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WALCOT LTD & ORS v. EFCC & ORS (2021)

WALCOT LTD & ORS v. EFCC & ORS

(2021)LCN/15871(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, May 14, 2021

CA/L/795/2019

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

1. WALCOT LIMITED 2. HRH CHRISTOPHER EZEA 3. WALCOT GROUP OF COMPANIES 4. WALCOT INDUSTRIES LIMITED 5. KARL SCHEMP LIMITED 6. MONTAVLO LIMITED APPELANT(S)

And

1. THE ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC) 2. INSPECTOR GENERAL OF POLICE 3. STALLION GROUP OF COMPANIES LTD 4. PREMIUM SEAFOODS LIMITED 5. BEXOLAC FOODS LIMITED 6. POPULAR FOODS LIMITED 7. STALLION NIGERIA LIMITED 8. BARACUDA SEA FOODS LIMITED 9. MANOJRAJAN NANGARATH 10. PRAKASH AILDASANI 11. SUNIL VASWANI 12. MANOJUMAR SHETH 13. PROVIDUS BANK LIMITED RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE EVALUATION OF EVIDENCE OF THE TRIAL COURT

The judgment of the lower Court was far from meeting the guidelines provided in all these cases. Where an appellate Court find this to be the case, this Court in the case of Nwankwo V. Oforkansi & Ors (2016) LPELR-40170 (CA) held:
“Indeed, the law is well settled to the effect that whenever there is a complaint that the trial Court did not properly evaluate the pieces of evidence placed before it and made findings based on such evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation of the evidence laid before the trial Court and see whether the trial Court made perverse findings as alleged by the Appellant. Atolagbe v. Shorun (1985) 1 NWLR (pt. 2) 360; Ogboda v. Adulugba(1971) 1 All NLR 68; Eki v. Giwa (1977) 2 SC 131; Lion Building Ltd v. Shadipe (1976) 12 SC 135; Adedayo v. PDP (2013) All FWLR (pt. 695) 203 at 234, 265 – 266 (SC).”
Per YAKUBU, J.C.A. (Pp. 24-25, paras. C-A)
See Section 16 of the Court of Appeal Act, 2004, which vests this Court the power to do so. See also,Aregbesola V. Oyinlola (2010) 14 NWLR (Pt. 1162) 429 at 471 paras F-G, and Arilewola & Ors V. Gbolade & Ors (2012) LPELR-7882 (CA), p. 14 paras B-C.
PER ABUNDAGA, J.C.A.

THE BURDEN OF PROOF IN CIVIL CASES
The initial burden of proof on a civil case is on the plaintiff. It is only after such burden is discharged that the evidential burden falls on the Defendant. See the case of Iheanacho V. Chigere (2004) 17 NWLR (Pt. 901) 130 at p. 160 para G. See also, Anuforo V. Obilor (1997) 11 NWLR (Pt. 530) 661 at 675, para B.

Where declaratory reliefs are claimed, the burden of proof is squarely on the Appellant who must satisfy the Court that he is entitled to the reliefs as declaration of rights are not granted as a matter of course. The plaintiff must rely on his own case or strength and not on the weakness of the defence: Popoola V. Edobor & Ors (2017) LPELR-42539 (CA), p. 11 paras D-F, Henshaw V. Effanga & Anor (2008) LPELR-4075 (CA), pp. 34-35, paras E-B, Zenith Bank Plc & Anor V. Ekereuwem & Anor (2011) LPELR-5121 (CA), pp. 19-20 paras E-A). PER ABUNDAGA, J.C.A.

WHETHER OR NOT HE WHO ASSERTS MUST PROVE
The law is that he who asserts must prove. That is the essence of Section 131(1) of the Evidence Act, 2011. The burden of proof in every suit lies on the party who will fail if no evidence at all were given on either side. Section 132 of the Evidence Act. See the case of Dasuki V. FRN & Ors (2018) LPELR–43897 (SC), Per Eko, JCS (P. 13, Paras D – E). See also Nnanna & Ors V. Onyenakuchi & Ors (2000) LPELR–6805 (CA), Per Akpiroroh, J.C.A. (P. 21, Para C). PER ABUNDAGA, J.C.A.

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the final ruling of the Federal High Court, holden at Lagos in Suit No. FHC/CS/2056/2018 delivered by Hon. Justice I.N Buba on 23rd January, 2019.

The Appellants who felt disenchanted with what they believed was a needless and improper meddling by the 1st Respondent in what was apparently according to them, a dispute in a commercial transaction between them and the 3rd–12th Respondents, approached the Federal High Court (the lower Court) for intervention. They did so by an application for enforcement of their fundamental rights by filing an originating motion on notice on 7th December, 2018. The originating motion on notice, which shall hereafter be referred simply as “the motion on notice” was supported by a statement in support which contains the following reliefs: –
i. A DECLARATION that the harassment, intimidation, invitation, persecution, threats of arrest and detention of the Applicants and/or the 1st Applicant’s directors or staff by the 1st and 2nd Respondents at the instigation of the 3rd–12th Respondents in respect of a purely civil contractual transaction between Walcot Limited, the 1st Applicant herein (in which the 2nd Applicant is a major shareholder) and the 3rd–12th Respondents, in order to assist the 3rd–12th Respondents to collect sums of money from the Applicants, which they claim to be outstanding on a contractual transaction, is ultra vires the 1st and 2nd Respondents, a breach of the Applicants’ fundamental right to liberty and property as protected by Sections 35, 44 of the Constitution of the Federal Republic of Nigeria, 1999, and Article 14 of the African Charter on Human and Peoples Rights.
ii. A DECLARATION that the Economic and Financial Crimes Commission Act and the Police Act Pursuant to which the 1st and 2nd Respondents exist, do not empower or in any way authorize the 1st and 2nd Respondents to act as debt collectors for any entity whatsoever.
iii. AN ORDER of this Honourable Court setting aside the 1st Respondent’s order or directive to Providus Bank Limited to freeze the Applicants’ accounts to wit; (i) Walcot Limited’s account no. 1300106029 (ii) Walcot Industries Limited’s account no. 1300106036 (iii) Karl Schempp Limited’s account no. 1300106043; (iv) Montavlo Limited’s account no. 1300106044; and (v) Walcot Group of Company Ltd’s account no. 1300106056 in a bid to impede the 2nd Applicant’s capacity to prosecute this matter, protect his fundamental rights and in a bid to coerce the 2nd Applicant to pay the 3rd–12th Respondents the non-existing debt arising from a purely civil and commercial transactions between Walcot Ltd (the 1st Applicant) and the 3rd–12th Respondents.
iv. AN ORDER directing the 13th Respondent to ignore the 1st Respondent’s order or directive to freeze the Applicants’ account and ensure that the Applicants have access to withdraw and operate their accounts domiciled with the bank
v. AN ORDER of perpetual injunction restraining the 1st and 2nd Respondents from taking any further action against the Applicants or any of the 1st Applicants’ Directors or employees (including invitation, arrest, detention or arraignment) with respect to the purely civil commercial transactions between Walcot Ltd (the 1st Applicant) and the 3rd–12th Respondents.
vi. DAMAGES in the sum of 500 million Naira against the 1st and 3rd–12th Respondents jointly and severally for the unlawful instigation and use of statutory powers of the 1st Respondent against the Applicants resulting in the humiliation of the 1st Applicant’s Managing Director and the disruption of the Applicant’s business.

In support of the reliefs are 45 grounds upon which the reliefs are predicated. Refer to pages 6–10 of the record of appeal for the reliefs.

The application is further supported with an affidavit of 51 paragraphs deposed to by Christopher Ezea, a traditional ruler and major shareholder of the 1st Applicant (now, 2nd Appellant) Annexed to the affidavit is an exhibit marked as exhibit “IS”. The affidavit is supported with a written address of the counsel to the Applicants (now “Appellants”).

The 1st Respondent reacted to the originating summons by filing a counter-affidavit on 27/12/2018. The counter-affidavit was deposed to by Seun Ogunduyile, female, and operative of the 1st Respondent. The counter-affidavit is attached with a number of documents marked as exhibits. Accompanying the counter-affidavit is the written address of counsel to the 1st Respondent. The 3rd-12th Respondents also reacted to the originating motion on notice by filing a counter-affidavit on 19/12/19.

Documents, marked variously as exhibits, bearing different numbers were also attached to the counter-affidavit, sworn to by Mayokun Adekunle, male, a litigation Assistant in the office of B.O Olusola & Co, counsel to the 3rd–12th Respondents. The counter-affidavit is also accompanied with a written address of counsel to the 3rd–12th Respondents.

The Applicants reacted to both the counter-affidavit of the 1st Respondent and the 3rd-12th Respondents. In response to the 1st Respondent’s counter-affidavit, they filed a further affidavit on 7th January, 2019, to which they annexed documents marked as exhibits with different numbers, it is accompanied with a written address being a reply on points of law in support of the said further affidavit.

Also, in response to the counter-affidavit of the 3rd-12th Respondents, they filed a further affidavit on 11th January, 2019. Attached thereto are documents, variously marked as exhibits; and a written address of counsel to the appellants.

It is upon these processes that the lower Court gave its ruling herein contested in this appeal. In the said ruling, the application of the Appellants was dismissed with N50,000 costs against them.

The Appellants expressed their displeasure with the ruling by filing a notice of appeal, first on 23/01/19. This was subsequently abandoned, and struck out, and replaced by the extant notice of appeal which was filed on 25/3/19, containing three grounds of appeal. The ruling is on pages 490–506 of the record of appeal, while the extant notice of appeal is on pages 512–518 of the record of appeal.

The record of appeal duly compiled and transmitted, parties filed their briefs of argument.

The Appellants’ brief of argument, settled by Lanre Olayinka was filed on 27/2/20, and deemed properly filed and served on 14/01/21. The Appellants also filed reply brief to the 1st Respondent’s brief of argument and the 3rd–12th Respondents’ brief of argument.

​The reply brief to the 1st Respondent’s brief of argument was filed on 28/01/21 and the one filed in reply to the brief of argument of the 3rd-12th Respondents was filed on 30/12/20 and deemed properly filed and served on 18/02/21.

The 1st Respondent’s brief of argument filed 14/01/21 was settled by I.A Mohammed, while the 3rd–12th Respondent’s brief of argument was settled by Olusola Olufemi; It was filed on 24/07/2020, and deemed properly filed and served on 18/02/21.

The briefs of argument were argued on 18/02/21; at which hearing, the Appellants were represented by Mobolaji Akintunde who adopted the Appellants’ brief of argument and the two reply briefs. I.A Mohammed who represented the 1st Respondent adopted the 1st Respondent’s brief of argument and adopted the arguments therein canvassed.

The 3rd–12th Respondents were represented by O. Ogunjimi, who at the hearing of the appeal adopted the brief of argument and the argument canvassed therein.

​Expectedly the Appellants’ counsel urged the Court to allow the appeal, set aside the ruling of the lower Court and grant the reliefs sought by the Appellants at the lower Court. Also, not unnaturally, the two sets of Respondents urged the Court to dismiss the appeal.

The Appellants crafted three issues for determination in their brief of argument.
The issues so crafted are:
(a) Whether this Honourable Court may review the evidence adduced before the lower Court (constituting the record of this appeal), apply the uncontroverted evidence and grant the reliefs claimed in the originating motion before the lower Court. (Ground 1).
(b) Whether the learned trial Judge was right when he ignored the issues raised by the Appellants’ case and proceeded to decide the case on the basis of a single irrelevant issue (raised sou muto by the learned trial Judge and determined without benefit of address from counsel or hearing to the parties) of whether the 1st Respondent had the power to freeze accounts during investigation into alleged bank crimes. (Ground 2)
(c) Whether the lower Court ought to have awarded costs against the Appellants in favour of the Respondents. (Ground 3)

For the 1st Respondent, three issues were crafted from its brief of argument. The issues are hereunder stated, thus:-
(i) Whether having regard to the facts and circumstances of this case, the 1st Respondent is not empowered to investigate allegation of economic and financial crimes against the Appellants.
(ii) Whether having regard to the facts and circumstances of this case, the trial Court/Judge was right to dismiss the Appellants’ suit on the strength of evidence adduced before it.
(iii) Whether the lower Court should have awarded cost in fovour of the Respondents against the Appellants.

On the part of the 3rd–12th Respondents, two issues were donated for determination. They are:
(1) Whether the trial Court/Judge was right to dismiss the Appellants’ suit on the strength of the evidence adduced before it.
(2) Whether the lower Court should have awarded costs in favour of the Respondents against the Appellants.

On a proper consideration of the arguments of counsel in the respective briefs of argument, the following issues to my mind, captured the essence of the argument canvassed in the appeal.
(1) Whether on a proper evaluation of the evidence before the Court, the Applicants (now “Appellants”) were not entitled to the reliefs sought.
​(2) Whether the decision of the lower Court to order the freezing of the accounts of the Appellants was a decision taken sou muto, and breached the Appellants’ right to fair hearing.
(3) Whether the lower Court was right in its decision to freeze the accounts of the Appellants.
(4) Whether the award of costs against the Appellants, and in favour of the Respondents was justified in law.
I intend to consider and determine this appeal on these issues.

ISSUE ONE
Whether on a proper evaluation of the evidence before the Court, the Applicants (now “Appellants”) were not entitled to the reliefs sought.

ARGUMENTS OF COUNSEL
Applicants’ counsel submits that the lower Court arrived at the decision that the Appellants’ case lacks merit without evaluating Appellants’ uncontroverted evidence or any evidence at all. Counsel submits that the 1st and 2nd Respondents in the course of their investigation discovered that the accounts into which the funds were paid belonged to the 1st Appellant and was paid in furtherance of the contractual relationship between the 1st Appellant and the 3rd–8th Respondents but decided to turn down the attempt by the 1st Appellant’s Managing Director to explain the circumstances leading to the contracted dispute. That all the 1st and 2nd Respondents were concerned with is to recover the amount of money claimed by the 3rd–12th Respondents to be owed them by the 1st Appellant. It is counsel’s submission that the frozen fish in question had been ordered and paid for, and that N191,500,000.00 for which the 1st Appellants exercised its lien and right of set off was meant to be used to pay import duties and other clearing expenses of the consignment of fish which the 1st Appellant knew would have disempowered it in respect of the outstanding debt once done and the fish had been delivered to the 3rd Respondent. That the evidence showed that the 3rd–8th Respondents were indebted to the 1st Appellant in respect of previous similar transaction and the 1st Appellant had been constrained to exercise its contractual right to set off the debt owed it by the 3rd Respondent against the funds lawfully received by it from the 3rd Respondent.

​Counsel submits that the lower Court refused to consider the evidence before it, but predicated its ruling on an irrelevant issue. That the Court is in law, bound to properly weigh and evaluate all the evidence before it by the parties in reaching a decision. Counsel refers to the case of Ukaegbu & Ors V. Nwololo (2009) LPELR–3337 (SC), and a number of other cases on the duty of Court in evaluation of the evidence before it. That the Court having failed in their duty of evaluation, the law empowers this Court to assume that role and reach a just decision. Refers to Section 16 of the Court of Appeal Act,Aregbesola V. Oyinlola (2010) 14 NWLR (Pt 1162) 439 at 471 paras F–G, Nwankwo V. Oforkansi, & Ors (2016) LPELR–40170 (CA), PP. 24–25 paras C–A. Arilewola & Ors V. Gbolade & Ors (2012) LPELR-7882 (CA), P14 paras B -C.

Counsel went on to reiterate that the relationship between the 1st Appellant and the 3rd Respondent was purely civil and contractual and did not involve any crime whatsoever. Counsel therefore submits that, the Appellants are entitled to the reliefs sought having proved the infringement of their fundamental rights as guaranteed by the 1999 Constitution (as amended).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

For the 1st Respondent, it is submitted by their counsel that the 1st Respondent is under a statutory duty to investigate, invite, arrest and even detain any person including the Respondents involved in the commission of economic and financial crime where a prima facie case is established. Reference is made to Sections 6 and 7, 8 EFCC Act, 2004. Cited also are Tanzilla Petroleum V. EFCC (2007-2011) ECLR 54 at ratio 5 and 6, Fawehinmi V. IGP (2007)7 NWLR (Pt 665) 481 at 579–521, A.G Anambra State V. Uba (2005) 51 NWLR (Pt 947) 14 at 50 & 53, and a number of other cases decided in the same line.

​Counsel submits that contrary to the assertion of the Appellants, the 1st Respondent did not promise to recover the sum of N191,500,000.00 as it is not a debt recovery agency. That the 1st Respondent offered ample opportunity to the 1st Appellant to appear and defend the criminal allegation against him but till date refused to take that chance. Counsel went on to submit that the money in question does not belong to the Appellants but the 3rd–8th Respondents. That it is not in dispute that the Appellants received the sum of N191,500,000.00 from the 3rd–8th Respondents and diverted it to their personal use. That the 1st Respondent did not therefore abuse their powers and delved into an issue that did not fall within their mandate. Counsel supports the lower Court’s decision to freeze the account of the Appellants. That the involvement of the 1st Respondent was due to diversion of funds by the Appellants, and thus the 3rd-8th Respondents exercised their constitutional right to invite the 1st Respondent to investigate same. Counsel points out that the petition to the 1st Respondent was simply a complaint with details concerning an illegal transaction against the Appellants; counsel refers to the case of Jerry & Anor V. IGP & Ors (2014) LPELR–24625.

Counsel submits that the Appellants have tried to frustrate the investigation of the 1st Respondent by bringing the matter to Court. Thus, the law frowns at and does not condone, and refers to the case of Obiwusi V. EFCC & Anor (2018) LPELR-44536 (CA), pp 29-30, para B.

Counsel points out that the Appellants have not denied the transfer of N191,500,000.00 to the 1st Appellant’s Heritage Bank Account and did not deny that they moved the money to another account without the knowledge of the 3rd–8th Respondents. Counsel also notes that when 3 signatories of the Respondents were added to the account, a board resolution by the 1st Appellant was required for confirmation, but that the same process was not followed in the removal of the 3 signatories from the account, and thus counsel submits was a scheme intended to ease the conversion of the said sum of N191,500,000 to the Appellant’s personal use.

That the action of the Appellants was nothing short of resort to self-help and criminal in nature. Counsel cites the case of Gbejuade V. Gbejuade & Anor (2017) LPELR–41977 (CA) to buttress the point made.

Counsel submits that the learned trial Judge did consider the evidence placed before it to come to the correct decision dismissing the Appellants’ claims on the basis of lack of merit.

​On the part of the 3rd-12th Respondents, counsel submits that the Appellants have failed to furnish the Court with any evidence that the 1st Respondent was being used as a debt recovery service. Submits that the involvement of the 1st Respondent in this suit is because of the belief that there was a conversion of funds by the Appellants, and thus the 3rd-8th Respondents exercised their constitutional right to solicit the power of the 1st Respondent to investigate.

Counsel explains the requirement of proof of conversion by reference to the case of Boniface Anyika & Co Lagos (Nig) Ltd V. Uzor (2006) LPELR-790 (SC).

Thus, counsel submits that the actions of the Appellants constituted the elements of offence of conversion. That the 3rd-8th Respondents acted within their rights to submit a petition to the 1st Respondent for investigation; and that the 1st Respondent also acted within their constitutional power to investigate, more so, that the money had been moved from the Appellants’ account with which the Respondents were familiar, to a separate account without the knowledge of the Respondents. Counsel further contended that the action of the Appellants was an act of deception, the Appellants having received money from the Respondents for a particular purpose and failing to use it for the said purpose. Counsel relies for this submission on Section 1(1) and (2) of the Advance Fee Fraud & Other Fraud Related Offences Act.

Submissions of 3rd-12th Respondents are substantially the same as those made by the 1st Respondent. A reading of both briefs of argument will attest to this fact.

I shall, where necessary, refer to Appellants’ reply briefs to the 1st and 3rd-12th Respondents’ briefs of argument in the resolution of the arguments on issue one.

RESOLUTION
I shall commence with a consideration of the question, whether the lower Court did a proper evaluation of the evidence before it in arriving at its decision to dismiss the Appellants’ case and to make the orders it made.

There is particularly an aspect of the judgment of the lower Court that I find discomfort with. This can be found on pages 499-500 of the record of appeal. It is thus:
​“… Now to this case, the matter is simple and I need not approach it in the manner it is argued. The Appellants allege that their Accounts were frozen. The Respondent says Yes. There is an allegation, we received a petition on the 21/5/18 from B. U Quesna & Co. for illegal diversion and stealing on behalf of Masco Afro Allied Industries Ltd. against the 1st and 2nd Applicants. See the affidavit of Gadafa Ibrahim and Exhibits attached. To this Court, in the light of the affidavit evidence and the exhibits attached which cannot be denied, the position of the Court is that there is nothing wrong in accepting the obvious, but there is everything wrong in taking sides against arithmetic… To this Court, without going into the other academic issues argued, this case is misconceived and hopeless. Without even attempting to resolve it in the order the issue were argued, this Court can resolve it with recourse to the statement of this Court in Ashford Consult and Events (Nig) Ltd. V. A.G Federation & Ors, Suit No. FHC/L/CS/70/2018 (unreported) ruling of 5/6/18, thus:…”

The Court then proceeded to hold on page 506 of the record of appeal:
“The Court’s ultimate decision is that, this case lacks merit; same be and is hereby dismissed with cost of N50,000.00 in favour of the Respondents in Court.”

​It does appear to me that the lower Court misconceived the whole essence of the Appellants’ application for enforcement of their fundamental rights, otherwise, the Court cannot term the issues argued as academic.

It is not the Appellants’ case simplicitar that the 1st Respondent lacked the power to freeze the 1st Appellant’s account. The Appellants’ case in sum is that, the dispute between them and the 3rd Respondent is civil and contractual, devoid of any criminal connotation to warrant the interference of the 1st Respondent to the extent of their accounts being frozen with the likelihood of a further breach of their fundamental rights. Issues were joined between them and the Respondents on affidavit evidence and written addresses of the respective counsel which necessitated the lower Court to determine whether a prima facie case was made out by the Respondents, and in particular, the 3rd Respondent to warrant the petition by the 3rd Respondent and investigation by the 1st Respondent, or as claimed by the Appellants, the dispute was wholly civil, and therefore an order of Court for the corresponding enforcement of their fundamental rights.

​The Court was therefore required to undertake an evaluation of the evidence before it in order to arrive at its decision one way or the other. See the case of Eco Bank (Nig) Plc V. Mr. Ikwuagwu Kalu (2014) LPELR-2272 (CA), per Bage, J.C.A. (p 10 Paras A0F). See also Akinfe & Ors V. UBA Plc (2007) LPELR-8317 (CA), p. 14, paras E-F, Adebayo V PDP (2005) 7 NWLR (Pt. 925) 467, at 481-482 paras H-A.
In sum, from all the cases cited, the law is that the adjudicatory system entails of a Court hearing all sides, carefully comparing the weight of evidence given and making a proper appraisal before determining, after painstaking considerations of all the issues addressed upon it.

The judgment of the lower Court was far from meeting the guidelines provided in all these cases. Where an appellate Court find this to be the case, this Court in the case of Nwankwo V. Oforkansi & Ors (2016) LPELR-40170 (CA) held:
“Indeed, the law is well settled to the effect that whenever there is a complaint that the trial Court did not properly evaluate the pieces of evidence placed before it and made findings based on such evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation of the evidence laid before the trial Court and see whether the trial Court made perverse findings as alleged by the Appellant. Atolagbe v. Shorun (1985) 1 NWLR (pt. 2) 360; Ogboda v. Adulugba(1971) 1 All NLR 68; Eki v. Giwa (1977) 2 SC 131; Lion Building Ltd v. Shadipe (1976) 12 SC 135; Adedayo v. PDP (2013) All FWLR (pt. 695) 203 at 234, 265 – 266 (SC).”
Per YAKUBU, J.C.A. (Pp. 24-25, paras. C-A)
See Section 16 of the Court of Appeal Act, 2004, which vests this Court the power to do so. See also,Aregbesola V. Oyinlola (2010) 14 NWLR (Pt. 1162) 429 at 471 paras F-G, and Arilewola & Ors V. Gbolade & Ors (2012) LPELR-7882 (CA), p. 14 paras B-C.

The facts as brought out from the affidavit of the parties have been narrowed down by reasoning of the following which are not in dispute:
(i) The sum of N191,500,000 belonging to the 3rd-8th Respondents was paid into the 1st Appellant’s account in Heritage Bank.
(ii) The petition which triggered the attempted investigation of the Appellants by the 1st Respondent was as a result of the movement of the above sum from the said Heritage Bank Account, which by mutual agreement between the 1st Appellant and the 3rd-8th Respondents, three persons appointed by the Respondents were signatories to oversee the disbursement of funds paid by the Respondents for the operation of their business.
(iii) That prior to the movement of the said sum from the said Heritage Account, the 1st Appellant had got the three signatories removed from the account and were no longer privy to disbursement of the Respondents’ money in the said account.
(iv) The movement of the said sum of N191,500,000.00, Respondents’ money paid into the account for the purpose of the operation of their business into the 1st Appellant’s account in Zenith Bank was without the consent and knowledge of the 3rd-8th Respondents.

Now, upon the 3rd Respondent’s petition alleging illegal diversion and stealing of the aforestated sum of N191,500,000.00 against the 1st and 2nd Appellants to the 1st Respondent, the latter invited the 2nd Appellant for questioning and thereafter, also proceeded to freeze accounts belonging to them. The Appellants viewed these actions as a brazen breach of their fundamental rights and approached the Court for redress, seeking in the main declaratory reliefs.

​The initial burden of proof on a civil case is on the plaintiff. It is only after such burden is discharged that the evidential burden falls on the Defendant. See the case of Iheanacho V. Chigere (2004) 17 NWLR (Pt. 901) 130 at p. 160 para G. See also, Anuforo V. Obilor (1997) 11 NWLR (Pt. 530) 661 at 675, para B.

Where declaratory reliefs are claimed, the burden of proof is squarely on the Appellant who must satisfy the Court that he is entitled to the reliefs as declaration of rights are not granted as a matter of course. The plaintiff must rely on his own case or strength and not on the weakness of the defence: Popoola V. Edobor & Ors (2017) LPELR-42539 (CA), p. 11 paras D-F, Henshaw V. Effanga & Anor (2008) LPELR-4075 (CA), pp. 34-35, paras E-B, Zenith Bank Plc & Anor V. Ekereuwem & Anor (2011) LPELR-5121 (CA), pp. 19-20 paras E-A).

​The Appellants’ suit in Court was aimed at stopping their investigation and threat of arrest and the defreezing of their accounts by the Court on the ground that their action in moving the money to their separate account is in the exercise of their contractual right in the mutual agreement between them and the Respondents. They therefore bore the burden of proof.

While as contained in the petition of the Respondents, the sum of N191,500,000.00 was paid into the Account of Walcot Ltd. in the Heritage Bank at the request of Mr. Christopher Eze for onward transmission or payment for frozen fish suppliers overseas, it is the contention of the Appellants’ contention that the fish in question had been ordered and paid for and the sum of N191,500,000.00 was meant to be used to pay import duties and other clearing expenses of the consignment of fish. That they therefore exercised their right of lien and set off because they would have been disempowered to be paid their outstanding debt if the consignment of fish was delivered to the 3rd Respondent.

​The 1st Appellant must therefore prove on its own strength by credible evidence that the N191,500,000.00 was not paid into their account for payment of the 3rd Respondent’s fish suppliers overseas. Now, how I believe he must do this to the satisfaction of the Court is to provide empirical evidence as to who paid the 3rd Respondent’s overseas fish suppliers, when the payment was made and how much.

The law is that he who asserts must prove. That is the essence of Section 131(1) of the Evidence Act, 2011. The burden of proof in every suit lies on the party who will fail if no evidence at all were given on either side. Section 132 of the Evidence Act. See the case of Dasuki V. FRN & Ors (2018) LPELR–43897 (SC), Per Eko, JCS (P. 13, Paras D – E). See also Nnanna & Ors V. Onyenakuchi & Ors (2000) LPELR–6805 (CA), Per Akpiroroh, J.C.A. (P. 21, Para C).

In the absence of proof by the Appellants, I am more inclined to believing the claim of the 3rd Respondent that the sum of N191,500,000.00 was paid into the 1st Appellant’s Heritage Bank Account for payment to the 3rd Respondent’s overseas fish suppliers, and that it was not used for the purpose.

The Appellants’ assertion or claim in relation to the sum of N191,500,000.00 being restrained to cover expenses they incurred to defray liabilities and expenses of obtaining the approvals and facilitating several transactions on behalf of the 3rd–8th Respondents appear unclear to me.

​The following averments in the Appellants’ affidavit have left me more puzzled even as I ponder into the claims and counter-claims about this N191,500,000.00. I find paragraphs 13, 14, 15, 16, 17 and 18 of the affidavit of the Appellants instructive. They are therefore reproduced for the purpose of emphasis:
13. In this particular transaction the 3rd–8th Respondents on whose behalf the fish was imported were expected to provide the funding for the transaction including the Naira value of the cost of the fish payable to supplier, freight and other incidental charges ad costs.
14. The incidental costs associated with such transactions are well known to everyone in the industry and include the duties, clearing charges, local costs, facilitation costs etc.
15. For the above listed reasons the 3rd–8th Respondents transferred the sum of N191,500,000.00 (one hundred and ninety-one million, five hundred thousand naira) into the 1st Applicant’s account to meet the costs associated with the importation.
16. The Applicant then set out to actualize the agreement between it and the 3rd–8th Appellants, and to make necessary interventions where required in order to streamline/fast-track the securing of needed approvals, licenses & certifications from government bodies like the Federal Ministry of Agriculture, Central Bank of Nigeria (CBN) amongst others.
17. In the course of carrying out its duties under the said agreement between it and the 3rd–8th Respondents, the 1st Applicant incurred substantial financial expenses on behalf of the 3rd–8th Respondents, involving substantial liabilities to several business associates of the 1st Applicant.
18. However, the 3rd–8th Respondents became intransigent about providing funds to meet these expenses and or refunding the costs already incurred by the Applicants despite acknowledging that the 1st Applicant had incurred these enormous expenses on their behalf.

Now, it is common ground between the Appellants and the 3rd–8th Respondents that for the purpose of the business, and to oversee disbursements of funds in the Appellants’ account into which the 3rd–8th Respondents were to make payment for the business, the 3rd–8th Respondents with the approval of the 1st Appellant’s board approved three names of the Respondents as signatories. Now, with this arrangement made and agreed upon by the parties, what stopped payments for the “substantial financial expenses on behalf of the 3rd–8th Respondents involving substantial liabilities to several business associates of the 1st Applicant” being made from the N191,500,000.00? It has not been stated anywhere that despite the provision for the 3 signatories, the Appellants and the signatories were required to revert to the 3rd Respondent before disbursements could be made for costs actually incurred in the running of the business. This poser is raised in view of the Appellants’ averment in paragraph 14 of the affidavit that “upon realization by the 3rd–8th Respondents that the sum paid into the 1st Applicant’s account pursuant to the transaction had been utilized to defray the liabilities and expenses of obtaining the approvals and facilitating several transactions the 3rd–8th Respondents began to demand for the return of the sum of N191.5 million paid into the 1st Applicant’s account”.

​Now, was this payment to defray the expenses averred thereto in paragraph 24 not supposed to have the involvement of the 3 signatories, or that the Appellants were no longer comfortable to them being privy to the disbursements and had to find a convenient excuse to get them removed on the pretext that they had called off the business relationship with the 3rd–8th Respondents because they were not forth-coming in meeting the expenses the Appellants had incurred on their behalf?

OK; if this was not the case, why were the signatories removed without the 3rd Respondent being informed?

In the circumstances, it is my firm belief that the 3rd Respondent had reasonable suspicion to believe that they were being swindled of their funds, and to fire their petition to the 1st Respondent which had a statutory duty to investigate same. See Sections 6 and 7(1) of the Economic and Financial Crimes Commission (Establishment) Act, 2004. See also the following cases:-
Tanzilla Petroleum V. EFCC (2007-2011) ECLR P. 54, A.G Anambra State V. UBA (2005) 15 NWLR (Pt 947) 14 at pages 50 and 53, Nnamdi Azikiwe University V. Nwafor (1999) I NWLR (Pt 585) 166 at 136, Tsanyawa V. EFCC & Anor (2018) LPELR–45099, PP. 12 –13, paras C–F, Obiwusi V EFCC & Anor (2018) LPELR–44536 (CA), PP. 29 – 30, para A.

​Therefore, even though the lower Court dismissed the Appellants’ application for wrong reasons since the evidence before it was not properly evaluated, the dismissal was however right. It is settled law that what an Appellate Court considers is whether the decision reached was right and not necessarily whether the reasons were right.
See the following on this point:-
Ogundare & Ors V. Alao (2013) LPELR–21845 (CA), P. 31, Paras C–D, Ojengbede V. Esan & Anor (2001) LPELR–2372 (SC), per Iguh, J.S.C. (P. 31 paras C-D), Enweremadu V. State (2017) LPELR–42488 (CA), P42, paras A–B.

It is on this note that I find it inevitable to resolve issue one against the Appellants and in favour of the 1st Respondent, and the 3rd-12th Respondents.

However, I have decided to single out for separate consideration the Appellants’ relief (iii) in the application for enforcement of fundamental right, which reads:
​“AN ORDER of this Honourable Court setting aside the 1st Respondent’s order or directive to Providus Bank Limited to freeze the Applicants’ account to wit: (i) Walcot Limited’s account no. 1300106029 (ii) Walcot Industries Limited’s account no. 1300106036 (iii) Karl Schempp Limited’s account no. 1300106043; (iv) Montavio Limited’s account no. 1300107844; and (v) Walcot Group of Company Ltd’s account no. 1300132156 in a bid to impeded the 2nd Applicant’s capacity to prosecute this matter, protect his fundamental rights and in a bid to coerce the 2nd Applicant to pay the 3rd-12th Respondents the non-existing debt arising from a purely civil and commercial transactions between Walcot Ltd (the 1st Applicant) and the 3rd-12th Respondents.”

I will consider it under issues two and three, and I intend to consider the said issues two and three together.

ISSUE TWO
Whether the decision of the lower Court to order the freezing of the accounts of the Appellants was a decision taken sou muto and breached the Appellants’ right to fair hearing.
ISSUE THREE
​Whether the lower Court was right in its decision to freeze the accounts of the Appellants.

The contention of the Appellants under these two issues woven together is that, the decision to order the freezing of the accounts of the Appellants was taken suo moto and without hearing the Appellants on it. And more importantly that, it was a decision made in error because the law requires the 1st Respondent to obtain an ex parte order from the Court before it can freeze an account which is subject of an allegation of crime, and therefore under investigation. The Respondents contend otherwise.

On the submission of the Appellants that the issue was taken and decided suo moto, I do not accept their contention. Their relief III on the motion paper put that issue in the front burner. It was up to them to have proffered all the necessary arguments on it in their written address. Being part of their reliefs, it would have been erroneous on the part of the trial Judge to ignore it in his judgment just because the Appellants failed to argue it in the written address in support of their application.

Be that as it may, what I consider of paramount importance to decide on this issue is whether the order was rightly made.

​It is imperative to state that no application was made before the lower Court to freeze those accounts. The evidence before the lower Court showed that the 1st Respondent had already frozen those accounts. What the Appellants sought before the lower Court is its order setting aside the said 1st Respondent’s order or directive to the concerned banks for the freezing of the affected accounts.

There is no need to fuss about on the power of the 1st Respondent, that is the Economic and Financial Crimes Commission to freeze an account under investigation. The Court has severally spoken on the issue, and therefore the law is now settled.
In the case of GTB V. Akinsuki Adedamola & Ors (2019) 5 NWLR (Part 1664) 30 at 43, paras E-F, the Court of Appeal, per Tijani Abubakar, J.C.A. (as he then was) held:
“Even if the Applicant was alleged to have committed a criminal offence, the EFCC cannot, on its own, direct the bank to place a restriction in his accounts in the bank without an order of the Court. The law allows the EFCC to come to Court even with an ex parte application to obtain an order freezing the account of any suspect that has lodgments suspected to be proceeds of crime. No law imposes a unilateral power on the EFCC to deal with the Applicant this way.”
See also, the case of Bose Olagunju V. EFCC (2019) LPELR-4861 (CA), pp. 18-26, paras E-B, pp 29-31 paras A-A.
See also, Section 34(1) of the Economic and Financial Crimes Commission (Establishment) Act, 2004. The said Section 34(1) of the Act provides:
“Notwithstanding anything contained in any other enactment or law, the Chairman of the Commission or any officer authorised by him may, if satisfied that the money in the account of a person is made through the commission of an offence under this Act and or any of the enactments specified under Section 7 (2) (a)- (f) of this Act, apply to the Court ex-parte for power to issue an order as specified in Form B of the Schedule to this Act, addressed to the manager of the bank or any person in control of the financial institution or designated non-financial institution where the account is or believed by him to be or the head office of the bank, other financial institution or designated non-financial institution to freeze the account”
​It is therefore very clear that the 1st Respondent’s order or directive to the Appellants’ banks to freeze their accounts was made without jurisdiction, having not obtained an order of a Court of law to do so. It is nothing short of abuse of its powers.

Therefore, while I resolve issue two in favour of the Respondents, issue three is firmly resolved in favour of the Appellants and against the Respondents.

ISSUE 4
Whether the award of costs against the Appellants, and in favour of the Respondents was justified in law
The submission of Appellants’ counsel on issue 4 is clearly not tenable in view of the fact that the Appellants in my respectful view have not proved that the award of N50,000.00 costs in the Respondents’ favour was a wrong exercise of discretion, and against any known statute or law.
I accept the submission of the 1st Respondent’s counsel that the trial Judge is the sole person to determine costs to be awarded to a party.

Without much ado, I resolve this issue against the Appellants and in favour of the Respondents. This appeal therefore succeeds in part.

​The appeal against dismissal in respect of reliefs I, V, VI and award of N50,000.00 costs is unmeritorious, and is hereby dismissed.

However, I find merit in the appeal against reliefs iii and iv, and hereby allow same, and in consequence, set aside the 1st Respondent’s order or directive to the banks named to freeze the accounts specifically mentioned in relief iii.

As for relief 2, it did not arise because from the evidence, EFCC did not act as debt collectors but investigated a clearly made out criminal allegation.

Parties are to bear their respective costs for the prosecution of the appeal.

CHIDI NWAOMA UWA, J.C.A.: I read before now, the draft judgment of my learned brother, JAMES GAMBO ABUNDAGA, J.C.A. My learned brother has comprehensively resolved the four (4) issues that arose in this appeal, I agree with his reasoning and decision arrived at in holding that the appeal succeeds in part.

​I dismiss the Appellants’ appeal against the dismissal of reliefs I, V, VI and award of N50,000.00 costs for lacking in merit and allow the Appellants’ appeal against the dismissal of their reliefs III for being meritorious and accordingly set aside the 1st Respondent’s order or directive to freeze the accounts specifically mentioned in relief III.

I abide by the order made as to costs in the leading judgment.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother JAMES GAMBO ABUNDAGA, J.C.A. I fully agree with the reasoning and conclusion therein.

​I have nothing more to add. I abide by the consequential orders (including costs).

Appearances:

Mobolaji Akintunde For Appellant(s)

I. A. Mohammed – for 1st Respondent.

O. Ogunjimi – for 3rd-12th Respondents. For Respondent(s)