FRN v. ELEME PETROCHEMICALS CO. CO-OPERATIVE INVESTMENT & CREDIT SOCIETY LTD (2022)

FRN v. ELEME PETROCHEMICALS CO. CO-OPERATIVE INVESTMENT & CREDIT SOCIETY LTD

(2022)LCN/16692(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, May 25, 2022

CA/ABJ/CV/307/2021

Before Our Lordships:

Hamma Akawu Barka Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

FEDERAL REPUBLIC OF NIGERIA APPELANT(S)

And

ELEME PETROCHEMICALS COMPANY CO-OPERATIVE INVESTMENT AND CREDIT SOCIETY LIMITED RESPONDENT(S)

RATIO

THE POSITION OF LAW ON THE EXERCISE OF JUDICIAL DISCRETION

Let me say a few words on the seemingly endless but unnecessary controversy on the exercise of judicial discretion. In ordinary parlance, discretion simply means the ability to make wise choices or decisions from a range of options to form one’s own judgment. In legal parlance, particularly in the context of a judicial act, discretion means the power to act or decide according to the Judge’s own freedom of choice governed or guided by the law and rules of justice and equity on the facts placed before the Judge. Unlike in the ordinary parlance where discretion knows no bound, as it is commonly described, discretion in law is bounded by the facts and the law; exercised judiciously and judicially. A judicious exercise is one that is preceded by sound reasoning and circumspection in weighing the competing interests of the parties. Judicially means decided or determined upon the facts and the law. See G. K. F. Investment (Nig) Ltd vs. NITEL Plc (2009) LPELR-1294 (SC); NNPC vs Famfa Oil Ltd & Anor (2009) LPELR–2023 (SC); Ntukidem vs Oko & Ors (1986) LPELR–2075 (SC); Waziri vs. Gumel & Anor (2012) LPELR–7816 (SC); Ajuwa & Anor vs. Shell Petroleum Development Co, Nig. Ltd (2011) 18 NWLR (Pt. 1279), 797 at 828–829. PER GAFAI, J.C.A.

WHETHER OR NOT THE COURT OF APPEAL CAN INTERFERE WITH THE EXERCISE OF DISCRETIONARY POWER OF THE TRIAL COURT

It has been held repeatedly and consistently by this Court and the Apex Court that this Court will not lightly disturb a trial Court’s exercise of discretionary power that is shown to be judiciously and judicially exercised. So long as the discretionary exercise by the trial Court is shown to be transparent, propelled by common sense and justice to the facts and circumstances in the case, guided by the applicable law(s) and Rules, this Court will be most disinclined to interfere with the trial Court’s discretion. Where however, the exercise of discretion is characterized by arbitrariness or in misapprehension of the facts or the applicable law(s) and Rules such discretion ceases to be unfettered because it is not a product of judicious exercise, thereby placing this Court in a proper position to interfere with the trial Court’s discretion; nay as a matter of duty. See EFPC Ltd vs NDIC (2007) All FWLR (Pt. 397) 793; Buhari vs. Obasanjo (2003) LPELR–813 (SC); Bamaiyi vs The State & Ors (2001) LPELR–731 (SC); Odutola vs. Kayode (1994) LPELR–2262 (SC). PER GAFAI, J.C.A.

THE GUIDING PRINCIPLE ON THE EXERCISE OF DISCRETION OF THE COURT

It is hornbook law that there are no hard and fast rules as to the manner of exercise of discretion; the guiding principle is that the discretion being judicial must be exercised judicially and judiciously on sufficient grounds. See UNIVERSITY OF LAGOS vs. AIGORO (1985) 1 SC 265 at 271, NNEJI vs. CHUKWU (1988) 3 NWLR (PT 87) 184 at 199 and LAGOS STATE GOVT. vs. BENEFICIAL ENDOWMENT LTD (2018) LPELR (45779) 1 at 9-11.
In an appeal against the exercise of discretion by a lower Court, an appellate Court will not interfere with the decision simply because, if faced with a similar application it would have exercised the discretion differently. It is the duty of an Appellant who appeals against the exercise of discretion by a lower Court to satisfy the appellate Court that the lower Court did not exercise its discretion judicially and judiciously.
In questions of exercise of discretion and the manner in which discretion is to be exercised, it is discretio legalis est scire per legem quid sit justum — a discretion to do what is just through the law: FAGBENRO vs. OROGUN (1993) 3 NWLR (PT 284) 662 at 679. Judicial discretion is a term applied to the discretionary action of a Court or Judge bounded by the rules and principles of law, not giving effect to the will or private opinion and not to humour. A judicial discretion is based upon facts and circumstances presented to the Court from which it must draw a conclusion governed by law, justice and common sense. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law. The exercise of discretion has to be judicial in the sense that it must not be capricious and must be for a reason connected with the case. It has to be judicious in the sense that it must be based on sound judgment marked by discretion, wisdom and good sense. See ERONINI vs. IHEUKO (1989) 2 NWLR (PT 101) 46 at 60-61, OWNERS OF THE MV LUPEX vs. NIGERIAN OVERSEAS CHARTERING AND SHIPPING LTD (2003) LPELR (3195) 1 at 18 and WAZIRI vs. GUMEL (2012) LPELR (7816) 1 at 29-30.
Explaining the manner of exercise of discretion, Tobi, JCA (as he then was), stated as follows in ACB LTD vs. NNAMANI (1991) 4 NWLR (PT 186) 486 at 494-495:
“It has now become almost an axiom or an aphorism in our judicial system to say that a discretionary power must be exercised not only judicially but also judiciously…
The exercise of the Court’s discretion is said to be judicial if the Judge invokes the power in his capacity as Judge qua law. In other words, an exercise of a discretionary power will be said to be judicial, if the power is exercised in accordance with the enabling statutes. On the other hand, an exercise of a discretionary power is said to be judicious if it carries or conveys the intellectual wisdom or prudent intellectual capacity of the Judge as judex. In this second situation, the exercise of the discretion must be replete with such wisdom and tenacity of mind and purpose. The exercise must be based on a sound and sensible judgment with a view to doing justice to the parties.
But, discretion is discretion whether it wears any of the two qualifying expressions mentioned above, only when it is exercised by the Court according to law and good judgment. Discretion is not discretion if its exercise is based on the Court’s sentiments or premeditated pet ideas on the matter, completely outside the dictates of either the enabling law or good judgment as the case may be.” PER OGAKWU, J.C.A.

BATURE ISAH GAFAI, J.C.A. (Delivering the Leading Judgment): This appeal emanated from a ruling of the Federal High Court delivered on the 15th of February, 2021 coram Maha, J. in suit No. FHC/ABJ/CS/1331/2020 – FRN vs. Eleme Petrochemicals Company Co-operative Investment and Credit Society Ltd in which the Appellant’s Application for the renewal of the Court’s earlier Freezing Order on the Respondent’s Bank account was refused.

Dissatisfied with the decision, the Appellant approached this Court vide a Notice of Appeal filed on the 19th of February, 2021 complaining against it on four Grounds:
“GROUND 1
The learned trial Judge erred in law when the Court refused to renew the interim order earlier granted by it on 13th November, 2020 after hearing the Appellant’s Motion Ex-Parte filed on 11th February, 2021.
GROUND 2
The learned trial Judge did not act judicially and judiciously refusing to grant the application to renew the interim order freezing the account of the Respondent pending the conclusion of the prosecution of the Charge No. FHC/PH/23C/2021.
GROUND 3
The lower Court erred and misconceived the law when the Court discharged the ex parte Order it earlier granted notwithstanding that the Appellant applied for renewal of the Order in line with the directive of the Court.
GROUND 4
The decision of the Court is unreasonable, unwarranted and cannot be supported having regard to the evidence adduced before the Court.”

The respective Particulars enumerated under the Grounds are noted. See pages 236-242 of the Record of Appeal. The Record of Appeal and Additional Record of Appeal were transmitted to this Court on the 3rd of March, 2021 and on the 15th of July 2021 respectively. The Appellant caused to be filed, its Brief of Argument on the 16th of June 2021 and the Respondent followed suit with its Brief of Argument on the 14th of July 2021, together with a Notice of Preliminary Objection. The Appellant’s reply to the Preliminary Objection together with its Reply on Points of Law was filed on the 10th of February, 2022. These are the main processes relied upon by the parties at the hearing of this appeal on the 22nd of March 2022.

By the dictates of settled law, the Court will first attend to the Respondent’s Notice of Preliminary Objection; raised on the Grounds that:
“1. The appeal is incompetent.
2. The jurisdiction of this honourable Court has not been properly activated
3. The suit is a gross abuse of judicial process.”

The Respondent’s arguments on these Grounds are canvassed at pages 3 to 9 of its Brief of Argument. On the first Ground (supra), the learned counsel for the Respondent B. A. Orume Esq. rooted his arguments in the provisions of Section 14(1) of the Court of Appeal Act 2004 which provides that:
“14 (1) Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter; an appeal shall, by leave of that Court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only to costs.”
and argued in the main that being one predicated on the refusal of the lower Court to grant the ex parte Order sought by the Appellant, this appeal is thus incompetent as the Appellant is not entitled to appeal against the refusal of the lower Court; as provided under the provisions of Section 14(1) of the Court of Appeal Act (supra). On this argument, reliance is placed on the decision by this Court in NICCN & Ors vs. FIDELITY BOND OF NIG. LTD (2016) LPELR-41427 (CA). he argued further that by the mandatory provisions of Section 14(1) of the Act (supra), the Appellant cannot appeal against the ex parte Order of refusal by the lower Court directly without first seeking from that Court a variation of the Order; which as argued further, is also contrary to the provisions of Order 26 Rule 11(1) of the Federal High Court (Civil Procedure) Rules 2016.

The Respondent’s arguments on the second Ground are generally to the effect that this appeal having been wrongly commenced in contravention of the provisions of Section 14(1) of the Court of Appeal Act (supra) as well as the provisions of Order 26 Rule 11(1) of the Federal High Court (Civil Procedure) Rules, the jurisdiction of this Court has not therefore been properly activated; placing reliance on the decision in Ohakim & Anor vs. Agbaso & Ors (2010) 6-7 SC 85 at 151 wherein the Apex Court laid down the criteria for determining the presence or lack of jurisdiction by a Court which includes a consideration of the provisions of the statute establishing the Court; in this case the provisions of Section 14(1) of the Court of Appeal Act (supra).

Another argument under this Ground is that Grounds 1-3 in the Appellant’s Notice of Appeal are on mixed law and facts for which the Appellant must first seek for and obtain the leave of the Court before filing this appeal; placing reliance on the decisions in Alex Nzei & Anor vs. University of Nigeria & Ors (2017) 6 NWLR (Pt. 1651), 300 and Metal Construction (WA Ltd) vs. DA Migilore & Ors (1990) LPELR–1869 (SC).

Yet another allied argument by the Respondent is that the Appellant’s Omnibus Ground 4 in the Notice of Appeal is also incompetent having been framed showing that the lower Court’s decision is unreasonable, unwarranted and cannot be supported having regards to the evidence adduced before the Court in an appeal that is civil in nature; placing reliance on the decision in Adelusola & Ors vs. Akinde & Ors (2004) LPELR—120 (SC) where the Supreme Court deprecated such practice. On the whole, the Respondent has urged this Court to strike out the appeal as incompetent.

For the Appellant however, its learned counsel E. E. Iheanacho Esq. argued firstly that the Appellant’s right of appeal is constitutional, derived from the provisions of Section 241(1)(f) (ii) of the Constitution FRN 1999 as amended which entitles it to appeal as of right against the decision of the lower Court being one on injunction sought but refused; as affirmed by this Court in contradistinction to the provisions of Section 14(1) of the Court of Appeal Act (supra) in Elenwoke vs. Obi (1998) 3 NWLR (Pt. 542) 474 and in Utuk vs. Official Liquidator & Anor (2008) LPELR-4323 (CA) in which similar argument as those by the present Respondent on the purport of the provisions of Section 14(1) of the Court of Appeal Act and Order 26 Rule 11(1) of the Federal High Court Rules were rejected for being inconsistent with the clear provisions of Section 241 (1) (f) (ii) of the Constitution which confers on the Appellant right of appeal directly as it did in this appeal.

On the Respondent’s contention that the Appellant’s Omnibus Ground 4 is incompetent for complaining that the decision of the lower Court is unreasonable, unwarranted and cannot be supported having regard to the evidence adduced before the Court in a civil matter, it is argued for the Appellant that this appeal as well as the suit leading to it are essentially quasi criminal in nature because it is all about an Order sought to preserve assets that are reasonably suspected to be proceeds of crime. Reliance is placed on the decision by the Court in Akingbola vs. Chairman EFCC (2012) 9 NWLR (Pt. 1306), 475 at 504 where this Court held that an Order similar to the one sought by the Appellant at the lower Court is not a civil matter but quasi criminal in nature. It is thus argued that the Respondent’s arguments having been premised on the wrong notion that the Appellant’s suit and the present appeal are civil in nature ought to be discountenanced. On the whole, it is urged for the Appellant that the Respondent’s Preliminary Objections be dismissed.

I should add that while the foregoing represents a fair summary of the arguments and submissions for both parties on the Preliminary Objection, their entirety is however noted.

To begin with, let me say without mincing words but with utmost respects that the Respondent’s arguments on the first Ground of the Notice of Preliminary Objection is simply unnecessary. is assumed that by now, the Respondent’s learned counsel and nay all counsel must have read and taken a dispassionate notice of binding pronouncements of this Court in the decisions referred and quoted by the learned counsel for the Appellant on similar arguments as those by the Respondent herein on the inconsistency and nullity of the provisions of Section 14(1) of the Court of Appeal Act (supra) with the provisions of Section 14(1) (f) (ii) of the Constitution FRN 1999, as amended which entitles the Appellant to appeal as of right against the decision of the lower Court on the injunction sought without the necessity of applying to the lower Court for any variation of the Order refusing the injunction sought; as erroneously also argued by the Respondent with reference to the provisions of Order 26 Rule 11(1) of the Federal High Court Rules, 2016. This Court does not lightly depart from its previous decisions on similar facts and applicable law or Rules. In effect, the Respondent’s arguments under the first Ground of the Preliminary Objection having been similarly rejected previously by this Court in the decisions referred by the Appellant’s learned Counsel, cannot now attract any different outcome. For emphasis however, the Respondent’s arguments under the first Ground of the Preliminary Objection are without merit and are discountenanced.

As may be recalled, the Respondent’s second Ground of the Preliminary Objection challenges the competence of the Appellant’s Grounds 1-3 for being channeled in mixed law and facts but without the leave of the Court first sought and obtained. Let me say straight away that those arguments by the Respondent proceeded on the false notion that the Appellant’s appeal is not one authorized as of right under Section 241(1) (f)(ii) of the Constitution, which as explained earlier herein however it rightly is; because where an injunction is sought and granted or refused, there arises a direct right of appeal under Section 241(1)(f)(ii) of the Constitution. This Ground of the Preliminary Objection too is without any merit.

In the same vein, the Respondent’s argument also on the Appellant’s omnibus Ground 4 of the Notice of Appeal being incompetent for complaining that the decision of the lower Court is unreasonable, unwarranted and cannot be supported having regard to the evidence adduced before the Court is, with respects, erroneous owing to the clear misconception that the Appellant’s suit at the lower Court and by extension this appeal are civil in nature. I am in agreement with the learned counsel for the Appellant that the suit before the lower Court was not a civil matter but a quassi criminal matter. In any case, the Respondent has not disclosed or even hinted any prejudice howsoever against it by the mere form of the Omnibus Ground 4 employed therein by the Appellant. This objection too is meritless.

On the whole, the Respondent’s Preliminary Objection is adjudged as one without merit and is accordingly dismissed.

Proceeding into the main appeal, it may be recalled that the Appellant’s four Grounds of Appeal have been reproduced earlier herein. It is from these Grounds that learned counsel for the Appellant formulated a lone Issue for the determination of this Court; thus:
“Whether the lower Court properly exercised its discretion when the Court refused the application to renew the freezing Order it earlier made in respect of the Respondent’s Bank Account and subsequently struck out the Appellant’s application despite the material facts placed before the Court, (Distilled from Grounds, 1, 2 3 and 4 of the Notice of Appeal),”

Although couched differently, the Issue formulated for the Respondent is basically the same; on:
“Whether from the facts arising and the circumstance of this case, the trial Court was not right in refusing to exercise her discretion to grant the order as prayed for in the ex-parte motion.”

After reading the entire arguments by both parties on the Issues as presented, it is noted that the dominant theme in both is mainly on whether the lower Court exercised its discretion properly when it refused to grant the Appellant’s motion seeking for the renewal of the Court’s earlier Order freezing the Respondent’s bank account which the Appellant, by its said latter motion sought pending the determination of its charge No. FHC/PH/23C/2021 against the Respondent and ten others. The arguments are not on whether the lower Court has or lacks the discretionary power to order as it did but on whether the exercise of such discretion in the manner done by the Court was in accordance with or contrary to the law and established legal principles on same; in the particular context of the Appellant’s motion. That is what the entire arguments for the parties are all about.

In synopsis, the Appellant’s arguments are that the lower Court failed to consider the statutory and legal basis and justification for the Order sought; in particular, the provisions of Section 44(2) of the Constitution FRN 1999 as amended Sections 6 (s) 28, 29 and 34 of the EFCC (Establishment) Act 2004 as well as the judicial interpretations of these provisions in Dangabar vs. FRN (2012) LPELR–19732 (CA); EFCC vs. Fayose & Anor (2018) LPELR–44131 (CA); EFCC vs. Akingbola (2014) LPELR–24257 (CA) Umezulike vs. Chairman EFCC (2017) LPELR-43454 (CA) and also the Apex Court’s decision in Abubakar vs. Chuks (2007) 18 NWLR (Pt. 1066), 386 at 422 wherein the purport and limits of a Judge’s discretionary power were explained.

It is also the Appellant’s argument that the lower Court based its discretionary exercise on issues it considered germane to the grant or refusal of the Order sought although these issues were raised by the lower Court suo motu in its ruling; thus denying the parties, more particularly the Appellant an opportunity to address it on same. Reference to page 234 of the Record containing the three Issues said to have been raised suo motu by the lower Court is noted. Notwithstanding, the Appellant’s learned counsel has however gone further to fault those issues factually and legally in their key components. In this regard, it is argued that the lower Court’s reasoning that it could not elongate a dead Order which abated on the 12th of February 2021 is erroneous in view of the Appellant’s motion seeking for the renewal of the Order filed in the Court records before the expiration of the Order sought to be renewed.

The Appellant also faulted the lower Court’s further reason for refusing the Order sought on the ground of the pendency of another similar suit before another Court; arguing that there was no other similar suit specifically of the nature and purport of the one before the lower Court pending before any other Court.

Other allied arguments for the Appellant are that the lower Court failed to realize the purport and tenor of the Order sought being interim and preservative only and that the lower Court failed to realize that the Order sought was quassi criminal in nature and not civil as erroneously viewed by the lower Court which altogether influenced it towards arriving at a wrong exercise of discretion in refusing to grant the Order sought by the Appellant. As hinted earlier, this is only a summary but the entirety of the arguments is noted.

The arguments canvassed for the Respondent are no less extensive but are in the same manner highlighted in their main here. It is argued firstly on a general basis that the power to grant an interim attachment of property cannot be at large as a Court must take into consideration all the surrounding circumstances of the case before it. It is further argued that the Appellant failed to discharge the duty on it to move the Court timeously to get its Order renewed before its expiration and also failed to show cause why the lower Court should renew or elongate the freezing Order. Learned counsel for the Respondent stressed that every application must be determined on the basis of the circumstances and facts under which it is made; placing reliance on the decision in Ladunni vs Kukoyi & Ors (1972) LPELR–1739 (SC).

Learned counsel further argued that the reference to the decision in Akingbola vs EFCC (supra) by the Appellant’s counsel on the issue at hand is incorrect because the Respondent herein, unlike the Appellant in Akingbola vs EFCC (supra), is not a natural person that would dissipate its assets. It is also argued that the Appellant was aware of the pendency of another similar Suit No.: FHC/ABJ/CS/1271/2020 seeking to restrain the Appellant from freezing the Respondent’s bank account but failed to disclose those facts to the lower Court; pointing to exhibit EPC1 at pages 24-40 of the Additional Record of Appeal to demonstrate the truth in the argument. It is argued further that the Appellant has not shown how the decision of the lower Court perversely affected it or led to a miscarriage of justice.

Other allied arguments for the Respondent are that the Appellant’s invocation and request for the application of the provisions of Section 15 of the Court of Appeal Act are misconceived because, according to the learned counsel the Supreme Court had held in Onyero vs. Nwadike (2011) 11 NWLR (Pt. 1279), 954 at 969—970 that an appellate Court has no power to grant a prayer struck out by the trial Court. Other supplementary arguments of the Respondent are noted as well.

The Appellant’s arguments and submissions in its Reply on Point of Law as canvassed at pages 8-12 of its Reply Brief are fully noted as well.

Let me say a few words on the seemingly endless but unnecessary controversy on the exercise of judicial discretion. In ordinary parlance, discretion simply means the ability to make wise choices or decisions from a range of options to form one’s own judgment. In legal parlance, particularly in the context of a judicial act, discretion means the power to act or decide according to the Judge’s own freedom of choice governed or guided by the law and rules of justice and equity on the facts placed before the Judge. Unlike in the ordinary parlance where discretion knows no bound, as it is commonly described, discretion in law is bounded by the facts and the law; exercised judiciously and judicially. A judicious exercise is one that is preceded by sound reasoning and circumspection in weighing the competing interests of the parties. Judicially means decided or determined upon the facts and the law. See G. K. F. Investment (Nig) Ltd vs. NITEL Plc (2009) LPELR-1294 (SC); NNPC vs Famfa Oil Ltd & Anor (2009) LPELR–2023 (SC); Ntukidem vs Oko & Ors (1986) LPELR–2075 (SC); Waziri vs. Gumel & Anor (2012) LPELR–7816 (SC); Ajuwa & Anor vs. Shell Petroleum Development Co, Nig. Ltd (2011) 18 NWLR (Pt. 1279), 797 at 828–829.

It has been held repeatedly and consistently by this Court and the Apex Court that this Court will not lightly disturb a trial Court’s exercise of discretionary power that is shown to be judiciously and judicially exercised. So long as the discretionary exercise by the trial Court is shown to be transparent, propelled by common sense and justice to the facts and circumstances in the case, guided by the applicable law(s) and Rules, this Court will be most disinclined to interfere with the trial Court’s discretion. Where however, the exercise of discretion is characterized by arbitrariness or in misapprehension of the facts or the applicable law(s) and Rules such discretion ceases to be unfettered because it is not a product of judicious exercise, thereby placing this Court in a proper position to interfere with the trial Court’s discretion; nay as a matter of duty. See EFPC Ltd vs NDIC (2007) All FWLR (Pt. 397) 793; Buhari vs. Obasanjo (2003) LPELR–813 (SC); Bamaiyi vs The State & Ors (2001) LPELR–731 (SC); Odutola vs. Kayode (1994) LPELR–2262 (SC).

As summarised earlier herein, this appeal essentially calls for a reconsideration of the facts and the laws presented before the lower Court for the exercise of its discretion, which the Appellant contends were arbitrarily appraised but which the Respondent strongly supports as judicious. I must agree with the learned counsel for the Appellant in the itemization of the grounds or reasons by the lower Court which informed its refusal to grant the renewal Order sought by the Appellant. Whether the arguments of the learned counsel are strong enough to deflate those by his learned friend for the Respondent on the reasons relied upon by the lower Court in refusing the renewal Order will be resolved herein below.

It is not in dispute that notwithstanding the force of provisions of Section 44 (2)(k) of the Constitution FRN 1999 as amended and Section 34 of the EFCC Establishment Act, 2004 which justify the temporary taking of the property of the Respondent by the Appellant for the purpose of investigation, under which the Appellant approached the lower Court, the hallmark of the Appellant’s Application before the lower Court is simply a supplication before the lower Court for its discretionary Order; which the lower Court was at liberty to grant or refuse upon a sound appraisal of the facts submitted and the law(s) relied upon by the Appellant on those facts. There is no argument however that the provisions of Section 44(2)(k) of the Constitution and those in Section 34 of the EFCC Establishment Act empower the Appellant to proceed as it did before the lower Court in order to ensure equity, rule of law and elimination of impunity which in the circumstances only the Courts can generally be trusted to administer dispassionately.

However, recalling the lower Court’s specific reasons for refusing to grant the renewal Order sought by the Appellant viz-a-viz the facts and the law relied upon by the Appellant, one begins to soft pedal on the presumption of circumspection by the lower Court on same. Traversing the four page ruling of the lower Court, found its main thus:
“Doubtless where an issue falls within a Judge’s discretion, the resolution same depend on the assessment of the case based on the underlying facts of the case, and of course what is just to do in the particular case.
It is at this point I turn to the records of the Court and it shows the following:
1. That the freezing order of Court entered on the 13th of November, 2020 abated on the 12th February, 2021 at midnight.
2. That the Applicant has already launched an action in respect to subject matter of the application and filed a criminal charge at the Port Harcourt Judicial Division of the Federal High Court. Nothing disproves the fact that an application ought to be made to the Court seized of a substantive matter.
3. That facts here disclose that there is a pending suit before my learned brother, Hon. Justice Taiwo, presiding Judge of Court 9 and came also touches the subject matter of the application and appears to have been filed before this instant suit.
Having regards to the above, this Court finds that the application does not warrant the direction of Court in the present circumstance. What’s more, the underlying fact of this case is that this Court cannot elongate a dead order. I therefore find and hold that the application is unmeritorious.”
See pages 233 to 234 of the Record of Appeal

Clearly, those reasons influenced the lower Court’s overall view of the competence of the Appellant’s Application. Although in exercise of its discretion, the reasons of the lower Court for granting or refusing the Order sought must be based and ascertainable from the facts and materials before the Court; not imaginations or assumptions or conjecture. That is the hallmark of a judicious exercise of discretion. In UBA Ltd vs. Stahibau GMBH & Co. (1989) LPELR–3400 (SC), the Supreme Court held that:
“If a Judge considers matter which are not before him and makes them the basis of the exercise of his discretion, he is exercising his discretion on wrong consideration. If there are facts by affidavit evidence before the Judge and he fails to evaluate and assess the facts before exercising his discretion he has failed to exercise his discretion judicially.”

If the three reasons listed by the lower Court in refusing the Order sought are indeed a product of misapprehension or non-consideration of the Appellant’s facts and the applicable laws on same then without a doubt the refusal Order by the Court is a miscarriage of justice against the Appellant. Notwithstanding the Respondent’s argument to the contrary, which in any case I find feeble, the lower Court’s finding that the freezing Order entered on the 13th of November 2020 abated on the 12th of February 2021, is one which, with due respect to the learned trial Judge, was perverse as it ignored the facts in the records before it showing clearly that the Appellant has approached the Court vide its Application filed on the 11th of February 2021 before the expiry date of the freezing Order; regardless of when it was convenient or practicable for the Court to take the Application. The bottom line is that there was in the records before it, the Appellant’s application for renewal of the freezing Order filed before its expiry date; nor did the Appellant require the lower Court’s leave extending or enlarging the time for filing same. The implied effect of the lower Court’s decision that its freezing Order had abated is that the Appellant’s Application was thus dead on arrival and thus incompetent on that ground without more; which as pointed out herein is manifestly erroneous in view of the Appellant’s Application already filed on the 11th of February 2021 in the records of the Court. See pages 86-98 of the Record. This explains why the Court was mainly concerned with the peripheral issues of the life of the freezing Order than with the facts in and the substance of the Appellant’s Application. The Appellant having filed its Application for the renewal of the freezing Order before its tenure ended, the lower Court was wrong in holding that the Appellant was seeking to revive a dead Order.

As its second reason, the lower Court refused to renew its freezing Order on the ground that the Appellant had filed a charge against the Respondent and others at the Court’s judicial division in Port Harcourt; which the Court viewed as the proper venue for the Appellant’s Application for the renewal Order. With utmost respect, there is nothing unlawful or irregular or unethical in returning to the lower Court which in the first place made the freezing Order returnable to it for the renewal application; whether there was in the interlude a pending charge filed before it or before another Court. Although the pending charge filed at the Port Harcourt Judicial Division of the Court and the Appellant’s Application for renewal of the lower Court’s freezing Order are related, they are not the same nor must both be before same Court. To posit that the Application for renewal of the freezing Order can only be brought before the Court seized with the charge would in effect also be courting the unintended effect that the charge could only be validly filed before the lower Court which was already seized with the significant preliminary, interlocutory matter touching profoundly on the charge. Except by a Special Practice Direction of the trial Court or by the directions of a Chief Judge, the Prosecution will always seek to file a charge where the applicable Criminal Procedure Rules prescribe as the proper venue of trial. The decisions of the Court in Akingbola vs EFCC (2012) NWLR (Pt. 1306), 475 at 500–502, Esai Dangabar vs FRN (2014) 12 NWLR (Pt. 1422), 575 at 29-30 are sufficient authority in accord with the Appellant’s contention that it is entitled to seek for preservative Orders as the one in the Application before the lower Court while the charge on the subject matter of the Application is pending before another Court. The lower Court’s insistence that the Appellant should have filed its Application at Port Harcourt for the renewal of the freezing Order seems, with respect, to have lost sight of the fact that the investigation of financial crimes is not synonymous with other classes of criminal investigation such as rape, arson, homicide robbery etc. in which all the evidence needed lie in or revolve around the person of the Accused and which evidence seldom gets dissipated; in contradistinction, financial crimes investigation which by the very nature of the evidence needed and the ingenuity of both the subject and object of the investigation to disappear or change colour overnight requires promptitude and eagle eye watch to prevent the object of the investigation i.e. the suspected proceeds of the crime from being dissipated or recoloured plain white or simply vanishing into thin air along with its traces in a rather magical way leaving the investigators and the victim angsty. That is what the Appellant’s Application sought to prevent; to preserve and secure the most crucial component of the investigation without which the pending charge may be no better than a piece of paper in a trash bin. Although called upon to invoke its discretion, which it may exercise by the dictates of equity and conscience, such exercise must be based on the facts and the law. As explained earlier, the law supports the Appellant’s Application, case law deflates the lower Court’s view on the venue of the Application and as it is now clear, the lower Court ignored the Appellant’s facts in support of its Application. In this situation, nothing could be further from a miscarriage of justice against the Appellant, more particularly as the Order it sought in the circumstance is deserving and in accord with the law. By refusing to renew its freezing Order without appraising the Appellant’s facts on the Application and in misapprehension of the facts and issues it considered, the lower Court, with respect, did not exercise its discretion judicially and Judiciously. This Court is empowered to proceed under Section 15 of the Court of Appeal Act 1976 as amended to step into the shoes of the lower Court, as it were, to
“… make any Order necessary for determining the real question in controversy in the appeal… and may make an interim Order or grant any injunction which the Court below is authorized to make or grant…”

In consequence, the refusal Order made by the lower Court in suit no FHC/ABJ/CS/437/2020 in its ruling delivered on the 15th of February 2021 is hereby set aside. In its stead, the Applicant’s Application seeking for the renewal of the lower Court’s freezing Order is granted pending the conclusion of the prosecution in Charge No. FHC/PH/23C/2021 – FRN vs. Eleme Petrochemical Company Co-operative Investment and Credit Society Limited & 10 Others.
Parties shaft bear their respective costs on this appeal.

HAMMA AKAWU BARKA, J.C.A.: My learned brother I. B. Gafai, JCA, obliged me with a copy of the judgment just read in draft.

I agree with his reasoning and the inevitable conclusion reached to the effect that the application by the Appellant as applicant before the lower Court by dint of Section 15 of the Court of Appeal Act, 2004 as amended be and is hereby granted as prayed. I make no order on costs.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: It is hornbook law that there are no hard and fast rules as to the manner of exercise of discretion; the guiding principle is that the discretion being judicial must be exercised judicially and judiciously on sufficient grounds. See UNIVERSITY OF LAGOS vs. AIGORO (1985) 1 SC 265 at 271, NNEJI vs. CHUKWU (1988) 3 NWLR (PT 87) 184 at 199 and LAGOS STATE GOVT. vs. BENEFICIAL ENDOWMENT LTD (2018) LPELR (45779) 1 at 9-11.
In an appeal against the exercise of discretion by a lower Court, an appellate Court will not interfere with the decision simply because, if faced with a similar application it would have exercised the discretion differently. It is the duty of an Appellant who appeals against the exercise of discretion by a lower Court to satisfy the appellate Court that the lower Court did not exercise its discretion judicially and judiciously.
In questions of exercise of discretion and the manner in which discretion is to be exercised, it is discretio legalis est scire per legem quid sit justum — a discretion to do what is just through the law: FAGBENRO vs. OROGUN (1993) 3 NWLR (PT 284) 662 at 679. Judicial discretion is a term applied to the discretionary action of a Court or Judge bounded by the rules and principles of law, not giving effect to the will or private opinion and not to humour. A judicial discretion is based upon facts and circumstances presented to the Court from which it must draw a conclusion governed by law, justice and common sense. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law. The exercise of discretion has to be judicial in the sense that it must not be capricious and must be for a reason connected with the case. It has to be judicious in the sense that it must be based on sound judgment marked by discretion, wisdom and good sense. See ERONINI vs. IHEUKO (1989) 2 NWLR (PT 101) 46 at 60-61, OWNERS OF THE MV LUPEX vs. NIGERIAN OVERSEAS CHARTERING AND SHIPPING LTD (2003) LPELR (3195) 1 at 18 and WAZIRI vs. GUMEL (2012) LPELR (7816) 1 at 29-30.
Explaining the manner of exercise of discretion, Tobi, JCA (as he then was), stated as follows in ACB LTD vs. NNAMANI (1991) 4 NWLR (PT 186) 486 at 494-495:
“It has now become almost an axiom or an aphorism in our judicial system to say that a discretionary power must be exercised not only judicially but also judiciously…
The exercise of the Court’s discretion is said to be judicial if the Judge invokes the power in his capacity as Judge qua law. In other words, an exercise of a discretionary power will be said to be judicial, if the power is exercised in accordance with the enabling statutes. On the other hand, an exercise of a discretionary power is said to be judicious if it carries or conveys the intellectual wisdom or prudent intellectual capacity of the Judge as judex. In this second situation, the exercise of the discretion must be replete with such wisdom and tenacity of mind and purpose. The exercise must be based on a sound and sensible judgment with a view to doing justice to the parties.
But, discretion is discretion whether it wears any of the two qualifying expressions mentioned above, only when it is exercised by the Court according to law and good judgment. Discretion is not discretion if its exercise is based on the Court’s sentiments or premeditated pet ideas on the matter, completely outside the dictates of either the enabling law or good judgment as the case may be.”
Undoubtedly, the exercise of discretion at nisi prius may be reviewed on appeal; but an appellate Court will only interfere where it is successfully shown that the discretion was not exercised judicially and judiciously, id est, that the exercise was malafide, arbitrary, illegal either by the consideration of extraneous or irrelevant matters or failure to consider material issues, or otherwise that it was inconsistent with the ends of justice: IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (2008) LPELR (1476) 1 at 231 WAZIRI vs. GUMEL (supra) or (2012) 9 NWLR (PT 1304) 184 at 209, NZEKWE vs. ANAEKWENEGBU (2019) LPELR (49002) 1 at 22-23 and ADENIYI vs. TINA GEORGE INDUSTRIES LTD (2019) LPELR (48891) 1 at 27-29.

I was privileged to read in draft, the lead judgment of my learned brother, Isah Bature Gafai, JCA, which has just been delivered. I am allegiant to the manner in which all the questions thrust up for determination in the appeal were resolved. As admirably demonstrated in the lead judgment, the exercise of discretion by the lower Court was not judicial and judicious. I adopt the reasoning and conclusion in the lead judgment as mine and also join in allowing the appeal and on the same terms as set out in the leading judgment. I abide by the order as to costs.