➥ CASE SUMMARY OF:
Olukoya Ogungbeje Esq. v. EFCC (CA/L/1408/2017, 18 Jul 2018)
by Branham Chima.
➥ ISSUES RAISED
Interim order of forfeiture;
➥ CASE FACT/HISTORY
It is proper to briefly state the facts grounding this appeal. On the 11th day of April, 2017, operatives of the Economic and Financial Crimes Commission following intelligence report discovered huge sums of money in foreign and local currencies in Flat 78 Osborne Towers located at 16 Osborne Road Ikoyi Lagos. On the following day 12th April 2017, the operatives of the Commission obtained search warrant and stormed the premises, the suspected property was subjected to search in the presence of two personnel of A. M. Facilities, the property managers of the subject property. The search resulted in the following recovery, 543,449,947.00 (Forty-Three Million, Four Hundred and Forty-Nine Thousand, Nine Hundred and Forty-Seven United States Dollars), ??27,800.00 (Twenty-Seven Thousand, Eight Hundred Pounds), and N23,218,000.00 (Twenty-Three Million, Two Hundred and Eighteen Thousand Naira). Following the discovery of the huge sums of money, the representatives of the Facility Managers said they did not know who kept the money in the house.
The Respondent Economic and Financial Crimes Commission therefore filed an Ex-Parte Application and on the 13th of April, 2017, the Lower Court granted the Respondent’s ex-parte application for Interim Forfeiture of the unclaimed monies suspected to be proceeds of crime to the Federal Government. The Lower Court made further order that the interim order of forfeiture be published in any National Newspaper for anyone who is interested in the property sought to be forfeited to appear before it to show cause why a Final Order of Forfeiture of the said properties should not be made.
In apparent response to the publication, the Appellant herein, filed an Application dated 21st April, 2017 contained at pages 25 – 27 of the records of appeal seeking for stay of proceedings, in other words that the interim order of forfeiture must not be made final. The Appellant hinged his application on the need to stay proceedings pending the outcome of the investigation and Report of the Presidential Panel of Investigative Inquiry and for an order directing and compelling the EFCC, the ICPC and the Nigerian Police Force to carry out a thorough investigation into the source of the monies and furnish the Court with same. The Appellant’s Application was supported by an Affidavit contained at pages 28 – 30 of the records of appeal and a Written Address contained at pages 31 – 35 of the records of appeal.
The Ruling of the Lower Court dismissing the Appellant’s Application is contained at pages 1 – 12 of the Records of Appeal. After dismissing the Appellant’s Application, the Lower Court considered and granted the Respondent’s Application for Final Order of Forfeiture of the sums of money to the Federal Government of Nigeria of Properties found at Flat 7b, Osborne Towers, No. 16 Ikoyi Lagos.
Peeved by the decision of the Lower Court, the Appellant challenged the decision of the Lower Court by Notice of Appeal dated 9th June, 2017, premised on four(4) grounds of appeal as found at pages 43 48 of the records of appeal.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the learned trial Judge had jurisdiction when he granted final forfeiture order of properties/monies to the Federal Government of Nigeria in the absence of investigation, prosecution, trial and conviction?
RESOLUTION: IN RESPONDENT’S FAVOUR. THE COURT HAD JURISDICTION.
[THE APPELLANT DID NOT CHALLENGE THE FINDING OF THE LOWER COURT AS TO HIS OFFENSIVE AFFIDAVIT
‘I have carefully perused the Grounds of appeal and Particulars contained in the Notice of Appeal at pages 43 – 48 of the Records of Appeal as well as the issues for determination and submissions by the Appellant in the Appellant’s Brief and the Reply Brief filed by learned counsel for the Appellant, it is safe to conclude that the Appellant has not appealed against the very conspicuous finding of the Lower Court, that paragraphs 5-27 of the affidavit in support of the Motion contravene the provisions of Section 115 of the Evidence Act, 2011. In ONAFOWOKAN and ORS v. WEMA BANK PLC and ORS (2011) LPELR-2665 (SC) Pg. 41, Paras. B – G, the Supreme Court of Nigeria held that: “It is trite that the finding and Order of Lower Court not appealed against remain valid and subsisting, and without a ground of appeal challenging the finding and Order of the Lower Court, this Court would lack the jurisdiction to interfere with said findings or Order… It is significant to state here that none of the grounds of appeal contained in the Notice of Appeal challenged the above stated findings and Order of the Lower Court. It is trite that a finding not challenged by an appellant in any of the grounds of appeal remains, rightly or wrongly, the settlement of that issue between the parties to the appeal. It follows that in the absence of any appeal against the finding and Order of the Lower Court this Court would have declined jurisdiction to consider and determine such an issue.” See also: STEPHEN OGBEBOR and SONS SAWMIIL LIMITED v. CHIEF ADUN (2014) LPELR-22764 (CA) Pg. 23, Paras. C F; SNIG NIGERIA LIMITED v. WEMA BANK PLC (2015) LPELR-40576 (CA) Pg.20-21, Paras. C – C and GUDUSU v. ABUBAKAR (2017) LPELR-43007 (CA) Pg. 20, Paras. D – F. In the circumstances therefore, the findings of the Lower Court that paragraphs 5 – 27 of the affidavit in support of the Appellant’s Application offend the provisions of Section 115 of the Evidence Act and the Order of the Lower Court striking out the said paragraphs is endorsed by this Court, the Lower Court was right, and I so hold.’
THERE NEED NOT BE INVESTIGATION, TRIAL, AND CONVICTION BEFORE THERE CAN BE FORFEITURE
‘It is very clear from the wordings of Section 17 of the Advance Fee Fraud and other related offences Act, 2006 as reproduced above that the law recognizes the power of the trial Court to make an Order of Forfeiture without conviction for an offence; that is the very essence of the provisions of Section 17 of the Act which was emphasized in Subsection (6), by clearly and emphatically providing that forfeiture under the provisions shall not be based on conviction. The sum total of the provisions of the law is that there is non-conviction based forfeiture of properties suspected to be derived from proceeds of crime, the submission by learned Counsel that there must be investigation, trial and conviction before an order of forfeiture is made by the Court is therefore a gross misconception and without foundation in law. The process and procedure of making such non-conviction based Order of Forfeiture is sufficiently stipulated in Section 17 of the Act.’
THE APPELLANT IS A MEDDLESOME INTERLOPER
‘The need for an order of forfeiture without conviction is necessitated by situations where the properties to be forfeited are reasonably suspected to be unclaimed property or proceeds of unlawful activity, which is clearly the situation in the instant case. The Appellant merely walked down to the Court to line up infantry of academic questions, he never came forward to say, “I want to show cause why this interim order must not be made final or absolute, the money belongs to me or some other person known to me, or that the large sums so found do not form part of proceeds of crimes,” the Appellant merely came to test his intellect, brainpower, wits and guardianship to the Nigerian public. There is no evidence on record of any party having laid claim to the properties (monies) found at No. 7b Osborne Towers, Ikoyi on the 12th day of April, 2017 by the agents of the Respondent. The Appellant herein apparently sought to convert the Court into playground without really having any interest at stake, meddlesome interlopers are not allowed to convert the Court into playground, in ALAHASSAN and ANOR v. ISHAKU and ORS (2016) LPELR-40083 (SC) Pg. 30, Paras. C – E, the Supreme Court per my lord RHODES-VIVOUR JSC held that: “…The rule about locus standi developed primarily to protect the Courts from being used as a playground by professional litigants, or, and meddlesome interlopers, busybodies who really have not real stake or interest in the subject matter of the litigation.” I also hold the view that the Appellant in this appeal came to Court as a meddlesome interloper without any conceivable and defendable right, he has no right of audience.’
THE APPELLANT FAILED TO SHOW CAUSE WHY THE FINAL ORDER OF FORFEITURE SHOULD NOT BE GRANTED
‘In the circumstance therefore, and in accordance with the procedure laid down in Section 17(1) – (6) of the Advance Fee Fraud and other Related Offences Act, 2006, the Appellant’s primary business as an interested party is to show his interest or ownership claim in the property and then show cause why the money should not be permanently forfeited to the Federal Government of Nigeria. The Appellant has not shown himself to be 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 as provided in Subsection (2) of Section 17 of the Act. Also paragraphs 5 – 27 of the Affidavit in support of the Appellant’s Application which contain grounds purported to be relied upon were struck out by the Lower Court – a decision which the Appellant failed to challenge. As it is therefore, the Appellant, in my humble view failed to show any cause why the trial Court should not have granted an Order of Final Forfeiture of the huge sums of money in question to the Government of the Federation.’]
‘On the whole, this appeal is completely bereft of merit and therefore deserves to be dismissed; it is so dismissed by me. The Ruling of the Lower Court dismissing the Appellant’s Application for Stay of Proceedings and the Judgment of the Lower Court making Final order of Forfeiture of the various sums of monies found by the Respondent in House No.7B Osborne Towers Ikoyi Lagos on the 12th day of April, 2017 both delivered by M. S. Hassan J., of the Federal High Court Lagos on the 6th day of June, 2017 are hereby affirmed by me.’
➥ FURTHER DICTA:
⦿ APPELLATE COURT WILL ORDINARILY NOT INTERFERE WITH THE DISCRETION OF THE TRIAL COURT
Where the trial Judge in his Judgment thinks it is proper to exercise his discretion in a particular way, an Appellate Court would ordinarily not interfere with the exercise of such discretion unless it is established that the discretion was exercised in total disregard to the materials before the Court. A judicial and judicious exercise of discretion by a trial Court cannot to be set aside by the Appellate Court, but where the Lower Court acted under a misconception of the law or under a misapprehension of facts or where such exercise of discretion occasioned a miscarriage of justice against the Appellant, the appellate Court will readily intervene to redress the wrong, an Appellate Court will however not interfere with the decision of the trial Court merely because it would have exercised such discretion differently. — T. Abubakar JCA.
⦿ THERE HAVE TO BE AN APPEAL BEFORE A STAY OF PROCEEDINGS
The general principle guiding Applications for Stay of Proceedings is that there must be a valid and subsisting appeal. See NIKA FISHING CO. LTD v. LAVINA CORPORATION (2008) LPELR-2035 (SC) Pg. 27 – 30, Paras. B – C; APM TERMINALS LTD and ANOR v. OKONKWO (2017) LPELR-42318 (CA) Pg. 12-14, Paras. E – A, and REGISTERED TRUSTEES OF ASSEMBLIES OF GOD MISSION OF NIGERIA v. TORT  LPELR-43059 (CA) Pg. 15, Paras. B – E where this Court held that “…for a stay of proceedings to be granted, there should be a pending appeal and the appeal must be valid.” — T. Abubakar JCA.
Mr. Olukoya Ogungbeje Esq.
Economic and Financial Crimes Commission
➥ LEAD JUDGEMENT DELIVERED BY:
Tijjani Abubakar, J.C.A.
⦿ FOR THE APPELLANT(S)
S.A. Olaleye Esq.
⦿ FOR THE RESPONDENT(S)
Rotimi Oyedepo lseoluwa Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 17(1) – (4) and (6) of the Advance Fee Fraud and other related offences Act 2006;
➥ REFERENCED (CASE)
⦿ DISCRETION OF TRIAL COURT WILL ONLY BE INTERFERED WITH WHERE IT IS ABSURD
In ANYAH v. AFRICAN NEWSPAPER OF NIG. LTD.  NWLR (Pt. 247) Pg.319; (1992) LPELR-511 (SC) Pg.20-21, Paras. G – A the Supreme Court of Nigeria pertinently stated that: “It is not in all cases that an appeal Court will interfere with the exercise of discretion by a trial judge, simply because it did not favour one of the parties litigating before him. The Court will not interfere with the exercise of discretion in the absence of proof that it was wrongly exercised. You cannot lay down hard and fast rules as to the exercise of judicial discretion by a Court, for the moment you do that, the discretion is fettered.” See also the decision of the Supreme Court in OLATUBOSUN v. TEXACO NIG. PLC (2012) LPELR-7805 (SC) Pg. 18, Paras. C – D where it was held that “…an appellate Court like ours will not interfere with the exercise of discretion of the Court below merely because this Court would have acted differently…This Court will only interfere where the discretion exercised is manifestly wrong, arbitrary, reckless and injudicious.” Also, in FALEYE and ORS v. DADA and ORS (2016) LPELR- 40297 (SC) Pg.33-34, Paras. E – C, the Supreme Court of Nigeria per MUHAMMAD JSC held as follows: “…This Court has stated it times without number that it is none of its functions or indeed that of an appellate Court to substitute its own views of the evidence for those of the trial Court that is better placed to deal with those matters. The appellate High Court could only have interfered with findings of facts of the trial Customary Court when the findings are perverse and/or consequent upon improper exercise of judicial discretion further resulting in miscarriage of justice…”
➥ REFERENCED (OTHERS)