Economic And Financial Crimes Commission v. Musa Abubakar & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED BABA IDRIS, JCA (Delivering the leading judgment)

This is an appeal against the judgment of the Federal High Court Kaduna Division delivered on the 19th day of March, 2021 in suit No: FHC/KT/CS/ 6/2020 in favour of the respondents against the appellant.

By an originating Summons filed on the 19th day of October, 2020, the respondents as plaintiffs in the lower court, filed an action against the appellant as respondent for the determination of the following questions:

a. Having regard to the ruling/orders of the Federal High Court of Nigeria Abuja Judicial Division delivered/made on the 3rd day of March, 2016 in suit No: FHC/ABJ/ CS/426/ 2015 Coram honourable Justice A. R. Mohammed attached herein and marked as exhibit 5 whether the continuous detention or withholding of the plaintiffs properties by the defendant is lawful, legal and justifiable in law?

b. Upon proper construction of the elaborate provisions of section 26 of the Economic and Financial Crimes Commission (Establishment ETC) Act Cap E1, Laws of the Federation of Nigeria, 2004 and the provisions of section 44(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Whether the continuous detention/holding of the plaintiffs properties by the defendant without a valid and subsisting court order issued by a competent court of law is illegal, unlawful, unconstitutional, and a gross violation of the plaintiffs rights to acquire and own properties?

The plaintiffs claim against the defendant the following reliefs:

1. A declaration that the continuous detention/holding of the plaintiffs’ properties by the defendant from the 18th day of March, 2016 till date after the interim order of forfeiture granted by the Federal High Court of Nigeria Abuja judicial division in suit No. FHC/ABJ/CS/426/2015 elapsed, abetted, and seized to have any effect, is unlawful, illegal, and a total disregard to the rule of law.
2. A declaration that by the combined effect of section 26 of the Economic and Financial Crimes Commission (Establishment ETC) Act Cap E1, Laws of the Federation of Nigeria, 2004 and the provision of section 44(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the defendant cannot hold or continue to hold the plaintiffs’ properties without a valid and subsisting court order issued by a competent court of law mandating and enabling it in that regard.
3. A declaration that the action of the defendant of continuous holding of the plaintiffs properties after the abetment of interim order for forfeiture granted to it by the court of law amounts to an abuse of powers and is ultra-vires their powers donated to it by law.
4. A declaration that the continuous detention/holding of the plaintiffs properties by the defendant without a valid and subsisting court order amount to a violation of the plaintiffs rights donated to them by the Constitution of the Federal Republic of Nigeria, 1999, as amended to acquire and own property.
5. An order of this honourable court directing or compelling the defendant to forthwith release or cause to be released to the plaintiffs, the properties as contained in the schedule attached to the affidavit in support of this suit and marked as exhibit 3
6. An order of perpetual injunction restraining the defendant either by themselves, agents, privies, assigns or whatsoever name called from further holding or detaining the plaintiffs’ properties or doing anything whatsoever incidental to the said properties that will prevent the plaintiffs from taking possession or quiet enjoyment of same.
7. The sum of N500,000,000 (Five hundred million naira) only as general damages against the defendant for the illegal and unlawful holding and detention of the plaintiffs’ properties from the 18th day of March, 2016 till date.

The originating summons was supported by a nine-paragraph affidavit and attached are 7 (seven) documents which were marked as exhibits as well as a written address. In opposition to the said respondents originating summons, the appellant filed a counter-affidavit of 57 paragraphs and attached are 3 (three) documents marked as exhibits as well as a written address. The parties relied on all the paragraphs of their respective affidavits, exhibits and written addresses.

The respondents also filed a further and better affidavit of 5 paragraphs and relied on all the paragraphs of the said affidavit. The respondents also filed a reply on points of law. At the hearing of the case on the 18th day of February, 2021, the parties adopted their respective written addresses and the matter was subsequently adjourned to 19th day of March, 2021 for judgment.

The learned trial Judge, honourable Justice Hadiza Rabiu Shagari Ahmad delivered judgment in suit No: FHC/KT/CS/6/2020 on the 19th day of March, 2021 in favour of the respondents against the appellant.

Dissatisfied with the said judgment of the lower court, the appellant filed a notice of appeal dated the 22nd day of March, 2021 raising 3 (three) grounds of appeal. The parties thereafter filed their respective briefs of argument.

In the appellants brief of argument filed on the 26th day of November, 2021 and settled by its counsel, Faruk Abdullah, Esq., these 3 (three) issues were formulated for determination as follows:

1. Whether the trial court had jurisdiction to entertain the suit in view of the ruling delivered by the Federal High Court (Coram Justice A. R. Mohammed) on 3rd March, 2016. (Distilled from ground one of the notice of appeal)
2. Whether the learned trial Judge was right when he held that the appellant breached the respondents’ right to own property under section 44(1) of the 1999 Constitution (as amended) and section 26 (1, 2 and 3 ) EFCC Act; having regard to the weight of evidence produced before the lower court. (Distilled from ground three of the notice of appeal)
3. Whether the award of damages of two million naira (N2,000,000.00) against the appellant in favor of the respondent was not arbitrary and unwarranted in the entire circumstances of this case. (Distilled from ground two of the notice of appeal)

On issue one, the learned counsel for the appellant argued that, the trial court lacked jurisdiction to entertain the suit which gave rise to this appeal, and was therefore in error when it assumed jurisdiction over it. Counsel cited the case of Tukur v. Government of Gongola State (No. 2) (1989) 4 NWLR (Pt. 117). It was further argued that the respondents should have appealed the ruling of 3rd March, 2021 if it was dissatisfied or sought to enforce the order of the trial court but rather, the respondents embarked on forum shopping a clear case of abuse of court process.

On issue two, it was submitted that the learned trial Judge was in error when he held that the appellant violated the respondents constitutional right to own property.

On issue three, the learned counsel for the appellant submitted that the sum of N2,000,000.00 granted by the trial court as damages in favor of the respondents was unjustifiable and should be set aside by this court and then urged this court to allow this appeal and set aside the judgment of the lower court. Counsel then cited the cases of Esabunor & Anor. v. Faweya & Ors (2019) 40 WRN 1; (2019) LPELR 46961 (SC) and Okafor v. Okitiakpe (1973) 8 NSCC 70 at 73.