Dr. Erastus B.O. Akingbola V. The Chairman, Economic And Financial Crimes Commission (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the Federal High Court presided over by Abubakar J. of the Lagos Judicial Division delivered on 5th day of March, 2010 dismissing the appellant’s application to set aside, vacate or discharge all the orders granted ex-parte by the Court on 31st December, 2009 in suit No. FHC/L/CS/1492/09.

The facts which gave rise to the appeal may be briefly stated as follows:-

On 23/12/2009, the complainant, the Chairman of the Economic and Financial Crimes Commission filed a motion ex-parte and an ex-parte originating motion at the Federal High Court Lagos seeking to freeze the bank accounts of Dr. Erastus Akingbola, now appellant and to attach his assets within Nigeria on the allegation that they were proceeds of economic crime.

The application was heard and determined by the learned trial judge in Chambers and not in open court. When the appellant became aware of the orders made by the learned trial judge, he filed an application dated 7/1/2010 in which he sought to set aside the said Orders and to restrain the respondent from further executing the orders granted in its favour.

The learned trial judge after hearing the motion dismissed the application in its entirely in his ruling delivered on 5/3/2010. Dissatisfied with the said ruling, the appellant appealed against the decision in his Notice of Appeal which was filed on 18/3/2010. Leave to amend the Notice of Appeal was granted on 26/10/2010. The amended notice of appeal contained nine grounds from which the appellant formulated the following six issues for determination:-

1. Whether the learned trial judge properly applied the ratio decidendi in the case of Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419 to the case before him in coming to the conclusion that the Orders sought to be set aside by the Appellant were not null and void.
2. Whether the learned trial judge was right in refusing to set aside the Orders made in favour of the respondent on the 31st of December, 2009 when the respondent did not comply with all the conditions precedent for the grant of the Orders as stipulated in Section 28 of the Economic and Financial Crimes Commission (Establishment) Act, 2004.
3. Whether the learned trial judge was right in holding that Sections 28 and 34 of the Economic and Financial Crimes Commission (Establishment) Act, 2004 are not unconstitutional?
4. Whether the learned trial judge was right in refusing to discharge the orders granted in favour of the respondent on the 31st of December 2009 based on an alleged criminal charge which was not pending before the learned trial judge?
5. Whether the learned trial judge was right when His Lordship refused and/or failed to consider and pronounce on each of the issues raised by the appellant in the written addresses filed in support of the application dated 7th January, 2010?
6. Whether the lower court had the jurisdiction to hear and determine the respondent’s applications during the Christmas Vacation, when the respondent did not fulfill the condition precedent in that regard?

The respondent raised preliminary objection to grounds 2 and 3 and issues 2 and 3 which were distilled therefrom and urged the court to strike out the said grounds and issues as being incompetent. The basis for the objection is that the ruling of the lower court was one refusing to discharge the orders of mareva injunction and interim attachment made against the appellant but grounds 2 and 3 of the appellants Notice of Appeal and the issues distilled from the appellant’s brief do not arise from or relate to the said Ruling of the lower court. The preliminary objection was argued in the brief. The appellant filed a reply brief. Apart from the preliminary objection, the respondent formulated a sole issue for determination namely:

Whether the learned trial judge was wrong in the circumstances of this case when he refused to set aside the orders made in favour of the respondent in Suit No. FHC/L/CS/1492/09: The Chairman, Economic and Financial Crimes Commission v. Dr. Erastus B.O. Akingbola on the 31st day of December, 2009!

THE PRELIMINARY OBJECTION

Learned counsel for the respondent argued that since the present appeal is against the ruling of the Federal High Court as circumscribed in the amended notice of appeal any appeal challenging that ruling/decision and the issues distilled therefrom must flow from and arise from the ruling. He submitted that the grounds of appeal upon which issues 2 and 3 are based do not arise from the decision being appealed against, the said grounds are incompetent and should be discountenanced. He also argued that issue 3 does not arise from the grounds of appeal and is therefore incompetent. He therefore urged this court to strike out the grounds and the issues which were distilled from them.

The appellant in turn raised objection to the preliminary objection filed by the respondent. Although an appellant is at liberty to urge the court to discountenance a preliminary objection or strike it out, there is no room in the rules of this court giving the appellant the opportunity to also file preliminary objection against the one raised by the respondent. The preliminary objection filed by the respondent complied with the requirements of Order 10 Rule 1 of the Court of Appeal Rules 2011 since the appellant had more than the 3 days notice before the hearing of the appeal. The objection by the appellant is of no moment and it is accordingly struck out.

In the reply brief learned counsel for the appellant reproduced grounds 2 and 3 of the Amended Notice of Appeal and argued that they flow directly from the ruling being appealed against. It is the contention of the learned counsel that the said grounds 2 and 3 are predicated on the ruling in which the lower court refused to set aside the orders made ex-parte. He argued that the issue relating to the proper procedure to be followed by the respondent when seeking to exercise its powers under section 28 of the Economic and Financial Crimes Commission Act, 2004 (“The EFCC Act”) was put before the lower court as well as the unconstitutionality of the said section 28 of the Act. He therefore urged this court to overrule the preliminary objection. The complaints in grounds 2 and 3 of the amended Notice of Appeal are as follows:-

“Ground 2

The lower court erred in law when the learned trial judge refused to discharge the orders made in favour of the Respondent on the 31st of December, 2009, notwithstanding that the condition precedent for the grant of such orders as stipulated by section 28 of the Economic and Financial Crimes (Establishment Act, 2004) were not met by the Respondent.