MARHABA EVENT PLACE LTD & ORS v. EFCC & ORS (2022)

MARHABA EVENT PLACE LTD & ORS v. EFCC & ORS

(2022)LCN/17063(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, August 24, 2022

CA/ABJ/CV/670/2022(R)

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

1. MARHABA EVENT PLACE LIMITED 2. ALFLAC PLASTICS LIMITED 3. ATLASFIELD INTEGRATED LIMITED Interested Persons Concerning The 24 Properties Reproduced Below: I. A Filling Station Called, ”RijiyarLemo Filling Station” Located At RihiyarLemo Katsina Road, Kano Ii. Atlasfield Filling Station With 41 Pumps Located Opposite Federal Secretariat, Kano Iii. Atlasfield Filling Station With 39 Pumps Located Along Buk Road, Kano Iv. Atlasfield Filling Station With 31 Pumps Located Along Rig Road, Kano V. Atlasfield Filling Station With 31 Pumps Located Along Maiduguri Road, Kano Vi. Atlasfield Filling Station With 29 Pumps Located Along Maiduguri Bypass, Kano Vii. Atlasfield Filling Station With 23 Pumps Located Along Naibawa, Kano Viii. Atlasfield Filling Station With 39 Pumps Located Along RijiyarLemo, Kano Ix. Atlasfield Filling Station With 51 Pumps And A One-Story Building With 35 Shops Attached To The Filling Station Located Along Sheik Ja’afar Road, Dorayi, Kano X. Atlasfield LPG Plant With 30 Shops Attached To It Located Along Zaria Road, Kano Xi. Marhaba Event Centre, Guda Abdullahi Road Farm Centre, Kano Xii. A Three-Storey Building (Plaza) With 28 Shops Located On Hadeja Road, Next To Sheshe Supermarket, Kano. Xiii. A Three-Storey Building (Plaza) With 126 Shops On Audu Bako Way, Opp. Nation Plaza, Kano Xiv. Classic Block Industry At Maiduguri Road, Adjacentto Sahas Filling Station, Kano Xv. Atlasfield Corporate Headquarters No. L6 Ahmadu Bello Way, Kaduna Xvi. Undeveloped Plot Located At Sharada, Adjacent To A.A. Rano Filling Station, Kano Xvii. Undeveloped Plot Located At Yan Rake, Adjacent To Dala Orthopaedic Hospital, Kano Xviii. Undeveloped Plot Located Along Kano-Gwarzo Road, Adjacent To Kedco Regional Office, Kano North/Opp Silver Spoon Restaurant, Kano Xix. Undeveloped Plot Located Along Kano-Gwarzo Road, Opp. Markaz Mosque, Kano Xx. Undeveloped Plot Located On Sani Marshal Road, Opp. Nissan Automobile, Kano Xxi. 11.7 Hectares Of Land Located At Adiabo, Oduapani L.G Covered By Certificate Of Occupancy No, OD/23/2011 Dated 21/4/2011 In Cross River State Xxii. Truck Assembly At Ring Road, Adjacent A.A Alfa Filling Station, Kano Xxiii. Event Centre Located At Ndidem Usang IsoBoulevard, Calabar, Cross River State Xxiv. A Polythene Production Factory Located Behind National Eye Centre, Kaduna APPELANT(S)

And

1. THE ECONOMIC AND FINANCIAL CRIMES COMMISSION 2. GEELINKS BEVERAGES & INDUSTRIES LIMITED (Interested Person As It Relates To The Property: Geelinks Table Water Factory Located Behind National Eye Center, Kaduna) 3. TASAF GENERAL MERCHANDISE LIMITED (Interested Person As It Relates To The Properties Reproduced Below: I. Two Story Building Located At Tal’udu Roundabout, Near Hanan International School, Kano Ii. An Undeveloped Plot Located On Kano Road, Formerly Ashaka Cement Depot, Katsina) 4. BINJABAL GLOBAL RESOURCES LIMITED. (Interested Person As It Relates To The Filling Station Located Along Airport Road, Sokoto) 5. HIGH CHIEF EDEM DUKE (Interested Person As It Relates To Property Listed As Xxi Above) RESPONDENT(S)

RATIO

THE POSITION OF LAW ON AN APPLICATION FOR STAY OF EXECUTION

THE POSITION OF LAW FOR AN ORDER OR DECISION OF A TRIAL COURT TO BE BINDING ON PARTIES TO A LEGAL DISPUTE

The law is trite that an order or decision of a trial Court is truly binding on the parties to the case so long as the order remains in force and enforceable, the law compels the parties to comply with and obey it pending its being set aside either by the trial Court itself upon due application or an appellate Court on appeal. See ABDULLAHI AHMAN & ANOR V ABUBAKAR TANKO AYUBA MAJOR GENERAL & ORS (2008) LPELR 3659(CA), AMAECHI V INEC, (2008)5 NWLR (pt. 1080) 227 AT 356.
In the case of EKANEM EKPO OTU V. ACB INTERNATIONAL BANK PLC & ANOR, (2008)LPELR- 2827, the Supreme Court as per TOBI JSC (of blessed memory) held:-
“A judgment, and this includes a ruling of a Court of law is valid or so presumed until it is set aside on appeal. A Court of Law, trial or appellate, has the power or jurisdiction to protect its judgment by providing teeth to bite any act of interference to weaken its legal strength of enforcement or enforceability in the judicial process. In the judicial process, a Court of Law has the power or jurisdiction to set aside its own order in appropriate circumstances. It has the discretion to do so and once the discretion is exercised judicially and judiciously, an appellate Court cannot interfere. After all, the Court is the owner of the Order and it can do anything with it, like every owner of property.” PER SENCHI, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgement): By this application brought by way of a motion on notice pursuant to Order 6 Rule 1 (a), (b) of Court of Appeal Rules, 2021, Section 6(6) and 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and under the inherent jurisdiction of this Honorable Court prays for the following reliefs: –
1. An Order of this Honorable Court for stay of execution or further execution of the judgment of the Trial Court in Suit No. FHC/ABJ/CS/468/2020 delivered on the 14th February, 2022 by which the Interim Order of Forfeiture made on 13th May, 2020 was made Final with respect to the 23 properties belonging to the Appellants/Applicants pending the Hearing and determination of the Appeal filed by the Appellants/Applicants against the said judgment.
2. An Order of injunction restraining the 1st Respondent either by himself, officers, servants, agents, privies, assigns or representatives howsoever called or described from taking any step, action or doing anything whatsoever, adverse to the interests, rights, benefits and privileges conferred on the Appellants/Applicants as the bonafide owners of the 23 properties belonging to the Appellants/Applicants or in any way give effect to any Order(s) made in the Judgment of the trial Court delivered on the 14th of February, 2022 as it relates to the said properties, pending the hearing and determination of the Appellants’/Applicants’ appeal before this Honourable Court.
3. And for such Order or further Order(s) as this Honourable Court may deem fit to make in the circumstances of this application.

The Grounds upon which this application is brought are:
1. That the 1st respondent by an ExParte Motion approached the trial Court for an Order of Interim Forfeiture of the assets and properties listed in a Schedule of Assets/properties attached to the said Motion to the Federal Government of Nigeria.
2. That on the 15th of May, 2020, a publication was made in the Leadership newspaper of an Interim Order of Forfeiture made by the Trial Court on the 13th of May, 2020 on why a Final Order of Forfeiture to the Federal Government of Nigeria should not be made.
3. That pursuant to the said Order, the Appellants/applicants herein filed a Notice to show Cause on the 29th of May, 2020 disclosing reasons why the Interim Order of Forfeiture should not be made Final.
4. That in a judgment delivered by the Trial Court on the 14th of February, 2022,the Trial Court entered judgment in favor of the 1stRespondent, whereby the trial Court ordered the final forfeiture of the Appellants’/Applicants’ 23 properties listed in the Schedule to the Interim Order of the Trial Court made on the 13th of May, 2020.
5. That the Appellants/Applicants being dissatisfied with the judgment of the trial Court delivered on the 14th of February, 2022 have filed a Notice of Appeal dated 5th May, 2022 against the said judgment.
6. The Appellants/Applicants herein have a constitutionally guaranteed right of appeal against the said Judgment delivered on 14th February, 2022.
7. The Grounds of Appeal contain recondite and substantial issues of law which are arguable.
8. The Affidavit in support of the instant Application shows special and exceptional circumstances necessitation the grant of the reliefs sought as per this Application pending appeal.
9. The forfeited properties, belonging to the Appellants/Applicants are valuable assets with a high tendency of deterioration, and which if taken over by the Federal Government of Nigeria could be sold, auctioned, dissipated, liquidated, converted for use and/or otherwise dealt with for use by the said Federal Government of Nigeria at the detriment and expense of the Appellants/Applicants.
10. The Court of Appeal is seized of the appeal and the reliefs sought if not granted will foist a fait accompli on the Court of Appeal.
11. That the enforcement of the orders made by the trial Court as contained in its judgment will overreach and render the Appellants/Applicants’ appeal before the Court of appeal nugatory.
12. That special circumstances exist to warrant or justify an order for stay of execution and injunction pending appeal.
13. That the Appellants/Applicants are willing and ready to prosecute the appeal to its conclusion.
14. There is need to preserve the res in order not to foist on the Court of Appeal a complete state of helplessness.
15. It will be in the interest of justice for this Honorable Court to grant the instant Application and the reliefs sought pending the determination Appellants’/Applicants’ appeal.

In support of the application is a 14-paragraph affidavit deposed to by one Godwin Oreruerie Akpovwa, the Company Secretary and Legal Adviser to the Appellants/Applicants. Also hinged on the motion papers is Exhibit A, being the judgment of the lower Court delivered on the 14th day of February, 2022 in suit with No. FHC/ABJ/CS/468/2020, delivered by the Honorable Justice N.E. Maha of the Federal High Court Abuja, and Exhibit-B the Notice of Appeal as well as a written address filed in support of the motion for stay of execution dated the 3rd of August, 2022 and filed on the same date.

Upon being served the applicants motion, 1st respondent on the 9th of August, 2022 filed a counter-affidavit to the applicant’s application for stay of execution, supported by a written address dated the 8th of August, 2022 but filed on the 9th of August, 2022.

On the 19th August, 2022, being the date slated for the hearing of the application, applicant moved his application by adopting the processes filed by him in urging the Court to grant the application. The learned counsel representing the 1st respondent in opposing the application adopted the processes also filed by him and urged the Court to refuse the application.

Mr. Ugwu in further adumbration referred the Court to the property listed in paragraph 3 L and 3 M of the counter-affidavit, being petroleum products and urged the Court to allow the 1st respondent execute the judgment in respect of same, and to deposit the proceeds into a profit yielding account of the Court. His reason for so applying is that the product can easily dissipate. Mr. Maikyau, the learned senior counsel representing the applicants on the issue referred the Court to page 1011-1016 of the record, pertaining to a similar request made before the lower Court, as well as the extant order of the Court on the issue, permitting the parties to sell the product at the current market price with the 1st respondent insisting on auction.

The 2nd, 3rd and 4th Respondents were served, and duly represented in Court, intimating the Court of their not opposing the application, and therefore filed no process. The 5th Respondent on the other hand though served, failed to appear in Court and also filed no process.

In the written address settled by Mahmoud F. Belgore, but argued by Y.C. Maikyau SAN, a lone issue was suggested in determining the merit of the application thus:-
Whether considering the facts presented, this Honorable Court has the powers to stay the execution of judgment of the trial Court as per suit No. FHC/ABJ/CS/468/2020 pending the hearing and determination of the Appellants/Applicants appeal?

Learned counsel drew the attention of the Court to the purpose of the application before it, being that for a stay of execution and an injunction, which reliefs are grantable by virtue of the decision of City Express Bank Ltd vs. Lagos State Government (2004) 7 NWLR (pt. 872) 258 AT 282. He submits that the principles for the grant of a stay of execution and injunction pending appeal are the same and relied on Ajomale vs. Yaduat (No. 2) (1991) 1SC 570 AT 578. He goes on to state that the principle behind the grant of the application is to maintain the status quo and thereby preserve the subject matter from irreparable damage or destruction. The case of AL Plc vs. Union Merchant Bank Ltd (2013) LPELR 20180 was relied upon. Also relaying the position of the Supreme Court to the fact that an appeal does not operate as a stay, in JC Ltd vs. Ezenwa (1996) 4 NWLR (pt. 443) 391 AT 407, argued that an application of this nature calls for the exercise of the Court’s discretionary powers, which it must exercise judicially and judiciously as commanded in Integrated (Nig) Ltd vs. Zumafon (Nig.) Ltd (2014) LPELR – 22012 (SC), City Express Bank Ltd vs. Lagos State Government (supra). Further still, counsel argues, an application of this nature presupposes that there is a competent notice of appeal and referred to NACB vs. Ozoemelam (2016) 9 NWLR (pt. 1517) 376 AT 398, Nwabueze vs. Nwosu (1988) LPELR – 2081 (SC) amongst many others. He submits that the applicant has satisfied all the requirements established by law as disclosed in Exhibit B, which contains arguable issues. Premised on the above, counsel urged the Court to grant the application as prayed.

Mr. Ugwu, the learned Counsel for the 1st respondent in his address, in similar fashion distilled a sole issue as follows:
Whether the Applicants placed before the Court material facts to warrant this honorable Court to exercise its discretion in favor of the Applicants.
It was submitted by the learned counsel for the 1st respondent that in an application of this nature, the Court was being called upon to exercise its discretion judicially and judiciously bearing in mind the competing rights of the parties involved in the case, and cited for support the case of Chief J.S. Amadi & Ors vs. Mr. Edmund Chukwu & Ors (2013) 5 NWLR (pt. 1347). He argued that the application is not granted as a matter of course, but must exhibit special and exceptional circumstances justifying the stay as a judgment creditor ought not to be deprived reaping the fruits of his judgment, and relied on the case of Olunloyo vs. Adeniran (2001) 14 NWLR (pt. 734) 699 AT 709. He continued to argue that an appellant seeking the exercise of the Court’s discretion must place before the Court sufficient materials so as to enable the Court decide on the basis of the facts placed before him, and whether to grant the application or not. He submits that in the present case, the applicant failed to place enough materials for the Court’s consideration, as all that was placed before it is Exhibit B, which shows that there is no ground of appeal that raises a recondite point for the determination of the Court on appeal. The case of TSA Industries vs. Kema Investment Ltd (2006) 10WRN 66 AT 82 and WAEC vs. Governing Council of ITF & Anor (2008) LPELR – 19785(CA) were cited in support of the legal argument. He referred to the interpretation of the word recondite, in the case of NNPC vs. Famfa Oil Ltd & Anor (2009) LPELR-2023 (SC), as meaning something not easily understood or something requiring a high degree of scholarship or specialized knowledge to understand, contending that since the applicant did not propose any such point for determination, his application must fail.

Further to that, learned counsel submitted that even if the Court to were hold that Applicant raised a recondite point of law in the notice of appeal, that would not suffice in the absence of a special circumstance, as both must co-exist to ground a grant of stay of execution. The cases of NNPC vs. Famfa Oil Ltd (supra) and Ajomale vs. Yaduat (1991) 5NWLR (pt. 191) 266 were relied upon. He then commended to the Court the holding of the Apex Court in the case of NNPC vs. FAMFA OIL LTD (supra) and Okafor vs. Nnaife (1987) 4 NWLR 4 NWLR (pt. 64) 129 AT 138 to the effect that:
“A stay of execution is never to be used as a substitute for obtaining the judgment which the trial Court had denied a party. A party who had succeeded in a litigation is fully entitled to the fruits of the litigation and to these he would be entitled until the judgment in his favor has been set aside.”

Learned counsel finally referred to his counter-affidavit where the issue of the presence of fuel products comprising of PMS and AGO in property no. vii, the Atlas Field filling station located at Naibawa in Kano of Kano State which are prone to evaporation, and therefore could easily evaporate if the application is granted. He therefore prayed that the justice of the case demands that the application be refused to enable the 1st respondent being the judgment creditor dispose of the products via sale, so as not to occasion loss. He urged the Court to accordingly refuse the application.

I have therefore accorded the submissions of the learned counsel a deep but dispassionate consideration. In doing so, I carefully perused the affidavits filed as well as the exhibits in the case.

Let me start by according due respect to the decision of the Apex Court cited in Okafor vs. Nnaife (supra) per Eso JSC, and to say that that holding represents the state of the law. I equally agree with the learned counsel on both sides that an application of this nature is a call on the Court to exercise its discretionary jurisdiction, which has to judicial and judicious bearing in mind the competing rights of the litigants. Whereas the Court must dutifully bear in mind the constitutional right of any of the parties in the dispute to challenge the decision of the Court of trial by way of an appeal, such right must be balanced with the fact that a successful litigant ought not lightly be denied the fruits of his success in litigation. It is thus elementary, that an application for stay of execution presupposes that there is a valid appeal as no Court will consider any application for a stay of execution of a judgment against a decision of the Supreme Court on the basis that no appeal can emanate therefrom being the last Court in the land. See Samuel Balogun & Anor vs. Sadiku Ogunsakin & Ors (2015) LPELR-40282 (CA) per Abiriyi JCA. It is obvious therefore that the grant of a stay of execution pending appeal merely suspends the rights of the successful party, subject to the result of the appeal lodged. See Aragbiji of Iragbiji Oba Rasheed Ayotunde Olabomi & Anor vs. Olabode (2013) LPELR – 20969 (SC). Karibi-Whyte JSC, in the case of Mobil Oil (Nig.) Ltd vs. Agadaigho (1988) LPELR – 1882 (SC), gave clear meaning to the purpose for ordering a stay of execution having held that:
“Where a stay of execution has been ordered in a pending litigation, the general rule is to maintain the status quo and not to allow either party to take advantage of the litigation in dealings with the subject matter of the litigation. The onus that in the circumstance it was unjust and unequitable to grant a stay of execution is on the party seeking to set it aside on appeal.”

Mr. Ugwu the learned counsel for the 1st respondent argued that for the application to succeed, there must be proof of its recondity as well as any special circumstance established to enable the Court grant the application. I think the case of WAEC vs. Governing Council of ITF & Anor (supra) cited by the learned counsel for the 1st respondent admirably touched on the issue, which decision was adopted by Nweze JCA as he then was in National Pension Commission vs. First Guarantee Pension Limited & Anor (2013) LPELR-20824 (CA), having held that:
“…. The recondite of a point of law with reference to an application for a stay of execution, and this includes applications for injunctions pending appeal is not determined in the abstract by reference to the importance or difficulty of the point raised in the ground of appeal raised per se rather it is determined in concrete terms by reference to what the effect of a refusal to stay execution may be on the rights of the appellant if successful in the appeal.”
Premised on the above position of the law, I have diligently and minutely studied Exhibits A and B hinged on the motion papers, most importantly Exhibit B, the notice of appeal. I have equally studied the case law cited in support and against the grant of the application. Nnamani JSC of blessed memory in the often cited case of Martins vs. Nicannar Food Company Ltd (1988) LPELR – 1844 (SC), cited and relied on the opinion of Dr. Aguda, in his book, titled Practice and Procedure of the Supreme Court of Nigeria 1st edition at Page 535, which enumerated the factors to be considered in granting the application for a stay of execution pending appeal, one of which is whether from the nature of the subject matter in dispute maintaining the status quo until a final determination of the appeal in the case will meet the justice of case. See also Dr T.O. Dada vs. University of Lagos & Ors (1971) 1UILR 344, and Fatoyinbo & Ors vs. Osadeyi & Anor (2002) LPELR – 1252 (SC), where the Apex Court through the mouth of Kalgo JSC is heard as stating that one of the most important considerations in an application for stay of execution pending appeal is the preservation of the res, and the maintenance of the status quo so that if the appellant succeeds on appeal he would not have a hollow judgment.
Guided by the state of the law, and having carefully studied the two exhibits referred to above, I am inclined to exercising my discretion in favor of granting the application as prayed.

By the way, what is the contention or the reason adduced by the 1st respondent in opposing the application? It is that part of the properties, i.e fuel products listed under No. vii, at the Atlas Field Filling Station with 23 pumps may dissipate.

In that regard my attention has been drawn to a similar application or request made before the lower Court captured at pages 1011-1016 of the record, and order of the Court on the issue, which is still extant, permitting parties to sell the product at the current market price with the 1st respondent still insisting that it be allowed to auction the product at will.

I agree with the learned senior counsel that the order of the lower Court not having been appealed against subsists, and accordingly binds both parties as well as the Court, and refusing to act as directed is a disrespect to the Court, more so as raising the issue before this Court is a flagrant abuse of Court process. I must dismiss that contention.

The conclusion of the matter is that the application has merit and is accordingly granted as prayed, which is that:
i. Order of this Court is hereby granted for a stay of the execution or further execution of the judgment of the trial Court in suit with No. FHC/ABJ/CS/468/2020 delivered on the 14th day of February, 2022 by which the interim order made on the 13th May, 2020 was made final with respect to the 23 properties belonging to the Appellants/Applicants against the said judgment.
ii. Furthermore, order of injunction is also granted restraining the 1st Respondent either by himself, officers, servants, agents, privies, assigns or representatives howsoever called or described from taking any step, action or doing anything whatsoever, adverse to the interest, rights, benefits and privileges conferred on the Appellants/Applicants as the bona fide owners of the 23 properties belonging to the Appellants/Applicants or in any way give effect to any order(s) made in the judgment of the trial Court delivered on the 14th of February, 2022 as it relates to the said properties, pending the hearing and determination of the Appellants/Applicants appeal before this Honorable Court.
iii. These orders as granted does not extend to or nullify the order of the lower Court that the petroleum products as stated above be sold, and the proceeds lodged in an interest yielding account with the Court pending the determination of the appeal.

I make no order as to costs.

PETER OLABISI IGE, J.C.A.: I agree.

DANLAMI ZAMA SENCHI, J.C.A.: I read before now the draft lead ruling of my learned brother, HAMMA AKAWU BARA, JCA just delivered. The ruling aptly captured the standard principles to be considered in granting an application for stay of execution of the judgment of a Court pending appeal. I have nothing to add but I rather adopt the reasons/findings and conclusions reached in the lead Ruling as mine.

I however want to comment on the oral adumbration of the learned counsel to the 1st Respondent, C.O Ugwu Esq., in respect of the 1st Respondent’s deposition at paragraphs 3 (L) and 3 (M) of its counter-affidavit. The said paragraphs state as follows:-
“3(L) That the filling station listed as no 7 (vii) on the schedule located along Naibawa Kano ha Petroleum Products comprising PMS and AGO in it which products are wasting assets due to evaporation.
“3(M) That a grant of the instant application will lead to the loss of the Petroleum Products stored in the filling station due to evaporation.”

The 1st Respondent’s counsel therefore urged the Court to allow the 1st Respondent to execute the judgment by selling the petroleum products by auction and to deposit the proceeds of sale in an interest yielding account opened and maintained by this Court.

The Applicants learned senior counsel Y.C Maikyau SAN in his reaction on behalf of the Applicants referred the Court to pages 1011-1016 of the Record of Appeal to the effect that a similar application was made before the lower Court and the Court Ordered that the subject matter referred to in paragraphs 3(L) and 3 (M) of the counter-affidavit be sold at the current market price. By the Affidavit evidence before the Court, the order of the lower Court that the Petroleum Product be sold at the current Market Price has not been altered, appealed against or set aside.

Hence therefore, the application by the 1st Respondent’s counsel to sell the Petroleum Product by auction is not grantable and it is refused.

In conclusion, I subscribe to the consequential orders made in the lead ruling and I adopt same as mine.

Appearances:

Y.C. Maikyau, SAN, with him, T.R. Agbanyi, and C.P. Nwozor. For Appellant(s)

C.O. Ugwu, – for 1st Respondent

A.A. Umar, – for 2nd Respondent

Faisal Abubakar, – for 3rd Respondent

S.A. Mustapha, – for 4th Respondent. For Respondent(s)

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