OLAKEHINDE v. EFCC
(2020)LCN/15295(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, June 29, 2020
CA/A/653/2019
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Emmanuel Akomaye Agim Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
OLALEKAN OLAKEHINDE APPELANT(S)
And
ECONOMIC & FINANCIAL CRIMES COMMISSION (EFCC) RESPONDENT(S)
RATIO
WHETHER OR NOT AN APPELLANT WHO COMMENCES AN APPEAL AGAINST A JUDGEMENT BY FILING SEVERAL NOTICES OF APPEAL MUST CHOOSE WHICH OF THE NOTICES TO RELY ON FOR THE APPEAL AND ABANDON OTHER NOTICES
It is indisputable that case law is settled that an appellant who commences an appeal against a judgment by filing several notices of appeal within the statutorily prescribed time for appealing, must choose which of the notices to rely on for the appeal and abandon the other notice(s). See FBN PLC V TSA IND. LTD (2010) 15 NWLR (PT. 1216) 247 @ 290 in which the Supreme Court stated that-
“The answer to this objection has been aptly answered in the case of Tukur v. Government of Gongola State (1988) NSCC Vol. 19 pt.1 pg.30 quoting from the judgment of the Supreme Court from page 36 lines 6 – 12 that “the answer to the question, can an appellant file two Notices of Appeal with emphasis on the word can is obviously yes he can”.
In the case of Iteshi v. The State 9 – 11 SC at pg.41- the Supreme Court considered a similar situation where the appellant filed three Notices of Appeal. The Apex Court held that – it was open to counsel for the appellant to choose which of them he intends to adopt. In the case of Harriman (supra), the Court has decided that filing of more than one notice does not affect the validity of an appeal if all the notices are filed within the statutory period for appealing. An appeal is not incompetent because it is brought by more than one notice of appeal. I adopt this sound reasoning in respect of this objection.” PER AGIM, J.C.A.
FACTORS THAT CONSTITUTE AN ABUSE OF COURT PROCESS?
I wish to reiterate the age-long established principle of law on what constitutes an abuse of Court process. In the case of ACB LTD V. NWAIGWE & ORS (2011) LPELR-208 (SC) where reference was made to ADESOKAN V. ADEGOROLU (1991) 3 NWLR (PT.293) 297, it was held that:
“to institute an action during the pendency of another one claiming the same reliefs amount to an abuse of process of Court. It does not matter whether the matter is an appeal or not, for as long as the previous action has not been finally decided, the subsequent action constitutes an abuse of process of the Court – see the authorities earlier cited. It is not the existence or pendency of a previous suit that causes the problem but the institute of a fresh action between the same parties and on the same subject matter when the previous suit has not been disposed of that constitutes abuse of process of Court- see OKAFOR V. A-G Anambra State supra.” Per Onnoghen, J.S.C. (P. 13, paras. C-F). PER AGIM, J.C.A.
WHETHER OR NOT MULTIPLICITY OF ACTIONS OVER THE SAME SUBJECT MATTER AND BETWEEN THE SAME PARTIES IS AN ABUSE OF COURT PROCESS
There is no doubt that multiplicity of actions over the same subject matter and between the same parties give the impression that the later action is abusive of the Court process. But that may not necessarily be so. The later process can be regarded as abusive of the process of Court if it is wanting in bonafides in the sense that it is a malicious use of that multiple process. A classical restatement of this point was made by the Supreme Court in Amaefule v. State (1988) NWLR (Pt. 75) 238 per Oputa JSC thusly “No one is doubting the very wide powers of the Attorney-General of a State under Section 191(1) of the 1979 Constitution. But just because the powers are very wide that itself, is all the more reason why their exercise should be carefully watched. All proceedings in poenam are strictissimi juris and where a particular procedure has been provided by law, that procedure should be strictly adhered to. And a party accused has the right to insist on that particular procedure as a matter of right which he cannot be deprived against his will: see Cockburn, C. J. in Martin v. Mackonochie (1878) L.R. 3 Q.B. 775. PER AGIM, J.C.A.
WHETHER OR NOT ANY FINDING OF FACT NOT APPEALED AGAINST IS DEEMED CONCEDED
It is trite that any finding of fact not appealed against is deemed conceded, see ANYANWU V. OGUNEWE & ORS (2014) LPELR-22184(SC) where the apex Court held:
“It is a settled principle of law that a decision on any point of law or fact not appealed against is deemed to have been conceded by the party against whom it was decided and it remains valid and binding on all the parties. See: Ogunyade vs. Oshunkeye (2007) All FWLR (Pt. 389) 1175 @ 1206 – 1207 H – B: Onibudo & Ors. Vs Akibu & Ors. (1982) 13 NSCC 199: Anyaduba & Anor. Vs N.R.T.C. Ltd. (1992) 5 NWLR (Pt. 243) 535 @ 553 G – F; Unity Bank Nig. Plc. Vs Bouari (2008) 7 NWLR (Pt. 1086) 372 @ 400 B – C.” Per KEKERE-EKUN, J.S.C.
Parties herein failed to appeal against the finding that the subject matter of the Appeal pending before the apex Court- SC/1112/2017 and Suit No. CV/2170/2017 are the same, consequently, they have consented to that finding. In effect or consequence, the said facts, stand or subsist. This is because finding or findings of fact, is or are the exclusive business of a trial Court. If such finding or findings is or are not challenged on Appeal, it or they, become binding on Appeal. See the case of ALHAJI USMAN V. GARKE (2003) 7 SCNJ 38 @ 50-51. In such circumstances, an Appellate Court, will not disturb or interfere with such findings. It cannot even delve into the issue or pronounce on it. See the case of ALHAJI ADEYEMI & ANOR V. CHIEF OLAKUNRI & 10 ORS (1999) 14 NWLR (PT. 638) 204. PER NIMPAR, J.C.A.
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/653/2019 was commenced on 3-7-2019 when the appellant herein filed an appeal against the judgment of the Federal High Court in Suit No. FHC/ABJ/CS/985/2017 at Abuja delivered on 28-6-2018 by B.O. Quadri J. The notice of appeal contains one ground of appeal. A second notice of appeal was filed on 22-7-2019.
The parties herein filed, exchanged and adopted their respective briefs as follows – appellant’s brief, respondent’s brief, appellant’s reply brief, the respondent’s argument on preliminary objection and the appellant’s reply to the preliminary objection.
Let me determine the respondent’s preliminary objection before I delve into the merits of this appeal if there is still need to do so.
The appellant filed a notice of preliminary objection on the following grounds-
“1. The Notice of Appeal filed by the Appellant in this Appeal wherein the parties to the appeal are reflected as Olalekan Olakehinde v. Economic and Financial Crimes Commission Appeal No.CA/A/653/2019 is incompetent and should be dismissed.
PARTICULARS
1. The procedure under Section 17 of the Advance Fee Fraud and Other Fraud Related Act 2006 under which the Respondent instituted the action that is subject of this appeal is that of an action in rem and not an action in personam.
2. That by virtue of the above provision the Respondent initiated the action that is subject of this appeal against the properties (vehicles) at the lower Court.
3. That the operative word of Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act ‘any person, corporate or financial institution in whose possession the property is found or who may have interest in the property or claim ownership of the property’.
4. The Appellant filed Notice showing cause and a counter affidavit to the Respondent Motion for final forfeiture of the said properties (vehicles) ONLY as an interested party.
5. That filing ‘Notice showing cause’ and a ‘counter affidavit’ as an interested party cannot transform the Appellant into a party to the suit that will entitle him automatic right of appeal without the leave of Court.
6. That the Appellant not being a party to the suit cannot rightly appeal the outcome of the lower Court decision as an interested party without the leave of the Court. See Section 243 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
7. That the appellant did not obtain the leave of the Court before filing his Notice of Appeal and therefore appeal entered as Olalekan Olakehinde v Economic and Financial Crimes Commission is incompetent and ought to be dismissed.
2. That Ground 1 and 2 of the Appellant Notice of Appeal dated 1st of July, 2019 is incompetent and should be struck out.
PARTICULARS
(1) The Grounds 1 2, 3 and 4 and the particulars thereto of the said Notice of Appeal dated 22nd of July, 2019 is a ground of mixed law and facts.
(2) That the Appellant did not seek the leave of Court to appeal on the ground of mixed law and facts.
(3) The Notice of Appeal dated 22nd of July, 2019 and the brief of argument that is based on its incompetent;
1. The appellant filed a Notice of Appeal dated 3rd of July, 2019 on the strength of which record was settled by both parties and record of appeal compiled by the Registry of the lower Court.
2. The registry of the lower Court transmitted the Record to this Honourable Court on the 16th of July, 2019 in line with Order 13 of the Court of Appeal (Fast Track) Practice Direction 2014.
3. The Appellant now purports to abandon the first Notice of Appeal dated 3rd of July, 2019 for the second Notice of Appeal dated 22nd of July, 2019 which now form the basis for the brief of argument filed by the Appellant in this case.
4. That the appeal having been transmitted to this Honourable Court on the 16th of July, 2019 on the strength of the Notice of appeal dated 3rd of July 2019, the Appellant cannot rightly abandon the said Notice of Appeal without the leave of the Court.
5. That the remedy available to the Appellant after the appeal was entered on the strength of the Notice of appeal dated 3rd of July, 2019 is to seek amendment of the Notice rather than abandoning same without leave.
6. That the Notice of appeal dated 22nd of July, 2019 and the brief of argument based on its incompetent.”
I will consider these grounds seriatim.
Let me start with the first ground of objection.
Let me start the determination of this ground by restating the undisputed facts that are material to it.
By a motion ex parte filed on 16-10-2017, the respondent commenced suit No. FHC/ABJ/CS/985/2017 pursuant to S.17 (1), (2), (3) and (4) of the Advance Fee Fraud and other Fraud Related Offences Act 2006 and Ss.44(2) and 251(3) of the Constitution of the Federal Republic of Nigeria 1999 as amended (the 1999 Constitution) praying for the following orders-
1. AN ORDER of this Honourable Court granting an interim freezing order to the Executive Chairman of the Economic and Financial Commission in line with FORM B of the Schedule to the EFCC Act, 2004 shown in the schedule hereunder pending the conclusion of this matter in this Honourable Court.
2. AN ORDER of this Honourable Court granting powers to the Executive Chairman of the Economic and Financial Commission, or any officer authorized by him to publish and advertise on the Nation News Paper for period of 14 days in line with the position of law, for any person, or persons or body or corporate body with any objection to why the properties in our schedule below shall not be forfeited to the Federal Government of Nigeria, through the office of the Executive Chairman of the Economic and Financial Commission.
3. AN ORDER of Court granting the Executive Chairman of the Economic and Financial Commission the prayers as sought in respect of those properties listed in the schedule hereunder pending investigations and conclusion of this matter in this Honourable Court.
4. AND ANY OTHER ORDER, or ORDERS the Court may deem fit to grant in the circumstances of t his case.
SCHEDULE
1. HOUSE NO. 19 BURUNDI STREET WUSE ZONE 5, FCT – ABUJA
2. HOUSE BLOCK 4 FLAT 1, FOUR BED ROOM, SEMI DETACHED FAREEWELL ESTATE GAMES VILLAGE, ABUJA
3. HOUSE NO. 3, TIMBUKTU STREET, WUSE ZONE 6, ABUJA
4. HOUSE NO: 10, KINSHASA STREET, WUSE ZONE 6
5. HOUSE BLOCK 4 FLAT 3, DIVO STREET, FOREIGN AFFAIRS QUARTERS ABUJA
6. HOUSE BLOCK 5 FLAT 3, DIVO STREET FOREIGN AFFAIRS QUARTERS ABUJA
7. HOUSE NO: 12 JIMMA STREET, WUSE ZONE 6, FCT- ABUJA
8. HOUSE NO: 27, LUSAKA STREET WUSE ZONE 6, ABUJA
1. MERCEDES VAN BUS, MODEL JANUARY 2014, CHASSIS NO: WD4WA60E3863986
2. TOYOTA LAND CRUISER- JEEP – BULLET PROOF – MODEL MAY 2013 CHASSIS NO – JTHY 058J3D4020027
3. TOYOTA TUNDRA PICK – UP MODEL APRIL 2014 CHASSIS NO: 5TFAY5F10EX386816
4. VOLKSWAGEN-PASSAT, MODEL MARCH 2013, CHASSIS NO: WVWCR7A31EC000468
5. MINI-COOPER, COUNTRY MAN, MODEL MARCH 2013 CHASSIS NO WMWZC5100EWP02735
6. VOLKSWAGEN-TOUAREG MODEL OCTOBER 2013 CHASSIS NO: WVGBC2BP2ED005394
7. BMW X5, MODEL 2013, CHASSIS NO. WBAKR6109EOG95019
8. MERCEDES BENZ, MODEL 2013 CHASSIS NO: V1NWDCDASHB4DA206255
9. ONE PEUGEOT 407, CHASSIS NO: VF36DRFJ621762168
10. BMW X1, CHASSIS NO: WBAVL310EVS40484
11. HUNDAI BUS, CHASSIS NO: KMJWA3749EU587104
12. MITSUBISHI CANTER, CHASSIS NO: JL7B061J6DK027651
13. WHITE MITSUBISHI CANTER, CHASSIS NO: JL7B061J6DK02765 WITH REGISTRATION NO: RBC 906 ZK
14. ONE WHITE COASTER BUS, CHASSIS NO: JTGFK518164014983, REGISTRATION NO: RBC 480 AS
15. TOYOTA HILUX CHASSIS NO: IROEX22G301310831
16. HYUNDAI (SATA VAN)
17. LIGHT BLUE TOYOTA MATRIX, CHASSIS NO: 2T1KR32E13C119680
18. BROWN MINI COOPER CHASSIS NO…”
The properties sought to be frozen and forfeited are listed in the schedule to the said motion as follows –
9. HOUSE NO. 19 BURUNDI STREET WUSE ZONE 5, FCT – ABUJA
10. HOUSE BLOCK 4 FLAT 1, FOUR BED ROOM, SEMI DETACHED FAREEWELL ESTATE GAMES VILLAGE, ABUJA
11. HOUSE NO.3, TIMBUKTU STREET, WUSE ZONE 6, ABUJA
12. HOUSE NO: 10, KINSHASA STREET, WUSE ZONE 6
13. HOUSE BLOCK 4 FLAT 3, DIVO STREET, FOREIGN AFFAIRS QUARTERS ABUJA
14. HOUSE BLOCK 5 FLAT 3, DIVO STREET FOREIGN AFFAIRS QUARTERS ABUJA
15. HOUSE NO: 12 JIMMA STREET, WUSE ZONE 6, FCT- ABUJA
16. HOUSE NO: 27, LUSAKA STREET WUSE ZONE 6, ABUJA
19. MERCEDES VAN BUS, MODEL JANUARY 2014, CHASSIS NO: WD4WA60E3863986
20. TOYOTA LAND CRUISER- JEEP – BULLET PROOF – MODEL MAY 2013 CHASSIS NO – JTHY 058J3D4020027
21. TOYOTA TUNDRA PICK -UP MODEL APRIL 2014 CHASSIS NO: 5TFAY5F10EX386816
22. VOLKSWAGEN-PASSAT, MODEL MARCH 2013, CHASSIS NO: WVWCR7A31EC000468
23. MINI-COOPER, COUNTRY MAN, MODEL MARCH 2013 CHASSIS NO WMWZC5100EWP02735
24. VOLKSWAGEN-TOUAREG MODEL OCTOBER 2013 CHASSIS NO: WVGBC2BP2ED005394
25. BMW X5, MODEL 2013, CHASSIS NO. WBAKR6109EOG95019
26. MERCEDES BENZ, MODEL 2013 CHASSIS NO: V1NWDCDASHB4DA206255
27. ONE PEUGEOT 407, CHASSIS NO: VF36DRFJ621762168
28. BMW X1, CHASSIS NO: WBAVL310EVS40484
29. HUNDAI BUS, CHASSIS NO: KMJWA3749EU587104
30. MITSUBISHI CANTER, CHASSIS NO: JL7B061J6DK027651
31. WHITE MITSUBISHI CANTER, CHASSIS NO: JL7B061J6DK02765 WITH REGISTRATION NO: RBC 906 ZK
32. ONE WHITE COASTER BUS, CHASSIS NO: JTGFK518164014983, REGISTRATION NO: RBC 480 AS
33. TOYOTA HILUX CHASSIS NO: IROEX22G301310831
34. HYUNDAI (SATA VAN)
35. LIGHT BLUE TOYOTA MATRIX, CHASSIS NO: 2T1KR32E13C119680
36. BROWN MINI COOOPER CHASSIS NO…”
The appellant herein on 10-11-2017 filed a motion on notice praying for leave to challenge the above application ex parte, an order refusing to grant the interim order freezing the above listed properties and an order staying the proceedings in the ex parte application pending the outcome of appeal No. CA/A/667/2017 between the same parties and involving the same subject matter which judgment had been reserved since 6-6-2017.
On 23-1-2018, the trial Court granted the interim orders freezing the said properties. The said ex parte interim orders were published in the Nation Newspaper of 16-2-2018. The orders read thusly- “I have listened very carefully to the submission of learned Counsel to the Applicant. I have also read the supporting Affidavit and all the Exhibits attached thereto. The Court is inclined to grant the interim orders sought.
Consequently, an interim freezing Order is hereby granted to the Executive Chairman of the EFCC in line with FORM B of the Schedule to the EFCC Act, 2004 pending the time when any person(s) or body or corporate body with any objection as to why the said properties in the schedule shall not be forfeited to the Federal Government of Nigeria through the Office of the Executive Chairman of EFCC.
Further leave is hereby granted to the Executive Chairman of the EFCC to publish and advertise in the Nation Newspaper for a period of 14 days for any person(s) or body or corporate body with any objection why the said properties should not be forfeited to the Federal Government of Nigeria through the Executive Chairman of the EFCC.
Returned date shall be 22nd day of February, 2018.“
By a motion on notice filed on 2-3-2018, the appellant applied for –
“1. AN ORDER OF THIS HONOURABLE COURT discharging and/or setting aside the interim order of forfeiture made by this Court Coram Judice: QUADRI J. on the 23rd of January, 2018 on the application of the Chairman of the Economic and Financial Crimes Commission (EFCC) vide an ex parte application dated 13th day of October, 2017 and filed on the 16th of October, 2017.
2. AN ORDER directing the Chairman of the Economic and Financial Crimes Commission to forthwith release all the items listed as numbers 1 – 18 in the 2nd Part of Schedule in this matter to the applicant.
3. AND such Further Orders as this Honourable Court may deem fit to make in the circumstance.“
The grounds for the application include that the ownership of the properties frozen by the interim order has been determined in his favour in a similar suit by him against the respondent at the High Court of Federal Capital Territory in Suit No FCT/HC/CV/2170/2017, which determination triggered an appeal No. CA/A/667/2017 to this Court and a further appeal No. SC/1112/2017 to the Supreme Court which is still pending.
On 5-3-2018, the respondent filed a motion on notice praying for-
“1. AN ORDER of this Honourable Court granting the Executive Chairman of the Economic and Financial Crimes Commission a final forfeiture Order to take absolute possession of those items listed and indicated in the below schedule on behalf of the Federal Republic of Nigeria.
2. AND ANY OTHER ORDER, or ORDERS the Court may deem fit to grant in the circumstances of this case.”
The appellant herein filed a counter affidavit thereto on 13-3-2018. The trial Court considered the appellant’s said motion, the respondent’s motion and other motions, all the affidavits and written addresses filed by the respondent, appellant, the other five claimants and conclusively held thusly –
“On the premise of the above, it is therefore my decision that having not being satisfied with the explanation and claims by the claimants in respect of the properties in custody of the applicant as listed in the EFCC schedule in this suit, I hereby order that the application for final forfeiture is respect of the items listed in the above listed EFCC schedule is hereby granted in favour of the applicant.“
The parties to the appellant’s application for the discharge of the interim order were the appellant as applicant and the respondent herein as respondent thereto. The judgment appealed against here determined that application. This appeal is against the refusal of the said application.
In the light of the foregoing, I hold that the appellant was a named party to the proceedings in the trial Court. As such a named party to the proceedings at the trial Court and the judgment of the trial Court being a final one rendered by it at first instance or in its original jurisdiction, the appellant can appeal as of right against it by virtue of S.241(1)(a) and S.243(a) of the 1999 Constitution which provide that-
“241-(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings
(c) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution.
(d) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) Decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death.
(f) Decisions made or given by the Federal High Court or a High Court-
i. Where the liberty of a person or the custody of an infant is concerned.
ii. Where an injunction or the appointment of a receiver is granted or refused.
iii. In the case of a decision determining the ease of a creditor or the liability of a contributory of other officer under any enactment relating to companies in respect of misfeasance or otherwise.
iv. In the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
v. In such other cases as may be prescribed by an Act of the National Assembly.
243-(1) Any right of appeal to the Court of Appeal from the decisions of Federal High Court or a High Court conferred by this Constitution shall be –
(a) Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or person as may be prescribed.“
Being a party to the proceedings in the trial Court, he does not require the leave of Court to bring this appeal.
The dispute by both sides as to whether the proceedings in the trial Court is in rem or in personam for the purpose of determining if the appellant was a party at the trial Court is unnecessary as it is baseless. The relevant consideration is that he entered and participated in the proceedings at the trial Court eonomine by virtue of the provisions of S.17(1) and (2) of the Advance Fee Fraud and Other Fraud Related Act 2006 which provide that-
“17(1) Where any property has come into the possession of any officer of the Commission as unclaimed property or any unclaimed property is found by any Officer of the Commission to be in the possession of any other person, body corporate or financial institution is reasonably suspected to be proceeds of some unlawful activity under this Act, the Money Laundering Act of 2004, the Economic and Financial Crimes Commission Act of 2004 or any other law enforceable under the Economic and Financial Crimes Commission Act of 2004, the High Court shall upon application made by the Commission, its officers, or any other person authorized by it and upon being reasonably satisfied that such property is an unclaimed property or proceeds of unlawful activity under the Acts stated in this subsection make an order that the property or the proceeds from the sale of such property be forfeited to the Federal Government of Nigeria.
(2) Notwithstanding the provision of Subsection (1) of this section the High Court shall not make an order of forfeiture of the property or the proceeds from the sale of such property to the Federal Government of Nigeria until such Notice or publication as the High Court may direct has been given or made for any person, corporate or financial institution in whose possession the property is found or who may have interest in the property or claim ownership of the property to show cause why the property should not be forfeited to the Federal Government of Nigeria. (3) Application under Subsection (1) above shall first be made by a motion ex parte for interim forfeiture order of the property concerned and the giving of the requisite Notice or publication as required in Subsection (2) of this section. (4) At the expiration of 14 days or such other period as the High Court may reasonably stipulate from the date of the giving of the Notice or making of the publication stated in Subsection (2) and (3) of this section, an application shall be made by a motion on Notice for the final forfeiture of the property concerned to the Federal Government of Nigeria. (Underlining for emphasis).“
This is an extraordinary legislation because it allows proceedings to be commenced with one named party for the purpose of obtaining ex parte orders to freeze or forfeit in the interim any unclaimed property or any property reasonably suspected to be the proceeds of some unlawful activity, to preserve the property from being dissipated pending the determination of their ownership, the source of such ownership or their origin. Ordinarily civil proceedings can be validly commenced only when constituted by a named party against another named party and actions or suits constituted by only one named human or legal person are invalid.
It is glaring from the express and clear words of the above reproduced provisions of S.17(1) and (2) that it allows for the action constituted by one named person to change to an action interpartes and continue as such, because it requires that the ex parte interim freezing order be published and that upon publication, a motion on notice be filed by the applicant and that any person claiming to have right or interest in the frozen property can enter the proceedings and participate therein to show cause why the property should not be forfeited to the Federal Government of Nigeria.
It is not open to argument that by entering into and participating in the proceeding to assert their claim of right to the frozen property, they have become parties to the proceedings. The statute, having given them the right to enter the proceedings and litigate over the ownership of any right or interest in the frozen property, it would be contrary to the provisions of that statute and against common sense to argue that they are not parties to that proceedings. They filed processes including written addresses which were considered by the trial Court in determining whether or not it should forfeit the frozen properties to the Federal Government of Nigeria. There is no basis to argue that the appellant was not a party to the proceedings at the trial Court and that he cannot appeal as right against the judgment that dismissed his claim of title to the frozen vehicles (items 1 – 18).
Ground 1 of the objection lacks merit and is hereby dismissed.
Let me now consider ground 2 of the preliminary objection.
I have carefully read and considered all the arguments of both sides on this issue.
As I had held herein, the judgment of the trial Court appealed against here is a final judgment of the trial Court sitting at first instance. Therefore this appeal by the appellant lies from that judgment as of right irrespective of whether the grounds of appeal are complaints of facts or mixed law and facts by virtue of S.241(1)(a) of the 1999 Constitution already reproduced herein. I am surprised that Learned Counsel for the respondent can litigate over such an issue and invite the Court to determine it as a ground of objection to the competence of this appeal when the Supreme Court has in a long line of judicial decisions spanning over four decades consistently restated that an appeal lies as of right from decisions of a High Court sitting at first instance to this Court irrespective of the nature of the grounds of appeal. An example of such decisions is its holding in Iwueke v. I.B.C (2005) LPELR – 1567 (SC) that “Leave of either the trial Court or the Court of Appeal is not needed before appealing against a final decision of the High Court as it is the law that an appellant appeals as of right against the final decision of the Court of first instance. In such a situation, it becomes immaterial or irrelevant that a ground of appeal against such a final decision is of law, facts or mixed law and facts.” A point or issue restated consistently by several decisions of the Supreme Court is considered settled and is no longer arguable except for the purpose of causing a review or change of the case law on the point. It does not help application of law and administration of justice to merely dispute or argue such settled issues, opening them up to barren relitigation. Such a course is a clear abuse of the process of Court as it violates the principle that there should be an end to litigation, the principle of stare decisis and can defeat the certainty of application of law, as it can instigate needless conflicts in case law on a settled point.
In the light of the foregoing, I hold that the second ground of objection lacks merit and it is hereby dismissed.
Let me now determine ground 3 of the preliminary objection.
I have carefully read and considered the arguments of both sides on this ground. It is indisputable that case law is settled that an appellant who commences an appeal against a judgment by filing several notices of appeal within the statutorily prescribed time for appealing, must choose which of the notices to rely on for the appeal and abandon the other notice(s). See FBN PLC V TSA IND. LTD (2010) 15 NWLR (PT. 1216) 247 @ 290 in which the Supreme Court stated that-
“The answer to this objection has been aptly answered in the case of Tukur v. Government of Gongola State (1988) NSCC Vol. 19 pt.1 pg.30 quoting from the judgment of the Supreme Court from page 36 lines 6 – 12 that “the answer to the question, can an appellant file two Notices of Appeal with emphasis on the word can is obviously yes he can”.
In the case of Iteshi v. The State 9 – 11 SC at pg.41- the Supreme Court considered a similar situation where the appellant filed three Notices of Appeal. The Apex Court held that – it was open to counsel for the appellant to choose which of them he intends to adopt. In the case of Harriman (supra), the Court has decided that filing of more than one notice does not affect the validity of an appeal if all the notices are filed within the statutory period for appealing. An appeal is not incompetent because it is brought by more than one notice of appeal. I adopt this sound reasoning in respect of this objection.”
Where all the notices were filed before the appeal was entered in the Appellate Court, this principle is more conveniently applicable. Our present case has presented a situation where, the appellant has filed two notices of appeal within time, the second one was filed in the lower Court after the entry of the appeal in this Court. Learned Counsel for the appellant has raised the interesting question of whether the appeal having been entered here on the basis of the first notice of appeal, can a second notice be filed and the appeal prosecuted on the basis of the second notice filed after the said entry of the appeal here. This question appears arguable in view of the principle that processes pending in a proceedings can only be amended by substitution with leave of Court. Since the appeal had by virtue of its entry here become pending here on the basis of the initial notice of appeal that commenced the appeal and on the basis of which the record of this appeal was compiled and transmitted here and which is the notice in the said record of appeal, it can be reasonably argued that the second notice of appeal filed after the said entry of this appeal here and which notice is now contained in the supplementary record of this appeal and has been relied on by the appellant for his appellant’s brief, has substituted the first notice of appeal. The respondent has argued that the substitution can only be valid if the appellant had been granted leave to amend the initial notice of appeal by substituting it with the second notice of appeal.
But the challenge to this argument is that the second notice of appeal having been filed within time is a legally valid notice of appeal. It cannot be regarded as a parallel appeal in abuse of the Court process because the appellant has relied on it to prepare his brief in this appeal and abandoned his initial notice of appeal, and thereby shown that he has not filed it to prosecute a parallel appeal. Since the said second notice had been filed before the appellant prepared and filed his brief and formed part of the record of this appeal as supplementary record of the appeal, the appellant still had the opportunity to elect to rely on it to prepare his brief and abandon the initial notice of appeal without prejudice to the respondent.
In the light of the foregoing, I hold that ground 3 of the objection lacks merit and is hereby dismissed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Having dismissed the preliminary objection, I will now proceed to consider the merits of this appeal.
The appellant’s brief raised the following issues for determination-
1. Whether the Learned Trial Judge had jurisdiction to order that status quo be maintained after rightly adjudging the respondent’s forfeiture application filed during the pendency of a similar cause of action at the Appellate Court an abuse of Court process instead of out rightly dismissing same. (Distilled from ground 1 and 2 of the Notice of Appeal).
2. Whether the Learned trial Judge was wrong in law to have neglected and/or failed to consider and make pronouncement on all the issues before him on their respective merit being a Court of first instance.
3. Whether from the totality of evidence before the Court, the appellant demonstrated reasonable cause to warrant a dismissal of the respondent’s application on the merit and directing an order releasing the items sought to be forfeited.
The respondent’s brief raised the following issues for determination –
1. Whether the action instituted by the Respondent that is subject of this appeal is a similar cause of action with the fundamental rights suit instituted by the Appellant now pending appeal at the Supreme Court.
2. Whether the trial Court was right in directing that the status quo be maintained for now when he held that:
‘however in essence what I believe should be of paramount note at this point is that since the Apex Court where same subject matter is pending has not made any pronouncement, the question therefore to ask; if same subject matter which bothers on the propriety or otherwise of the seizure of items 1-18 a subject matter of the instant litigation has not yet been determined by the superior Court, will interference with same not amount to speculation by this Court at this stage of the proceedings the obvious answer to that is in the positive. On the authority of Mohammed v. Olawunmi (1993) 4 NWLR (PT. 288) 384; ORIZU V. OFOMATA (2008) ALL FWLR (PT. 398) 339 AT 355 PARA B-C 355, PARA A-B 9CA) this Court has been charged always to avoid judicial impertinence where issue of same on a subject matter before it is also before the appellate Court. To this end, I would in my humble view avoid being caught up by speculating on whatever the outcome of the superior Court may be in the consequence of that, in the interest of justice, I will direct that the status quo on the subject matter be maintained for now at this stage since same will still be considered in the third issue raised in this judgment. The law is that one of the most important factors is the preservation of the res or the subject matter of the suit. Courts of law have a duty to preserve the res for the purpose of ensuring that the appeal if successful is not rendered nugatory.
I will determine this appeal on the basis of the issues raised in the appellant’s brief.
Let me start with issue No. 1 which asks – “Whether the Learned Trial Judge had jurisdiction to order that status quo be maintained after rightly adjudging the respondent’s forfeiture application filed during the pendency of a similar cause of action at the Appellate Court an abuse of Court process instead of out rightly dismissing same.”
The part of the judgment complained against under this issue reads thusly –
“Whether as regards to items 1-18 on the applicant’s 2nd Schedule, it will not be judicial impertinence on the part of this Court to speculate on the outcome of the pending appeal before the Supreme Court in SC/112/17?
In the second issue above which relates to the issue suo moto raised in this Court in respect of the propriety of the pending Appeal at the Supreme Court in Suit No. SC/112/2017 vis a vis the present application bothering on same subject matter, both counsel to the applicant (EFCC) and the 1st claimant both addressed this Court on the issue. On the part of the 1st Claimant, he argued that while he conceded to the EFCC in their written address that the cause of action are different based on the fact that suit No. SC/112/2017 bothers on fundamental Enforcement Right to own property which was earlier in time to this suit, the present application bothers on criminal forfeiture proceedings. He however argued further that, owing to the fact that the suit giving rise to No. SC/112/2017 pending before Supreme Court others on same subject matter but earlier in time to this proceedings, the existence as to the ownership of these vehicle adjudged by both the trial Court and the Court of Appeal was a material fact that must be disclosed before this Court as at when the EFCC came to this Court or an order Exparte, that failure to so disclose renders the entire application incompetent. He submitted that the only conclusion the Court can reach is to set aside the interim order and urged this Court to set aside the Exparte order with substantial cost of the value of the vehicle as at today. He referred to KERR on injunction by J.M Patterson, page 643.
Learned Counsel to the applicant’s G.K LATONA, Esq., on his part argued that what is before the Court is an application for final forfeiture of the vehicle found to have been acquired with proceeds of crime and same to have been brought pursuant to Section 17 of the Advance Fee Fraud and other Fraud Related Act, 2006 which gives the Court jurisdiction and power to forfeit properties which are proceeds of crime. He further argues that this application is distinct from the exercise of the Applicant’s power under Sections 6, 7, 24, 26, 28, 29 and 34 of the EFCC Act, 2004 to which the respondent here challenged to the Supreme Court where the matter is still pending. Th at the decisions of Court beginning at DANGABAR V. FRN FAYOSE V EFCC are based on Sections 6, 7, 24, 26, 28, 29 and 34 of the EFCC (Establishment Act), 2004 and Section 44(2) (k) of the 1999 Constitution and that none of those authorities were based on Section of the Advance Fee Fraud Act, 2006.
He finally submitted that the pendency of the case of the claimant against the applicant at the Supreme Court does not rob this Court of its jurisdiction to entertain the application of the Applicant reason being that the suit pending at the Supreme Court between both parties are premised on different laws and conclusions from the present suit. On the meaning of abuse of Court process, he relied on the cases of A.G. LAGOS STATE V. A.G. Federation (2014) 9 NWLR (PT.412) S.C 217 @ 272-273 PARA B-D; DANIEL V. FRN (2014) 8 NWLR (PT.410) CA 570 @ 618 PARA E-G; ADEBOWALE V. STATE (2013) 16 NWLR (PT. 1379) CA 104 @ PG. 127 PARA F-G.
Having carefully gone through both the oral and written submissions of the above issue by the two (2) learned counsel concern, I wish to reiterate the age-long established principle of law on what constitutes an abuse of Court process. In the case of ACB LTD V. NWAIGWE & ORS (2011) LPELR-208 (SC) where reference was made to ADESOKAN V. ADEGOROLU (1991) 3 NWLR (PT.293) 297, it was held that:
“to institute an action during the pendency of another one claiming the same reliefs amount to an abuse of process of Court. It does not matter whether the matter is an appeal or not, for as long as the previous action has not been finally decided, the subsequent action constitutes an abuse of process of the Court – see the authorities earlier cited. It is not the existence or pendency of a previous suit that causes the problem but the institute of a fresh action between the same parties and on the same subject matter when the previous suit has not been disposed of that constitutes abuse of process of Court- see OKAFOR V. A-G Anambra State supra.” Per Onnoghen, J.S.C. (P. 13, paras. C-F)
Having stated the above and after taking a cursory look at EXH A certified judgment in suit no FCT/HC/CV/2170/17 between (OLALEKAN OLAKEHINDE V. EFCC) and EXH A2 (copy of Notice of appeal filed on 22/12/17) which are both referred to in paragraph H of the counter-affidavit of the 1st Claimant in opposition to the applicant’s Motion on Notice dated filed 5/3/18. It is no doubt from my findings that both actions involved which started at the High Court of FCT and pending at the Supreme Court represents the same parties as in this instance case. It is also with no iota doubt that the subject matter in the suit pending before Supreme Court which bothers on the seizure of items 1-8 on the applicant schedule by the applicant, is also the same subject matter that is also set before this Court for adjudication. However, in essence, that I believe should be of paramount note at this point is the fact that since the Apex Court where same subject matter is pending has not made any pronouncement. The question therefore to ask is if same subject matter which bothers on the propriety or otherwise of the seizure of items 1-18, a subject matter of the instant litigation, has not yet been determined by the superior Court, will interference with same not amount to speculation by this Court at this stage of proceedings? The obvious answer to that in the positive. On the authority of MOHAMMED V. OLAWUNMI (1993) 4 NWLR (PT.288) 384; ORIZU V. OFOMATA (2008) ALL FWLR (PT.398) 339 AT 355, PARAS. B– C; P. 355, PARAS. A – B (CA) this Court has been charged to always avoid attitude which tantamount judicial impertinence where issue of same on a subject matter before it is also before the Appellate Court. To this end, I would in my humble view avoid being caught up by speculating on whatever the outcome of the superior Court maybe. In the consequence of that, in the interest of justice, I will direct that the status quo on the subject matter be maintain for now at this stage since same will still be considered in the third issues raised in this judgment. The law is that one of the most important factors is the preservation of the res or the subject matter of the suit. Courts of law have a duty to preserve the res for the purpose of ensuring that the appeal, if successful, is not rendered nugatory. See the case of UNIVERISTY OF ILORIN V. AKINYANJU (2007) ALL FWLR, 1767 AT 1777, PARAS. B – D (CA).”
Learned Counsel for the appellant argued that the trial Court having made the findings that the respondent’s seizure of the motor vehicles listed as items 1 to 18 in the schedule to the originating application in this case, which is part of the matter in dispute in this case is the same issue pending for determination in the Supreme Court in the further appeal from the decision of the Federal Capital Territory High Court in Suit No. FCT/HC/CV/2170/17 between the same parties herein and having adjudged the suit an abuse of process, the only jurisdiction it had at that stage was to have dismissed the suit before it and not order that the status quo be maintained pending the determination of the issue by the Supreme Court in the appeal before it.
Learned counsel for the respondent under issues Nos. 1 and 2 in the respondent’s brief argued that the cause of action in this case is not the same with that in suit No. CV/2170/2017 now pending at the Supreme Court, that the subject matter in this case is application pursuant to S.17 of Advance Fee Fraud Act 2006 for forfeiture of properties suspected to be proceeds of crime, whereas the subject matter in suit No. CV/2170/2017 now at the Supreme Court is the enforcement of the appellant’s fundamental rights to the said properties under S.44 of the 1999 Constitution, that the order of the trial Court that the status quo be maintained pending the outcome of the further appeal to the Supreme Court arising from the decision of the Federal Capital Territory High Court in CV/2170/17 is based on the assumption that the subject matters in this case and the other case are the same, that this assumption is not supported by case law, that even though the two cases relate to the same event, it is not strictly accurate to say that they relate to the same subject matter as this case deals with the issue that the said properties were acquired by the appellant from the proceeds of crime, while, the matter at the Supreme Court deals with the issue that the seizure of the properties from him violate his fundamental right to ownership of property. For these submissions, he relied on the Supreme Court decision in Akilu v Fawehinmi (No. 2) SC 215/1988 and SC. 216 (1988).
Learned Counsel for the respondent further argued that it was the appellant that encouraged the trial Court to raise the issue of the relationship between the two pending matters by arguing that the forfeiture order be discharged because their subject matters are the same, that even though the matter was raised suo motu by the trial Court, both sides were heard on the issue before the trial Court rendered its decision on the point, that none of them was adversely affected by the order that the status quo be maintained, that the trial Court did not adjudge the respondent’s forfeiture application an abuse of process.
Let me now consider the merit of all the above arguments of both sides.
The arguments of Learned Counsel for the respondent that this case and the pending further appeal to the Supreme Court from the judgment of the Federal Capital Territory High Court in CV/2170/2017 are different and that the trial Court wrongly assumed that they are the same is incompetent and invalid because there is no ground of this appeal complaining against the holding of the trial Court that the subject matters in the two case are the same. By not appealing against it, all the parties herein have accepted it as correct, conclusive and binding upon them and therefore cannot be heard to argue to the contrary in this appeal. See Iyoho v. Effiong (2007) 4 SC (Pt III) 90 and Dabup v. Kolo (1993) 12 SCNJ 1.
Learned Counsel for the respondent has indicated that it has cross appealed against that holding in a cross appeal. Then it should make that argument in the cross appeal and not in this appeal. As it is, the respondent’s said arguments referred to above are incompetent and are hereby struck out.
I agree with the submission of Learned Counsel for the respondent that the trial Court did not adjudge the forfeiture application as being an abuse of the process of Court. The trial Court only found that part of the subject matter of this case, to wit, the seizure of items 1 – 18 in the schedule to the application before it is the same with the subject of the case pending in the Supreme Court. After making this finding, it chose to order a maintenance of the status quo pending the outcome of the case before the Supreme Court to avoid engaging in what may amount to judicial impertinence. It did not find the application for forfeiture of the said items as abusive of the case pending in the Supreme Court.
There is no doubt that multiplicity of actions over the same subject matter and between the same parties give the impression that the later action is abusive of the Court process. But that may not necessarily be so. The later process can be regarded as abusive of the process of Court if it is wanting in bonafides in the sense that it is a malicious use of that multiple process. A classical restatement of this point was made by the Supreme Court in Amaefule v. State (1988) NWLR (Pt. 75) 238 per Oputa JSC thusly “No one is doubting the very wide powers of the Attorney-General of a State under Section 191(1) of the 1979 Constitution. But just because the powers are very wide that itself, is all the more reason why their exercise should be carefully watched. All proceedings in poenam are strictissimi juris and where a particular procedure has been provided by law, that procedure should be strictly adhered to. And a party accused has the right to insist on that particular procedure as a matter of right which he cannot be deprived against his will: see Cockburn, C. J. in Martin v. Mackonochie (1878) L.R. 3 Q.B. 775. Can the Attorney-General in this case deprive the appellants of the right of election or nullify their exercise of that right in Charge No. HOW/57C/85? If the Attorney-General deprives the appellants of that right by filing (simultaneously and along with the pending charge in the Magistrates’ Court) a fresh information, will that not be an abuse of process? Abuse of Process: Abuse of process of the Court is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive? Abuse of process can also mean abuse of legal procedure or improper use of legal process. There is nothing on record to suggest that the Attorney-General of Imo State in preferring the information, the subject-matter of this appeal, acted from improper motives or was wanting in bona fides. No. It cannot be argued that the information is frivolous and vexatious. But is it not “oppressive” if not in fact at least in law to deprive the appellants their right of election by filing the information not in accordance with Section 18(e) of the Criminal Procedure (Miscellaneous Provisions) Law No. 19 of 1974 which should have properly terminated Charge No. HOW/57C/85 and with it the election of the appellants to be tried summarily? The answer to the above question will surely depend on whether abuse of process has in any event to contain the absence of bona fides as its fundamental element. On every careful consideration, I am forced to the conclusion that to amount to an abuse of process, the proceeding or step in the proceeding complained of, will in any event, be lacking in bona fides; it has to be an improper use or perversion of process after it had been issued. The term abuse of process has an element of malice in it. It thus has to be a malicious perversion of a regularly issued process civil or criminal, for a purpose, and to obtain a result not lawfully warranted or properly attainable thereby. These elements are completely lacking here.”
I think that the trial Court acted reasonably in the circumstances of this case when it ordered that the status quo be maintained pending the outcome of the further appeal pending in the Supreme Court to avoid doing anything that would prejudice the proceedings in the Supreme Court.
In any case, the subject matter of the case on further appeal to the Supreme Court has no relationship with the freezing and forfeiture of the land properties, items 1 to 9 in the schedule and therefore the decisions of the various levels of Courts in that case have no effect on the forfeiture of the said land properties.
The arguments of Learned Counsel for the appellant that the respondent in its application at the trial suppressed material facts concerning the case pending at the Supreme Court over the ownership of the seized vehicles, that the respondent suppressed the fact that the vehicles had already been seized and carted away before the application for an interim order of forfeiture was brought to legitimizes same, that the order to maintain status quo was not sought for and that the trial Court did not exercise its discretion judicially or judiciously in making that order, are incompetent as they do not come within the rubrics of issue No. 1 under which they were made. The question raised by issue No. 1 is simply whether the trial Court that had adjudged the forfeiture application as an abuse of process was right to order a maintenance of the status quo instead of out rightly dismissing the application. The question turns on the proper order the trial Court should have made after holding that the forfeiture application is an abuse of Court process. Arguments of an issue for determination in an appeal must address the subject matter of that issue and nothing else.
In the light of the foregoing, I resolve issue No. 1 in favour of the respondent.
Let me now consider issue No. 2 which asks “Whether the Learned trial Judge was wrong in law to have neglected and/or failed to consider and make pronouncement on all the issues before him on their respective merit being a Court of first instance.”
I have carefully read and considered the arguments of both sides on this issue.
Learned Counsel for the appellant failed to refer to the issue that were not considered by the trial Court. It is not enough to allege merely that the trial Court failed to consider all the issues raised by the parties before it. The appellant who complains against the judgment of the trial Court on this ground must refer to the issues not considered by the trial Court and show that without this failure its decision would have been different. Having failed to refer to the issues not considered by the trial Court, the appellants complain under issue No. 2 is baseless and therefore lacks merit.
The argument of Learned Counsel for the appellant that the trial Court did not consider the affidavit evidence and written address of the appellant and considered only the affidavit evidence and written addresses of other parties, is incompetent and invalid. It is incompetent, because it is outside the purview of the subject matter of issue No. 2.
The distinction between the Court’s failure to consider all the issues raised before it and its failure to consider the evidence and addresses of one party and considering the evidence and addresses of the adverse parties is essentially one of improper evaluation of the whole evidence and written addresses of both sides or failure to consider the case of one party to the case. The argument of an issue raised for determination in an appeal must address the subject matter of the complain. If it addresses any matter outside the issue raised for determination, it is incompetent.
The said argument that the trial Court did not consider the affidavit evidence and written addresses of the appellant lacks merit as the appellant has not shown by reference to the judgment, that the trial Court did not consider the appellant’s evidence and written addresses. It is not enough to simply allege without more that the trial Court did not consider the evidence and written addresses of the appellant. It is the judgment that would show what was considered in deciding the issues therein. So it is only by reference to the judgment that it can show that a party’s evidence and written address was not considered in reaching the decision on any issue in the judgment.
In the light of the foregoing, I resolve issue No. 2 in favour of the respondent.
Let me now determine issue No. 3 which asks; “Whether from the totality of evidence before the Court, the appellant demonstrated reasonable cause to warrant a dismissal of the respondent’s application on the merit and directing an order releasing the items sought to be forfeited.”
I have carefully read and considered the arguments of both sides on this issue.
It is glaring that the appellants claim is limited to the motor vehicles (items 1 to 18) in the schedule to the application. It is not in dispute that the propriety or legality of the respondent’s seizure of those items is the issue pending determination in the further appeal to the Supreme Court (SC/1112/2017) from the decision of the Federal Capital Territory High Court in FCT/HC/CV/2170/17. I have held in this judgment that the decision of the trial Court ordering a maintenance of the status quo pending the final determination of the issue by the Supreme Court in the further appeal to it is correct. As it is, determining issue No. 3 herein, would prejudice the appeal pending before the Supreme Court on the same subject matter between the same parties. It is settled by a long line of decisions of the Supreme Court and this Court that a lower Court should avoid such judicial engagement in proceedings before it that would defy the judicial authority of the higher Court before which proceedings involving the same subject matter and parties is pending. See for example the decision of the Supreme Court in Mohammed V. Olawunmi (1993) 4 NWLR (Pt. 287) 254 at 277-278.
At the trial Court, the appellant did not claim for the ownership of any right or interest in the land properties in items 1 to 9 of the Schedule to the application. His claim of ownership was limited to the motor vehicles. The persons who claimed for ownership of the land properties and whose claims were dismissed by the trial Court and the land buildings forfeited to the State have not complained against or challenged that order. The appellant has not claimed any ownership or interest on the said land properties in items 1 – 9 of the schedule of the application.
In the light of the foregoing, I resolve issue No. 3 in favour of the respondent.
On the whole, this appeal fails as it lacks merit. It is hereby dismissed.
The appellant shall pay costs of N200,000.00 to the respondent.
PETER OLABISI IGE, J.C.A.: I agree.
YARGATA BYENCHIT NIMPAR, J.C.A.: I was given the privilege of reading in advance the draft Judgment just delivered by Learned Brother EMMANUEL AGIM, JCA.
I agree with the reasoning and resolution of the issues distilled for the determination. I just wish to add my voice on the need for Appellant to appeal against any finding he is dissatisfied with.
It is trite that any finding of fact not appealed against is deemed conceded, see ANYANWU V. OGUNEWE & ORS (2014) LPELR-22184(SC) where the apex Court held:
“It is a settled principle of law that a decision on any point of law or fact not appealed against is deemed to have been conceded by the party against whom it was decided and it remains valid and binding on all the parties. See: Ogunyade vs. Oshunkeye (2007) All FWLR (Pt. 389) 1175 @ 1206 – 1207 H – B: Onibudo & Ors. Vs Akibu & Ors. (1982) 13 NSCC 199: Anyaduba & Anor. Vs N.R.T.C. Ltd. (1992) 5 NWLR (Pt. 243) 535 @ 553 G – F; Unity Bank Nig. Plc. Vs Bouari (2008) 7 NWLR (Pt. 1086) 372 @ 400 B – C.” Per KEKERE-EKUN, J.S.C.
Parties herein failed to appeal against the finding that the subject matter of the Appeal pending before the apex Court- SC/1112/2017 and Suit No. CV/2170/2017 are the same, consequently, they have consented to that finding. In effect or consequence, the said facts, stand or subsist. This is because finding or findings of fact, is or are the exclusive business of a trial Court. If such finding or findings is or are not challenged on Appeal, it or they, become binding on Appeal. See the case of ALHAJI USMAN V. GARKE (2003) 7 SCNJ 38 @ 50-51. In such circumstances, an Appellate Court, will not disturb or interfere with such findings. It cannot even delve into the issue or pronounce on it. See the case of ALHAJI ADEYEMI & ANOR V. CHIEF OLAKUNRI & 10 ORS (1999) 14 NWLR (PT. 638) 204.
I too dismiss the Appeal and abide by the Orders made in the lead Judgment.
Appearances:
M J. Numa Esq., with him, O.O Osusua Esq. and B. J. Tabai Esq. For Appellant(s)
Aliyu M. Yusuf Esq., with him, Jirbo A. Francis Esq. For Respondent(s)
