Economic And Financial Crimes Commission v. Alhaji Usman Mohammed Bakura & Ors (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMED LAWAL SHUAIBU, JCA (Delivering the leading judgment)

This is an appeal against the judgment of the Federal High Court sitting at Gusau, Zamfara State Coram: Justice Aminu B. Aliyu delivered on the 1st day of July, 2022 entering judgment in favour of the 1st 3rd applicants.

The 1st 3rd applicants commenced an action at the lower court for the enforcement of their fundamental rights to personal liberty, freedom of movement and right to acquire and own immovable property, wherein they prayed for declaratory and injunctive reliefs as well as damages for the violations of their constitutionally guaranteed rights.

On being served with applicants originating process, the respondents therein file their respective counter affidavits. In addition, the 1st respondent now appellant filed a preliminary objection praying the lower court to dismiss and/or striking out the entire suit on the following grounds:

1. That the suit is incompetent as it did not comply with the mandatory provisions of section 46(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria and Order 11 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 and therefore incompetent and not proper before the court.
2. This honourable court lacks jurisdiction to entertain and determine the appellants suit.
3. The subject matter of this suit being alleged arrest/ detention of the 1st applicant by the 1st respondent at the 1st respondents Headquarters at Jabi, Abuja and the alleged grounding of Flight Hawker 800XP 2000 Model with Reg. number 5N HAB at Nnamdi Azikwe International Airport Abuja does not fall within the territorial Jurisdiction of the honourable court.
4. The applicant filed the instant suit outside the jurisdiction of the High Court where the alleged breach occurred.
5. Strict compliance with the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009, is condition precedent to the exercise of jurisdiction by the honourable court in determining the violation of rights of the plaintiffs.

The above preliminary objection was contemporaneously heard with the substantive application and in respect of the preliminary objection, learned trial judge held at page 438 of the record as follows:

I am of the firm opinion that there is nothing in this case that make this court to lack the requisite jurisdiction to entertain this suit. The case is properly before the court and I so hold. The notice of preliminary objection is hereby dismissed.

As regards the substantive application, learned trial Judge has this to say at page 442 of the record:

From the content of exhibits EFCC 2 (c), EFFC 2 (c), EFCC 1(h) dated 17/11/2021, EFCC (h) dated 6/12/2021 it is clear that the 1st respondent grounded the aircraft of the applicants. The reason the 1st respondent gave in exhibit EFCC 2 (c) is section 38(1) & (2) of the Economic Financial Crimes Commission (Establishment) Act, 2004 as the reason to ground the aircraft.

I have read the provision of section 38(1) & (2) of the above provision and it does not in any way give the 1st respondent the power to ground, seize, or confiscate the applicants Aircraft without a valid order of a competent court of law. The 1st respondent is not a court of law or law unto itself…….(sic), the point must be made consistently that EFCC is not a court of law. If the EFCC deems it necessary to move against the property of person suspected of crime, due process must be followed.

The appellant was dissatisfied with the judgment of the lower court and filed an appeal through a notice of appeal on 21/7/2022, located at pages 445 – 451 of the record of appeal. By leave of this court granted on 15/1/2024, the said notice of appeal was amended and the amended notice of appeal contains nine grounds of appeal.

Parties filed and exchanged briefs of argument in accordance with the rules of practice. In her brief of argument filed on 22/9/2023 but deemed filed on 15/1/2024, learned counsel for the appellant distilled the following four issues for the determination of this court:

1. Whether the honourable court has jurisdiction to entertain this case in view of the provisions of section 46(1) of the Constitution of the Federal Republic of Nigeria 1999 and Order 11 Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, considering the fact that the alleged infringement complained about occurred in Abuja and Sokoto.
2. Whether the learned trial Judge did not occasioned a miscarriage of justice by holding that the Economic and Financial Crimes Commission does not have powers to trace and seize properties suspected to be proceeds of crime before approaching the court for interim forfeiture.
3. Whether the Learned trial judge was not wrong when the court granted declaratory, injunctive reliefs and damages to outlaw the appellants performance of its statutory duties of investigation and prosecution of Economic and Financial Crimes.
4. Whether the Learned trial judge was not wrong in the exercise of the discretion of the court by awarding the sum of N50,000,000.00 (Fifty million naira) as exemplary damages as well as ordering the appellant to tender public apology to the respondents considering the facts and circumstances of this case which shows that the appellant was acting bonafide in the pursuit of a lawful objective and that such amount of money was excessive, oppressive and arbitrary.

On the part of the 1st – 3rd respondents, two issues were formulated for determination of this appeal thus:

1. Whether having regards to the facts and circumstances of this case, the trial court was right in assuming jurisdiction in this matter for enforcement of the Fundamental Rights of the 1st – 3rd respondents.
2. Whether having regards to glaring evidence admitted at the trial court, learned trial Judge was correct when he held that the 1st – 3rd respondents have made out cogent and credible case to be partly entitled to the reliefs sought and granted same.

Learned counsel for the 4th respondent also filed a brief of argument on 2/2/2024 in which he nominated three issues for determination of this appeal. I am constrained not to look at the said brief for the obvious reason that the brief constitute yet another appeal.

The traditional role of the respondent in an appeal is to defend the decision appealed against. If however, the respondent wishes to depart from that role by attacking or challenging the judgment or ruling in anyway, he is enjoined to file a cross-appeal, because the purpose of cross-appeal is to correct an error which is standing in the way of a respondent in the main appeal.