Felimon Enterprises Limited V. The Chairman, Economic And Financial Crime Commission & Anor (2017)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Lagos Division or Court below or Lower Court Coram: Adamu Jauro, Rita Nosakhare Pemu and Fatimo Omoro Akinbami JJCA which lead judgment was delivered by Rita Pemu JCA on the 18th day of January, 2013 affirming the decision of the Federal High Court, Lagos dated 6th July, 2010 per A. O Ajakaiye J.
FACTS BRIEFLY STATED:
The 2nd respondent, Francis Atuche in standing trial under a 44 count charge for several offences under the Economic and Financial Crimes Commission (EFCC) Act, the Banks and Other Financial Institutions Act amongst others.
The 1st respondent by an application brought under Section 27 of the EFCC Act obtained an interim order of attachment of assets on the 1st of March, 2010 including bank accounts believed to have been used as the conduit to siphon the illegal proceeds of crimes allegedly linked to the 2nd respondent, one of such accounts was that of the Appellant herein.
The appellant upon being served with the order of the Court filed an application seeking to discharge
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their interim order of attachment made against its assets. The High Court per Ajakaiye J., on the 6th day of July refused to discharge the order of interim attachment on the grounds that the Appellant’s name is referred to in several counts of the charge preferred against the 2nd respondent and that the links between the Appellant and the 2nd respondent can only be ascertained at the trial stage.
The trial High Court found that appellant featured prominently in count 38 of the criminal charge brought against Francis Atuche, the 2nd respondent herein and that the question of whether Felimon Enterprises and Felimon Enterprises Nigeria Limited are one and the same person can only be determined at the trial stage and that it is also at that stage that it will be determined whether the company is in anyway involved in the alleged criminal charge levelled against the 2nd respondent. The appellant application was refused and appeal to the Court below was dismissed hence the appeal to the Supreme Court.
On the 11th day of October, 2017 date of hearing, learned counsel for the appellant, Chimeziei Victor C. Ihekweazu Esq, adopted the brief of argument of
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the appellant filed on 30th October, 2013 in which he raised three issues for the determination of the appeal which are thus:-
- Whether the legal principles for the discharge of an interim order of injunction applies to orders made under Section 28 of the Economic and Financial Crimes Commission Act and whether the Court has discretion to apply such principles in setting aside an interim order made under the EFCC Act.
(Grounds 1 AND 2).
- Whether the Court below was right when it held that Sections 10 and 11 of the Federal High Court Act taken together do not apply to criminal matters as per the appellant’s case and whether same occasioned a miscarriage of justice against the appellant in the appeal (Ground 3).
- Whether considering the position of the Law and the materials before it, the Court below was justified when it affirmed the decision of the learned trial judge in refusing to set aside and discharge the interim order on the grounds that the provision of the EFCC Act does not provide for the setting aside or discharging of the order and that the refusal was in order to protect the res. (Ground 4 and 5).
Learned counsel
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for the appellant also adopted the reply brief filed on 22/9/2015.
Olukayode Enitan Esq. of counsel for the respondent adopted the brief of argument of the respondent, settled by Kemi Pinheiro SAN and filed on 1st February 2014. He distilled a sole issue which is as follows:-
Whether in view of the facts and materials, the Court below was right in refusing to discharge or set aside the order of interim attachment granted against the appellant by the Federal High Court on 1st of March, 2010.
The sole issue of the respondent is apt and all embracing and I shall utilise it in the determination of this appeal.
SOLE ISSUE
whether in view of the facts and materials, the Court below was right in refusing to discharge or set aside the order of interim attachment granted against the appellant by the Federal High Court on 1st of March, 2010.
Mr. Ihekweazu of counsel for the appellant contended that the use of words “prima facie” under Section 29 of the EFCC Act presupposes that the Court has the inherent power to discharge and or set aside the interim order of attachment where it is satisfied that the property concerned is not liable be
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the forfeited that in doing this the Court has to exercise the discretion both judicially and judiciously considering the well settled legal principles in that regard.
He stated on that jurisdiction inheres in any Court of justice that has power to grant an order of interim injunction to also discharge same in appropriate circumstances where reasonable grounds have been furnished in that regard. He cited Universal Trust Bank Ltd and Anor v. Dolmetsch Pharmacy (Nig) Ltd (2007) 6SC (Pt.1) 1 at 385.
It was submitted for the appellant that the suppression or misrepresentation of facts is enough ground for a Court to set aside its own order which is the situation in this case. He referred to Okechukwu v. Okechukwu (1989) 3 NWLR (Pt.108) 234 at 238, R. Benkay (Nig) Ltd v. Cadbury (Nig) Ltd (2006) 6 NWLR (Pt.976) 338 at 367-368.
That the 1st respondent must satisfy the Court with cogent evidence to justify the attachment of the property of the appellant and so the appellant’s application should have been considered on the merit instead of dismissing it on the ground that the provisions of the EFCC Act do not provide for the discharge and or
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setting aside of interim attachment of properties of culprits, a situation which occasioned a miscarriage of justice against the appellant. That since the Court has the jurisdiction to make the order of injunction, it must as a matter of necessity possess the power to discharge same. He referred to Bello v. A.G., Oyo State (1986) 5 NWLR (Pt.45) 828.
Learned counsel for the appellant submitted further that the 1st respondent did not either in his affidavit in support of the motion or in the exhibit attached show any nexus whether real or imagined between the 2nd respondent and the appellant that led to the illegal or criminal acts alleged and no material presented to show the connection to the 2nd respondent or the alleged offence against the 2nd respondent. He cited U.T.B and 2 Ors v Dolmetsch Pharmacy (2007) 6 SC (Pt.1) 1 at 9; Adenuga v. Odumeru (2003) 4 SC (Pt.1) 1 at 11-12 etc,
That this is a good occasion where the Court can call in aid Section 22 of The Supreme Court Act and determine the appellant’s application on the merit in the interest of balanced justice. It was relied on the cases of Yusufu v Obasanjo (2003) 9-10 SC 53 at 106-107; FAAN v. Wamal Express Services
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(Nig) Ltd (2011) 1-2 SC (Pt.11) 93 at 113.
Learned counsel for the respondent contended that this is one of those instances where an appellate Court is loathe to interfering with the exercise of description by the Lower Court or trial Court unless it is based on misapplication of principles of law. See Atiku and Ors v. The State (2002) 4 NWLR (Pt.757) 265 at 283; Globe Fishing Ind. Ltd and Ors v. Coker (1990) 7 NWLR (Pt.162) 265 at 297.
That the powers of the Economic and Financial Crimes Commission to attach properties of an accused person reasonably believed to be proceeds of crime are statutorily provided for. He referred to Sections 13(b) and (d), 26, 27, 28 and 29 of the EFCC Act.
That counts 38-44 of the charge at first sight disclose the alleged complicity of the appellant in the commission of assorted Economic/Financial Crimes associated with the 45 counts amended charge in respect of which the Federal High Court made an interim order of attachment of the asset of the appellant on 1st March, 2010, That the Court having made the order on a conviction of the existence of a prima facie evidence that the property is liable to interim
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attachment, the order can only be liable to being set aside by the applicant showing that there is no prima evidence making the property liable to interim attachment in the first place and that situation has not occurred here. He cited Trade Bank Plc v Chami (2003) 13 NWLR (Pt.836); Shata v FRN (2009) 10 NWLR (Pt.1149) 411; Onagoruwa v. State (1993) 7 NWLR (Pt.303) 49 etc.
In a nutshell, the appellant contends that the principle for the discharge or setting aside of an interim order applies even under the EFCC Act and that the Court has the discretion to discharge and set aside the interim order of attachment made under the Act aforesaid. That the appellant satisfied all the conditions necessary for the trial Court to set aside its order of 1st March, 2010 and with the Court of Appeal failing to intervene and do that, this Court is empowered by the virtue of Section 22 of the Supreme Court Act to do the needful.
The respondent’s stand is that the EFCC Act has no provision for the discharge or setting aside of the interim order of attachment once made.
The relevant provisions of the Economic and Financial Crimes Commission Act also briefly
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labelled EFCC Act Sections 26, 27, 28 and 29 provide thus:-
26-(1) Any property subject to forfeiture under this Act may be seized by the commission in the following circumstances.
(a) The seizure incidental to an arrest or search:-
(b) In the case of property liable to forfeiture upon process issued by the Court following an application made by the Commission in accordance with the prescribed rules.
(2) Whenever property is seized under any of the provisions of this Act, the commission may –
(a) place the property under seal; or
(b) remove the property to a place designed by the Commission.
(3) properties taken or detained under this section shall be deemed to be in the custody of the Commission, subject only to an order of a Court,
27(1) where a person is arrested for an offence under this Act, the commission shall immediately trace and attach all the assets and properties of the person acquired as a result of such illegal act and shall thereafter cause to be obtained an interim attachment order by the Court.
28-(1) where a person is arrested for committing an offence under this Act, it shall be
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obligatory for such person to make a full disclosure of all his assets and properties by completing the declaration of Assets form as specified in Form A of the Schedule to this Act.
(2) The declaration of Assets form shall be forwarded to the commission for full investigation by the General and Assets Investigations unit of the Commission.
(3) Any person who-
(a) Knowingly fails to make full disclosure of his assets and liabilities ; or,
(b) Knowingly makes a declaration that is false; or
(c) fails to answer any question;
(d) fails, neglects or refuse to make a declaration or furnishes any information required, in declaration of Assets Form, commits an offence under this Act and is liable on conviction to imprisonment for a term of ten years,
(4) subject to the provisions of Section 4 of this Act, whenever the assets and properties of any person arrested under this Act are attached, the General and Assets Investigation unit shall apply to the Court for an interim forfeiture order under the provisions of this Act.
29- Where-
(a) the assets or properties of any person arrested for an offence under this Act has
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been seized; or
(b) any assets or property has been seized by the commission under this Act, the commission shall cause an application to be made to the Court for an interim order forfeiting the property concerned to the Federal Government and the Court shall if satisfied that there is pima facie evidence that the property concerned is liable to forfeiture. Make an interim order forfeiting the property to the Federal Government.
It is not in dispute that there is no provision in the EFCC Act for the setting aside of interim orders of attachment that however cannot be taken as a blanket principle that once the attachment or seizure has been made, it became irrevocable. I say so because, Firstly the attachment under the relevant Sections, 27 28 and 29 of the EFCC Act is done upon an ex-parte interim order. That is outside the knowledge of the contending party and so when circumstances are thrown up which would impel the Court for a re-visit of that order, it behoves the Court of trial that made the interim order in the first place to take a second judicial and judicious look at the matter to see whether or not a need for setting aside or refusing to set
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aside exist. These are within the discretionary powers of the Court subject of course to the availability of sufficient facts and materials to do so. It follows therefore that where that discretionary power to set aside was wrongly applied the appellate Court should remedy the anomaly. I am encouraged in this position by what this Court per Uwaifo JSC stated in A. G. Ondo State v. A.G. Federation and Ors (2002) 9 NWLR (Pt.772) 22 at 420 wherein he stated thus:-
“Section 37 (identical to Section 25 of the EFCC Act) empowers the ICPC (kindred or sister anti corruption agency of the EFCC) to take custody of any movable or immovable property if it has reasonable ground to suspect that it is the subject matter or evidence of an offence committed under the Act. There is nothing unconstitutional in this. As always, if there is an improper seizure or taking of custody of any such property that may be a matter for contention, as appropriate to be decided by judicial process.”
What I am labouring to put across is that while the EFCC Act has made provisions for the forfeiture or attachment of the properties albeit by an interim order obtained ex-parte, the fact that
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there are no black and white provisions for a reversal does not foreclose the appellant’s constitutional right to cry out that the earlier order was wrongly made and a reversal should be put in place. For this later situation to apply however, the appellant must provide the material supporting the Court’s change of heart to discharge that interim order or setting aside.
See Kasunmu v Shitta-Bey (2006) 17 NWLR (Pt.1008) 422; Abacha v state (2002) 11 NWLR (Pt.779) 437; Itauma v. Akpe-Ime (2000) 12 NWLR (Pt.680) 168 at 180.
In this case at hand, the 1st respondent had in counter affidavit averred inter alia thus:-
“Para 8: our investigation further revealed that the said Mr. Francis Atuche in a bid to conceal the true ownership of the assets and properties in question, employed different individuals and entities, including the applicant, as fronts to disguise the true ownership of the said assets and properties. As revealed by the amended charge in charge No.FHC/L/369c/09
Para 9: Felimon Enterprises Nig. Limited (the Applicant) and Felimon Nigeria Enterprises are one and the same entity and or owned and controlled by the same
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individual(s) acting as their alter ego as revealed by the Exhibit attached to the further affidavit filed on behalf of the applicant on 23rd March, 2010.”
Those relevant paragraphs of 1st respondent stated that the assets in question are owned indirectly by 2nd respondent, Francis Atuche using different entities including the appellant.
The appellant did not effectively debunk those assertions and present to the Court a contrary persuasive position on which the Court could reverse itself and so since the trial Court, Court below and even the Supreme Court cannot make a consideration or pronouncement in vacuo without reference to peculiar facts with which the particular Court has been confronted, the Court has no option than to leave the situation as it was when this new application was brought before it. I rely on Clement v Iwuanyanwu (1989) 3 NWLR (Pt.107) 39 at 54.
A recourse to the Court of Appeal findings and conclusion per Rita Pemu JCA is instructive. She stated thus:-
“Regarding the issue of Felimon Enterprises Nigerian Limited and Felimon Enterprises, I agree with the learned trial judge, as observed at page 34 of the
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judgment (page 324 of the record of appeal), where he rightly in my view observed inter alia “…. as a matter of fact, the name Felimon Enterprises features prominently in count 38 of the criminal charge.
I will only say that it is at the stage of the trial that it will be ascertained whether Felimon Enterprises and Felimon Enterprises Nigeria Limited are one and the same. It is also at that stage that it will be determined whether the company is in any way involved in the alleged criminal charge levelled against Mr. Francis Atuche.”
That decision of the Court of Appeal sound as it is and affirming what the trial Court did makes it difficult for me to interfere with it. The reason is that the 1st respondent, EFCC having satisfactorily shown prima facie evidence that the property is a likely proceed of the commission of crime and may ultimately be liable to forfeiture, the appellant then had the burden or onus to show that the assets were rightly acquired by him and not within the purview of the criminal allegations and as I had earlier said the appellant failed in that bid. The expression ‘Prima Facie’ has been held to mean “at first sight “; “on
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the first appearance”; “on the face of it”; “so far as it can be judged from the first disclosure”, clearly there is the presumption that the fact presumed to be truth can only be debunked or disproved by some evidence to the contrary. See Trade Bank Plc v Chami (2003) 13 NWLR (Pt.836) 198; Shata v FRN (2009) 10 NWLR (Pt.1149) 411; Onagoruwa v State (1993) 7 NWLR (Pt.303) 49.
For a fact, the appellant has not produced a superior argument or material upon which this Court can assume the powers pursuant to Section 22 of the Supreme Court Act to do that which the two Courts below should have done. There is no basis to interfere with the concurrent findings of the two Courts below as they stemmed from what was presented before them and were in no way from a perverse angle or from a miscarriage of justice.
This appeal lacks merit and I dismiss it as I affirm the judgment of the Court of Appeal, Lagos Division in its affirmation of the decision and orders of the trial High Court.
Appeal is dismissed.
SC.149/2013