N.C. ANGUS (W/A) LTD & ORS v. FRN (2021)

N.C. ANGUS (W/A) LTD & ORS v. FRN

(2021)LCN/14988(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, February 12, 2021

CA/C/313C/2019

RATIO

JURISDICTION: IMPORTANCE OF JURISDICTION

Jurisdiction is fundamental to adjudication. It is a radical and crucial and where a Court proceeds without jurisdiction to hear the case, the proceedings so embarked upon by the Court are a nullity ab initio however well conducted the proceedings and brilliantly decided the issues agitated therein are. As rightly posited, defect in the Court’s competence is intrinsic and not extrinsic to the entire adjudicatory process. See ONYEKWULUJE V. ANIMASHAUN (2019) 4 NWLR (prt 1662) 242. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
LEGAL PRACTITIONER: PURPOSE OF THE NIGERIAN BAR ASSOCIATION STAMP AND SEAL

It is pertinent to state that the purpose of the Nigerian Bar Association stamp and seal is to ensure that legal practitioners who file processes in Court have their names on the roll of legal Practitioners in Nigeria and that imposters or quacks do not infiltrate the legal profession. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

PROCESS: EFFECT OF FAILURE TO AFFIX THE APPROVED SEAL AND STAMP OF THE NBA ON A PROCESS

It is settled that the failure to affix the approved seal and stamp of the NBA on a process does not render the process null and void. It is an irregularity that can be cured by an application for extension of time and a deeming order. See YAKI V. BAGUDU (2015)18 NWLR (prt 1491) 288, WAYO V. NDUUL (2019)4 NWLR (prt 1661) 60 and EMECHEBE V. CETO INTERNATIONAL (NIG) LTD (2018) 11 NWLR (prt 1631) 520. In MAINA V. E.F.C.C. (2020) 2 NWLR (prt. 11708) 230 at 241 – 242, this Court was confronted with similar argument of the appellants and it emphatically held that where there is a seal on a Court process, it is otiose to tick the name of counsel whose name is in the seal as the signatory on the document or process. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

DOCUMENT: FUNCTION OF A SIGNATURE

The traditional function of a signature is to permanently affix to a document a person’s uniquely personal undeniable self identification as physical evidence of that person’s personal witness and certification of the content of all or a specific part of the document. In other words, it authenticate a writing or provide notice of its source and bind the individual signing the writing by the provisions contained in the document. See M.C.C. (NIG) LTD V. COSEDA (NIG) LTD (2018)11 NWLR (prt 1629) 47. A signature on a document identifies the document as an act of a particular person and without a signature the document cannot pas as the act of an unnamed person and it is therefore useless. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
PROCESS: DISTINCTION BETWEEN AN ORIGINATING PROCESS AND A WRITTEN ADDRESS

the originating process is the motion on notice and not the accompanying written address. The purpose of an address on the other hand is to demonstrate to the Court and counsel for the adversary his opinion of the facts and the law as shown by the evidence before the Court. Thus, notwithstanding its brilliance, it is never a substitute for evidence. See OMISORE V. AREGBESOLA & ORS (2015) LPELR – 24803 (SC). PER MUHAMMED LAWAL SHUAIBU, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1. N. C. ANGUS (W/A) LIMITED 2. MOHAMMED SULEIMAN 3. SULEIMAN MOHAMMED APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): By a motion on notice filed on 2/4/2019 and brought pursuant to the provisions of Section 333 of the Administration of Criminal Justice Act 2015, Section 25 (a) of the EFCC (Establishment) Act 2004 and the Inherent Powers of the Court, the respondent as applicant before the lower Court prayed for a final order forfeiting to the Federal Government, a Mack Truck with registration No. ENU 324 X F.

Parties filed their respective affidavits and written addresses and in addition, the learned counsel for the 3rd respondent herein, filed a notice of preliminary objection challenging the competence of the respondent’s motion. In a reserved ruling delivered on 1/7/2019, learned trial judge overruled the objection and granted the respondent’s prayer to wit, finally forfeiting to the Federal Government of Nigeria, Mack Truck with registration Number ENU 324 X F.

Appellants were dissatisfied and therefore appealed against the said ruling through notice of appeal respectively filed on 2/7/2019 and 27/8/2019. The extant notice of appeal filed on 27/8/2019 contains six grounds of appeal

from which the appellants distilled three issues for the determination of the appeal. These are:-
1. Whether the trial Court was right to assume jurisdiction and grant the incompetent motion of the respondent.
2. Whether the trial Court was right to hold that charge No. FHC/109/61C/2018 was still alive and continues to be alive even after conviction and sentencing the 2nd and 3rd appellants who have also duly served their jail terms.
3. Whether the ruling of the trial Court was against the weight of affidavit evidence placed before the Court having regards to the uncontradicted averments in the appellants counter affidavit and the exhibits attached.

On behalf of the respondent, a sole issue was formulated and it read as follows:-
1. Whether the trial Court was right in granting prayers and application of the respondent.

I have examined the above issues alongside the record of appeal, the three issues formulated by the appellants are apt and quite apposite to the just determination of this appeal. I shall therefore determine this appeal the bases of the said three issue formulated by the appellants, the rightful owners of the appeal.

Proffering argument on their first issue, learned counsel for the appellants contended that the respondent’s motion on notice filed on 2/4/2019 was incompetent ab initio because the said motion paper was not signed by a known legal practitioner and the written address accompanying the motion was not signed at all by anybody. Counsel submitted that once it cannot be said who signed a process, that process is totally defective and legally non-existent. He referred to MINISTRY OF WORKS & TRANSPORT ADAMAWA STATE V. YAKUBU (2013)6 NWLR (p.2 1351) 496 and TANIMU V. RABIU (2018) 4 NWLR (prt 1610) 505 – 511 to the effect that the mere presence of the stamp and seal of the Nigerian Bar Association on a document without linking it to the signature endorsed thereon, is not sufficient proof that the stamp and seal belong to the person who signed the document.

He further submitted that an unsigned written address is void and of no legal effect and cannot be used in the proceedings before the lower Court. Had the learned trial judge considered these generic issues raised by the appellants in their preliminary objection to the hearing

of the motion on notice, the Court would not have assumed jurisdiction, concluded learned counsel. He relied on Section 83(4) of the Evidence Act and the cases of MAKU V. AL-MAKURA (2016)5 NWLR (prt 1505) 201 at 211, NSE V. KATCHY (2017) 7 NWLR (prt 1554) 278 and LABOUR PARTY V. BELLO (2017)2 NWLR (prt 1548) 145 at 155.

On the second issue, the appellants submitted that once judgment is delivered in a criminal trial, the Court becomes factus officio in respect of the said charge and the entire case. It was contended that the lower Court having delivered judgment in relation to charge NO. FHC/UY/61C/2018 and delivered its final judgment, cannot turn around to again make any further order using the same charge number against the 1st appellant who was never a party to the said charge. It was further submitted that the lower Court cannot under any guise sit on appeal on its own judgment and that if an act is void it is in law a nullity. It is not only bad but incurably bad, relying on the authority of ABIODUN V. F.R.N. (2016)9 NWLR (prt 1516) 126 at 130.

Finally on the third issue, it was contended that having regards to the appellants counter –

affidavit including the annexed exhibits in opposition to the application for forfeiture of the truck, same according to the learned counsel remains uncontroverted and unchallenged but notwithstanding that, the trial judge relied solely on respondent’s version to grant final forfeiture even with none existent interim order. Counsel cited YAR’ADUA & ORS V. YANDOMA & ORS (2014) LPELR 234217 (SC) to support the argument that averments in the affidavit of a party which are neither challenged nor controverted by his adversary are deemed admitted and the Court must act on those undisputed averments as been true.

Arguing the sole issue on behalf of the respondent, learned counsel contended that the omission to sign on the written address was an oversight and thus an irregularity that does not void the process. He referred to appeal NO. CA/L/349/2009. F.R.N. V. FEMI FANI – KAYODE to the effect that legal technicalities should not constitute a road block to fighting corruption.

It is pertinent to first of all restate the brief facts of case before delving into the merit of the appeal. On or about the 28th day of September, 2018 a

truck with registration No: ENU 324 X F loaded with petroleum product was intercepted by men of the Nigerian Army wherein the 2nd and 3rd appellants were upon interrogation, found that they had no lawful authority to deal with petroleum product. They were subsequently, arrested, tried and convicted by the trial Federal High Court on charge No: FHC/UY/61C/2018. After the conclusion of the said trial and eventual conviction and sentences of the 2nd and 3rd appellants, the respondent herein, prayed the lower Court to forfeit the truck which was used by the 2nd and 3rd appellants in transporting the said petroleum product, which application was vehemently opposed to by the appellants herein. At the hearing of the respondent’s motion on notice for the forfeiture of the truck, appellants filed a preliminary objection challenging the competence of the motion and by extension, the jurisdiction of the lower Court. The respondent’s motion on notice was contemporaneously heard with the appellants’ preliminary objection. Hitherto, the 1st appellants’ motion on notice seeking for an order to release the said truck was dismissed by the lower Court.

RESOLUTION
The appellant’s contention on the first issue is that the respondent’s motion on notice had the names of Nwandu K. Ukoha Esq., and Agbo S. Abuh (Mrs.) and the NBA seal of Agbo Sophia Abuh was fixed without indicating among the two of them who actually signed the motion paper. Furthermore, the written address in support of the said motion was unsigned. The appellants therefore argued that such lapses rendered the processes incompetent.
Jurisdiction is fundamental to adjudication. It is a radical and crucial and where a Court proceeds without jurisdiction to hear the case, the proceedings so embarked upon by the Court are a nullity ab initio however well conducted the proceedings and brilliantly decided the issues agitated therein are. As rightly posited, defect in the Court’s competence is intrinsic and not extrinsic to the entire adjudicatory process. See ONYEKWULUJE V. ANIMASHAUN (2019) 4 NWLR (prt 1662) 242.
The appellants’ first complaint relates to affixing the approved seal and stamp of the NBA on the respondent’s motion on notice filed on 2/4/2019. The contention is not that the NBA stamp

was not affixed but that it was unclear who among the two legal practitioners affixed it because none ticked against his name.
It is pertinent to state that the purpose of the Nigerian Bar Association stamp and seal is to ensure that legal practitioners who file processes in Court have their names on the roll of legal Practitioners in Nigeria and that imposters or quacks do not infiltrate the legal profession. Unlike in the cases being relied upon by the learned appellants counsel, the motion on notice in the present case was duly signed and stamped by the counsel for the respondent. In compliance with Rule 10 (1) of the Rules of professional conduct, the seal of Agbo Sophia Abuh was affixed beside the names of two counsel for the respondent. The first name is Nwandu K. Ukoha, Esq., while the second name is Agbo S. Abuh (Mrs.) and above which is the signature.
It is settled that the failure to affix the approved seal and stamp of the NBA on a process does not render the process null and void. It is an irregularity that can be cured by an application for extension of time and a deeming order. See YAKI V. BAGUDU (2015)18 NWLR (prt 1491) 288, WAYO V. NDUUL

(2019)4 NWLR (prt 1661) 60 and EMECHEBE V. CETO INTERNATIONAL (NIG) LTD (2018) 11 NWLR (prt 1631) 520. In MAINA V. E.F.C.C. (2020) 2 NWLR (prt. 11708) 230 at 241 – 242, this Court was confronted with similar argument of the appellants and it emphatically held that where there is a seal on a Court process, it is otiose to tick the name of counsel whose name is in the seal as the signatory on the document or process. I wholeheartedly subscribed to that view and state further that the appellants’ submission that the signature on the motion on notice filed on 2/4/2019 is not traceable to any of the persons whose name appeared as counsel to the respondent lacks substance.

The next complaint is that the written address accompanying the motion on notice was unsigned. The traditional function of a signature is to permanently affix to a document a person’s uniquely personal undeniable self identification as physical evidence of that person’s personal witness and certification of the content of all or a specific part of the document. In other words, it authenticate a writing or provide notice of its source and bind the individual signing

the writing by the provisions contained in the document. See M.C.C. (NIG) LTD V. COSEDA (NIG) LTD (2018)11 NWLR (prt 1629) 47. A signature on a document identifies the document as an act of a particular person and without a signature the document cannot pas as the act of an unnamed person and it is therefore useless.
Learned counsel for the appellants has submitted and I agree with his submission that an incompetent originating process cannot give rise to competent proceedings. The question then, is the written address an originating process? The answer is obviously no; the originating process is the motion on notice and not the accompanying written address. The purpose of an address on the other hand is to demonstrate to the Court and counsel for the adversary his opinion of the facts and the law as shown by the evidence before the Court. Thus, notwithstanding its brilliance, it is never a substitute for evidence. See OMISORE V. AREGBESOLA & ORS (2015) LPELR – 24803 (SC).
In the instant case, the material evidence in prove or defence to the respondent’s motion is the affidavit in support or against the application and certainly not

the accompanying written address. Thus, the failure to address or sign same will not be fatal or cause miscarriage of justice. Even though the absence of signature renders the respondent’s written address useless but that will not adversely affect the validity of the motion on notice which in the circumstance, is the originating process. The first issue is therefore resolved against the appellants.

The appellants’ grouse on the second issue is that the trial Court having delivered judgment, it becomes functus officio in respect of charge NO. FHC/UY/61C/2019 and cannot entertain any other thing in respect of the case.
The words functus officio was defined in the Black’s Law Dictionary Eight Edition to mean “having performed his or her office without further authority or legal competence because the duties and functions of the original commission have been duly accomplished”. Generally, where a Court has delivered its decision on a matter whether by consent of the parties or on its merit, it becomes functus officio with regards to that matter. What it means is that a Court cannot sit as an appellate Court over its own

decision; once it has decided a matter, it ceases to be seized of it, and cannot re-open it for any purpose whatsoever, save for the correction of clerical mistakes. See UKACHUKWU V. U.B.A. (2005) 18 NWLR (prt 956), OGBORU V. IBORI (2005)13 NWLR (prt 942) 319 and N.P.A. V. SANA (2020)2 NWLR (prt 1708) 271.
I have stated that the 2nd and 3rd appellants were tried and convicted for an offence of dealing in petroleum product (AGO) which product was loaded in a truck, the subject matter of the motion on notice under consideration. The only relief in the motion was a final order forfeiting to the Federal Government of Nigeria Mack Truck with registration Number ENU 324 X F which was used in conveying the petroleum product as per the charge under which the 2nd and 3rd appellants were convicted and sentenced by the lower Court.
The provision of Section 44 (2) (k) of the Constitution of the Federal Republic of Nigeria 1999 as amended provides for an order of interim attachment of properties for the purpose of examination, investigation or enquiry. Sections 28 and 29 of the Economic and Financial Crimes (Establishment) Act also allows interim forfeiture order

of any assets or property, the subject matter of economic or financial crimes. Specifically, Sections 28 and 29 of the Economic and Financial Crimes (Establishment) Act provides as follows:-
28. Where a person is arrested for an offence under this Act, the commission shall immediately trace and attach all the assets and properties of the person acquired as a result of such economic or financial crimes and shall thereafter cause to be obtained an interim attachment order from the Court.
29. Where:
(a) the assets or properties of any person arrested for an offence under this At has been seized or
(b) any assets or property has been seized by the commission under this Act the commission shall cause an application to be made to the Court for an interim order forfeiting the property concerned to the Federal Government and the Court shall, if satisfied that there is prima facie evidence that the property concerned is liable to forfeiture make an interim order forfeiting the property to the Federal Government.
The contention here related to final forfeiture order and not an interim forfeiture order contemplated in Sections 28

and 29 above. The relevant provision of the Act dealing with final order is Section 30 of the Act and it states as follows:-

“30. Where a person is convicted of an offence under this Act, the commission or any authorized officer shall apply to the Court for the order of confiscation and forfeiture of the convicted person’s assets and properties acquired or obtained as a result of the crime already subject to an interim order under this act.”
It is instructive to note also that similar provisions on both interim and final forfeiture orders are contain in several other legislations. For instance, the provision of Section 47 of the Corrupt Practices and Other Related Offences Act 2000 provides for forfeiture of property upon prosecution of an offence. It read thus:-
“47 (1) – in any prosecution for an offence under this Act, the Court shall make an order for the forfeiture of any property which is proved to be the subject matter of the offence or to have been used in the commission of the offence where:
(a) The offence is proved against the accused, or
(b) The offence is not proved against the accused

but the Court is satisfied:
(i) That the accused is not the true owner of such property, and
(ii) That no other person is entitled to the property as a purchaser in good faith for valuable consideration.
(c) Where the offence is proved against the accused or the property referred to in Sub-section (1) has been disposed of, or cannot be traced, the Court shall order the accused to pay as penalty a sum which is equivalent to the amount of the gratification or is; in the opinion of the Court, the value of the gratification received by the accused and any such penalty shall be recoverable as a fine.”
The above provisions of the law creates two kinds of forfeitures namely, interim forfeiture which presuppose something temporary between an Oder made and final determination. In contrast, the final forfeiture is made after conviction. Both interim and final forfeiture of assets of accused persons are not new in the administration of criminal justice in Nigeria as superior Courts have over time given judicial approval to them. See FELIMON ENTERPRISES LTD V. CHAIRMAN EFCC (2018)7 NWLR (prt 1617)56.
In the instant case, the

respondent’s application before the lower Court being for final forfeiture of the truck after conviction, it means that same is quite separate and independent of the charge NO FHC/UY/61C/2017. To that extent, the learned trial judge was not functus officio as he was performing a different function. The fact that the same charge number was used in the later application does not in my view translate to continuation of the concluded trial. After all, a Court order cannot be vitiated or does not become null and void simply because the Court relied on a wrong law in making it. Such order is valid provided that there is any law that backs the grant of such order. Likewise, predicating the motion on notice under Section 333 of the Administration of Criminal Justice Act, 2015 which is a procedural law and also using the previous charge number cannot vitiate the final order made by the lower Court. See AJIBOYE V. F.R.N. (2018)13 NWLR (prt 1637)430 at 459 – 460. I also resolved the second issue against the appellants.

The appellants’ contention on the third issue centred around the evaluation of the affidavit evidence placed before the trial Court;

arguing that it failed to consider their weighty averments in the counter affidavit against the respondent’s affidavit in support of the motion on notice. There is no denying the fact that the only way a Court can do justice between the parties to a case is by giving equal consideration to the evidence adduced by either sides. To underscore this preposition, one needs to examine the affidavit evidence placed by both the respondent and the appellants at the lower Court.

In paragraphs 5, 6, 7, 8, 10 and 11 of the affidavit in support of the said motion, it was averred as follows:-
“5. That the EFCC has concluded the investigation of the respondents who were reported for the offence of dealing in petroleum products for sale and distribution without license.
6. That the 1st and 2nd respondents have already been charged before this Court with charge No: FHC/UY/61C/2018 and convicted accordingly.
7. That judgment delivered by this honourable Court is annexed and marked as Exhibit EFCC 1.
8. That the 1st and 2nd defendants acted as agents of the 3rd defendant for which they confessed to during the proceedings.
10. That it was

established during proceedings that the properties listed in the schedule were used to transport and facilitate the commission of the Economic and Financial Crime for which the 1st and 2nd respondents were convicted and currently serving jail (sic) time.
11. That an Order of this honourable Court for the final forfeiture of the Truck used to perpetrate the economic crime is needed so that the proceeds of crimes are forfeited to the Federal Government based on the conclusion of the matter and conviction of the 1st and 2nd respondents who acted as agents of the 3rd defendant.”

In reaction to the above, appellants filed counter affidavit deposed to by one Mohammed Suleiman, the 2nd appellant herein. He averred in paragraphs 2, 3, 4, 5, 7, 13 and 17 of the said counter-affidavit thus:-
“2. That I am the driver of the 3rd respondent’s truck with Reg. NO. ENU 324 X F Enugu, who drove to Calabar with the 2nd respondent to lift petroleum product.
3. That the 2nd respondent is the conductor of the truck.
4. That I and 2nd respondent were accused by the EFCC of carrying petroleum product without appropriate license.

That I told the EFCC officials that the 3rd respondent is the owner of the truck and has license and that the said license was in our office and that I should be allowed to call on the 3rd respondent to produce its license but the EFCC officials refused.
7. That the EFCC official also told me that all I needed to was to come to Court and plead guilty to the charge that by so doing the Court will release me to go with the truck.
13. I was surprised that after pleading guilty as I was instructed to do, the Court convicted and sentenced me instead of setting me free as I was told by EFCC officials.
17. That all the EFCC officials did was to arrest, detained, brought me to Court and deceived me to plead guilty to whatever they charged us with so that we can go with our truck (me and the 2nd respondent).

As stated earlier that what was placed before the lower Court for its consideration was an affidavit evidence. It is settled that an affidavit evidence constitute evidence and must be construed. Thus, any deposition therein which is not challenged or controverted is deemed admitted. In MAGNUSSON V. KOIKI (1993) LPELR – 1818 (SC), the

Supreme Court while dealing with motions decided that facts deposed to in affidavit in relation to a motion or application constitute evidence on which the Court seized of the motion or application is to act in coming to its decision. Also in JIMOH V. C.O.P. (2004) LPELR – 11262 (CA), this Court has held that the fact averred in an affidavit are facts averred under Oath and cannot be treated as mere assertion. The sum total of the above decisions are that depositions in an affidavit on material facts resolve applications in Court.
In the instant case, the material facts are that the 2nd and 3rd appellants were convicted for dealing in petroleum product without an appropriate license. And that the said petroleum product was transported in truck with registration No. ENU 324 X F which was the subject matter of the final forfeiture order before the lower Court. While considering the affidavit evidence placed before him, learned trial judge rightly in my view found at page 154 of the record of appeal that:-
“The averments in the counter affidavit recount stories which have no bearing on the forfeiture proceedings.”

The appellants herein neither denied nor controverted depositions on material facts in the affidavit in support of the motion on notice as such, the affidavit in support remain the correct position and the lower Court was right in acting on them.

Learned counsel for the appellants also attacked the heading of the affidavit in support of the motion on notice which stated:-
“Affidavit in support of motion on notice dated on 28/03/19”
contending that same incapacitated not only the affidavit but the entire motions on notice. It is my view that reference been made to the motion in the affidavit is nothing but a surplusage which is outside the contemplation of Section 115 of the Evidence as regards the contents of affidavit. Even where a wrong law is used in obtaining an order such order is still valid in law. The third issue is equally resolved against the appellants.

Having resolved all the three issues in this appeal against the appellants, the appeal is destined to fail. It is accordingly dismissed. There is however no order as to costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment by my learned brother Muhammed Lawal Shuaibu, JCA.

My learned brother has carefully treated the three (3) issues nominated for the determination of the appeal. I agree with the reasoning and conclusion in the lead judgment.
I also agree that the appeal lacks merit and ought to be dismissed.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered my learned brother M. L. Shuaibu, JCA, and I agree that the appeal lacks merit and should be dismissed.

I agree that the address of counsel is not a process of Court that ought to be signed. The motion which is a Court process was signed.

The application for forfeiture was permitted by law and therefore rightly and granted by Court below. It was as it were an interlocutory application. It did not constitute a final resolution of the whole controversy. See Black’s Law Dictionary 10th Edition.
For the more reasons exhaustively dealt with in the judgment, I too dismiss the appeal.
I abide by the order as to costs.

Appearances:

G.N. EZUGWON For Appellant(s)

N.K. UKOHA, (PDS) EFCC For Respondent(s)