MR. OLUKOYA OGUNGBEJE ESQ v. ECONOMIC AND FINANCIAL CRIMES COMMISSION
(2018)LCN/11989(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of July, 2018
CA/L/1408/2017
RATIO
COURT AND PROCEDURE: ORDER OF FORFEITURE
“The need for an order of forfeiture without conviction is necessitated by situations where the properties to be forfeited are reasonably suspected to be unclaimed property or proceeds of unlawful activity, which is clearly the situation in the instant case. The Appellant merely walked down to the Court to line up infantry of academic questions, he never came forward to say, “I want to show cause why this interim order must not be made final or absolute, the money belongs to me or some other person known to me, or that the large sums so found do not form part of proceeds of crimes,” the Appellant merely came to test his intellect, brainpower, wits and guardianship to the Nigerian public.” PER TIJJANI ABUBAKAR, J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
MR. OLUKOYA OGUNGBEJE, ESQ. Appellant(s)
AND
ECONOMIC AND FINANCIAL CRIMES COMMISSION Respondent(s)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Judgment of the Federal High Court sitting in the Ikoyi Division, delivered by M. S. Hassan J. on the 5th day of June, 2017 in Suit No: FHC/L/CS/600/2017. The Judgment is found at pages 13 – 24 of the records of appeal wherein the Respondent’s Application for Final Forfeiture to the Federal Government of Nigeria of the huge sums found at Flat 7B, Osborne Towers, No. 16 lkoyi Lagos on the 12th day of April, 2017 which were suspected to be unclaimed proceeds of crime was granted by the Lower Court.
It is proper to briefly state the facts grounding this appeal. On the 11th day of April, 2017, operatives of the Economic and Financial Crimes Commission following intelligence report discovered huge sums of money in foreign and local currencies in Flat 78 Osborne Towers located at 16 Osborne Road Ikoyi Lagos. On the following day 12th April 2017, the operatives of the Commission obtained search warrant and stormed the premises, the suspected property was subjected to search in the presence of two personnel of A. M. Facilities, the property managers of the subject property. The search resulted in the following recovery, 543,449,947.00 (Forty-Three Million, Four Hundred and Forty-Nine Thousand, Nine Hundred and Forty-Seven United States Dollars), 27,800.00 (Twenty-Seven Thousand, Eight Hundred Pounds), and N23,218,000.00 (Twenty-Three Million, Two Hundred and Eighteen Thousand Naira). Following the discovery of the huge sums of money, the representatives of the Facility Managers said they did not know who kept the money in the house.
The Respondent Economic and Financial Crimes Commission therefore filed an Ex-Parte Application and on the 13th of April, 2017, the Lower Court granted the Respondent’s ex-parte application for Interim Forfeiture of the unclaimed monies suspected to be proceeds of crime to the Federal Government. The Lower Court made further order that the interim order of forfeiture be published in any National Newspaper for anyone who is interested in the property sought to be forfeited to appear before it to show cause why a Final Order of Forfeiture of the said properties should not be made.
In apparent response to the publication, the Appellant herein, filed an Application dated 21st April, 2017 contained at pages 25 – 27 of the records of appeal seeking for stay of proceedings, in other words that the interim order of forfeiture must not be made final. The Appellant hinged his application on the need to stay proceedings pending the outcome of the investigation and Report of the Presidential Panel of Investigative Inquiry and for an order directing and compelling the EFCC, the ICPC and the Nigerian Police Force to carry out a thorough investigation into the source of the monies and furnish the Court with same.
The Appellant’s Application was supported by an Affidavit contained at pages 28 – 30 of the records of appeal and a Written Address contained at pages 31 – 35 of the records of appeal. The Ruling of the Lower Court dismissing the Appellant’s Application is contained at pages 1 – 12 of the Records of Appeal. After dismissing the Appellant’s Application, the Lower Court considered and granted the Respondent’s Application for Final Order of Forfeiture of the sums of money to the Federal Government of Nigeria of Properties found at Flat 7b, Osborne Towers, No. 16 Ikoyi Lagos.
Peeved by the decision of the Lower Court, the Appellant challenged the decision of the Lower Court by Notice of Appeal dated 9th June, 2017, premised on four(4) grounds of appeal as found at pages 43 ? 48 of the records of appeal. S. A. Olaleye Esq. settled the Appellant’s Brief of Argument which was filed on the 22nd day of February, 2018 while the Appellant’s Reply Brief was settled by the Appellant in person on the 17th day of April, 2018 but deemed as properly filed and served on the 19th day of April, 2018. The Respondent’s Brief on the other hand was settled by learned Counsel Rotimi Oyedepo lseoluwa Esq. on the 19th day of March, 2018.
Learned counsel for the Appellant distilled 3 (three) issues for determination as follows:
1. Whether the learned trial Judge had jurisdiction when he granted final forfeiture order of properties/monies to the Federal Government of Nigeria in the absence of investigation, prosecution, trial and conviction (Ground One).
2. Whether the learned trial judge was right when he dismissed the Appellant Application as being strange in law and lacking in merit (Ground Two).
3. Whether the learned trial Judge was right when he held that the Appellant had no locus standi to file Court process to challenge the proceedings before it (Ground Three).
The Respondent on the other hand nominated two (2) issues for determination, to wit:
1. Whether in view of the provision of Section 7 of the Advance Fee Fraud and Other Related Offences Act, 2006, it can be said that the learned Trial Court does not possess the requisite jurisdiction to make an Order of final forfeiture of funds reasonably suspected to be proceeds of unlawful act without prosecution, trial and conviction.
2. Whether in view of the facts and the circumstances of this case and the sacrosanct provisions of Section 17 of the Advance Fee Fraud and other Related Offences Act, 2006, it can be said that the learned trial judge was not in order in dismissing the Appellant’s Application for lacking in merit.
SUBMISSIONS OF COUNSEL
ISSUE ONE
On issue one, learned counsel for the Appellant submitted that the learned trial Judge erred when he made a final order of forfeiture of monies to the Federal Government of Nigeria in the absence of any investigation, prosecution, trial and conviction of the Appellant.
Counsel argued that the Nigerian Criminal justice System is accusatorial or adversarial and not inquisitorial; and therefore there are no provisions for final or permanent forfeiture of properties, assets or monies where a conviction has not been made. Counsel further referred to Sections 36 and 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to submit that it is only the Court of law, through judicial prosecution, trial and conviction that can pronounce any suspected properties, assets or monies as proceeds of unlawful activities or crime, and that before an order of final or permanent forfeiture can be made, there must be a conviction.
Learned counsel relied on HDP Vs. OBI & ORS [2011] (Special Ed.] Pg.67 at 100; OLAFISOYE Vs. FRN (2004) LPELR-2553 (SC); and FBN PLC Vs. T.S.A INDUSTRIES LTD (2010) LPELR-1283 (SC) to submit that the provisions of Section 17 of the Advance Fee Fraud and Other Related Offences Act and Sections 28 and 29 of the EFCC Act which the Respondent relied on in its Application for order of Final Forfeiture are subsumed in Section 44 of Constitution of the Federal Republic of Nigeria which is the Supreme Law of the land. Counsel contended that it is clear from the provisions of Section 44 of Constitution of the Federal Republic of Nigeria that the intendment of Section 17 of the Advance Fee Fraud and Other Related Offences Act and Sections 28 and 29 of the EFCC Act are for Interim order of Forfeiture which is an Order to be made/granted by the Lower Court for the preservation of the assets, properties or monies suspected to be proceeds of unlawful activities or crimes from being dissipated or tampered with pending the conclusion of investigation, prosecution, trial and conviction.
Learned counsel referred to ESAI DANGABAR Vs. FRN [2014] 12 NWLR (Pt. 1422) P9. 575 at 501; 607-608 to submit that after an Order of Interim Forfeiture has been made, and there is no investigation, prosecution, trial and conviction, the properties, assets or monies suspected to be proceeds of crime or unlawful activities revert back to the owner, since there is no proof that the properties constitute proceeds of crime. Counsel submitted further that it is only after investigation, prosecution, trial and conviction that an Interim Order of Forfeiture may be made final.
Learned counsel referred to EHUWA Vs. O.S.I.E.C. [2006] 18 NWLR (Pt.1012) pg. 544 at 559; A.G., LAGOS STATE Vs. EKO HOTELS LTD [2006] 18 NWLR (Pt. 1011) pg. 379 at 398-399, Ratio, 12; UWAGBA Vs. FRN [2009] 15 NWLR (pt. 1163) pg. 91 at 113-11; NAFIU RABIU Vs. THE STATE [1981] 2 NCLR Pg. 293 at 326 and A. G. FEDERATION Vs. ABUBAKAR [2007] 10 NWLR (pt.1041] pg. 1 to contend that in the interpretation of the provisions of the Constitution, the Courts are enjoined to adopt a liberal interpretation to the language of the Constitution in order to achieve the purpose of the makers of the Constitution and that where the provisions are clear and unambiguous, such provision must be given its literal grammatical meaning.
Learned counsel further submitted that the duty of the judiciary is to find a way to give life and expression to the provisions of Sections 6 (6) (b) and 44 of the Constitution and ensure that the provisions and their intendments are not rendered useless. Counsel referred to MUSA vs. INEC [2002] 11 NWLR (Pt. 778) Pg. 223 to submit that in interpreting the Constitution, the entire documents must be read as a whole to find out the true intentions of the framers.
Learned counsel submitted that any Order, Ruling or Judgment made by any Court without jurisdiction is a nullity and the entire proceedings, no matter how brilliantly and tenaciously conducted remain a nullity and must so be set aside.
Learned counsel referred to MADUKOLU Vs. NKEMDILIM [1962] 1 ANLR at 583; ONWUDIWE Vs. FRN [2006] 10 NWLR (Pt. 988) Pg. 391; MACFOY Vs. UAC (1962) AC 150 at 160 and FRN Vs. IFEGWU (2003) 5 SC 252; and argued that the final or permanent order of forfeiture made by the Lower Court on the 6th of June, 2017 in respect of properties, assets or monies found at Osborne Towers in the absence of any investigation, prosecution and conviction was made without jurisdiction and amounts to a nullity for being contrary to Section 44 (2) (k) of the Constitution of the Federal Republic of Nigeria. Counsel urged this Court to resolve this issue in favour of the Appellant.
In response, learned counsel for the Respondent referred to Section 36 (1) of Constitution of the Federal Republic of Nigeria; BAMAIYI Vs. STATE [2001] 8 NWLR (Pt.715) Pg.270 at 284; UGURU Vs. STATE [2002] 2 NWLR (Pt.771) Pg.90 at 105 and AUDU Vs. FRN (2013) LPELR-19897 (SC) Pg. 13-1, Paras. G – A to contend that what is envisaged by the Constitution is that hearing is conducted in line with practice, procedure and the rules formulated by statute and the rules of Court to ensure justice. Counsel further referred to Section 17 of the Advance Fee Fraud and Other Related Offences Act, 2006 to submit that the Economic and Financial Crimes Commission after identifying an abandoned property or properties reasonably suspected to be proceeds of crime is first of all to apply ex-parte to the High Court for an Interim Order of Forfeiture so as to preserve the properties from being dissipated; counsel submitted that the Court in granting the Interim Order of Forfeiture is to direct the Applicant to publish the order and notify anyone who may be affected by the order so that the affected party may come to Court to show cause why Final Order of Forfeiture should not be made.
Learned counsel further submitted that the procedure under Section 17 of the Advance Fee Fraud and other related offences Act has sufficiently complied with the provisions of Section 36 (1) of Constitution of the Federal Republic of Nigeria by prescribing the procedure in which the affected party may challenge the Interim Order of forfeiture. Counsel argued that Section 17 of the Advance Fee Fraud and other related offences Act is constitutional and aligns with Section 36 (1) & (5) and 44 (1) of the Constitution; counsel further argued that the essence of an interim order of forfeiture is not to deprive a suspect of his property or asset, but to preserve the property from being wasted and dissipated by the suspect so that the judgment of the Court will not be rendered nugatory. Learned counsel referred to the definition of an interim order in the Black’s Law Dictionary, 6th Ed., at Pg.814 and the case of ENVIRONMENTAL DEV. & ANOR. CONSTRUCTION Vs. UMARA ASSOCIATES NIGERIA [2000] 4 NWLR (Pt.652) Pg. 293 at 308 to submit that interim order of forfeiture presupposes that there would be a final order and it could therefore not be interpreted as a final forfeiture order in itself as argued by learned Counsel for the Appellant.
Learned counsel for the Respondent further referred to 7UP BOTTLING CO. LTD Vs. ABIOLA & SONS LTD [1995] 3 NWLR (Pt. 383] Pg. 257 at 285 and ESAI DANGABAR Vs. FRN [2014] 12 NWLR (Pt. 1422) Pg. 575 at 501; 503; 607-608, Paras. E – D to submit that Section 17 of the Advance Fee Fraud and other related offences Act, 2006 and Sections 28 and 29 of the EFCC Act, 2004 are not inconsistent with the provisions of the Constitution as argued by the Appellant; counsel argued further that the Interim Order of Forfeiture envisaged under Sections 28 and 29 of the EFCC Act is the one pending the decision to file a criminal charge while the Interim Order of Forfeiture envisaged under Section 17 of the Advance Fee Fraud and other related offences Act is the one pending the outcome of a motion on notice for Final Forfeiture of properties or assets reasonably suspected to be proceeds of unlawful activities. Learned counsel submitted that an Interim Order of Forfeiture may be challenged by a party affected by it once sufficient evidence establishing the genuine origin of the property or asset is presented before the Court; and that interim order of forfeiture is not a final order.
Learned counsel referred to FRN Vs. IKEDINWA (2013) LPELR-21120 (CA); AKINGBOLA Vs. CHAIRMAN, EFCC [2012] 9 NWLR (Pt.1306) Pg. 475 at 500-502; FELIMON ENT. LTD Vs. THE CHAIRMAN, EFCC & ANOR [2013] 1 BFLR 94 at 105-105; A.G. ONDO STATE Vs. A.G., FED [2002] 9 NWLR (Pt.772) pg.22 at 308-309 and NWUDE Vs. CHAIRMAN, EFCC [2005] All FWLR (Pt. 267) Pg.740 to submit that the provisions of Section 17 of the Advance Fee Fraud and other related offences Act gives room for any party who is interested in the properties to be forfeited to be heard and that it is therefore erroneous for the Appellant to contend that the provisions of Section 17 of the Act infringes on the Appellant’s rights to fair hearing. Counsel argued that Section 44 (21 (b) of Constitution of the Federal Republic of Nigeria established the constitutionality of Section 17 of the Advance Fee Fraud and other related offences Act.
Learned counsel delved onto the historical perspective of non-conviction based forfeiture; making reference to the English law of Dead and used in England and France in the medieval times; the fatal Accidents Act introduced in the UK in 1846; the United States’ Racketeering Influenced and Corrupt Organizations Act of 1970; the Forfeiture Laws made in Italy in 1956; the Criminal Assets Recovery Act of 1990 in New South Wales, Australia; Prevention of Organized Crimes Act of 1998 in South Africa; the Remedies for Organized Crime and other Unlawful Activities Act of 2001 in Ontario, Canada; Proceeds of Crime Act, 2002 in both the UK and Australia; and the Criminal Proceeds (Recovery) Act 2009 in New Zealand. Counsel submitted that all these laws made provision for forfeiture of assets connected to crime without any requirement for a conviction; these laws require the government to prove its case using the civil rather than criminal law standard; and that while some of these laws apply only to proceeds of crime, others apply to both proceeds of crime and the instrumentalities of crime, that is the things used in the commission of crime.
Learned counsel referred to Article 54 of the United Nations Convention Against Corruption (UNCAC) which Nigeria is a state party and signatory which enjoins state parties to consider taking such measures as may be necessary to allow confiscation of property suspected to be proceeds of unlawful act without a criminal conviction in cases which the offender cannot be prosecuted. Counsel referred further to the provisions of Section 17 of the Advance Fee Fraud and other related offences Act as the Nigerian enactment which legalized Non-Conviction based Forfeiture which is similar to Part 5 of the Proceeds of Crime Act, 2002 in the UK. Learned counsel further referred to GOGITIDZE & ORS Vs. GEORGE (2015) ECHR; BUTLER Vs. THE UNITED KINGDOM (DEC.) No. 41661/98 (Delivered on 27th June, 2002); ARCURI & ORS Vs. ITALY (DEC.) No. 52024199, ECHR 2001-VI; SIMON PROPEHET Vs. THE NATIONAL DIRECTOR OF PUBLIC PROSECUTION CCT 56105 (South Africa); UNITED STATES Vs. URSERY (95-345) 518 US 267 (1996); BENNIS Vs. MICHIGAN (94-8729) 517 US 1163 (1996) and GILLIGAN Vs. CRIMINAL ASSETS BUREAU (2001) IESC 82 to submit that Non-Conviction based Forfeiture legislations have received judicial approval in many foreign jurisdictions.
Learned counsel referred to JONATHAN Vs. FRN (2018) LPELR-43505 (CA) Pg.35, Para. C and LA-WARI FURNITURE & BATHS Vs. FRN & ANOR (2018) LPELR-43507 (CA) to submit that the misconception of the Appellant lies in the assumption that the suit before the Lower Court is against his person whereas it is an action in rem; and being an action in rem, the issue of presumption of innocence which only inures in a person charged with a criminal offence does not arise in this case where properties suspected to be proceeds of unlawful acts are sought to be forfeited. Counsel submitted that the trial Court has the requisite jurisdiction to adjudicate over the proceedings pursuant to the provisions of Section 17 of the Advance Fee Fraud and other related offences Act, 2006 which is constitutional. Learned counsel urged this Court to resolve this issue in favour of the Respondent, and affirm the judgment of the Lower Court.
In the Reply Brief, learned counsel for the Appellant submitted that it is not the argument of the Appellant that Sections 28 and 29 of the EFCC Act and Section 17 of the Advance Fee Fraud and other related offences Act are inconsistent with the provisions of the Constitution, rather the contention is that the Lower Court cannot grant or make a final or permanent order of Forfeiture without investigation, prosecution or conviction pursuant to Sections 36 and 44 (2) (k) of the Constitution. Counsel referred to ESAI DANGABAR Vs. FRN (Supra) to submit that the very essence of an interim order is for the purpose of examination, investigation and enquiry. Learned counsel submitted that the Respondent failed to file a counter-affidavit to the Appellant’s Application contained at pages 25 – 36 of the Records; and failed to furnish the Lower Court with any investigation report in relation to the monies/properties suspected to be proceeds of unlawful activities sought to be finally forfeited.
Learned counsel for the Appellant further referred to NBA Vs. EKEMEZIE (Supra); FBN PLC Vs. NDAKARE & SONS LTD (Supra) and ESAI DANGABAR Vs. FRN (Supra) to restate that the purpose of an order of interim forfeiture in view of Section 44 (21 (k) is for examination, investigation and enquiry and that it is only when conviction has been secured that the properties, assets and or monies sought to be forfeited would have been established to be proceeds of crime or unlawful activities or unclaimed assets or properties. Counsel submitted that the cases of FRN Vs. IKEDINWA (Supra); AKINGBOLA Vs. CHAIRMAN, EFCC (Supra); FELIMON ENT. LTD Vs. THE CHAIR, EFCC & ANOR (Supra); A.G. ONDO STATE Vs. A.G., FED (Supra) and NWUNDE Vs. CHAIRMAN, EFCC (Supra) cited by the Respondent all support the case of the Appellant.
Learned counsel for the Appellant further referred to ABDULKAREEM & ORS Vs. LAGOS STATE GOVERNMENT & ORS (2016) ALL FWLR (Pt. 850) Pg. 1101 at 1174-1175, Paras. A – B and A.G., ABIA STATE Vs. A.G., FED. & ORS (2005) 10-11 SCM 1 at 71 to submit that by the provisions of Sections 36 and 44 of the Constitution of the Federal Republic of Nigeria which is supreme over and above any other statute, Act or Law; there must be an investigation and conviction before any final or permanent order of forfeiture can be made. Counsel submitted that the historical and judicial reference to countries where Non-Conviction based Order of Forfeiture are operational is not applicable because there is no Nigerian legislation or any provision of the Nigerian Constitution which supports Non-Conviction based Forfeiture. Learned counsel submitted that the cases of JONATHAN Vs. FRN (Supra) and LA-WARI FURNITURE & BATHS Vs. FRN & ANOR (Supra) are inapplicable to the instant proceedings.
Learned counsel further submitted that the Appellant is not challenging the constitutionality of Section 17 of the Advance Fee Fraud and other related offences Act but that this Appeal is contingent on whether the Lower Court had jurisdiction to grant or make final order of forfeiture without any investigation, prosecution, trial and conviction. Counsel relied on C.C.C.T. LTD Vs. EKPO [2008] All FWLR (Pt. 418) Pg.198 at 205 to argue that the submissions of learned Counsel for the Respondent before the Lower Court cannot take the place of evidence and that since there was no documentary evidence of any investigation and there was no challenge to the Appellant’s Application, the Lower Court ought to have granted the prayers in the Appellant’s Application. Learned counsel urged this Court to discountenance the argument of the Respondent and resolve this issue in favour of the Appellant.
ISSUES TWO AND THREE
On the second and third issues, learned counsel for the Appellant referred to paragraph 2 at page 14 of the records of appeal to submit that the Lower Court, by its findings on the 13th of April, 2017 had clothed all Nigerians including the Appellant with the locus standi to appear before it. Counsel contended that pursuant to the Order of the Lower Court made on the 13th of April, 2017, the Appellant filed its Application before the Lower Court on the 21st of April, 2017 contained at pages 25 – 35 of the records of appeal which was not controverted or challenged by the Respondent. Learned counsel relied on OGOEJEOFO Vs. OGOEJEOFO [2006] 3 NWLR (Pt. 966) Pg. 212; NBA Vs. EKEMEZIE [2008] 12 NWLR (Pt.1100) Pg. 212 and FBN PLC Vs. NDAKARE & SONS LTD to submit that where the facts averred in an affidavit are not challenged by a counter-affidavit, the unchallenged facts remain uncontroverted and therefore deemed admitted.
Learned counsel submitted that the learned trial Judge ought to have granted the Appellant’s Application in the absence of any counter-affidavit because the Application is deemed admitted and established. Counsel further referred to FAWEHINMI Vs. THE PRESIDENT (2008) 23 WRN 55 and submitted that by its Application before the Lower Court, the Appellant is clearly challenging the Respondent to do the proper thing by way of investigation, prosecution and conviction of the persons involved in the whole saga for the sake of public good, and the advancement of democracy, good governance and political stability.
Learned counsel submitted that the Lower Court having made the Order of 13th of April, 2017 and later denying the Appellant the right to file Court processes has rendered the constitutional principle of access to Court useless and created a situation not contemplated by Section 6 (6) (b) of the Constitution.
Learned counsel submitted that the Appellant being a Nigerian by virtue of Section 46 (1) and 6 (6) (b) of the Constitution of the Federal Republic of Nigeria has the right to approach the Court for public good. Counsel relied on FAWEHINMI Vs. THE PRESIDENT (Supra) and NWAKWO Vs. ONONEZE-MADU [2009] 1 NWLR (Pt. 1123) PG. 671 at 715-716 to argue that the Appellant has sufficient locus standi to file processes before the Lower Court to challenge the proceedings in respect of the properties sought to be finally forfeited. Learned counsel further referred to WILLIAMS Vs. DAWODU [1988] 4 NWLR (Pt. 85) Pg. 189 at 218 and SOCIO ECONOMIC RIGHTS AND ACCOUNTABILITY PROJECT (SERAP) Vs. FEDERAL GOVERNMENT OF NIGERIA (Unreported) in Suit No: ECW/CJJ/APP/08/08 12 NWLR (Pt.886) Pg.1 to submit that the issue of locus standi has been particularly broadened to promote public interest litigations. Counsel urged this Court to resolve issues two and three in favour of the Appellant.
Learned counsel for the Respondent in response to the Appellant’s submission contended that the Lower Court was right in its findings on the Appellant’s Application dated 21st April, 2017 in view of the facts and circumstances presented by the Appellant before the Lower Court and the provisions of Section 17 of the Advance Fee Fraud and Other Related Offences Act, 2006. Counsel submitted that rather than complying with the Interim Order of the Lower Court made on the 13th day of April, 2017 by showing cause why the monies found by the Respondent in flat 7b, 16, Osborne Road, Ikoyi should not be forfeited to the Federal Government of Nigeria; the Appellant filed a motion praying the Lower Court to stay the forfeiture proceedings, to direct the Respondent to furnish the Lower Court with the investigation of the source of the money sought to be forfeited and to compel the EFCC, ICPC and the Nigerian Police Force to immediately cause a thorough investigation into the source and circumstances of the money sought to be forfeited.
Learned counsel referred to pages 6 – 8 of the records of appeal to submit that the Respondent opposed the Application on points of law with the leave of the Lower Court. Counsel referred to the findings of the Lower Court at pages 10 & 11 of the records of appeal to submit that the Lower Court rightly struck out paragraphs 5-27 of the Appellant’s Application. Learned counsel argued that the presumption that an unchallenged and uncontroverted averment in an affidavit is deemed admitted does not hold in all situations such as where the averments in the affidavit are contradictory or insufficient to sustain the Application, in such a case, a counter affidavit challenging the averments would manifestly become unnecessary. Counsel referred toEJEFOR Vs. OKEKE [2000] 7 NWLR (Pt. 665) Pg. 363 at 382 and ORUNLOLA Vs. ADEOYE [1995] 6 NWLR (Pt. 401) Pg. 338 at 353 to submit that there is no rule of law that makes the filing of a counter affidavit a sine qua non in every case and that in the instant case, the filing of a counter-affidavit is extremely unnecessary in view of the facts contained in the Appellant’s Affidavit.
Learned counsel for the Respondent further submitted that the Appellant’s Motion before the Lower Court amounts to an abuse of Court process because where a statute prescribes the mode of doing an act, such an act cannot be competently done without complying with the statutory provision. Counsel referred to SLB CONSORTIUM LTD Vs. NNPC [2011] 9 NWLR (Pt.1252) Pg. 317 at 332; AGBOOLA Vs. AGBODEMU (2009) 317 WRN 59; AUCHI Vs. OKUOGHAE (2005) 28 WRN 177; CORPORATE AFFAIRS COMMISSION Vs. AYEDUN (2005) 44 WRN 97 and GBADAMOSI Vs. NIGERIA RAILWAY CORPORATION (2007) 1 WRN 87 to submit that the Appellant’s Application before the Lower Court has no place in proceedings conducted pursuant to Section 17 of the Advance Fee Fraud and other related offences Act. Counsel contended that the stay of proceedings filed by the Appellant clearly contravenes the procedures highlighted in Section 17 of the Act thereby resulting in an abuse of process.
Learned counsel for the Respondent further argued that the Appellant’s Application for stay amounted to an abuse of Court process on the ground that there was no valid appeal against the Interim Order of Forfeiture made by the Lower Court.
Counsel relied on NIKA FISHING CO. LTD Vs. LAVINA CORPORATION (2008) LPELR-2035 Pg. 27-30 to submit that a stay of proceedings cannot be granted without a valid appeal. Learned counsel referred to the Appellant’s Motion at pages 25 – 36 of the records of appeal to submit that the Appellant failed to make reference to any subsisting and valid appeal filed by him before filing the Application; and that the Appellant therefore failed to supply sufficient materials to enable the Lower Court exercise its discretion judiciously and judicially in his favour. Learned Counsel acclaimed the findings of the Lower Court at page 11 of the records of appeal as showing clearly that the Appellant failed to lodge any valid appeal before filing the Application which the Lower Court dismissed.
Learned counsel further submitted that the Appellant’s submission and arguments on locus standi did not arise from the Ruling of the Lower Court because the Lower Court only addressed the Appellant as a meddlesome interloper while addressing the issue of the Appellant’s failure to file a competent appeal before filing a motion for stay of proceedings.
Counsel argued that the description of the Appellant as a meddle some interloper is at best an obiter dictum, a statement made in passing and not the main issue. Counsel cited GALLAHER LTD & ANOR Vs. BRITISH AMERICAN TOBACCO (NIGERIA) LTD & ORS (2014) LPELR-24333 (CA) Pg. 24, Paras F – G and ELIAS & ANOR Vs. ECOBANK (NIG) PLC (2016) LPELR-40216 (CA) Pg.33-35, Paras. D – A to submit that an opinion expressed in obiter is not appealable because appeals are fought on the basis of the decision of the Court. Learned counsel further submitted that the Appellant’s contention on locus standi is misconceived because the Lower Court heard and determined the Appellant’s Application on merit. Counsel urged this Court to resolve this issue in favour of the Respondent dismiss the appeal and affirm the decision of the Lower Court.
RESOLUTION
The first issue to determine in this appeal is “Whether the learned trial Judge had jurisdiction when he granted final forfeiture order of properties/monies to the Federal Government of Nigeria in the absence of investigation, prosecution, trial and conviction (Ground One)”; on this issue, the Appellant argued that the learned trial Judge erred when he made a final order of forfeiture of the monies found by the Respondent to the Federal Government of Nigeria in the absence of any investigation, prosecution trial and conviction.
That the provisions of Section 17 of the Advance Fee Fraud and other related offences Act and Sections 28 and 29 of the EFCC Act are subsumed into Section 44 of Constitution of the Federal Republic of Nigeria 1999 (as amended) which is the Supreme Law of the land and that it is clear from the provision of Section 44 of Constitution of the Federal Republic of Nigeria that the purpose of Section 17 of the Advance Fee Fraud and other related offences Act and Sections 28 and 29 of the EFCC Act is to obtain an Interim Forfeiture Order which is an Order to be granted by the Lower Court for the preservation of the assets, properties or monies suspected to be proceeds of unlawful activities or crimes from being dissipated or tampered with pending the conclusion of investigation, prosecution, trial and conviction. The Appellant also argued that after an Order of Interim Forfeiture is made, and there is no investigation, prosecution, trial and conviction, the properties, assets or monies suspected to be proceeds of crime or unlawful activities revert to be owner, where the alleged offence is not so established.
The Respondent referred to Section 17 of the Advance Fee Fraud and other related offences Act, 2006 to submit that the Economic and Financial Crimes Commission after identifying an abandoned property or properties reasonably suspected to be proceeds of crime is first of all expected to apply ex-parte to the High Court for an Interim Order of Forfeiture so as to preserve the properties from being dissipated; that the Court in granting the Interim Order of Forfeiture is required to direct the Applicant to publish the order and notify anyone who may be affected by the order so that the affected party may come to Court to show cause why Final Order of Forfeiture should not be made; that the essence of an order of interim forfeiture is not to deprive a suspect of his property or asset, but to preserve the property from being wasted and dissipated by the suspect so that the judgment of the Court will not be rendered nugatory; that interim forfeiture order presupposes that there would be a final order; that an Interim Order for Forfeiture may be challenged by a party affected by it once sufficient evidence establishing the genuine origin of the property or asset is presented before the Court; that the provisions of Section 17 of the Advance Fee Fraud and other related offences Act give room for any party who is interested in the properties to be forfeited to be heard and that the trial Court has the requisite jurisdiction to adjudicate over the proceedings pursuant to the provisions of Section 17 of the Advance Fee Fraud and other related offences Act, 2006 which is constitutional.
It is important to state that by the provisions of Section 17 of the Advance Fee Fraud and other Related offence Act, the Lower Court upon granting the interim order is vested with powers to consider an application seeking to show cause by an interested party, grant or refusal of the application showing cause is exclusively within the discretion of the trial Court, the trial Judge has the discretion to consider the materials provided by the Applicant in support of the Application to determine if the Applicant has in fact established a legitimate claim to the property sought to be forfeited.
Where the trial Judge in his Judgment thinks it is proper to exercise his discretion in a particular way, an Appellate Court would ordinarily not interfere with the exercise of such discretion unless it is established that the discretion was exercised in total disregard to the materials before the Court. A judicial and judicious exercise of discretion by a trial Court cannot to be set aside by the Appellate Court, but where the Lower Court acted under a misconception of the law or under a misapprehension of facts or where such exercise of discretion occasioned a miscarriage of justice against the Appellant, the appellate Court will readily intervene to redress the wrong, an Appellate Court will however not interfere with the decision of the trial Court merely because it would have exercised such discretion differently.
In ANYAH Vs. AFRICAN NEWSPAPER OF NIG. LTD. [1992] NWLR (Pt. 247) Pg.319; (1992) LPELR-511 (SC) Pg.20-21, Paras. G – A the Supreme Court of Nigeria pertinently stated that: ?It is not in all cases that an appeal Court will interfere with the exercise of discretion by a trial judge, simply because it did not favour one of the parties litigating before him. The Court will not interfere with the exercise of discretion in the absence of proof that it was wrongly exercised. You cannot lay down hard and fast rules as to the exercise of judicial discretion by a Court, for the moment you do that, the discretion is fettered.”
See also the decision of the Supreme Court in OLATUBOSUN Vs. TEXACO NIG. PLC (2012) LPELR-7805 (SC) Pg. 18, Paras. C – D where it was held that “…an appellate Court like ours will not interfere with the exercise of discretion of the Court below merely because this Court would have acted differently…This Court will only interfere where the discretion exercised is manifestly wrong, arbitrary, reckless and injudicious.” Also, in FALEYE & ORS Vs. DADA & ORS (2016) LPELR- 40297 (SC) Pg.33-34, Paras. E – C, the Supreme Court of Nigeria per MUHAMMAD JSC held as follows:
”…This Court has stated it times without number that it is none of its functions or indeed that of an appellate Court to substitute its own views of the evidence for those of the trial Court that is better placed to deal with those matters. The appellate High Court could only have interfered with findings of facts of the trial Customary Court when the findings are perverse and/or consequent upon improper exercise of judicial discretion further resulting in miscarriage of justice…”
In this appeal, the plank of Appellant’s contention is that the trial Court had no jurisdiction to proceed to make an order for Final Forfeiture of the various sums of money recovered pursuant to the Respondent’s Application in the absence of an investigation, prosecution, trial and conviction. Both the Appellant and the Respondent are in agreement that on the 13th of April, 2017, the Lower Court granted the Respondent’s ex-parte application for Interim Forfeiture of the unclaimed monies suspected to be proceeds of crime or unlawful activities found in a flat at Osborne Towers, Ikoyi Lagos; and that the Lower Court ordered that the interim order of forfeiture be published in any National Newspaper for anyone who is interested in the property sought to be forfeited to appear before it to show cause why a Final Order of Forfeiture of the said sums of money should not be made.
It is pursuant to these Orders and directives that the Appellant, as an interested party filed an Application dated 21st April, 2017 contained at pages 25 – 27 of the Records of Appeal seeking that the Lower Court stayed proceedings in respect of the Permanent order of Forfeiture of the monies found at the Osborne Towers, Ikoyi pending the outcome of the investigation and Report of the Presidential Panel of Investigative Inquiry and also for an order directing and compelling the EFCC, the ICPC and the Nigerian Police Force to carry out a thorough investigation into the source of the monies and furnish the Court with same. The Appellant’s Application is supported by an Affidavit contained at pages 28 – 30 of the Records of Appeal and a Written Address contained at pages 31 – 35 of the Records of Appeal.
The Ruling of the Lower Court dismissing the Appellant’s Application is contained at pages 1 – 12 of the Records of Appeal; at page 10, the learned trial Judge found as follows and said:
”I cannot but agree with the submission of Learned Counsel for the Applicant/Respondent that paragraphs 5 – 27 which is the life wire of this application contravenes the provision of Section 115 of the Evidence Act 2011 the deponent having failed to disclose the source of his information, the time, place and circumstance of his information.”
The provision of Section 115 of the Evidence Act is mandatory and non compliance by the deponent has made this Court not to place any probative value on the said paragraphs, thus paragraphs 5 – 27 of the affidavit in support of this application is hereby struck out.”
I have carefully perused the Grounds of appeal and Particulars contained in the Notice of Appeal at pages 43 – 48 of the Records of Appeal as well as the issues for determination and submissions by the Appellant in the Appellant’s Brief and the Reply Brief filed by learned counsel for the Appellant, it is safe to conclude that the Appellant has not appealed against the very conspicuous finding of the Lower Court, that paragraphs 5-27 of the affidavit in support of the Motion contravene the provisions of Section 115 of the Evidence Act, 2011. In ONAFOWOKAN & ORS Vs. WEMA BANK PLC & ORS (2011) LPELR-2665 (SC) Pg. 41, Paras. B – G, the Supreme Court of Nigeria held that:
”It is trite that the finding and Order of Lower Court not appealed against remain valid and subsisting, and without a ground of appeal challenging the finding and Order of the Lower Court, this Court would lack the jurisdiction to interfere with said findings or Order…
It is significant to state here that none of the grounds of appeal contained in the Notice of Appeal challenged the above stated findings and Order of the Lower Court. It is trite that a finding not challenged by an appellant in any of the grounds of appeal remains, rightly or wrongly, the settlement of that issue between the parties to the appeal. It follows that in the absence of any appeal against the finding and Order of the Lower Court this Court would have declined jurisdiction to consider and determine such an issue.”
See also: STEPHEN OGBEBOR & SONS SAWMIIL LIMITED Vs. CHIEF ADUN (2014) LPELR-22764 (CA) Pg. 23, Paras. C F; SNIG NIGERIA LIMITED Vs. WEMA BANK PLC (2015) LPELR-40576 (CA) Pg.20-21, Paras. C – C and GUDUSU Vs. ABUBAKAR (2017) LPELR-43007 (CA) Pg. 20, Paras. D – F. In the circumstances therefore, the findings of the Lower Court that paragraphs 5 – 27 of the affidavit in support of the Appellant’s Application offend the provisions of Section 115 of the Evidence Act and the Order of the Lower Court striking out the said paragraphs is endorsed by this Court, the Lower Court was right, and I so hold.
Now, in considering the main contention of the Appellant, which is that, the trial Court had no jurisdiction to proceed to make an order for Final Forfeiture of the property pursuant to the Respondent’s Application in the absence of an investigation, prosecution, trial and conviction. To effectively resolve this point reference must be made to the provisions of Section 17(1) – (4) and (6) of the Advance Fee Fraud and other related offences Act, 2006 which applies to the instant case and had been relied upon by both parties in this appeal.
Section 17 (1) – (4) and (6) provides as follows:
“Power to make order of forfeiture without conviction for offence
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 on 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 the publication stated in Subsections (2) and (3) of this 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.
(6) An Order for forfeiture under this section shall not be based on a conviction for an offence under this Act or any other Act.”
It is very clear from the wordings of Section 17 of the Advance Fee Fraud and other related offences Act, 2006 as reproduced above that the law recognizes the power of the trial Court to make an Order of Forfeiture without conviction for an offence; that is the very essence of the provisions of Section 17 of the Act which was emphasized in Subsection (6), by clearly and emphatically providing that forfeiture under the provisions shall not be based on conviction. The sum total of the provisions of the law is that there is non-conviction based forfeiture of properties suspected to be derived from proceeds of crime, the submission by learned Counsel that there must be investigation, trial and conviction before an order of forfeiture is made by the Court is therefore a gross misconception and without foundation in law.
The process and procedure of making such non-conviction based Order of Forfeiture is sufficiently stipulated in Section 17 of the Act.
Let me state again that the Appellant, having admitted that the constitutionality of Section 17 of the Advance Fee Fraud and other related offences Act, 2006 is not in question cannot be heard to contend that there are no provisions for final or permanent non conviction based forfeiture of assets or monies. The submission by Learned Counsel for the Appellant that there must be proper investigation, prosecution, trial and conviction before final order of forfeiture is a gross misconception of the law. As far back as the 31st day of October, 2003, the United Nations by General Assembly Resolution 58/4 concluded the negotiation of the United Nations Convention Against Corruption, the statement of purpose set out in Article 1 of the Convention sets out the purpose of the United Nations Convention Against Corruption to include promoting and strengthening measures to prevent and combat corruption more efficiently and effectively, and promote integrity, accountability and proper management of public affairs and public property.
Article 3 of the Convention provides that the provisions shall apply to the prevention, investigation and prosecution of corruption and to the freezing, seizure, confiscation and return of proceeds of offences established in accordance with the convention. By the provisions of Article 31 of the United Nations Convention against Corruption, state parties are required to make domestic legislations that will ensure confiscation and or forfeiture of proceeds of crime and instant repatriation of such proceeds to the State. I think at this stage, it is necessary to mention that Nigeria is a State party to the Convention and non-conviction based forfeiture of proceeds of crimes is not strange, it is now the order of the day, it is part of international best practice. Enactment of the Advance Fee Fraud and other related Offences Act 2006 is part of the obligations of State parties under the Convention, every State party to the Convention must criminalize certain offences and introduce measures that will promote recovery of proceeds of crimes and their eventual return to the State, this is exactly the purpose of Section 17 of the Advance Fee Fraud and Other Related offence Act 2006.
The Appellant’s contention that the purpose of Section 17 of the Advance Fee Fraud and Other Related Offences Act and Sections 28 and 29 of the EFCC Act is for Interim Forfeiture Order which is an Order to be made/granted by the Lower Court for the preservation of the assets, properties or monies suspected to be proceeds of unlawful activities or crimes from being dissipated or tampered with pending the conclusion of investigation, prosecution, trial and conviction demonstrates a clear misconception of the unambiguous provisions of Section 17 of the Act by the Appellant.
The need for an order of forfeiture without conviction is necessitated by situations where the properties to be forfeited are reasonably suspected to be unclaimed property or proceeds of unlawful activity, which is clearly the situation in the instant case. The Appellant merely walked down to the Court to line up infantry of academic questions, he never came forward to say, “I want to show cause why this interim order must not be made final or absolute, the money belongs to me or some other person known to me, or that the large sums so found do not form part of proceeds of crimes,” the Appellant merely came to test his intellect, brainpower, wits and guardianship to the Nigerian public.
There is no evidence on record of any party having laid claim to the properties (monies) found at No. 7b Osborne Towers, Ikoyi on the 12th day of April, 2017 by the agents of the Respondent. The Appellant herein apparently sought to convert the Court into playground without really having any interest at stake, meddlesome interlopers are not allowed to convert the Court into playground, in ALAHASSAN & ANOR Vs. ISHAKU & ORS (2016) LPELR-40083 (SC) Pg. 30, Paras. C – E, the Supreme Court per my lord RHODES-VIVOUR JSC held that: “…The rule about locus standi developed primarily to protect the Courts from being used as a playground by professional litigants, or, and meddlesome interlopers, busybodies who really have not real stake or interest in the subject matter of the litigation.” I also hold the view that the Appellant in this appeal came to Court as a meddlesome interloper without any conceivable and defendable right, he has no right of audience.
The procedure for final order of Forfeiture without conviction as provided under Section 17 of the Advance Fee Fraud and Other Related Offences Act, 2006 is that an Exparte-application for interim forfeiture shall first be made to the trial Court. The trial Court, if satisfied by the Application and facts deposed thereto that the property sought to be forfeited is unclaimed and/or reasonably suspected to be proceed of unlawful activity shall direct that a publication be made giving notice to anyone having interest or claim in the said property to come forward and show cause why the property should not be forfeited. The learned trial Judge faithfully by this provision and followed the procedure set down by the law in the instant case when it granted the ex-parte Application filed by the Respondent on the 13th day of April, 2017. The Lower Court then adjourned to the 5th day of May 2017.
Section 17 further provides that after expiration of 14 days or such number of days as the trial Court may direct after the Interim Order of Forfeiture has been granted and the publication has been made, the Respondent may apply for an Order of Final Forfeiture of any such properties over which an Interim Order of Forfeiture has been made and the trial Court shall have jurisdiction to grant such order where no party has shown cause why the Final Forfeiture Order should not be made. In the instant case, after the Interim Order of Forfeiture was made, the Appellant in response as an interested party filed an Application dated 21st April, 2017 contained at pages 25 – 27 of the Records of Appeal seeking the Lower Court to stay proceedings in respect of the Permanent Forfeiture of the monies found at the Osborne Towers.
The Appellant presented himself as a proponent of public opinion insisting on due investigation, prosecution and conviction by the relevant Prosecuting authorities, he did not as I stated earlier in this Judgment drop any hint on claim for ownership of the money sufficient to stop the learned trial Judge from making the order of forfeiture final and absolute.
In the circumstance therefore, and in accordance with the procedure laid down in Section 17(1) – (6) of the Advance Fee Fraud and other Related Offences Act, 2006, the Appellant’s primary business as an interested party is to show his interest or ownership claim in the property and then show cause why the money should not be permanently forfeited to the Federal Government of Nigeria.
The Appellant has not shown himself to be 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 as provided in Subsection (2) of Section 17 of the Act. Also paragraphs 5 – 27 of the Affidavit in support of the Appellant’s Application which contain grounds purported to be relied upon were struck out by the Lower Court – a decision which the Appellant failed to challenge. As it is therefore, the Appellant, in my humble view failed to show any cause why the trial Court should not have granted an Order of Final Forfeiture of the huge sums of money in question to the Government of the Federation.
The Lower Court was perfectly in order in coming to the conclusion that the Appellant’s Application lacked a scintilla of merit and therefore deserved to be instantly dismissed. This issue is hereby resolved against the Appellant and in favour of the Respondent.
The second issue is “Whether the learned trial judge was right when he dismissed the Appellant Application as being strange in law and lacking in merit” while the third issue is “Whether the learned trial judge was right when he held that the Appellant had no locus standi to file Court process to challenge the proceedings before it”. The contention of the Appellant under these issues is that the Lower Court, by its findings on the 13th of April, 2017 had clothed all Nigerians including the Appellant with the locus standi to appear before it and that the learned trial Judge ought to have granted the Appellant’s Application in the absence of any counter-affidavit by the Respondent because the Application is deemed admitted and established.
The Respondent’s reaction to this issue is that the Lower Court was right in dismissing the Appellant’s Application in view of the facts and circumstances presented by the Appellant before the Lower Court and the provisions of Section 17 of the Advance Fee Fraud and Other Related Offences Act, 2006; that rather than comply with the Interim Order of the Lower Court made on the 13th day of April, 2017 by advancing facts showing cause why the monies found by the Respondent in flat 7b, 16, Osborne Road, Ikoyi should not be forfeited to the Federal Government of Nigeria, the Appellant filed a motion praying the Lower Court to stay the final forfeiture proceedings, inter alia; that the Appellant’s Application for stay of proceedings clearly contravenes the procedures highlighted in Section 17 of the Act thereby resulting in an abuse of process.
The Respondent further submitted that the Appellant’s submission and arguments on locus standi did not arise from the Ruling of the Lower Court because the Lower Court only addressed the Appellant as a meddlesome interloper while addressing the issue of the Appellant’s failure to file a competent appeal before filing a motion for stay of proceedings, and that the description of the Appellant as a meddlesome interloper is at best an obiter dictum, a statement made in passing.
The Ruling of the Lower Court delivered on the 6th day of June, 2012 contained at pages 1 – 12 of the records of appeal wherein the Appellant’s Application was considered and dismissed by the learned trial Judge has already been considered under issue No. 1 in this Judgment and it has been found that the grounds upon which the Appellant relied for the grant of its Application as contained in paragraphs 5 – 27 of the Affidavit deposed to at pages 28 – 30 of the records of appeal were found to be in violation of Section 115 of the Evidence Act and consequently struck out; a decision which the Appellant did not challenge in this appeal. What is therefore left before the Court is merely the Appellant’s Application and paragraphs 1 – 4 of the Appellant’s Affidavit in support of the application seeking to stay the said proceedings.
I have also considered the procedure under Section 17 (1)- (6) of the Advance Fee Fraud and Other Related Offences Act, 2006, which allows only 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 money should not be permanently forfeited to the Federal Government of Nigeria and I have found under issue No. 1 above that the Appellant has not shown himself to be 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 as provided by Subsection (2) of Section 17 of the Act. In addition, considering what is left of the Appellant’s Affidavit, the Appellant cannot be said to have shown any cause why the monies should not be permanently forfeited to the Federal Government of Nigeria.
The Appellant’s Application, which sought for Stay of Proceedings, was rightly found by the Lower Court to be strange both in law and Rules of procedure. Section 17 (1) – (6) of the Advance Fee Fraud and Other Related Offences Act, 2006 contains the substantive and procedural laws to be followed where a non-conviction based order of forfeiture is sought and the provision does not make room for such strange processes like Application for Stay of Proceedings. Just to satisfy the requirements of the law that where issues are properly submitted for determination, intermediate Courts like this Court must pronounce on such issues. The general principle guiding Applications for Stay of Proceedings is that there must be a valid and subsisting appeal. See NIKA FISHING CO. LTD Vs. LAVINA CORPORATION (2008) LPELR-2035 (SC) Pg. 27 – 30, Paras. B – C; APM TERMINALS LTD & ANOR Vs. OKONKWO (2017) LPELR-42318 (CA) Pg. 12-14, Paras. E – A, and REGISTERED TRUSTEES OF ASSEMBLIES OF GOD MISSION OF NIGERIA Vs. TORT [2017] LPELR-43059 (CA) Pg. 15, Paras. B – E where this Court held that
“…for a stay of proceedings to be granted, there should be a pending appeal and the appeal must be valid.”
In the instant case, the Appellant did not appeal against the Interim Order of Forfeiture made by the Lower Court on the 13th day of April 2017; therefore, there is no foundation upon which an Application for Stay of Proceedings can be predicated. On the whole therefore, in my humble view, the decision of the Lower Court dismissing the Appellant’s application cannot be faulted. Issues No. 2 and 3 are therefore resolved against the Appellant and in favor of the Respondent.
On the whole, this appeal is completely bereft of merit and therefore deserves to be dismissed; it is so dismissed by me. The Ruling of the Lower Court dismissing the Appellant’s Application for Stay of Proceedings and the Judgment of the Lower Court making Final order of Forfeiture of the various sums of monies found by the Respondent in House No.7B Osborne Towers Ikoyi Lagos on the 12th day of April, 2017 both delivered by M. S. Hassan J., of the Federal High Court Lagos on the 6th day of June, 2017 are hereby affirmed by me.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have in advance read with complete agreement the draft copy of the illuminating judgment just delivered by my learned brother, TIJJANI ABUBAKAR JCA., and I wish only to say a word or two as by way of my humble contribution to the impeccable reasoning in the lucid lead judgment.
Now, by the unambiguous provisions of Section 17(6) of the Advance Fee Fraud and Other Related Offences Act 2006 which expressly states that conviction shall not be the basis or foundation or indeed raisondetre for forfeiture of money by the EFCC, I find the application by the Appellant before the Court below as well as the appeal against the judgment of the Court below as lacking in both bona-fide and merit. It is hopelessly hopeless for the Appellant to have without any basis intervened in a matter in which he lacks any iota of interest of locus standi in law to interfere with the due process of the proceedings before the Court below.
Does the money sought to be forfeited by the EFCC belong to the Appellant? The answer is a resounding no as he did not so claim. So does the money belong to his client? The answer is still a resounding no as he did not so allege.
Then what is the basis or ground for his intermeddling in the case before the Court below? None I can fathom and none he could show! Truly, the attitude of the Appellant cannot even situate itself within the broader concept of ‘public interest litigation’ in the expanded frontiers of locus standi.
The Court below was thus right to have described the Appellant, even though as an obiter, as a meddlesome interloper?, a description which do so aptly fits the bill. The Appellant is simply nothing but a clear meddlesome interloper, whose baseless meddling appears more as an affront or indeed a clog in the wheel of justice in the fight against corruption.
However, having said as above and bearing in mind the fact that the issue of the constitutionality of Section 17(6) of the Advance Fee Fraud and Other Related Offences Act 2006 is not in contention in this appeal, I shall adhere to the succinct admonition in the lead judgment to let this issue be by exercising the greatest restrain and to refrain from expressing any view on the desirability of a conviction or at least the outcome of thorough investigation as basis for final forfeiture of money so that the true essence of this law should be geared towards checking and nipping corruption and not merely recovery of unclaimed money suspected to be proceed of crime.
Notwithstanding the above, I should think that since the true essence of the fight against corruption is as a tool to check and nip corruption in the bud with a view to stemming it and possibly wiping it out before it kills our Nation, then due, proper and thorough investigation and identification of culprits, left at large, and prosecution and possible conviction ought to and should be sine qua non as that would further the frontiers of the fight against corruption even more, in my humble view, than mere recovery of money suspected to be proceeds of crime but yet not traceable to any culprit. I shall say no more!
It is in the light of the above few comments of mine and for the fuller reasons so adroitly marshaled out in the lead judgment that I too hold that this appeal is both vexatious and lacking in merit and thus liable to be dismissed. I hereby so dismiss it. I shall abide by the consequential orders made in the lead judgment.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the privilege of reading before now, the judgment just delivered by my learned brother, TIJJANI ABUBAKAR JCA. I absolutely agree with the reasoning therein.
The provisions of Section 17 (1) to (6) of the Advance Fee Fraud and Other Related offences Act, 2006 are very clear and does not allow for any ambiguity as to the procedure to be adopted where money suspected to be proceeds of crime or unclaimed is sought to be forfeited without conviction. The Appellant who has neither laid claim on the sums of money which is the subject matter of the instant suit nor represented himself to be acting for or on behalf of anyone claiming to own the said sums of money lacks the locus standi to file the Application to stay the proceedings before the Lower Court. The affidavit in support of the Appellant’s Application was also struck out save for the introductory paragraphs 1 – 4 therein; the Appellant did not challenge the finding of the learned trial Judge in this regard. Therefore, there was nothing left before the Lower Court to consider.
In the circumstance, I agree with the conclusions of my learned brother that this appeal is unmeritorious and devoid of substance; it is hereby dismissed. I abide by the consequential order(s) made in the leading judgment.
Appearances:
K. I. MarcusFor Appellant(s)
Rotimi OyedepoFor Respondent(s)
