By the overreaching amendment, the Respondent has been inculpated knee-deep. A state of overreaching arises where the Applicant unnecessarily anticipates the case of the Respondent and places a premeditated wedge to close any meaningful pleadings in joinder of issues and meaningful pleading here means pleadings capable of giving victory to the Respondent in the case. A Court of law, which is also a count of equity, will not allow an Applicant play such an artifice on the Respondent. After all, litigation is not a booby trap available to a so-called clever party in trouble of his case to outsmart the adverse party. On the contrary, litigation is a process where the parties genuinely and without the cover of ambush and tricks, place the lawsuit before the Court for adjudication, with the parties showing only their bias, sentiments and slants’. PER OGAKWU, J.C.A.

THE EXERCISE OF DISCRETION OF THE COURT

An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the circumstances of the particular case guided by the spirit and principles of law: THE OWNERS OF THE M.V. LUPEX vs. NIGERIAN OVERSEAS CHARTERING & SHIPPING LTD (2003) 9 MJSC 156 at 168. Like all judicial discretion, the discretion is to be exercised judicially and judiciously. Judicial in the sense that it must not be capricious and must be for a reason connected with the case and judicious in the sense that it must be based on sound judgment marked by discretion, wisdom and good sense. See ERONINI vs. IHEUKO (1989) 3 SCNJ 130 at 141 and OLUMEGBON vs. KAREEM (2002) 34 WRN 1 at 8. PER OGAKWU, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE EXERCISE OF DISCRETION BY THE TRIAL COURT

It is an armour which the judge employs judicially and judiciously in order to arrive at a just decision. When, as in this case, it has been established that the discretion was wrongly exercised, an appellate Court will interfere in order to ensure that a just decision is arrived at. See ANYAH vs. AFRICAN NEWSPAPERS (NIG) LTD (1992) LPELR (511) 1 at 20-21, AJUWA vs. SPDC (2011) 12 SCNJ 596, ADISA vs. OYINWOLA (2000) 10 NWLR (PT 746) 116, NWADIOGBU vs. ANAMBRA IMO RIVER BASIN DEVT AUTHORITY (2010) 12 SCNJ 212, NNPC vs. CLIFCO NIG LTD (2011) 4 SCNJ 107 at 127 -128 and VANDIGHI vs. HALE (2014) LPELR (24196) 1 at 52-53. PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.(Delivering the Leading Judgment): This appeal is in respect of the non-conviction based final forfeiture order of the sum of N9, 080,000,000. (N9.08billion) made against the Appellant by the Federal High Court, Lagos Division. By an ex parte application filed on 6th January 2017, the 1st Respondent sought, inter alia, for an interim order forfeiting the sum of N9.08billion said to have been found by the 1st Respondent in possession of the Appellant, which sum it reasonably suspected to be the proceeds of unlawful activity.

The said ex parte application in SUIT NO. FHC/L/CS/13/2017: THE ECONOMIC AND FINANCIAL CRIMES COMMISSION vs. STERLING BANK PLC & ANOR. was granted by the lower Court on 6th January 2017 and the Appellant was ordered to show cause why the amount should not be forfeited to the Federal Government of Nigeria. The Appellant filed a Counter Affidavit showing cause and the 1st Respondent filed a Reply Affidavit. The 1st Respondent did not file any motion on notice for a final forfeiture order. On 24th January 2017, the lower Court heard the parties on their Counter Affidavit and Reply Affidavit and

then adjourned the matter to 16th February 2017 for judgment.

On 3rd February 2017, the Appellant filed an application seeking leave of the lower Court to file a further counter affidavit to further show cause why a final forfeiture order should not be made. The 1st Respondent opposed the application and after hearing the application on 16th February 2017, the lower Court in its Ruling delivered on the same date dismissed the application. The lower Court thereafter proceeded to deliver its judgment on the proceedings for forfeiture and made an order against the Appellant for the final forfeiture of the said sum of N9.08billion to the Federal Government of Nigeria.

The Appellant was dissatisfied with the decisions of the lower Court and on 26th September 2019 this Court granted him leave to appeal against the said decisions. The Ruling of the lower Court refusing leave for the Appellant to file a Further Affidavit is at pages 279-287 of the Records, while the judgment of the lower Court in respect of the final forfeiture order is at pages 264-278 of the Records. The Notice of Appeal which was filed on 27th September 2019 is at pages 2-9 of the second

Volume of the Records of Appeal. The Records of Appeal were compiled and transmitted and briefs of argument were filed and exchanged between the Appellant and the 1st Respondent. The 2nd Respondent, though duly served, did not file any process and also did not appear at the hearing of the appeal.

The Appellant’s brief was filed on 21st October 2019, wherein two issues were distilled for determination, namely:
“1. Whether from a proper and correct interpretation of the provisions of Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act, did the learned trial Court have the jurisdiction to make the Order of Forfeiture against the Appellant over the sum of N9,080,000,000 covered by the banks drafts, Exhibit EFCC 03.
2. Whether the learned trial Court judicially and judiciously exercised its discretion in granting the Order of final forfeiture against the Appellant without properly considering the entire case before it and by shutting out the Appellant’s Further Counter Affidavit containing relevant material facts for a Just determination of the Application for the final forfeiture of the sum of N9,080,000,000

(Grounds 2, 3, 4, 5 and 6).”

The 1st Respondent’s brief was filed on 17th February 2020 and deemed as properly filed on the same day. The 1st Respondent equally formulated two issues for determination as follows:
“1. Whether in view of the evidence on record and the provisions of Section 17 of the Advance Fee Fraud And Other Fraud Related Offences Act 2006, it can be said that the learned trial Court lacks the requisite jurisdiction to make an order of final forfeiture of the sum of N9,080,000.00 traced to and recovered from the appellant?
2. Whether in view of the evidence adduced by the 1st respondent before the learned trial judge it can be said that the learned trial judge failed to judicially and judiciously exercise its discretionary power to forfeit the sum of N9,080,000,000.00 traced to and recovered from the appellant?

At the hearing of the appeal on 17th February 2020, the learned counsel for the Appellant and the 1st Respondent urged the Court to uphold their respective submissions in the determination of the appeal. The Appellant by a letter dated 2nd March 2020, which was copied to the Respondents, submitted

a list of additional authorities.

Expectedly, the parties have crafted the issues for determination and given them a slant that will serve their purpose. While this should be so, a Court of law, the mediator so to say has a duty to examine the facts properly and take issues that will resolve the matter before it once and for all: ENEKWE vs. IMB (NIG) LTD (2007) 1 CMLR 117 at 136 or (2006) 19 NWLR (PT 1013) 146 at 170. Put differently, the Court is free to either adopt the issues formulated by the parties or to formulate such issues as are consistent with the grounds of appeal. See LABIYI vs. ANRETIOLA (1992) 8 NWLR (PT 258) 139 at 159, DUNG vs. GYANG (1994) 8 NWLR (PT 362) 315 and ONWO vs. OKO (1996) 6 NWLR (PT 456) 584.
It is equally rudimentary law that a Court can and is entitled to re-formulate issues formulated by the parties or counsel in order to make for precision and clarity. In the words of Uwaifo, JSC in MUSA SHA (JNR) vs. DA RAP KWAN (2000) 5 SCNJ 101 at 127:
“The purpose of framing or re-framing an issue or issues, it is stated: is to lead to a more judicious and proper determination of an appeal. The purpose of re-formulating

it or them, is in order to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity.”
See also UNITY BANK PLC vs. BOUARI (2008) ALL FWLR (PT 416) 1825 at 1846-1847. I will therefore take the liberty to reformulate the issues. The issues which I will shortly distil will not be an alternative to the issues formulated by the parties but it would be cumulative with the said issues: SANUSI vs. AMEYOGUN (1992) 4 NWLR (PT 237) 527 at 550-551 and NEKA B.B.B. MANUFACTURING CO. LTD vs. ACB LTD (2004) 17 NSCQR 240 at 250-251.

The Appellant filed six grounds of appeal. The complaint in the grounds of appeal range from challenge to jurisdiction of the lower Court, complaint on the refusal of the lower Court to allow the further counter affidavit and complaint on the manner of evaluation of the affidavit evidence and application of the law in arriving at the decision to make the order for final forfeiture. In order to conduce to clarity, precision and brevity, the issues for determination on the basis of which I will presently consider the submissions of learned counsel and resolve this appeal are as follows:

Whether the lower Court had the jurisdiction to entertain the application for an order for forfeiture brought pursuant to the provisions of Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act.
2. Whether in the circumstances of this matter, the refusal of the lower Court to allow the Appellant’s Further Counter Affidavit was justified.
3. Whether based on the materials before the lower Court and the applicable law, the order of final forfeiture made by the lower Court was a judicial and judicious exercise of discretion.

ISSUE NUMBER ONE
Whether the lower Court had the jurisdiction to entertain the application for an order for forfeiture brought pursuant to the provisions of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that where the words used in a statute are clear and unambiguous they should be given their ordinary literal meaning and that where it is a penal provision, it is construed fortissimo contra preferentes. The cases of IKUFORIJI vs. FRN (2018) LPELR – 43884 (SC) 24-26, PDP vs. CPC (2011) LPELR – 2909 (SC)

and BELLO vs. THE DIOCESAN SYNOD OF LAGOS (1973) SC 103 were referred to. It was stated that for the lower Court to have jurisdiction under Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, the subject matter of the Order of Forfeiture has to, inter alia, be in possession of the person against whom the order of forfeiture is sought and it is reasonably suspected to be the proceeds of some unlawful activity. The N9.08billion, it was maintained, was not in possession of the Appellant, thereby constituting a feature in the case which prevented the lower Court from exercising jurisdiction vide MADUKOLU vs. NKEMDILIM (1962) LPELR – 24023 (SC) 9-10 and BUREMOH vs. AKANDE (2017) LPELR – 41565 (SC) 24.

It was further submitted that the lower Court had framed the issues it determined as being whether the Appellant was entitled to the amount being forfeited, but that if it had appreciated that the real issue as required by Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act was whether the amount being forfeited was in possession of the Appellant, it would have found that it had no jurisdiction since the

evidence is that the Appellant borrowed the money from the Bank to give to the 1st Respondent as a condition for his release from detention. It was conclusively submitted that since the lower Court did not have jurisdiction, the entire proceedings are a nullity as the lack of substantive jurisdiction cannot be waived by a party. The cases of UFONDU vs. WILLIAM (2014) LPELR- 23025 (CA) at 22-25, MBADIKE vs. LAGOS INTERNATIONAL TRADE FAIR COMPLEX MANAGEMENT BOARD (2017) LPELR- 41968 (CA) at 41, NNPC vs. CLIFCO (2011) LPELR -2022 (SC) at 33-34 and OVH ENERGY MARKETING LTD vs. VIRGIN FIELDS (NIG) LTD (2019) LPELR – 47610 (CA) were relied upon.

SUBMISSIONS OF THE 1ST RESPONDENT’S COUNSEL
The 1st Respondent submits that by the provisions of Section 17(1) of the Advance Fee Fraud and other Fraud Related Offences Act, the lower Court has the requisite jurisdiction to make an order of forfeiture of funds or property reasonably suspected to be the proceeds of crime or abandoned. The case of JONATHAN vs. FRN (2019) LPELR- 46944 (SC) at 24 and 25 was called in aid. It was asserted that the procedure provided under Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act.

was substantially compiled with in the proceedings at the lower Court. It was opined that in interpreting a statute, the Courts do so with the objective of determining the intention of the lawmaker and that this is done by reading, considering and construing the provisions as forming a composite whole, not in isolation. The cases of OLAOSEBIKAN vs. INEC (2009) LPELR – 8513 (CA) 37 and MOBIL OIL (NIGERIA) PLC vs. IAL 36 INC (2000) LPELR – 1883 (SC) 24 were cited in support.

The 1st Respondent asserted that the forfeited funds were traced to the Appellant and that the Appellant voluntarily and freely elected in his statement to return the money, which statement he made in the presence of his counsel. The Court was urged to discountenance the erroneous impression created in the Appellant’s submission that the money was not found in his possession.

RESOLUTION OF ISSUE NUMBER ONE
At the core of the disceptation under this issue, is whether the lower Court had the requisite jurisdiction, pursuant to Section 17 of the Advance Fee Fraud and Other Related Offences Act, to make the order for

forfeiture of the sum of N9.08billion. The crux of the contention in this regard is that the said sum of money was not found in possession of the Appellant, but that the same was borrowed from the bank and given to the 1st Respondent as a condition for the Appellant’s release from detention. In the oft-cited case of MADUKOLU vs. NKEMDILIM (1962) ALL NLR 587 at 595 the apex Court stated as follows:
“A Court is competent to adjudicate when –
(a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) The subject matter of the case is within its jurisdiction and there is no feature which prevents the Court from exercising its jurisdiction; and
(c) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in the competence of the Court is fatal and the proceedings however well conducted and decided are a nullity as such defect is extrinsic to the adjudication.”
The contention of the Appellant, as I understand it,

is that the feature which exists in the case and which affected the jurisdictional competence of the lower Court, is that the subject matter of the order of forfeiture, in the circumstances of this matter, was not in the possession of the Appellant as required and stipulated by Section 17 of the Advance Fee Fraud and Other Related Offences Act. The law would appear to be settled that the competence of a Court and its jurisdiction to exercise its adjudicatory powers in respect of a matter before it are intervolved. A Court could have the jurisdiction in respect of the subject matter, but lack the competence thereby vitiating the effect of the jurisdiction it has. Jurisdiction and competence of a Court are complementary. They go hand in hand and are dependent on each other. In order to be properly seised of a matter, a Court must have both jurisdiction and competence. Competence of the Court is the handmaiden of the jurisdiction of the Court. SeeIBEANU vs. OGBEIDE (1994) 7 NWLR (PT 359) 697 at 700-701, COTECNA INTERNATIONAL LIMITED vs. IVORY MERCHANT BANK LIMITED (2006) All FWLR (PT 315) 26 at 43 and SOKOTO STATE GOVT vs. KAMDEX NIG. LTD (2007) LPELR (3093) 1

at 16. The authorities seem settled that where a Court is not competent, it cannot exercise jurisdiction.
In considering whether a Court has jurisdiction to entertain a matter, it has to be borne in mind that jurisdiction of a Court is not assumed, but must be based on the provisions of a statute. The jurisdiction of the Court does not derive from the sky or to put it in the Latinism, in nubibus. It is statutory. SeeIKECHUKWU vs. FRN (2015) LPELR (24445) 1 at 16. The jurisdiction of a Court is not something you employ a searchlight to discover, it must be plain for all to see: OBI vs. INEC (2007) 11 NWLR (PT 1046) 565 at 669. The Court’s duty when its jurisdiction to entertain a matter is put in issue is to expound its jurisdiction but not to expand it. See TUKUR vs. GOVT. OF GONGOLA STATE (1962) ALL NLR 587at 549, EGBUE vs. ARAKA (2003) 9 MJSC 17 at 35 and MUDIAGA-ERHUEH vs. INEC (2003) 7 WRN 95 at 112 – 113.
For a complete exposition on the jurisdiction of a Court, it is important to state that in addition to its statutory jurisdiction, a Court of record has its inherent jurisdiction which attaches to, and inheres in it, as an

adjudicator and judex. The inherent jurisdiction of a superior Court of record is essential for its existence and necessary for the proper and complete administration of justice. The inherent power is innate in a Court of record, it is not granted by the Constitution or by legislation nor can it be abridged. It is however pertinent to state that Section 6 (6) (a) of the 1999 Constitution has recognised, endorsed and preserved the inherent jurisdiction, powers and sanctions of a Court of record. See AJAYI vs. OMOROGBE (1993) 6 NWLR (PT 301) 512 at 534 and EDE vs. MBA (2011) LPELR (8234) 1 at 51.
What do the inherent powers and sanctions of a Court of law entail? This was discussed in some detail by the apex Court in ADIGUN vs. A-G OYO STATE (1987) 2 NWLR (PT 56) 197. Obaseki, JSC stated therein that “The powers or inherent powers of the Court of law are powers which enable it effectively and effectually to exercise the jurisdiction conferred on it.” In the words of Karibi-Whyte, JSC, “It is clear from the wording in Section 6 (6) (a) of the Constitution 1979 [which is in in pari materia with Section 6 (6) (a) of 1999 Constitution] that the

exercise of judicial powers is intended to include all the powers and sanctions which a Court of law ought to exercise in order to do justice and uphold its dignity.” In his own contribution, Oputa, JSC added “… the inherent power of a Court is the power which is itself essential to the very existence of the Court as an institution charged with the dispensation of justice … Inherent powers of the Court are therefore those powers of the Court which are reasonably necessary for the administration of justice in the Court.” See also ERISI vs. IDIKA (1987) LPELR (1160) 1 at 29-32.
Explaining the nature of the inherent jurisdiction of a Court in contradistinction to its general and statutory jurisdiction, Sowemimo, JSC (later CJN) stated as follows in YONWUREN vs. MODERN SIGNS (NIG) LTD (1985) LPELR (3529) 1 at 34-36:
“To understand the nature of the inherent jurisdiction of the Court, it is necessary to distinguish it first from the general jurisdiction of the Court, and next from its statutory jurisdiction. The term ‘inherent jurisdiction of the Court’ does not mean the same thing as ‘the jurisdiction of the Court’

used without qualification or description: the two terms are not interchangeable, for the ‘inherent’ jurisdiction of the Court is only a part or an aspect of its general jurisdiction. The general jurisdiction of the High Court as a superior Court of record is, broadly speaking unrestricted and unlimited in all matters of substantive law, both civil and criminal, except in so far as that has been taken away in unequivocal terms by statutory enactment. The High Court is not subject to supervisory control by any other Court except by due process of appeal, and it exercises the full plenitude of judicial power in all matters concerning the general administration of justice within its area. Its general jurisdiction thus includes the exercise of an inherent jurisdiction. Moreover, the term ‘inherent jurisdiction of the Court’ is not used in contradistinction to the jurisdiction conferred on the Court by statute. The contrast is not between the common law jurisdiction of the Court on the one hand and its statutory jurisdiction on the other, for the Court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of

Court, so long as it can do so without contravening any statutory provision. There is, nevertheless, an important difference between the nature of the inherent jurisdiction of the Court and its statutory jurisdiction. The source of the statutory jurisdiction of the Court is of course the statute itself, which will define the limits within which such jurisdiction is to be exercised, whereas the source of the inherent jurisdiction of the Court is derived from its nature as a Court of law, so that the limits of such jurisdiction are not easy to define, and indeed appear to elude definition.”
See also AKILU vs. FAWEHINMI (NO. 2) (1989) LPELR (339) 1 at 138-139, ECHAKA CATTLE RANCH LIMITED vs. NIGERIAN AGRICULTURAL AND CO-OPERATIVE BANK LTD (1998) LPELR (998) 1 at 15 and ESABUNOR vs. FAWEYA (2019) LPELR (46961) 1 at 16-17.
Now, the concept of jurisdiction of a Court can mean two things: (i) the abstract right of a Court to exercise its powers in causes of a certain class; or (ii) the right of a Court to exercise its powers over a particular subject matter, or res in dispute. In the broader sense of the right of a Court to exercise its powers, jurisdiction

implies the legal authority or legal capacity to adjudicate at all. It has not been argued that the lower Court, the Federal High Court, does not have the legal capacity to adjudicate. It is therefore the narrower sense of the concept of jurisdiction, id est, the exercise of the Court’s power over the particular subject matter or the res in the case that is in contest. I reiterate that the Appellant’s contention in this regard is that the subject matter, the N9.08billion, was not found in his possession as required by Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act. It is rudimentary law that jurisdiction is determined by the relief claimed. See IZENKWE vs. NNADOZIE (1953) 14 WACA 361 at 363, ADEYEMI vs. OPEYORI (1976) 9-10 SC 31, TUKUR vs. GOVT. OF GONGOLA STATE (supra), A-G KWARA STATE vs. OLAWALE (1993) 1 NWLR (PT 272) 645 at 663, ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD vs. GARBA (2002) 14 NWLR (PT 788) 538 at 563 and JAMES vs. INEC (2015) ALL FWLR (PT 787) 652 at 704. As stated by Tobi, JSC in ONUORAH vs. KRPC LIMITED (2005) LPELR (2707) 1 at 15:
“The law is elementary that in the determination of whether a

Court has jurisdiction in a matter or not, the Court will examine or consider the claims or reliefs. This is because only the claims or reliefs donate jurisdiction to the Court.”
The relief which the 1st Respondent sought against the Appellant at the lower Court is for an order of forfeiture of the sum of N9.08billion said to have been found by the 1st Respondent in possession of the Appellant, which sum the 1st Respondent reasonably suspected to be the proceeds of unlawful activity. The Appellant has rightly submitted that Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act is a penal provision. In case of statutory jurisdiction, we do not require a searchlight to ascertain if the lower Court has jurisdiction to entertain the 1st Respondent’s action for forfeiture. Section 14 of the Advance Fee Fraud and Other Fraud Related Offences Act provides for the Court with jurisdiction to try offences and impose penalties under the Act. It stipulates:
“14. The Federal High Court or the High Court of the Federal Capital Territory and the High Court of the State shall have jurisdiction to try offences and impose penalties

under this Act.”
In the light of the above stipulation, it seems to me beyond confutation that the lower Court has the requisite jurisdiction to entertain the 1st Respondent’s action for the penal relief of the order of forfeiture which it sought against the Appellant.
The Appellant seems to be conflicted and befuddled by whether the requirements of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, which must be established in order for an order of forfeiture to be made are present in this matter; notably, whether the subject matter, the N9.08billion, was in possession of the Appellant. The Appellant’s contention in this regard, in my deferential view, does not go to the jurisdiction of the lower Court to entertain the matter. It is a contention which is more appropriately situate in the success of the action, id est, whether the 1st Respondent established its case in order to be entitled to the relief sought. The relief claimed by the 1st Respondent is within the jurisdictional competence of the lower Court. It is an entirely different kettle of fish if, in the diacritical circumstances of the matter, the

1st Respondent made out a case for the grant of the relief sought. Indubitably, this issue number one is resolved against the Appellant. The lower court had the jurisdiction to entertain the application for an order for forfeiture brought pursuant to the provisions of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act.

ISSUE NUMBER TWO
Whether in the circumstances of this matter, the refusal of the lower Court to allow the Appellant’s Further Counter Affidavit was justified.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that he filed a motion for leave to file a further counter affidavit but that in refusing the application the lower Court held that it would be prejudicial to re-open the case for the Appellant to adduce fresh evidence which was in existence at the time the application was argued and that granting an amendment would overreach and cause injustice to the 1st Respondent. It was posited that the lower Court misconceived the nature of the application which the Appellant brought, as it was neither to adduce fresh evidence nor to amend, and therefore wrongly exercised its

discretion.

The refusal of the application to file the further counter affidavit, it was asserted, was a denial of the Appellant’s right to fair hearing vide OBIORA vs. FRN (2016) LPELR -40965 (CA) at 40-41. The lower Court, it was maintained, ought not to have refused the application simply because the matter was already reserved for judgment and that refusal of the application was not a judicial and judicious exercise of discretion in the circumstances of the case. The cases of UNIVERSITY OF LAGOS vs. AIGORO (1985) 1 NWLR (Pt 1) 143 at 148 and CBN vs. OKOJIE (2002) 8 NWLR (PT 768) 48 at 61-62 were referred to. It was contended that the lower Court ought to have allowed the use of the further counter affidavit to enable the Appellant fully explain and present all his defences to the order of forfeiture and thereby preserve the Appellant’s right to fair hearing. Justice, it was stated was not a one way traffic, but was for both the plaintiff and the defendant. The cases of ADELEKE vs. OYO STATE HOUSE OF ASSEMBLY (2006) 10 NWLR (PT 987) 50 or (2006) LPELR – 7655 (CA) at 20, JOSIAH vs. THE STATE (1985) 1 NWLR (PT 1) 125, WILLOUGHBY vs. IMB (NIG) LTD

(1987) 1 NWLR (PT 48) 105 or (1987) LPELR – 3495 (SC) at 51 and EFCC vs. FAYOSE (2018) LPELR -44132 (CA) 21-22 were relied upon.

The lower Court, it was opined, took irrelevant materials into consideration when it confused the Appellant’s application to be an application for amendment and thereby occasioned a miscarriage of justice by disallowing and shutting its eyes to the Appellant’s further counter affidavit. The cases of UBN PLC vs. BEAR MARINE SERVICES LTD (2018) LPELR – 43692 (CA) and SARAKI vs. KOTOYE (1990) 4 NWLR (PT 143) 144 at 170 were called in aid. Conclusively, the Appellant urged this Court to interfere and review the exercise of discretion by the lower Court. The cases of ODUSOTE vs. ODUSOTE (1971) ALL NLR 221 or (1971) LPELR – 2257 (SC) 9 and EYE vs. FRN (2018) LPELR -43599 (SC) 15-16 were cited in support.

SUBMISSIONS OF THE 1ST RESPONDENT’S COUNSEL
The submissions of the 1st Respondent on this issue are embedded in the submissions in its issue number two. It was submitted that in matters of exercise of judicial discretion, decided cases are only a guide and do not constitute binding

precedent for the manner of exercise of discretion since no two cases are exactly similar. The cases of INCAR (NIG) PLC vs. BOLEX ENT. (NIG) PLC (1996) 8 NWLR (PT 460) 687, BANK OF THE NORTH LTD vs. ADEGOKE (2007) 29 WRN 55 at 67, DOKUBO-ASARI vs. FRN (2007) LPELR – 958 and FRN vs. BULAMA (2005) LPELR-7493 (CA) 31-32 were referred to. It was asserted that the lower Court exercised its discretion judicially and judiciously, the Appellant having sought to adduce fresh evidence after the matter had been argued and reserved for judgment.

RESOLUTION OF ISSUE NUMBER TWO
In the exordial, I stated that the Appellant had filed a counter affidavit to show cause why the order of forfeiture should not be made final. This was on 23rd January 2017. On 24th January 2017, the return date for the Appellant to show cause, the 1st Respondent filed a Reply Affidavit. The lower Court thereafter proceeded to hear learned counsel and adjourned to 16th February 2017 for judgment. On 3rd February 2017, the Appellant filed an application for leave to file a further counter affidavit and for the processes already filed to be deemed as properly filed and served. See pages

236-242 of the Records. The 1st Respondent filed a counter affidavit in opposition to the application (See pages 243-246 of the Records).Even though the application was filed on 3rd February 2017, about two weeks before the adjourned date for judgment, the lower Court did not fix the application for hearing until the day fixed for judgment when it heard and dismissed the application. In dismissing the application, the lower Court reasoned and held as follows at pages 284, 285-287 of the Records:
“The 2nd Respondent/Applicant by this application seeks to re-open this case which has already been reserved for judgment today 16/2/2017, an application of this nature is purely at the discretion of the Court but such discretion must be exercised judicially and judiciously based on the facts of each case.
The fresh evidence sought to be produced by 2nd Respondent/Applicant were in existence as at the time when this application was argued, there is no convincing evidence presented before this Honourable Court on the reason why the 2nd Respondent/Applicant could not produce the said evidence to allow this evidence would be overreaching since issues have

been joined and the case reserved for judgment, this fresh evidence in my view is an afterthought.
I agree with the submission of Learned Counsel for the Applicant/Respondent Mr Rotimi Oyedepo that it would prejudice the Applicant/Respondent if the fresh evidence is allowed.
Learned Counsel for the 2nd Respondent/Applicant had erroneously argued that Order 17 Rule 1 of the Federal High Court (Civil Procedure) Rules 2009 allows a party to amend his Originating process and pleadings at any time before judgment but not more than three times as in the instant application.
In my firm view and I so hold that Order 17 Rule 1 of the Federal High Court Rules is in no face applicable to the present case, this case is already reserved for judgment in any case it is still at the discretion of the Court.
I hold that the instant application is intended to overreach and cause injustice to the Applicant/Respondent.
This Court will not grant an amendment if the essence is to overreach the Respondent.
The Supreme Court on the meaning of the word ‘overreaching’ in AKANINWO & 4 ORS VS NSIRIM & 3 ORS (2008) 9 NWLR (Pt 1093) 439

at 475-476 paragraphs D – A Per Tobi J.S.C. of blessed memory stated ‘if an application is designed to overreach the Respondent, a trial judge will not grant it. This principle or factor is related to the one I have just considered. Overreaching means to circumvent, outwit or get the better of by cunning or artifice; that is by a clever trick. In the context of amendment of pleadings, it connotes or conveys a situation where a party, fully aware of the case of the adverse party, applies to amend his pleadings, with trick or craftiness, to put the Respondent or adverse party in a state of hopelessness or helplessness that cannot meaning fully respond for the good of his case. By the amendment, the Respondent or adverse party is no more in a position to respond positively because the Applicant has pre-empted or forestalled his possible reply in exculpation of the amendment. By the overreaching amendment, the Respondent has been inculpated knee-deep. A state of overreaching arises where the Applicant unnecessarily anticipates the case of the Respondent and places a premeditated wedge to close any meaningful pleadings in joinder of issues and

meaningful pleading here means pleadings capable of giving victory to the Respondent in the case. A Court of law, which is also a count of equity, will not allow an Applicant play such an artifice on the Respondent. After all, litigation is not a booby trap available to a so-called clever party in trouble of his case to outsmart the adverse party. On the contrary, litigation is a process where the parties genuinely and without the cover of ambush and tricks, place the lawsuit before the Court for adjudication, with the parties showing only their bias, sentiments and slants’.
From the foregoing, I therefore hold that, this instant application is unmeritorious and ought to be dismissed by this Court.
It is accordingly dismissed.
Having dismissed this Application, I will now proceed to deliver my judgment.”

The pith of the contention under this issue is whether the decision of the lower Court dismissing the application is a proper exercise of judicial discretion based on the peculiar circumstances of the case. By all odds, the Appellant by his application sought a discretionary relief from the lower Court. An exercise of discretion

is a liberty or privilege to decide and act in accordance with what is fair and equitable under the circumstances of the particular case guided by the spirit and principles of law: THE OWNERS OF THE M.V. LUPEX vs. NIGERIAN OVERSEAS CHARTERING & SHIPPING LTD (2003) 9 MJSC 156 at 168. Like all judicial discretion, the discretion is to be exercised judicially and judiciously. Judicial in the sense that it must not be capricious and must be for a reason connected with the case and judicious in the sense that it must be based on sound judgment marked by discretion, wisdom and good sense. See ERONINI vs. IHEUKO (1989) 3 SCNJ 130 at 141 and OLUMEGBON vs. KAREEM (2002) 34 WRN 1 at 8.
Now, in the Appellant’s counter affidavit of 23rd January 2017, the Appellant deposed that the N9.08billion which he surrendered to the 1st Respondent while in detention was not recovered from him but that he had to source for and borrow money from the bank to raise the money before he was released on administrative bail by the 1st Respondent. (See pages 116-124 of the Records). The 1st Respondent, in its Reply Affidavit, did not controvert this deposition that the

Appellant borrowed the money from the bank. (See pages 139-144 of the Records). However, in oral submissions in Court, the 1st Respondent’s counsel contended that the Appellant did not show any evidence that he raised the money from his friends and did not disclose how he borrowed the money. (See page 190 of the Records). So it was not fresh evidence per se, but the documents showing that the money was sourced from friends and borrowed from the bank, a fact which the 1st Respondent did not controvert in its Reply affidavit, that the Appellant sought to present in the further counter affidavit which he urged the Court to deem as properly filed.
It has to be remembered that the exercise of discretion in order to be judicial has to be for a reason connected with the case. When this is considered relative to the fact that the 1st Respondent did not controvert in its Reply Affidavit that the Appellant borrowed from the bank and sourced the money from friends, and that the issue of documents to show this was only raised in the course of argument by 1st Respondent’s counsel, it becomes lucent that in the circumstances of the case, the Appellant was

not obligated to have presented the documents since the fact that the 1st Respondent did not controvert the deposition meant that issues were not joined on that fact contrary to the finding of the lower Court that issues had been joined in that regard. Sound judgment wisdom and good sense which are the dictates of a judicious exercise of discretion required that the lower Court, in the diacritical circumstances, ought to have exercised discretion in favour of granting the application: ADELEKE vs. OYO STATE HOUSE OF ASSEMBLY (supra).
The Appellant has made a foofaraw about the lower Court having treated the application to be one for amendment and thereby failed to take the facts material to the application into consideration. I am unable to agree. Amendment of processes is governed by the Order 17 of the Federal High Court (Civil Procedure) Rules. The learned counsel for the Appellant at the lower Court argued that Order 17 of the Federal High Court (Civil Procedure) Rules was applicable. The lower Court held that it was an erroneous argument and that the said Order 17 was not applicable (See page 284 285-286 of the Records). Indeed, the lower Court held

that the application is intended to overreach, but not in terms of being an amendment but in terms of, as held by the lower Court, being fresh evidence (but I restate that it is not fresh evidence) which was in existence at the time the application was argued.
Howbeit, as I have already demonstrated, it was not a proper exercise of judicial discretion for the lower Court to have held that it was fresh evidence which was in existence when the application was argued, given the fact that the 1st Respondent did not in its Reply Affidavit challenge or controvert the Appellant’s deposition that he sourced the money from friends and borrowed from the bank. It is only if the 1st Respondent had so challenged it in its Reply Affidavit that it would be behoving for the Appellant to produce the evidence before the application was argued. As it were, the 1st Respondent ambushed the Appellant by raising the same in oral submissions at the hearing (which not having been controverted or challenged in the Reply Affidavit, the 1st Respondent could not be heard to do). Even-handed justice required that the lower Court should have exercised discretion in favour of

granting the application for the use of the material conclusively showing that the money was sourced from friends and borrowed from the bank. This is more so when it is remembered that non-conviction based forfeiture proceedings is quasi-criminal in nature and there is a duty on the Court to ensure that every available defence is properly ventilated.
The judicial and judicious exercise of discretion has to be guided by the spirit and principles of law. Learned counsel have rightly submitted that Courts do not make a practice of laying down rules as to the manner of exercise of discretion since the facts of two cases are not always the same, and to so lay down would be to fetter the exercise of discretion. In matters of discretion, no one case is authority for the other; the fact that an appellate Court would have exercised its discretion differently from that of the lower Court is not sufficient reason to interfere with the exercise of discretion by the lower Court. Judicial discretion is a vital tool in the administration of justice. Judicial discretion is a sacred power which inures to a Judge. It is an armour which the judge employs judicially and

judiciously in order to arrive at a just decision. When, as in this case, it has been established that the discretion was wrongly exercised, an appellate Court will interfere in order to ensure that a just decision is arrived at. See ANYAH vs. AFRICAN NEWSPAPERS (NIG) LTD (1992) LPELR (511) 1 at 20-21, AJUWA vs. SPDC (2011) 12 SCNJ 596, ADISA vs. OYINWOLA (2000) 10 NWLR (PT 746) 116, NWADIOGBU vs. ANAMBRA IMO RIVER BASIN DEVT AUTHORITY (2010) 12 SCNJ 212, NNPC vs. CLIFCO NIG LTD (2011) 4 SCNJ 107 at 127 -128 and VANDIGHI vs. HALE (2014) LPELR (24196) 1 at 52-53.
The concatenation of the foregoing is that this issue number two is resolved in favour of the Appellant. On the peculiar facts and circumstances of this matter, the lower Court was not justified in refusing the Appellant’s application to file the Further Counter Affidavit and to deem the same as properly filed. It was not a proper exercise of judicial discretion. The lower Court ought to have taken cognisance of the further counter affidavit which was in the Court’s file, evaluate the same and utilise the materials therein in arriving at its judgment in the matter. See

FUMUDOH vs. ABORO (1991) 9 NWLR (PT 214) 200, SOUTH EASTERN NEWPAPER CORPORATION vs. ANWARA (1975) 9-10 SC 55, UZODINMA vs. IZUNASO (2011) 17 NWLR (PT 1275) 30 at 74 and UBN PLC vs. BEAR MARINE SERVICES LTD (supra).

ISSUE NUMBER THREE
Whether, based on the materials before the lower Court and the applicable law, the order of final forfeiture made by the lower Court was a judicial and judicious exercise of discretion.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that contrary to the provisions of Section 17 (4) of the Advance Fee Fraud and Other Fraud Related Offences Act, the 1st Respondent did not file a motion on notice for an order of final forfeiture. It was stated that where a statute has provided a procedure for doing a thing under its provisions, the said procedure must be followed and failure to do so would render the exercise of the power void vide OGUALAJI vs. A-G RIVERS STATE (1997) 6 NWLR (PT 508) 209 at 224-226 & 235, ADESOLA vs. ABIDOYE (1999) 10-12 SC at 141 and AHAMEFULE vs. IMPERIAL MEDICAL CENTRE (2005) 5 NWLR (PT 917) 62. The order for the Appellant to show cause, it was asserted, was not a substitute for the

statutory provision for the filing of a motion on notice. The Appellant contends that the provisions of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act are clear and ought to be strictly construed.

It was stated that the Appellant deposed in his Counter Affidavit that he had borrowed the money he surrendered to the 1st Respondent as the condition for his release on bail and that the said money he borrowed cannot be property found in his possession as envisaged by Section 17(1) of the Advance Fee Fraud and other Fraud Related Offences Act. The Appellant’s further counter affidavit, it was opined, gave detailed explanation of the sources of the N9.08billion which he was made to surrender to the 1st Respondent. It is the further contention of the Appellant that Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act, being a provision that deprives a person of his property has to be construed strictly against the authority and favourably towards the person. The cases of RE BOWMAN, SOUTH SHRELDS (THAMES STREET) CLEARANCE ORDER (1931-1932) 2 K.B 621 at 633 and BELLO vs. DIOCESAN SYNOD OF LAGOS (supra) were

referred to.

The Appellant maintains that the lower Court did not take into account the materials before it particularly the Appellant’s Counter Affidavit where it was deposed that the Appellant borrowed some of the money from the bank. It was stated that the deposition was unchallenged and that there was in addition the further Counter Affidavit and that as a result the lower Court did not properly exercise its discretion. It was argued that the lower Court holding that Appellant did not show any evidence of how he borrowed the money underscores the injustice caused by the refusal to allow the Appellant’s further counter affidavit. It was further stated that the lower Court by so holding placed the onus on the Appellant to establish that the money was not liable to be forfeited, when all that was required of the Appellant in showing cause is to justify, explain or provide information before the Court takes a decision. The Appellant having provided the information that he borrowed the money, the onus remained on the 1st Respondent to prove that the money was liable to an order for final forfeiture.

The Appellant argued that from the

affidavits filed by the 1st Respondent there was inconsistency as to the amount, reasonably suspected to be proceeds of crime, which was said to have been given to the Appellant and that the lower Court did not reconcile the said inconsistency before making the forfeiture order and therefore could not be said “to be satisfied” as required by Section 17 (1) of the Advance Fee Fraud and Other Fraud Related Offences Act. The lower Court, it was asserted, ought to have resolved the material conflicts or contradictions in the affidavit before holding that it was satisfied that the conditions stipulated in Section 17 of the Advance Fee Fraud and Other Related Offences Act had been fulfilled. The cases of OLUSANYA vs. ABEGUNDE (2019) LPELR -47055 (CA) at 15 -16, EZECHUKWU vs. ONWUKA (2016) 5 NWLR (PT 1506) 529 at 548 and MOMAH vs. VAB PETROLEUM INC. (2000) 4 NWLR (PT 654) 534 at 556-557 were cited in support. It was conclusively submitted that an essential ingredient and pre-condition for an order of forfeiture is that the money was recovered from or in the possession of the Appellant as required by Section 17 (1) of the Advance Fee Fraud and Other Fraud Related Offences Act

and that this was not present as the material before the Court is that the Appellant sourced for and raised and borrowed the money from the bank.

SUBMISSIONS OF THE 1ST RESPONDENT’S COUNSEL
The 1st Respondent submits that from the evidence on record, the lower Court judicially and judiciously exercised its discretionary power in ordering the forfeiture of the sum of N9.08billion traced and found in possession of the Appellant. It was maintained that the manner of exercise of discretion is informed by the materials before a Court and that decided cases only serve as guide and not binding precedent in matters of exercise of discretion. The cases of INCAR (NIG) PLC vs. BOLEX ENT. (NIG) PLC (supra), DOKUBO-ASARI vs. FRN (supra), FRN vs. BULAMA (supra) and BANK OF THE NORTH LTD vs. ADEGOKE (supra) were called in aid. It was posited that the investigation activities of the 1st Respondent traced the funds forfeited, which are proceeds of unlawful activity, to the account of the Appellant and that the lower Court rightly held that there was no evidence to support the assertion that the Appellant borrowed the money that was

forfeited.

It is the further contention of the 1st Respondent that the further counter affidavit which the Appellant referred to was refused by the lower Court and that rejected evidence cannot be acted upon by a Court vide AUDU vs. THE STATE (2002) LPELR- 7098 (CA) at 57-58 and BAKARE vs. THE STATE (1987) 1 NWLR (PT 52) 579 or (1987) 3 SCNJ 1. It was conclusively stated that the fair hearing envisaged by the Constitution is hearing in line with the practice, procedure and rules designed to ensure justice and that there was no violation of the Appellant’s right to fair hearing. The cases of BAMAIYI vs. THE STATE (2001) 8 NWLR (PT 715) 270 at 284, UGURU vs. THE STATE (2002) 2 NWLR (PT 771) 90 at 105 and AUDU vs. FRN (2013) LPELR – 19897 (SC) at 13-14 were referred to.

RESOLUTION OF ISSUE NUMBER THREE
The pivotal axle at the centre of this issue are the stipulations of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act. It is based on its provisions that the lower Court made the order of forfeiture against the Appellant. It is the contention of the Appellant that the stipulations of the said Section were not met

and that the lower Court ought not to have made the order for final forfeiture. Now, the said Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act stipulates as follows:
“17. (1) Where any property has come into the possession of any officer of the Commission as unclaimed property or any unclaimed property is found by any officer of the Commission to be in the possession of any other person, body corporate or financial institution or any property in the possession of any person, body corporate or financial institution is reasonably suspected to be proceeds of some unlawful activity under this Act, the Money Laundering Act of 2004, the Economic and Financial Crimes Commission Act of 2004 or any other law enforceable under the Economic and Financial Crimes Commission Act of 2004, the High Court shall upon application made by the Commission, its officers, or any other person authorized by it and upon being reasonably satisfied that such property is an unclaimed property or proceeds of unlawful activity under the Acts stated in this subsection make an order that the property or the proceeds from the sale of such property be forfeited

to the Federal Government of Nigeria.
(2) Notwithstanding the provision of subsection (1) of this section, the High Court shall not make an order of forfeiture of the property or the proceeds from the sale of such property to the Federal Government of Nigeria until such notice or publication as the High Court may direct has been given or made for any person, corporate or financial institution in whose possession the property is found or who may have interest in the property or claim ownership of the property to show cause why the property should not be forfeited to the Federal Government of Nigeria.
(3) Application under subsection (1) above shall first be made by a motion ex parte for interim forfeiture order of the property concerned and the giving of the requisite notice or publication as required in subsection (2) of this section.
(4) At the expiration of 14 days or such other period as the High Court may reasonably stipulate from the date of the giving of the notice or making of the publication stated in subsection (2) and (3) of the section, an application shall be made by a motion on notice for the final forfeiture of the property

concerned to the Federal Government of Nigeria.
(5) In this section: ‘financial institution’ shall have the same meaning as in Section 7 of this Act. ‘Property’ includes assets whether movable or immovable, money, monetary instruments, negotiable instruments, securities, shares, insurance policies, and any investments.
(6) An order of forfeiture under this section shall not be based on a conviction for an offence under this Act or any other law.”
It is hornbook law that the object of interpretation of a statute is to discover the intention of the legislature, which intention is usually deduced from the language used in the statute. Where the words used are clear and unambiguous, they must be given their ordinary, natural and plain meaning so as to avoid reading into the provision meanings not intended by the lawmakers. By implication, where the words used in the provision are clear and unambiguous, the question of interpretation does not arise as there is nothing to be interpreted or constructed since the Court is under the bounden duty to assign the words used in the provision their ordinary, natural and plain

meaning. Put differently, the general rule of interpretation of statutes is that where the words of the statute are plain, clear and unambiguous, the Court shall give effect to their literal meaning. It is only when the literal meaning may result in ambiguity or injustice that the Court may seek internal aid within the body of the statute itself or external aid from statutes in pari materia in order to resolve the ambiguity or avoid doing injustice. The authorities for this trite law are legion. I will mention a few. See OGBUNYIYA vs. OKUDO (1979) 6-9 SC 32, MOBIL (NIG) LTD vs. FBIR (1977) LPELR (24896) 1 at 22, OJOKOLOBO vs. ALAMU (1987) LPELR (2392) 1 at 10, ABUBAKAR vs. NASAMU (2012) LPELR (7826) 1 at 34-35, ABEGUNDE vs. ONDO STATE HOUSE OF ASSEMBLY (2015) LPELR (24588) 1 at 41 and GANA vs. SDP (2019) LPELR (47153) 1 at 45.
Without a doubt, the words employed in Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act which I have reproduced above are clear, plain and univocal. They should therefore be given the literal interpretation of its simple, plain and ordinary meaning. The Appellant has complained that the 1st Respondent did

not file a Motion on Notice as required by Section 17 (4) before the lower Court made the order for final forfeiture; and that since the laid down procedure was not followed, the decision cannot stand.
It is beyond confutation that the 1st Respondent did not file a motion on notice; but did the failure occasion any miscarriage of justice? I think not. The essence of a motion on notice is for the party against whom an order or relief is sought to know the nature of the order or relief sought and the facts upon which it is based so as to defend and oppose the grant of the said order or relief, if he can. From the materials available on the cold printed Records, the lower Court upon making the interim order for the forfeiture of the money ordered that the Appellant should show cause why a final order of forfeiture should not be made and for the interim order to be served on the Appellant and published in a newspaper. This was duly done and the Appellant was given a hearing on the processes he filed to show cause. Even though the motion on notice was not filed, the purpose which the motion on notice was to serve was duly achieved. The Appellant became aware

of the interim order of forfeiture made against him, the reason which informed it and that he was to show cause why the order should not be made final. Doubtless, the stipulations of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act ought to be followed but in the diacritical circumstances of this matter, the failure by the 1st Respondent to file a motion on notice did not occasion any miscarriage of justice since the Appellant was aware of the order sought against him and the grounds there for. As a matter of fact, the Appellant was not in any way misled or prejudiced by the failure of the 1st Respondent to file the motion on notice having failed to make an issue of the same at the lower Court.
The Appellant further argued that the lower Court ought to have taken oral evidence to resolve the conflicts and contradictions in the affidavits filed by the 1st Respondent as regards the amount which the Appellant was said to have been given, whether it is US$25,000,000.00, US $40,000,000.00 or US$65,000,000.00. It is clear from the Records that the order of forfeiture of N9.08billion is said to be the Naira equivalent of US$40,000,000.00.

The conflicts or contradiction which the Appellant is building monuments of legalese upon is in respect of the deposition that the Appellant received US$65,000,000.00 and paid US$25,000,000.00 as directed and kept US$40,000,000.00; and the other deposition that it was a straight US$40,000,000.00 that the Appellant received. I do not see this conflict or contradiction as material such that the lower court would have resorted to oral evidence. The bottom line is that the Appellant, even if it was US$65,000,000.00 that investigation activities revealed that he received, the said investigation activities revealed that what he allegedly retained was US$40,000,000.00 after he had given US$25,000,000.00 as directed. This is in no way contradictory of the deposition that investigation activities revealed that the Appellant allegedly received US$40,000,000.00. The Appellant’s contention that there are conflicts and contradictions in this regard is finicky hair-splitting.
The contradiction in evidence which would result in the decision of a Court being upturned has to be material contradictions and not minor discrepancies: EGESIMBA vs. ONUZURUIKE (2002) 9

SCNJ 46, EZEMBA vs. IBENEME (2004) 7 SCNJ 136 and OWIE vs. IGHIWI (2005) 5 NWLR (PT 917) 184 at 281. In OGIDI vs. STATE (2003) 9 NWLR (PT 824) 1 at 23-24 which was followed in WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 27-28, contradiction was given the following meaning:
“The word ‘contradiction’ is a simple English word. It derives from two Latin words: ‘contra’ and ‘Deco-ere-dixi-dictum’ meaning ‘to say the opposite’, hence ‘contradictum’. A piece of evidence contradicts another when it affirms the opposite of what that evidence has stated, not when there is just a minor discrepancy. And two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short or, contains a little more than what another piece of evidence says or contains; some minor differences in detail.”
In the words of Tobi, JSC in OWIE vs. IGHIWI (supra)at 281:
“Human being, being not machine, does not act with the characteristic automation of machines. There could be little differences here and

there when they give evidence on the same matter or event. If human beings give evidence on the same matter or event to the exact minutest details, a Judge should seriously suspect such evidence because of a possibility of tutoring or a rehearsal developing into a recitation before the date of giving evidence. Where there are inarticulate or immaterial differences of evidence of witnesses here and there, that in itself shows their truthful testimonies…..”
In the light of the foregoing I am unable to agree with the Appellant that the lower Court was in error when it failed to call oral evidence to resolve the conflict or contradiction. There were no material contradictions and the discrepancy where one affidavit says a little more than what another affidavit says is a minor difference in detail that would not require resort to oral evidence.
Let me iterate that the provisions of Section 17 (1) of the Advance Fee Fraud and other Fraud Related Offences Act is to be given its plain and ordinary meaning. It is a provision that encroaches on proprietary rights so it is to be strictly construed. The abecedarian law is that expropriatory statutes

which encroach on a person’s proprietary rights must be construed fortissimo contrapreferentes, that is, strictly against the acquiring authority but sympathetically in favour of the citizen whose property rights are being deprived. See PROVOST, LAGOS STATE COLLEGE OF EDUCATION vs. EDUN (2004) LPELR (2929) 1 at 33, CSS BOOKSHOPS LTD vs. THE REGD TRUSTEES OF MUSLIM COMMUNITY RIVERS STATE (2006) LPELR (824) 1 at 51-52, BELLO vs. DIOCESAN SYNOD OF LAGOS (supra), THE ADMINSTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANI ABACHA vs. EKE-SPIFF (2009) LPELR (3152) 1 at 41 -42 and ABIOYE vs. YAKUBU (1991) LPELR (43) 1 at 5-57.
Dissecting the stipulations of Section 17 (1) of the Advance Fee Fraud and Other Fraud Related Offences Act as applicable to the facts of this matter, the subject matter of the forfeiture order is not unclaimed property that came into the possession of any officer of the 1st Respondent. It is property which the 1st Respondent claims was traced to the Appellant and found in possession of the Appellant and reasonably suspected to be proceeds of some unlawful activity. The plain, ordinary and literal meaning of Section 17 is that for the

provision to be applicable in the peculiar circumstances of this matter, the property has to be in possession of the Appellant and reasonably suspected to be proceeds of some unlawful activity. The Appellant has strongly contended that the money was not in his possession and that he sourced it from friends and borrowed from the bank in order to raise it and surrender to the 1st Respondent in order to secure his release on administrative bail. This is the deposition in paragraph 16 (o) and (p) of the Appellant’s counter affidavit (see pages 122-123 of the Records). The 1st Respondent neither challenged nor controverted the said paragraphs in its Reply Affidavit. The depositions are not manifestly incredible nor unbelievable such that a Court cannot act on them. The 1st Respondent having failed to challenge or controvert them, the lower Court ought to have given the same full weight and value as establishing that the N9.08billion subject of the interim order of forfeiture was not in the possession of the Appellant, but was in fact, money the Appellant sourced for from friends and borrowed from the bank. In the words of Garba, JCA in ACN vs. INEC (2013)

LPELR (1991) 1 at 16:
“The law is now elementary that where facts are provable by affidavit and if one party deposed to certain facts, his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts. Where such an adversary fails to so depose to facts which controvert those facts, the facts are deemed as admitted by the adversary and duly established.”
See alsoAJOMALE vs. YADUAT (1991) 5 SCNJ 172 at 178, NEKA B.B.B. MANUFACTURING CO. LTD vs. ACB (2004) 2 (PT 858) 521 at 550-551, LAWSON-JACK vs. SHELL (2002) 12 MJSC 114 at 125 and OBASANJO FARMS vs. MUHAMMAD (2016) LPELR (40199) 1 at 41-42. The lower Court was therefore in error when it upheld the submission of the 1st Respondent that the Appellant did not show evidence that he borrowed the money. The 1st Respondent having failed to challenge or controvert the deposition in the Appellant’s counter affidavit could not so contend as the submissions of learned counsel could not take the place of the affidavit evidence: KAZEEM vs. MOSAKU (2007) 17 NWLR (PT 1064) 523 at 535, ISHOLA vs. AJIBOYE (1998) 1 NWLR (PT 532) 71 at 93 and ARO vs. ARO (2004) 14 WRN 51 at 65.

Howbeit, in the course of resolving issue number two in this judgment, I held that the lower Court was in error when it refused the Appellant’s application to file a further counter affidavit and that the further counter affidavit which was in the Court’s file ought to have been utilized by the lower Court. The further counter affidavits titled 1st, 2nd and 3rd Further Counter Affidavit are at pages 192-228 of the Records. The depositions therein and the documents attached afford proof, in addition to the unchallenged and uncontroverted paragraph 16 (o) and (p) of the Counter Affidavit, that the sum of N9.08billion was not in possession of the Appellant, but was sourced from friends and borrowed from the bank. Indeed as already stated, even without the Further Counter Affidavit, the unchallenged and uncontroverted paragraph 16 (o) and (p) of the Counter Affidavit already established that fact.
The strict application of the simple, plain, ordinary and grammatical interpretation of the provisions of Section 17 (1) of the Advance Fee Fraud and Other Fraud Related Offences Act relative to the facts of this matter, is that for the property

to be subject to forfeiture it has to be in possession of the Appellant and reasonably suspected to be proceeds of some unlawful activity. By no stretch of imagination can the N9.08billion which the Appellant was made to provide and which he had to borrow to raise in order to be released from detention be said to be in his possession: FRN vs. MAISHANU (2019) LPELR (46380) 1 at 55-57. It is instructive that the 1st Respondent tacitly concedes that the money was not in possession of the Appellant when in formulating its issues for determination, it referred to the N9.08billion, not as money in possession of the Appellant, but as money “traced to and recovered from the Appellant”. Giving Section 17 (1) of the Advance Fee Fraud and Other Fraud Related Offences Act its literal meaning does not result in any absurdity, if anything, it leads to the true intention of the legislature, id est, that in non-conviction based forfeiture, the property has to be in possession of the person in order for it to be subject to forfeiture. It has to be remembered that there still remains provisions in the statutes for conviction based forfeiture and restitution after

there has been a trial. See for instance Section 11 of the Advance Fee Fraud and Other Fraud Related Offences Act:NNAMUCHI vs. THE STATE (2015) LPELR (25744) 1 at 32-33 and BRILA ENERGY LTD vs. FRN (2018) LPELR (43926) 1 at 143-147.
The conflating of the foregoing is that it was not a proper exercise of discretion for the lower Court to have made an order of final forfeiture. This is on account of the fact that the lower Court in exercise of discretion did not take cognisance of the fact as established in the Appellant’s Counter Affidavit and Further Counter Affidavit that the money was not in the possession of the Appellant. Furthermore, from the issue for determination as distilled by the Court at page 275 of the Records as being whether the Appellant is entitled to the sum of N9.08billion beclouded the exercise of discretion by the lower Court as it failed to consider the pertinent and material consideration and requirement of Section 17 (1), namely, whether the money was “in possession” of the Appellant such that it can be the subject of an order for forfeiture. The lower Court having failed to exercise discretion judicially and

judiciously, an appellate Court will interfere in order to obviate injustice occasioned by the decision of the lower Court for the Appellant to forfeit money which was not in his possession but which he had to source from friends and borrow from the bank in order to meet the condition given by the 1st Respondent for his release from detention. See IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (2008) LPELR (1476) 1 at 23, UNILAG vs. AIGORO (1985) LPELR (3418) 1 at 9-10, ODUSOTE vs. ODUSOTE (1971) 1 ALL NLR 219 at 222 and OLATUBOSUN vs. TEXACO NIGERIA PLC (2012) LPELR (7805) 1 at 14. In a summation, this issue number three is resolved in favour of the Appellant. Based on the materials before the lower Court and the applicable law, the order for final forfeiture made by the lower Court was not a judicial and judicious exercise of discretion.

All the issues for determination as crafted by the Court have been adequately considered and resolved in this appeal. It now remains to berth this judgment at the quays. Even though issue number one was resolved against the Appellant, the resolution of issue numbers two and three in his favour signposts that the appeal is

meritorious. The appeal accordingly succeeds and it is allowed. The decisions of the Federal High Court,Coram Judice: Hassan, J., delivered in SUIT NO. FHC/L/CS/13/2017 on 16th February 2017 are hereby set aside. The order of final forfeiture of the sum of N9, 080,000.000.00(Nine Billion and Eighty Million Naira) to the Federal Government of Nigeria is hereby set aside. It is hereby ordered that the said sum of N9, 080,000.000.00(Nine Billion and Eighty Million Naira) be returned to the Appellant forthwith.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I agree with the leading judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, J.C.A. just delivered in which he allowed the appeal. I make no order as to costs. Appeal is allowed.

EBIOWEI TOBI, J.C.A.: I have had cause to read in draft the leading judgment of my learned brother Ugochukwu Anthony Ogakwu. JCA, and I must say that my learned brother has done a good job with analyzing the issues presented for determination in this appeal and the conclusions reached. Adding anything more will only amount to a mere repetition.
I also find that this appeal has merit and same is hereby

allowed.

Appearances: