➥ CASE SUMMARY OF:
Peter Nwaoboshi & Ors. V. Federal Republic Of Nigeria (CA/L/1388/2017, 24 May 2018)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Forfeiture of property by EFCC.
➥ CASE FACT/HISTORY
On 24th April 2017, the Federal High Court, Lagos Division made an order for the temporary attachment and taking over by the Economic and Financial Crimes Commission (EFCC) of the property, a 12 floor high rise building, situate at No. 27 Marine Road, Apapa. The basis for the order was that the Appellants were being investigated for the offences of stealing, forgery and money laundering. The said order was made in SUIT NO. FHC/L/CS/584/2017: FEDERAL REPUBLIC OF NIGERIA v. SENATOR PETER NWAOBOSHI and ORS. When the Appellants got wind of the order which was made ex parte, they filed an application praying the lower Court to set aside the said ex parte order.
The application was contested and its Ruling delivered on 4th October 2017, the lower Court dismissed the application.
The Appellants being dissatisfied have brought the instant appeal.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Could the pendency of the civil matter at the Federal High Court, Asaba Division, even if it had been disclosed, have afforded a reason why the lower Court would not have made the interim forfeiture order?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[NO. CIVIL MATTERS AND CRIMINAL MATTERS CAN PROCEED AT THE SAME TIME
‘The Court continued at page 344 of the Records thus: “In the current action, the EFCC had put their intentions into manifestation by confiscating the res in order to preserve same as provided by their enabling Act as interpreted by the Court of Appeal in Dangabar v. FRN (supra). Considering the Court of Appeal decision that such procedure is quasi criminal, I believe what comes to mind is the famous case of Smith v. Selwyn (1914) KB 98 which is to the effect a Civil action must await the outcome of a Criminal prosecution on grounds of public policy. The above law is no more envogue [sic] as same has been abolished by the Criminal Justice Act of 1967 of England. It is considered anachronistic and archaic by our Appellate or Supreme Courts. The trend now is that both Civil and Criminal actions can proceed simultaneously and I so hold. As pointed out earlier in this ruling, the order of the Court was meant to preserve the res in preparation for prosecution. I see therefore no abuse.”’
‘The lower Court then concluded at page 345: “one may wish to ask whether if this Honourable Court had been hinted of the action in Asaba Division of the Federal High Court, whether the Court would still proceed to grant the order as it did? I have earlier ruled that both cases can proceed simultaneously and hence the question will be answered in the affirmative.”’
‘Undoubtedly, the lower Court arrived at the correct decision. I will therefore resolve issue number one against the Appellants by answering the same in the negative. The lower Court did not err in law when it held that the suppression of the pendency of the civil matter at the Federal High Court, Asaba Division was not material to warrant the discharge of the interim forfeiture order.’]
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↪️ II. Whether the prescribed rules for an interim forfeiture of property were not followed by the Respondent since the Appellants were neither arrested nor searched before the interim forfeiture order was made?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[ARREST AND SEARCH IS NOT A CONDITION PRECEDENT TO FORFEITURE OF PROPERTY
‘Let me iterate that based on the Petition against the 1st Appellant, the Respondent seized the subject property which the 1st Appellant had declared as belonging to him through the 2nd Appellant in his Assets Declaration Form. This occasioned the filing of the action at the Federal High Court, Asaba Division. Indeed, the Appellants were neither arrested nor searched, but arrest and search is not a condition precedent to the procedure in Sections 24, 26 and 29 of the EFCC Act.’
THE RIGHT PROCEDURE FOR THE FORFEITURE WAS FOLLOWED
‘The procedure leading to an interim forfeiture order in the seizure and sealing route will seem to be as follows: the Respondent in the course of investigation identifies the property subject to forfeiture, being any property which represents or is traceable to gross receipts obtained as a result of the violation of the Act. The Respondent upon receipt of the Petition against the 1st Appellant commenced investigation and identified the subject property which the 1st Appellant had declared in his Assets Declaration Form. Having thus identified the property subject to forfeiture, the Respondent proceeded to seize the property by placing the same under seal pursuant to Section 26 of the EFCC Act; the action that precipitated the filing of the action at the Federal High Court, Asaba Division by the Appellants. Having identified, seized and sealed the property, the next step was obtaining an interim forfeiture order as stipulated under Section 29 (b) of the EFCC Act. Construing the stipulation of Section 29 of the EFCC Act in UMEZULIKE v. CHAIRMAN, EFCC (2017) LPELR (43454), this Court per Ogunwumiju, JCA held: The only requirement is that the Court to which an application to attach may be brought must be satisfied that there is a prima facie case that the property concerned is liable to forfeiture before such an order was made. Nnamani, JSC, while defining the phrase prima facie in Duru v. Nwosu (1989) 4 NWLR pt. 113 pg. 24 at 41 held as follows: It seems to me that simplest definition is that which says that there is a ground for proceeding. In other words, that something has been produced to make it worthwhile to continue with the proceedings. On the face of it, it suggests that the evidence produced so far indicates that there is something worth looking at.” The lower Court being satisfied that there existed a prima facie case made the interim forfeiture order. As construed above, it is effulgent that the prescribed procedure for interim forfeiture of property which is justifiable under Section 44 (2) (k) of the Constitution was scrupulously followed by due adherence to the provisions of the EFCC Act dealing with the forfeiture route of identification, seizure sealing and interim forfeiture. Contrary to the contention of the Appellants, the interim forfeiture order made by the lower Court is not final. The contingency on which the order was predicated is clear from the enrolled order at page 99-102 of the Records. The order is made to last pending the conclusion of investigation and consequent prosecution of the offences of stealing, forgery and money laundering. Concomitantly, this issue number two is resolved in favour of the Respondent.’]
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✓ DECISION:
‘In a summation, the conflating of the foregoing is that the two issues framed for determination having been resolved against the Appellants, the appeal is devoid of merit. It fails and it is hereby dismissed. The decision of the lower Court Coram: Anka, J. delivered on 4th October, 2017 is hereby affirmed.’
➥ FURTHER DICTA:
⦿ ARGUMENT MUST BE RELATED TO ISSUE THAT IS BASED ON A GROUND OF APPEAL
It is settled law that the arguments under an issue for determination must be based on the issue as distilled and be related to the complaints contained in the particulars under the ground of appeal, otherwise the arguments will be discountenanced as a misconception which is not worthy of consideration. Since the grounds of appeal and the issue distilled therefrom make no bones about the suppression of the ownership of the property, the submissions on the ownership of the property as opposed to suppression of the pendency of an action at the Asaba Division of the Federal High Court is alien to the issue framed and the grounds and they are to be discountenanced. See SELCON TANNERY LTD v. ABUBAKAR (2013) LPELR (21412) 1 at 18-19, BORNO STATE URBAN PLANNING AND DEVELOPMENT BOARD, MINISTRY OF LAND AND SURVEY, BORNO STATE v. BAMS INVESTMENT NIGERIA LTD (2017) LPELR (43290) 1 at 22-23 and AYANBOYE v. BALOGUN (supra). — U.A. Ogakwu JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Ugochukwu Anthony Ogakwu, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
E.E. Iheanacho, Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
