THE FEDERAL REPUBLIC OF NIGERIA V. UCHE ROSEMARY IKEDINWA & ANOR
(2013)LCN/6399(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of July, 2013
RATIO
THE PRINCIPLE OF LAW ON INTERPRETATION OF STATUTES
It is settled law that it is both elementary and also fundamental principle of interpretation of statutes that where the words of a statute are plain, clear and unambiguous, effect should be given to them, in their ordinary and natural meaning except where to do so will result in absurdity.
See: -SHELL PETROLEUM DEVELOPMENT COMPANY (NIG.) LTD. VS F.B.I.R. (1996) 8 NWLR PART 466 PAGE 256.
– LAWAL VS G.B. OLIVANT (1972) 3 S.C. PAGE 124 at 137.
– TORIOLA VS WILLIAMS (1982) 7 S.C. PAGE 27 at PAGE 46.
– OLADOKUN VS MILITARY GOVERNOR OF OYO STATE (1996) 8 NWLR PART 467 PAGE 387 at 419 and 422. PER BADA, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
The Order of the trial Court which released the property to the 1st Respondent did not flow from the evidence before the Court. And where the decision of a lower Court does not flow from the relevant evidence before that Court, the appellate Court is entitled to interfere with the decision of the lower Court. See the following cases:-
– ATUNWA VS. LADENIKA (1998) 7 NWLR PART 557 PAGE 221.
– ODOFIN VS. AYOOLA (1984) 11 S.C. PAGE 72.
– ODINAKA VS. MOGHALU (1992) 4 NWLR PART 233 PAGE 1. PER BADA, J.C.A.
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Federal High Court sitting in Ado-Ekiti in Charge No: FHC/EN/6C/2006 – THE FEDERAL REPUBLIC OF NIGERIA VS. (1) UCHE ROSEMARY IKEDINWA (2) CHIMEZIE IKEDINWA; delivered on 15th July, 2009, wherein the trial court ordered as follows:-
”……that all that property described in Paragraph 1(a) to 1(y) on the applicant’s motion dated 14th April, 2008, be returned to the 1st accused Rosemary Ikedinwa now discharged and acquitted in Charge No:- FHC/EN/6C/2006″.
The appellant dissatisfied with the order of the lower court set out above now appealed to this court.
The Learned Counsel for the Appellant formulated two (2) issues for the determination of the appeal. The issues are set out as follows: –
“ISSUE 1:
Whether having regards to the provision of the 1999 Constitution and the NDLEA Act, CAP. N30 Laws of the Federation, 2004, the NDLEA (representing the Appellant in this case) can seize property of a person under investigation and apply to the Federal High Court for an order of forfeiture or attachment without such a party having been arrested. (Grounds 1 & 2).
ISSUE 2:
Was the order of the trial Judge right, that the property seized from the premises of 1st Respondent, Rosemary Ikedinwa be released to her when it was shown that the property belonged to one Godfrey O. Ikedinwa also known as Don Godfrey O. Ikedinwa (1st Respondent’s husband) who was under investigation for the offence of importation of 970 Grammes of Cocaine into Nigeria but now at large in South America. (Grounds 3 & 4).”
The Learned Counsel for the Respondents adopted the two issues formulated for the determination of the appeal by Counsel for the Appellant.
At the hearing of the appeal, the Learned Counsel for the Appellant referred to the Appellant’s brief of argument filed on 4th March, 2013 and deemed as properly filed and served on 4th March, 2013.
He adopted the said Appellant’s brief of argument as his argument in urging that the appeal be allowed.
The Learned Counsel for the Respondents on the other hand referred to the Respondents’ brief of argument filed on 15th April, 2013. He adopted the Respondents’ brief as his argument in urging that the appeal be dismissed.
ISSUES 1 AND 2 ARGUED TOGETHER
1. Whether having regards to the provisions of the 1999 Constitution and the NDLEA Act, Cap. N30, Law of the Federation of Nigeria, 2004 the NDLEA (representing the Appellant in this case) can seize property of a person under investigation and apply to the Federal High Court for an Order of forfeiture or attachment without such a person having been arrested. (Grounds 1 & 2).
2. Was the Order of the trial Judge right, that the property seized from the premises of 1st Respondent Rosemary Ikedinwa be released to her when it was shown that the property belonged to one Godfrey O. Ikedinwa also known as Don Godfrey O. Ikedinwa (1st Respondent’s husband) who was under investigation for the offence of importation of 970 Grammes of Cocaine into Nigeria, but now at large in South America. (Grounds 3 & 4).
Learned Counsel for the Appellant referred to Section 36(a) and 36(b) of the NDLEA Act Cap. N30 L.F.N. 2004, and he submitted that there is nothing to suggest that it is only upon the arrest of a person that the NDLEA can approach the Court for the forfeiture or attachment of seized assets.
He referred to Section 33 of the NDLEA Act and submitted that Section 33(a) which provides for seizure incidental to a search makes the position of the law as stated by the trial Judge incorrect.
He referred to the case of: NWAIGWE VS F.R.N. (2009) 16 NWLR PART 1166 PAGE 169 at 178.
He submitted that the Judge had a duty to read Section 36 and 33 of the NDLEA Act, 2004 together in this case.
He also relied on the case of:- JOLASUN VS. BAMIGBOYE (2010) 18 NWLR PART 1225 PAGE 285 at 292.
He referred to SECTION 44(2) K of the 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA.
The Learned Counsel for the Appellant submitted that the findings of the trial Judge is perverse and also that it is a misapplication of the law, and he urged this Court to set it aside.
On Issue 2, learned Counsel for the Appellant referred to Paragraphs 5(i) to 5(u) and Paragraphs 6(a) to 6(d) of the Supporting Affidavit. (See: Pages 166 – 168 of the Record of Proceedings). He stated further that the Respondents did not controvert the averments in the supporting affidavit earlier referred to. He submitted that the trial court did not take into consideration relevant evidence before arriving at its decision. He relied on the case of: – UZOR VS D.F. (NIG.) LTD. (2010) 15 NWLR PART 1217 PAGE 553 at 560.
He also submitted that the application of the provision of Section 269 of the Criminal Procedure Act, to release the property to the 1st Respondent was erroneous in law. He relied on the case of:-
– OKORO VS. F.R.N. (2005) ALL FWLR PART 266 PAGE 1355 at 1358.
He finally urged this Court to set aside the Ruling and Order of the trial Court and allow the appeal.
In his response, the Learned Counsel for the Respondents submitted that under the Nigerian system of Criminal Justice, every person who is charged with a criminal offence is presumed innocent until he is proven guilty.
He referred to SECTION 36(5) of the 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA.
He also relied on the case of -WILLIAM VS STATE (1992) 8 NWLR PART 261 at PAGE 521 PARAGRAPHS G – H.
Learned Counsel for the Respondents argued further that the learned trial Judge took into consideration the provisions of SECTIONS 25 and 27(a) and (b) of the NDLEA ACT, CAP. 253, 1990, LAWS OF THE FEDERATION OF NIGERIA in his ruling.
He stated, the phrase prima facie evidence used in Paragraph 27(b) of the NDLEA Act was interpreted in the following cases:-
– SALGITTER STAHL GMBH VS TUNJI DOSUNMU INDUSTRIES LIMITED (2010) 3 – 5 S.C. PART 11 PAGE 54 at 80 – 81.
– TONGO VS C.O.P. (2007) 30 NSCQR PAGE 180 at 192 – 193.
The effect of the word ‘shall’ as used in Section 27(b) was also stressed. He relied upon the cases of:-
AMOSHIMA VS. STATE (2011) 6-7 S.C. PART III PAGE 1 at PAGE 25.
– BAMAIYI VS. ATTORNEY-GENERAL OF THE FEDERATION (2001) 38 W.R.N. PAGE 1.
Learned Counsel for the Respondents submitted that as at the time the trial Judge gave his ruling on the application for interim forfeiture that the case had proceeded beyond what was contemplated by the provisions of Section 27(b) of the NDLEA Act. He went further that the trial Judge having discharged and acquitted the Respondents at the end of the case had no other option than to dismiss the application for interim forfeiture. He relied on the case of:
– NYAME VS. F.R.N. (2010) 3 S.C. PART 1 PAGE 78 at PAGE 115 LINES 30 – 35 and PAGES 117 – 118 LINES 30 – 35.
It was argued on behalf of the Respondents that it is only when the person had been arrested that the NDLEA can bring an application for interim attachment of such assets.
He finally urged that this appeal be dismissed.
The puzzle to be answered here is: Whether the NDLEA can seize the property of a person under investigation and apply to the Federal High Court for an order of forfeiture or attachment without such a person having been arrested?
The solution to the puzzle could be found in SECTIONS 33 and 36 of the NDLEA ACT, CAP. N30 LAWS OF THE FEDERATION OF NIGERIA 2004, which is impari material with Sections 28 and 29 of the EFCC Act.
The Learned Counsel for the Appellant argued that the property of a person may be attached without first of all arresting such a person while the Counsel for the Respondents held a contrary view that it is only when a person has been arrested that the NDLEA can bring an application for the interim attachment of the assets of such a person. SECTION 27(b) of the NDLEA ACT CAP. 253 LAWS OF THE FEDERATION OF NIGERIA 1990 which Counsel for the Respondent relied upon is now SECTION 36(b) of the NDLEA ACT, CAP. N30 LAWS OF THE FEDERATION OF NIGERIA, 2004.
SECTION 36(a) and (b) of the NDLEA ACT, CAP. N30, LAWS OF THE FEDERATION OF NIGERIA, 2004, provides thus:-
“Where
(a) the assets or properties of any person arrested for an offence under this Act have been seized; or
(b) any asset or property has been seized by the Agency under this Act, the Agency shall cause an application to be made to the Federal High Court for an interim order forfeiting the property concerned to the Federal Government and the Federal High 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 provisions of Section 36(a) and (b) of the NDLEA Act set out above calls for interpretation in this Appeal.
It is settled law that it is both elementary and also fundamental principle of interpretation of statutes that where the words of a statute are plain, clear and unambiguous, effect should be given to them, in their ordinary and natural meaning except where to do so will result in absurdity.
See: -SHELL PETROLEUM DEVELOPMENT COMPANY (NIG.) LTD. VS F.B.I.R. (1996) 8 NWLR PART 466 PAGE 256.
– LAWAL VS G.B. OLIVANT (1972) 3 S.C. PAGE 124 at 137.
– TORIOLA VS WILLIAMS (1982) 7 S.C. PAGE 27 at PAGE 46.
– OLADOKUN VS MILITARY GOVERNOR OF OYO STATE (1996) 8 NWLR PART 467 PAGE 387 at 419 and 422.
In the instant appeal under consideration, the clear and unambiguous provision of Section 36(a) and (b) of the NDLEA Act set out above shows that the word OR which the legislature used between Section 36(a) and Section 36(b) is a clear indication that Section 36(a) is to be read disjunctively from Section 36(b) while Section 36(a) relates to properties seized from persons arrested for an offence under the Act, Section 36(b) relates to any other property seized by NDLEA pursuant to the Act.
Section 33 of the NDLEA Act brings to fore the fact that property could be seized without arrest. The Section provides thus:-
“33(1)
Any property subject to forfeiture under this Act may be seized by the Agency in the following instances:-
(a) If the seizure is incidental to an arrest or search;
(b) In the case of property liable to forfeiture upon process issued by the Federal High Court following an application made by the agency in accordance with the prescribed rules.
(2) Whenever property is seized under any of the provisions of this Act, the agency may:-
(a) place the property under seal, or
(b) remove the property to a place designated by the Agency.
(3) Property taken or detained under this Section shall be deemed to be in the custody of the Agency subject only to orders of the Federal High Court.”
It is clear from the foregoing that Section 33(a) which provides for seizure incidental to a search makes the position of law as stated by the trial Judge incorrect. The trial Judge has a duty to read Sections 33 and 36 of the NDLEA Act together in this case as done in the case of: -NWAIGWE VS F.R.N. (SUPRA).
In this appeal, the property sought to be forfeited or attached in the interim was incidental to the search of Ikedinwa’s premises as shown in the affidavit in support of the application. (See: Pages 161 to 166 of the Record of Appeal). The attachment to the application all showed that the property consisting of Motor Vehicles and landed property belong to Godfrey Ikedinwa or Don Godfrey Ikedinwa who is presently at large in South America and the property was seized when the premises of the said Godfrey Ikedinwa was searched on 4th January, 2006.
As the situation stands, can one say that the power to seize any property or assets suspected to be connected with the commission of an offence under the NDLEA Act is in conflict with the 1999 Constitution of the Federal Republic of Nigeria (as amended)? I do not think so in view of the provision of SECTION 44(2) K OF THE 1999 CONSTITUTION (as amended), which states that:-
“44(1) No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things-
(2) Nothing in subsection (1) of this section shall be construed as affecting any general law –
(k) relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry.”
A careful reading of the record of appeal in particular, the affidavit before the trial court and the exhibits attached to it which showed that the property is in the name of Godfrey Ikedinwa or Don Godfrey Ikedinwa who is on the run, it would be clear that the finding of the trial Judge that the property be released to the 1st Respondent while the said Godfrey Ikedinwa remains on the run from justice is against public policy.
Any person who has committed an offence or acquired property illegally should not be allowed to use his escape from justice to continue to keep such ill-gotten property.
Concerning Issue 2, the Learned Counsel for the Appellant submitted that the order releasing the property to the 1st Respondent did not flow from the affidavit evidence before the Court.
He stated that the Respondents did not controvert the averments in the affidavit in support of the Application filed on behalf of the Appellant at the trial Court for the release of the property.
He relied on the case of:-
– UZOR VS D.F. (NIG) LTD (SUPRA) PAGE 553 at 560.
He stated that the learned trial Judge relied on Section 269 of the Criminal Procedure Act and ordered that all the property described in Paragraphs 1(a) to 1(y) in the applicant’s motion dated 14th April, 2008 be returned to the 1st Respondent, Rosemary Ikedinwa.
He submitted that the trial Court has a duty to ensure that where there exists a special legislation to check particular criminal behaviour, such a legislation should be applied instead of a general legislation.
He relied on the case of:-
– OKORO VS. F.R.N. (2005) ALL FWLR PART 266 PAGE 1355 at 1358.
Learned Counsel for the Appellant finally urged this Court to set aside the Ruling and Order of the Lower Court.
The Learned Counsel for the Respondents submitted that the Sections of the NDLEA Act under which the application was brought for the purpose of the interim forfeiture, particularly Section 25, does not apply to the case of the Appellant. He went further that the Act is specific as to when such application can be made and it must be when the person has been arrested. He stated that Section 25 have the word “shall” directing the Appellant as to the appropriate time or condition precedent to bring the Application. He went further that the condition was not present at the time the Appellant made its application and that the Court was right in its ruling.
It was also submitted on behalf of the Respondents that Section 44 of the 1999 Constitution is not applicable and that the Section cannot be read in isolation from Section 36(5) of the said Constitution. He went further in his submission that not until there is an arrest, the Federal High Court lacks the competence to make an order as sought by the Appellant.
The evidence as could be gathered from Paragraphs 5(i) to 5(u) and 6(a) to 6(d) of the affidavit in support of the application for an order of interim attachment and forfeiture of property from the residence of Godfrey Ikedinwa could be summarized as follows:-
(1) The house and premises of the 1st Respondent was searched on 4th January, 2006.
(2) Property belonging to the husband of the 1st Respondent, that is, Godfrey Ikedinwa was seized.
(3) That the said Godfrey Ikedinwa was implicated in the importation of 970 Grammes of Cocaine and he was and still on the run.
(4) The documentary evidence attached to the application confirmed that the property belong to the said Godfrey Ikedinwa or Don Godfrey Ikedinwa. (See: Pages 161 to 166 of the record of appeal).
According to the Record of Appeal, the 1st Respondent claimed the ownership of the property but there was no document to back up her ownership or how she acquired the property.
The evidence and the available documents showed that the property belonged to Godfrey Ikedinwa or Don Godfrey Ikedinwa.
The Order of the trial Court which released the property to the 1st Respondent did not flow from the evidence before the Court. And where the decision of a lower Court does not flow from the relevant evidence before that Court, the appellate Court is entitled to interfere with the decision of the lower Court. See the following cases:-
– ATUNWA VS. LADENIKA (1998) 7 NWLR PART 557 PAGE 221.
– ODOFIN VS. AYOOLA (1984) 11 S.C. PAGE 72.
– ODINAKA VS. MOGHALU (1992) 4 NWLR PART 233 PAGE 1.
The decision of the learned trial Judge has resulted in miscarriage of Justice.
The Learned trial Judge relied on Section 269 of the Criminal Procedure Act, when he ordered the release of the property under consideration to the 1st Respondent. But it must not be forgotten that there is a special legislation put in place to take care of situations as in this case, that is, the NDLEA Act, Cap. N30 Laws of the Federation of Nigeria, 2004.
It is my humble view that trial Court has a duty to ensure that where there exists a special legislation to check a particular criminal behaviour, such legislation should be applied instead of a general legislation to enable such a policy to succeed.
See: OKORO VS. F.R.N. (SUPRA)
The NDLEA Act was enacted to ensure that persons who involve themselves in the offence of drug trafficking are dispossessed of their ill-gotten gains. According to the summary of the contents of the affidavit in support of the application for an order for interim attachment and forfeiture, the property under consideration belongs to Godfrey Ikedinwa who is on the run for drug related offences.
Consequent upon the foregoing, it is my view that the Order of the trial Court which released the property under consideration to the 1st Respondent has resulted in miscarriage of justice.
In the circumstance, Issues 1 and 2 are resolved in favour of the Appellant against the Respondents.
In the result, it is my view that there is merit in this appeal and it succeeds. The Ruling and Order of the Lower Court in Charge No:- FHC/EN/6C/2006; delivered on 15th July, 2009 is hereby set aside and in its place an order of interim forfeiture to the Federal Government of Nigeria is hereby made in respect of the property described in Paragraph 1(a) to 1(y) on the 1st Respondent s/Applicant’s motion dated 14th April, 2008 and filed on 18th April, 2008 at the Federal High Court, Enugu.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have been privileged to have read in advance, the leading judgment of my learned brother, Bada, JCA just delivered. The said judgment is a clear and manifest demonstration of diligence and industry with painstaking attention being accorded to both issues raised and adopted for resolution in the instant appeal. I am in full agreement with the reasoning and conclusion reached therein that the appeal has merit and the same is hereby allowed by me. I also abide by the consequential orders made in the said lead judgment.
UCHECHUKWU ONYEMENAM, J.C.A: I read in draft the lead judgment delivered by my learned brother Jimi Olukayode Bada, J.C.A.
I agree with the reasoning and conclusion therein. I also allow the appeal. I abide by the consequential orders.
Appearances
Femi Oloruntoba, DPLS (NDLEA); with him Iliya WajiFor Appellant
AND
Mr. Onwuka EgwuFor Respondent
