TRELOU INVESTMENTS INC. & ANOR v. THE CHAIRMAN OF EFCC (2022)

TRELOU INVESTMENTS INC. & ANOR v. THE CHAIRMAN OF EFCC

(2022)LCN/16495(CA)

In the Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, April 22, 2022

CA/ABJ/CV/1083/2020

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

1. TRELOU INVESTMENTS INC. 2. RMCK PROJECTS DEVELOPMENT LTD APPELANT(S)

And

THE CHAIRMAN OF THE ECONOMIC AND FINANCIAL CRIMES COMMISSION RESPONDENT(S)

RATIO

THE POSITION OF LAW WHERE AN ORDER IS MADE ON A MOTION EX PARTE

On issue one; it is very important from the onset to have recourse to the provisions of Order 26 Rule 11 of the Federal High Court Civil Procedure Rules, 2009, because both parties are vehement in their insistence on their entrenched positions, and also because the order is the fulcrum of the issue for determination. It provides as follows:
“where an order is made on a motion ex parte, any person affected by it may, within seven days after service of it, or within such further time as the Court shall allow, apply to the Court by motion to vary or discharge it, and the Court may, on notice to the party obtaining the order, either refuse to vary or discharge it, or may vary or discharge it with or without imposing terms as to cost or security or otherwise, as seems just.”
Clearly, this rule envisages a situation where a party affected by the order is served. What this means essentially is that, the order of the Court should be served or brought to the attention of the party affected; after that, the party affected is at liberty to, either respond by challenging it or ignore it, as he pleases, at his peril. PER MUSTAPHA, J.C.A.

WHETHER OR NOT A COURT CAN RAISE AN SUO MOTU ON BEHALF OF PARTIES

I am in total agreement with learned counsel for the Respondent that the Court has every right to apply or enforce its rules, and also take judicial notice of all laws and enactments as provided by Section 122 of the Evidence ACT, 2011; but be that as it may, where a Court raises an issue suo motu, as appears to have been done in the present case, the parties must be given an opportunity to address the Court on the issue so raised particularly the party that may be adversely affected as a result of the issue raised suo motu and thus avoid any breach of the parties right to fair hearing; SEE ABBAS V. SOLOMON (2001) FWLR (PT. 67) PAGE 847; ADEGOKE V. ADIBI (1992) 5 NWLR (PT.242) PAGE 410 AT 420; OJE V. BABALOLA (1991) 4 NWLR (PT. 185) PAGE 280 AT 676; ODIASE V. AGHO (1972) 1 ALL NLR (PT. 1) PAGE 170; EJOWHOMU V. ETOK-ETER MANDILAS (1986) 5 NWLR (PT. 39) PAGE 1.
A decision of a Court of law should not be based on any ground or issue in respect of which it has neither received arguments from or on behalf of the parties before it, where the Court raises an issue without giving parties opportunity to ventilate their views on the issues, the Court would be acting in breach of the Fundamental Right of the parties to fair hearing of the case they have presented before the Court for adjudication SEE AMADI V. CHINDA & ORS (2009) 10 NWLR (PT. 1148) PAGE 107 AT 138. PER MUSTAPHA, J.C.A.

THE TEST TO DETERMINE LOCUS STANDI

Basically, the interest of justice demands that at all times “locus standi” be given a broad and liberal scope by the Courts to bring out the true essence of justice in accordance with the law; This is the view in a long line of decided cases; see: (1) OGBUEHI V. GOVERNOR OF IMO STATE (1995) 9 NWLR (PT. 417) P. 53; (2) U.B.A. PLC V. BTL IND. LTD. (2004) 18 NWLR (PT. 904) P.180 AND (3) GUDA V. KITTA (1999) 12 NWLR (PT. 629) P. 21.

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Federal High Court Abuja Division, in FHC/ABJ/392/2016 delivered on the 14th of January, 2020 by Hon Justice O. E. Abang.

FACTS IN BRIEF:
The Appellants filed an application on the 7th of June, 2016 seeking an order among other things, setting aside the ex parte order of interim attachment granted on the 24th of June, 2016 in respect of the property described as Avenue Towers, plot 1391 Tiamiyu Savage Street, Victoria Island, Lagos. The trial Court ruled among other things, that the appellant’s application lacked merit, and dismissed it with cost of N300,000.

Dissatisfied, the Appellants appealed, first by a notice of appeal on eight grounds filed on the 28th of January, 2020, and later an amended notice of appeal, also on eight grounds, filed on the 18th of June, 2021. The grounds of appeal shorn of their respective particulars are as follows:
GROUNDS OF APPEAL
GROUND ONE:
The learned trial Judge erred in law when he held that the Appellants filed no application for enlargement of time to bring their application filed on the 19th day of October, 2018 in line with Order 26 Rules 1 and 2 of the Federal High Court (Civil Procedure) Rules 2009 and the Practice Direction.
GROUND TWO:
The learned trial Judge erred in law when he held that the Appellants got to know about the Ex-parte interim Order of forfeiture made by the honourable trial Court 28 months before the date of filing its application of October, 2018 and/or on the 7th day of September, 2018.
GROUND THREE:
The learned trial Judge erred in law when he held that he lacked the jurisdiction to entertain the application of the Appellants on its merits owing to the non—compliance with Order 26 Rule 11 of the Rules of the Court as to the time for such filing to be done.
GROUND FOUR:
The learned trial Judge erred in law when he suo motu raised the issue of time of filing by the Appellants of their application of 19th of October, 2018 without giving an opportunity to the Appellants/parties to the application to address him on or react to the issue so raised suo motu thereby denying the Appellants their right to fair hearing.
GROUND FIVE:
The learned trial Judge erred in law when he found and held that he lacked the jurisdiction to entertain the application of the Appellants owing to non-compliance with the rules of the Court, struck it out saying he will not decide it on its merits at this stage unless he is overruled by the appellate Courts(s) yet went into the merits and dismissed the suit for being an abuse of the judicial process,
GROUND SIX:
The learned trial Judge erred in law when he held that the Court rightly made the Order of Interim Attachment/Forfeiture on the 24th of June, 2016 over the property known and called Avenue Towers at Plot 1391, Tiamiyu Savage Street, Victoria Island, and Lagos.
GROUND SEVEN:
The learned trial Judge erred in law when he held and insisted that the Exhibit FA8 — Power of Attorney donated to Olufemi Sumonu of Aliant Qais Conrad Laureate was over Plot 1390. Tiamiyu Savage Street, Victoria Island, Lagos ignoring all other documents showing otherwise before him to arrive at the conclusion that he said attorney – Olufemi Sumonu of Aliant Qais Conrad Laureate — a firm of solicitors had no power to bring the application of 19th October, 2018 for the Appellants.
GROUND EIGHT:
The learned trial Judge erred in law when he held that there was conflicting ownership of the property known and called Avenue Towers of Plot 1391, Tiamiyu Savage Street, Victoria Island, Lagos.

The Appellants’ brief settled by Ameh O. Ameh was filed on the 23rd of June, 2021, but deemed properly filed on the 6th of December, 2021; the following issues were formulated from the grounds of appeal:
1. Whether the trial Court was right in law to have raised issues suo moto which were material to the life of the application of the appellants and delivered its opinion on them without giving the appellants and other parties the opportunity to address it on the issues raised.
2. Whether the trial Court, in view of the circumstances surrounding the application of 19th October, 2018 filed by the appellants lacked the jurisdiction to entertain same; and was right to go into the merits of the case and appellants a cost of N300,000 only as it ruled that the application was a gross and reckless abuse of judicial process.
3. Whether the trial Court was right to have ruled that its ex parte order of interim attachment made on the 24h of June, 2016 was rightly made in the face of the emergence of suppressed facts by the respondent; and as revealed by the exhibits and documents filed by the appellants.
4. Whether the exhibit FA 8 donated by the 1st appellant to the done violated the provisions of the Evidence Act regarding the time of its donation, thereby affecting its validity, competence in law and the locus standi of the appellants to file their application before the trial Court.
5. Whether from the totality of documents placed before the trial Court by parties, there is any doubt as to the interest of the appellants in the Avenue Towers at plot 1391, Tiamyu Savage Street, Victoria Island.

The Respondent formulated the following issues of its own in the brief filed on the 9th of November, 2021 but deemed properly filed on the 6th of December, 2021:
1. Whether the Court was right to give effect to the provision of law without being raised by any party?
2. Whether in view of the circumstances of this case and the documents placed before the trial Court sufficient doubt has not been created to allow the respondent continue and conclude its investigation that led to the obtaining of the interim order in question?

The appeal will be determined on the issues formulated on behalf of the appellants; issues one, two and three will be taken together; while issues four and five will also be taken together.

ISSUES ONE, TWO & THREE:
It is submitted for the appellants while referring to Order 26 Rule 11 of the Federal High Court Rules, 2009, that the party obtaining an ex parte order has a duty to ensure that the order obtained is served on the adverse party affected, it is then left to that party to challenged it or not.

That in this case, the Respondent while aware of the interest of the 1st Appellant in the property, suppressed information in its quest for the interim order of attachment; as there is nothing to show that the Appellants who were affected by the ex parte order were served, nor did the Respondent post the order it obtained ex parte of the 24th of June, 2016 at the premises of Avenue Towers, the property in issue.

That when a party hears about an order ex parte made against it, as in this case, time begins to run from when it was served with such an order and that the trial Court made a case for the respondent, where the Respondent made none. Learned counsel submitted that even though a Court is allowed to raise an issue suo moto, if it does so, it ought to allow parties to address it on that, failing which the Appellants’ right to fair hearing was robbed; CHIEF EGBUCHU V CONTINENTAL MERCHANT BANK PLC & ORS(2016) NGSC 41; KUTI V BALOGUN (1978) 1 SC 53 at 60 and OLUSANYA V OLUSANYA (1983) 1 SCNLR 134 at 139; ADELEKE V RAJI(2002) 13 NWLR part 783 page 142 and OMINIYI V ALIBI (2015) LPELR- SC/41/2004.

Learned counsel conceded there are exceptions to the general rule that a Court must not raise and resolve an issue suo moto, without allowing the parties to address it, even though, he argued, the exceptions do not apply in this case; the exceptions being, where it is clear on the face of it, that the Court has no jurisdiction to adjudicate on the matter and where the issue is one that ought to be judicially noticed by the Court; OMOKUWAJO V FRN (2013) LPELR-20184-SC.

That the ruling occasioned a miscarriage of justice, as it essentially means that the real owners of the property in issue were shut out, especially in view of the earlier decision of this Court in RMCK PROJECTS DEVELOPMENT LIMITED & 1 OR V FED REP OF NIG. & 6 ORS (CA/L/454/2017 decided on the 15th of November, 2019).

It is further submitted that the trial Court got it wrong on its handling of the Appellants’ application which it declined jurisdiction on the 14th of January, 2020; because service of the order ex parte within which an application to vary the order to set aside can be brought is important; and that the running out of time was not addressed by the trial Court, so the trial Court made a case for the respondent which they never made for themselves; especially as there was nothing to show that the respondent served the ex parte order of 24th of June, 2016 to warrant the running of time against the appellants.

Learned counsel contends that the trial Court which entertained the ex parte originating summons filed by the respondents on the 7th of June, 2016 and granted the reliefs is competent and has jurisdiction to entertain the application of the appellants in the absence of any fact to show that the order of interim attachment was served; NWORU V STATE (2018) LPELR-44640-CA.

That on obtaining the ex parte order, the appellants filed their application on time, within a week; and in any case, the failure to apply for extension of time did not rob the trial Court of jurisdiction to hear and determine the application. So the application was initiated by due process of law, and was properly filed and served by the Appellants.

It is also submitted that nothing about the application suggests annoyance or irritation to qualify as a reckless abuse of judicial process; DONALD V SALEH (2015) 2 NWLR part 1444 page 529; PDP V SHERIFF (2017) 15 NWLR part 1588 page 219 and ABUBAKAR V BEBEJI OIL & ALLIED PRODUCTS LTD & ORS (2007) LPELR-SC-11/2001.

Learned counsel urged the Court to uphold the decision of this Court in RMCK PROJECTS DEVELOPMENT LTD & 1 OR V FRN & 6 ORS CA/L/454/2017; and further contended that, if the trial Court was right in holding that it had no jurisdiction to entertain the application it would then meant that it also had no right to have gone into the merits of the case; ONYEMEH V EGBUCHULAM (1996) 5 NWLR part 448 page 255 and NEPA V ANGO (2001) 15 NWLR part 737 page 627; learned counsel also urged the Court to set aside the cost of N300,000 awarded against the Appellants.

It is further submitted that where a Court finds that it had made an order in error, based on misleading and suppressed facts, the Court ought to reverse itself on the timely application of the party affected; FCMB PLC V DICKSON CA/1/104/ 2014 NGCA 96.

That a Court which made an interim order can reverse it suo moto if it finds that it ought not to have made such an order; BELLO V INEC & ANR (2010) LPELR-767-SC page 78; and also that from the totality of evidence, the Respondent suppressed facts about the existing interest in the property, even if that was done unintentionally, what matters is the development arising from exhibits FA1-7.

It is submitted in response that the trial Court simply gave effect to the Rules of Court in Order 26 Rule 11 of the Federal High Court Civil Procedure Rules, 2009, and that if the Court does not apply its own rules who will apply it; and also that Section 122 (2) (a) of the Evidence Act, 2011 requires that the Courts take judicial notice of all laws and enactments, including subsidiary legislation; KAPINE V STATE (2017) LPELR-42991-CA; A.G ANAMBRA STATE V OKEKE (2002) 12 NWLR part 782 page 575 and OMOKUWAJO V FRN (2013) LPELR-20184-SC.

That there are situations where the Court may on its own raise an issue suo moto, and it would not be necessary to call on any of the parties to address it, and the said party would not be said to have been denied the opportunity of being heard fairly; learned counsel contends that the condition is sufficient distinction from the cases cited in support of the Appellants’ case.

That the order sought to be discharged was made ex parte, and so it was proper for the Appellant to inform the Court of when it became aware of the order and the steps it took afterwards, but the appellant tactfully avoided mentioning the day they got notice of the order.

It is submitted in reply that the Respondent failed to be guided by the grounds of appeal while formulating its issues for determination, because the issues formulated have no basis in the grounds of appeal; and also that issues formulated for determination in an appeal must arise from the grounds of appeal; ONWUBUYE V IKEGBUNAM (2019) 16 NWLR part 1697 page 117 and 11 IKUFORIJI V FRN (2018) 6 NWLR part 1614 page 142. The Court was urged to strike out the issues.

RESOLUTION OF ISSUES ONE, TWO & THREE:
On issue one; it is very important from the onset to have recourse to the provisions of Order 26 Rule 11 of the Federal High Court Civil Procedure Rules, 2009, because both parties are vehement in their insistence on their entrenched positions, and also because the order is the fulcrum of the issue for determination. It provides as follows:
“where an order is made on a motion ex parte, any person affected by it may, within seven days after service of it, or within such further time as the Court shall allow, apply to the Court by motion to vary or discharge it, and the Court may, on notice to the party obtaining the order, either refuse to vary or discharge it, or may vary or discharge it with or without imposing terms as to cost or security or otherwise, as seems just.”
Clearly, this rule envisages a situation where a party affected by the order is served. What this means essentially is that, the order of the Court should be served or brought to the attention of the party affected; after that, the party affected is at liberty to, either respond by challenging it or ignore it, as he pleases, at his peril.
It is clear from the record, as contended, that the Appellants filed their application dated the 16th of October, 2018 on the 19th of October, 2018, the Respondent filed their processes, aware of that application; see pages 138 to 144 of the record of appeal; the interest of the Appellants whether justified or not is known to the Respondent.
The trial Court ruled, believing that the Appellants got notice of the ex parte order on the 7th of September, 2018. This is based on exhibit FA10, see page 461 of the record of appeal.
It is worth mentioning, albeit in passing, that the law is settled that an ex-parte application can be heard and granted without recourse to the affected party/parties and such an Order will not constitute a violation of the right to fair hearing of the Appellants as provided under the Constitution of the Federal Republic of Nigeria 1999. Having said that, the Appellants have shown their recognized interest, and as the facts, as well as the law clearly indicate their interest is affected by the ex parte order, especially as there is nothing on the record to show that they were served with the order ex parte of the 24th of June, 2016; the operative word in all this being ‘service’; time then begins to run from the date of service of the order on the parties affected, as provided by the rules of the lower Court.
Now, on whether appellants were aware of the order or not, learned counsel for the Respondent contends that the Appellants ought to have told the Court when they were served or became aware of the order. If they were served, the records of Court ought to reflect that; if not, the contention that the Respondents usually have a practice of pasting the order on the premises involved will not suffice. Especially, where the party affected by the order is known, as in this case. Pasting is good, but the rule requires service.
The fact that the occupants of the property in dispute were told of the temporary taking over by the Appellants, if true is also good, but, they are not the ‘party interested’ as contemplated by the order.

I am in total agreement with learned counsel for the Respondent that the Court has every right to apply or enforce its rules, and also take judicial notice of all laws and enactments as provided by Section 122 of the Evidence ACT, 2011; but be that as it may, where a Court raises an issue suo motu, as appears to have been done in the present case, the parties must be given an opportunity to address the Court on the issue so raised particularly the party that may be adversely affected as a result of the issue raised suo motu and thus avoid any breach of the parties right to fair hearing; SEE ABBAS V. SOLOMON (2001) FWLR (PT. 67) PAGE 847; ADEGOKE V. ADIBI (1992) 5 NWLR (PT.242) PAGE 410 AT 420; OJE V. BABALOLA (1991) 4 NWLR (PT. 185) PAGE 280 AT 676; ODIASE V. AGHO (1972) 1 ALL NLR (PT. 1) PAGE 170; EJOWHOMU V. ETOK-ETER MANDILAS (1986) 5 NWLR (PT. 39) PAGE 1.
A decision of a Court of law should not be based on any ground or issue in respect of which it has neither received arguments from or on behalf of the parties before it, where the Court raises an issue without giving parties opportunity to ventilate their views on the issues, the Court would be acting in breach of the Fundamental Right of the parties to fair hearing of the case they have presented before the Court for adjudication SEE AMADI V. CHINDA & ORS (2009) 10 NWLR (PT. 1148) PAGE 107 AT 138.

I do not want to go into whether the Respondent suppressed information to enable them obtain the order; in fact, I find such accusations uncharitable. What is clear is that as a result of the exchange of processes, at least, up until the hearing of the applications and counter applications, the Respondent was aware of the interest of the Appellants. Whether it considered them valid or not is another thing.

The trial Court ought to have at least given the Appellants the opportunity to be heard by hearing their application; the ruling effectively shut them out. It would have been fairer if they were heard, at least. The interest of the Appellants, rightly or wrongly, cannot be denied in the face of the earlier decision of this Court in RMCK PROJECTS DEV LTD & 1 OR V FED REP OF NIG. & 6 ORS(CA/L/454/2017 of the 15th of November, 2019).

The trial Court should have taken the application, and decided to grant or refuse it, as it sees fit, that would have been in accord with the principle of substantial justice.

Before concluding this point I would like to express my disapproval of the language used by learned counsel in his closing arguments. I refer to this:
“…one wonders why the trial Court was in a hurry to throw out the application as the body language suggests…the trial Court had predetermined mind on the application of the applicants when the tone of the ruling is considered…”

This is so uncouth, I can’t believe counsel could be so disrespectful. Counsel should know better than to use such words; that’s the least I can say.

The issue is resolved in favour of the Appellants, against the Respondent.

On issue two; service of the order ex parte on the party affected, as earlier mentioned, is necessary, especially to the running of the time envisaged by the Rules of Court, and that is what sets the tone for the application to vary the order; and does appear that somehow the issue of running of time was not addressed by the trial Court. The Respondent also failed or neglected to respond to this issue. This Court notes that there is nothing in the record to show that the Respondent served the order ex parte of the 24th of June, 2016 on the Appellants to warrant time running out on them; which led to the dismissal of the application in the end.

Now if there was no service, then the trial Court has the jurisdiction to hear the application filed on the 19th of October, 2018, having entertained the ex parte originating summons filed on the 7th of June, 2016, notwithstanding the fact that the Appellants did not file an application for extension of time. Because when time is to run after the doing of an act, time cannot be said to have run out, when the act has not been done. This is more so, in view of the fact that Order 26 Rule 11 does not ipso facto require an order of the Court extending time, before the Appellants could apply on the 19th of October, 2018.

Now, if the trial Court had no jurisdiction as it claimed, it ought to have stopped there and then, there is also no further need to proceed to make pronouncements of any kind; the award of damages becomes unnecessary in the circumstances.

It is for these reasons that I now resolve this issue in favour of the Appellants, against the Respondent.

On issue three; it is important to note that the property in issue is Avenue Towers, plot 1391, Tiamiyu Savage Street Victoria Island, Lagos; the Respondent got the interim order of forfeiture in June 2016, and took over the property. I agree with the Appellants, who have shown interest in the property, that it is not right to just sit back and do nothing, because the order does not have a permanent effect; this is notwithstanding the contention of the Respondent’s that the person against whom they proceeded, believing the property is his, has run away.

In the instant case, the Orders sought by the Respondent were for the interim forfeiture of the assets and properties suspected to belong to Mr. Kolawole Aluko, pending investigation and possible prosecution for using the proceeds of crime to purchase same. The Appellants’ counsel noted that the orders sought by the Respondent were for temporary Orders but argued that the Respondent seems to take things for granted, by acting as if the orders are permanent in nature. It is expedient to mention here that the Respondent should be under no illusions that the order is permanent. I am sure it knows that much. I also do not like the imputation that the lower Court in any way gave the impression or encouraged the Respondent to believe the order has anything to do with permanence.

The Respondent should take steps to conclude investigation, one way or the other, so that if indeed the property belongs to the person they believe it belongs to, that would be fine, and if not, at least whoever is the owner should get his property back. They just can’t sit back and hope things will work out fine on their own. That is what the interest of justice requires.

Having disclosed, at page 38 of the record, that they have reason to believe the property belongs to Kolawole Aluko, the Respondent cannot be accused of failing to disclose any other interest in the property; whether his interest supersedes that of the Appellants will be determined at the end of the day. On this, the Appellants are wrong to accuse the Respondent of suppressing facts; and it would be premature to stampede this Court to discharging the order as suggested by learned counsel for the Appellants.

It is for these reasons that I now resolve this issue in favour of the Respondent, against the Appellants.

ISSUES FOUR & FIVE:
It is submitted for the Appellants that the trial Court was wrong to have refused to look at the power of attorney in respect of the property in dispute, attached to the application dated the 16th of October, 2016, and marked exhibit FA8, especially as the Appellants were not mentioned as parties to the ex parte application nor was there any evidence that they were served with the order of the 24th June, 2016.

That the trial Court was inconsistent by holding in one breathe that the Applicants were interested parties at the time the power was donated, as there was a pending case in violation of Section 83 (3) of the Evidence Act, and in another breathe, holding that the Appellants have no locus standi to file the application filed on the 19th of October, 2018.

That even if the power of attorney was defective, it does not rob the Appellants of the locus to be heard if they have any grievance; one cannot be an interested party and still lack locus standi; PAM V Mohammed (2008) 16 NWLR part 1112 page 1; KADUNA STATE V HASSAN (1985) 2 NWLR part 8 page 483 and CENTRE FOR OIL POLLUTION WATCH V NNPC (2013) 15 NWLR part 1378 page 556.

That the trial Court went on voyages of discovery as can be seen from the ruling and conflicted on pronouncements made throughout the ruling of the 14th of January, 2020; NWORU V STATE supra and KAYILI V YILBUK & ORS (2015) supra.

It is further submitted that the Respondent has not been able to impeach the credibility of exhibits FA1-7, showing interest of the Appellants in the property in dispute; and that the trial Court lacked the jurisdiction to make any conclusions on ownership, learned counsel referred the Court to Section 251 of the Constitution and ADISA V OYINWOLA & 4 ORS SC.304/1991.

It is submitted in response that counsel who appeared are total strangers, and the purported power of attorney is not covering plot 1391 Tiamiyu savage but plot 1390; and that the property in dispute was taken because it is suspected to have been bought with proceeds of crime, and investigation is ongoing to ascertain whether this suspicion is true or not.
That an interim order is not indefinite but lasts only until final determination of the charge against the accused persons or pending the conclusion of investigation; DANGABAR V FRN (2014) 12 NWLR part 1422 page 575. Learned counsel referred to Sections 34 (1) & (2) of the EFCC Act and 43-44 of the Constitution, as amended, to contend that the property of a person can be attached even when he is not arrested and made party to a criminal trial even though they are entitled to acquire and own properties as provided by the constitution.

That both the Court and the Appellants should worry more about resolving the contradictions presented by both parties; the Respondent should be allowed to continue, and conclude the investigation into the allegation that led to this appeal; FAWEHINMI V IGP (2002) 7 NWLR part 767 page 606; BAMIDELE V COMM. FOR LOCAL GOVT (1994) 2 NWLR part 329 page 568 and PETER V OKOYE (2002) FWLR part 110 1864.

That also the person who issued the power of attorney, Mr. Johnnie Ebo Quaice is not a director of the Appellant or a party before the lower Court.

It is submitted in reply that the Respondent’s brief failed to answer the issues raised by the Appellant; and in the absence of any superior authority or argument the appeal should be allowed, especially as the Appellants are not under any investigation nor are they standing trial in any Court over the property in dispute.

RESOLUTION OF ISSUES FOUR & FIVE:
On issues four & five; the question of whether the appellants have shown interest in the property in dispute, referred to as Avenue Towers, plot 1391, Tiamiyu savage street Victoria Island is already settled. They have, at least by reason of the power of attorney marked as exhibit FA8, whether that is sufficient or not is another thing altogether; furthermore, the decision of this Court in the earlier case of RMCK PROJECTS DEV LTD & 1 OR V FRN & 6 ORS decided on the 15th of November, 2019 supra also lends credence to that view.

Most importantly, it is clear that the appellants were not mentioned on the face of the ex parte originating summons as parties, with interest, neither is there any evidence on record suggesting that the order of the 24th of June, 2016 was served on them. It has to be said, with respect, that there is some degree of contradiction, to hold in one breathe that they were interested parties at the time the power of attorney was donated, on account of pendency of a matter, thus violating Section 83 (3) of the Evidence Act, 2011, and in another breath holding that the Appellants have no locus standi to file the application of the 19th of October, 2018. One cannot be an interested party, and yet be said to lack locus standi by the same token.

Even if reference is made to the property as 1390 instead of 1391, as long as all other details refer to the property in dispute, and the property in dispute is clear, it is stretching both logic and common sense too far to insist that exhibit FA8 could only refer to no. 1390 and not 1391, when the said exhibit is clear in its wordings as to the name of the property as Tiamiyu savage street, known as ‘Avenue Tower’, a name which is not shared by any other property in that location or anywhere else.

Basically, the interest of justice demands that at all times “locus standi” be given a broad and liberal scope by the Courts to bring out the true essence of justice in accordance with the law; This is the view in a long line of decided cases; see: (1) OGBUEHI V. GOVERNOR OF IMO STATE (1995) 9 NWLR (PT. 417) P. 53; (2) U.B.A. PLC V. BTL IND. LTD. (2004) 18 NWLR (PT. 904) P.180 AND (3) GUDA V. KITTA (1999) 12 NWLR (PT. 629) P. 21.

The acid test applied in determining locus standi, is the “interest” and “injury” tests, see OLAWOYIN VS. ATTORNEY GENERAL OF NORTHERN NIGERIA (1961) 2 SCNLR Page 5. The same test was applied with approval in GANIOBA & ORS VS. ESEGI II & ORS (1961) ANLR, Page 608 at 613.
What is required of a litigant is to show sufficient interest or threat of injury he has or will suffer from the infringement complained of. The interest or injury test is the yardstick in determining the question of the locus standi of a complaint and it is to be determined in the light of the facts or special circumstances of each case; see A.G. AKWA IBOM STATE V. ESSIEN (2004) 7 NWLR (PT.872) 288.

I have carefully studied the facts and circumstances of the instant case, I am satisfied, especially in view of the decision in RMCK PROJECTS LTD V FED REP OF NIG decided on 15th November 2019, that the Appellants have shown sufficient interest in the property in dispute, and therefore have the necessary locus standi.

It does not help the Respondent’s case that they have decided not to address all the issues raised by the Appellants point by point. That is the essence of responding to an appeal; it is not a case of everyone unto himself, with the Respondent going off on a tangent, raising issues of his own and making verbose submissions of them. It is a different thing where there is a Respondent’s notice or a cross-appeal, in the absence of any, the Respondent is always advised to stick with the Appellants, eyeball to eyeball, and Respondent to every issue raised in the appeal, otherwise, he will be fighting a lost battle. I agree that the Respondent ignored certain issues raised by the Appellants, that does not serve it well. Having said that, I am once again not impressed by learned counsel for the Appellants’ choice of words in accusing the lower Court of bias.

If indeed the Appellants felt hard done by, there are several fair ways of complaining, aside from accusing the lower Court of taking side with the Respondent: “…made a case for him, had a premeditated mindset on his ruling, picked and chose what evidence/material he wanted to rely on to favour the respondent… “etc.
I resolve issues four and five in favour of the Appellant, against the Respondent.

Issues 1, 2, 4 and 5 were resolved in favour of the Appellant, against the Respondent; issue three was resolved in favour of the Respondent, against the Appellant. Issue three is not a threshold issue, that being so, the appeal succeeds. The alternative prayer in the amended notice of appeal is hereby granted; the appeal is allowed, the ruling of the trial Federal High Court by Hon Justice O.E. Abang of the Abuja Division, delivered on the 14th of January, 2020 in this case is set aside. It is hereby ordered that the case file be returned to the Chief Judge of the Federal High Court to re-assign the case to another Judge for hearing.
Cost of N300, 000 awarded against the Appellants, is unnecessary, and set aside.

PETER OLABISI IGE, J.C.A.: I had the opportunity of reading in advance, the draft judgment of my Learned Brother – MOHAMMED MUSTAPHA

I agree with his reasoning and conclusion as contained in the leading judgment.

I also set aside the cost of N300,000 awarded against the Appellants as being unnecessary.

DANLAMI ZAMA SENCHI, J.C.A.: I have had the opportunity of reading in draft, the lead judgment of my learned brother, MOHAMMED MUSTAPHA, JCA just delivered and I agree with the finding and conclusion reached therein that the appeal is meritorious and it is allowed in terms of the alternative relief contained in the Amended Notice of Appeal.

Before I conclude, I want to chip in respect of issue one of the Appellants which the lead judgment have elaborately dealt with. The position of the law is that when an issue is raised suo motu by the lower Court as done in the instant case, the lower Court has a legal duty to invite the parties to address it on the issue so raised. The duty of the lower Court to invite parties to address it on the issue or point of law so raised suo motu is a fundamental principle before the Court arrived at its decision. See ADEGBANKE V OJELABI & ORS, (2021) LPELR 54992(SC).
The law is that a Court has a right or jurisdiction to raise an issue suo motu but the Court has no jurisdiction to resolve the issue raised suo motu without inviting counsel to address it on the issue or point of law so raised. See ADEGBANKE V OJELABI (2021) LPELR 54992(SC)
The principles behind the Court to invite counsel or parties to address it on the issue so raised suo motu is to keep in line with the principles of fair hearing before the Court resolve the issue especially where it will affect the adverse party.
Thus, when a Court for any compelling reason, finds it necessary and particularly in the interest of justice to raise a point or issue suo motu, the parties must be given an opportunity to be heard on such a point or issue. As I said, this rule applies even with greater force in favour of the party that would be prejudiced as the result of the point raised without the prompting of any of the parties in the case. Hence, the violation amount to a flagrant breach of the aggrieved party’s right to fair hearing as entrenched in our Constitution and invariably, amounts to miscarriage of justice. See HADEJIA V ABBAS, (2016) LPELR 40234 (CA), ADEGOKE V ADABI, (1992) 5 NWLR (pt 242)410, KRAUS THOMPSON ORG LTD V UNICAL, (2004)9 NWLR (pt 879) 631.

In conclusion, I adopt the consequential orders in the lead judgment as mine.