Hepa Global Energy V. Federal Republic of Nigeria (2016)

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ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. 

The Appellant/Applicant vide a motion on notice dated and filed 7th June, 2016 sought for an order, to wit:
1. “A Mandatory Order of restorative injunction compelling the Respondent including the EFCC and/or anyone acting or purporting to act for on their behalf to restore and/or refund the sum of USS975,709.50 (Nine Hundred and Seventy-Five Thousand, Seven Hundred and Nine United States Dollars, Fifty Cents) or any other sum of money contained in the Appellant/Applicant’s Company Naira Account No: 0342986032, domiciled with First City Monument Bank Plc (FCMB), together with interests at 60% per annum, which was unlawfully transferred by the Respondent including EFCC and/or through (FCMB) from the account of the Applicant to the Consolidated Revenue Fund account domiciled with the Central Bank of Nigeria on 27/11/2015 in spite of the prompt service of the Applicant’s Notice of Appeal dated 18/11/2015 and the Motion on Notice dated 26/11/2015 for stay of execution of judgment on the Respondent, pending the determination of the appeal against the judgment

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of the lower Court in CHARGE NO: FHC/L/156C/2014 delivered on 30/10/2015;
2. A Mandatory Order of restorative injunction compelling the Respondent including EFCC and/or anyone acting or purporting to act or on their behalf to restore and/or refund the sum of N40,966,345.73 (Forty Million, Nine Hundred and Sixty-six Thousand, Three Hundred and Forty-five thousand naira, Seventy-three Kobo only) or any other sum of money contained in the Appellant/Applicant Company’s Naira Account No: 0342986018, domiciled wit First City Monument Bank Plc (FCMB), together with unlawful transferred by the Respondent including EFCC and or through (FCMB) from the account of the Applicant on 27/11/2015 to the Consolidated Revenue Fund account domiciled with the Central Bank of Nigeria in spite of the prompt service of the Applicant’s Notice of Appeal on 18/11/2015, and the Motion on Notice dated 26/11/2015 for stay of execution of judgment on the Respondent, pending the determination of the appeal against the judgment of the lower Court in CHARGE NO: FHC/L/156C/2014 delivered on 30/10/2015;
3. A Mandatory Order of restorative injunction compelling the Respondent include

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EFCC and/or purporting to act for or on their behalf to restore and/or refund the sum of N24,999,990.00 (Twenty-four Million, Nine hundred and Ninety-nine Thousand Naira only) or any other sum of money contained in the Appellant/Applicant Company’s Naira Account No: 0342986063, domiciled with First City Monument Bank Plc (FCMB) together with interest at 28% per annum, which was unlawfully transferred by the Respondent including E.F.C.C. through (FCMB) from the account of the Applicant on 30/11/2015 to the Consolidated Revenue Fund account domiciled the Central Bank of Nigeria in spite of the prompt service of the Applicant’s Notice of Appeal dated 18/11/2015 and the Motion on Notice Dated 26/11/2015 for stay of execution of the judgment of the Respondent, pending the determination of the appeal against the judgment of the lower Court in CHARGE NO: FHC/L/156C/2014, delivered on 30/10/2015.”

The grounds upon which the application is predicated are as follows:
1. “Following the judgment of the lower Court, the Applicant issued a Notice of Appeal dated 18/11/2015 and filed 20/11/2015, challenging the judgment of the lower Court delivered on 30/10/2015

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within 21 days of the delivery of the same;
2. The Notice of appeal was duly and promptly served on the Respondent on 20/11/2015;
3. The Applicant also filed a Motion on Notice dated 26/11/2015 at the lower Court to restrain the Respondent from executing the judgment aforesaid, pending the determination of the appeal filed by the Applicant, and same also promptly served on the Respondent on 27/11/2015, at about 11am;
4. The Applicant’s motion on Notice dated 26/11/2015 was fixed by the trial Court for hearing on 08/12/2015;
5. The Applicant’s Motion on Notice dated 26/11/2015 was not heard by the lower Court before the Appeal filed by the Applicant was entered at this Honourable Court, as a result of which the lower Court ceased to have jurisdiction over the matter;
6. The Respondent has nothing to lose by the grant of this application, pending the outcome of the appeal since they would still be able to have the fruit of the judgment, if the appeal is disallowed, and
7. It is in the interest of justice to grant the application.”

?The application is supported by an Affidavit in support dated 7th June, 2016; deposed by Mike

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Ogie, a legal practitioner in the law office of Femi Atoyebi & Co, Solicitors to the Appellant/Applicant.

In response, the Respondent filed a Counter-Affidavit dated and filed 11th July, 2016 deposed to by one Moses Awolusi, an Investigative Officer with the Economic and Financial Crimes Commission (EFCC).

The relevant facts deposed to in the Affidavits are as follows:
a. The Applicant has acquired a legal right to be heard in the appeal before its assets could be confisticated.
b. The action of bank and the E.F.C.C. has effectively infringed on the said right;
c. Unless the sums of monies which were transferred from the Applicant’s account are returned, the Court would be foisted with a situation of helplessness and whatever decision given by the Court will be rendered nugatory, especially if given in favour of the Applicant.
d. It will be in the interest of justice to refund the sums of money that were transferred from the Applicant’s accounts pending the outcome of the appeal at the Court of Appeal so as not to render the subsequent decision of this Honourable Court useless.
e. The Applicant will be highly