LawGlobal Hub

LawGlobal Hub

LawGlobal Hub

Generic selectors
Exact matches only
Search in title
Search in content
Post Type Selectors
Home » Nigerian Cases » Supreme Court » Yanaty Petrochemical Limited V. Economic And Financial Crimes Commission (2017) LLJR-SC

Yanaty Petrochemical Limited V. Economic And Financial Crimes Commission (2017) LLJR-SC

Yanaty Petrochemical Limited V. Economic And Financial Crimes Commission (2017)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal by the respondent before the lower Court against the judgment of the Court of Appeal, Abuja Division delivered on 7th December, 2015, coram: Hon. Justice Tinuade Akomolafe-wilson; Hon. Justice Tani Yusuf Hassan; and Hon. Justice Joseph Eyo Ekanem, JJCA in which the Court below allowed the appeal of the respondent and set aside the judgment of the trial Court (Federal High Court, Abuja Division) delivered on 19th December, 2013.

The appellant as the plaintiff at the trial Federal High Court had commenced a proceedings against the respondent by way of an Originating Summons in which it had sought the determination of the following questions:

“1. Whether in view of the judgment delivered by Hon. Justice A. R. Mohammed on the 22nd day of May, 2013 in Suit No. FHC/ABJ/CS/617/2012 -YANATY PETRO CHEMICAL LIMITED VS. PETROLEUM PRODUCT PRICING REGULATORY AGENCY & ANOR and in particular Relief 2 therein, investigation into any allegation of fraud and money laundering with respect to the payment of fuel subsidy and which investigation was by relevant agencies

1

including the Economic and Financial Crimes Commission or any other agency has been concluded.

  1. Whether in view of the judgment delivered by Hon. Justice A. R. Mohammed on the 22nd day of May, 2013 in Suit No.FHC/ABJ/CS/617/2012, YANATY PETROCHEMICAL LIMITED VS PETROLEUM PRODUCT PRICING REGULATORY AGENCY & ANOR the respondent or any other agency can further investigate or reopen any investigation into fraud or money laundering arising from the payment of subsidy to the plaintiff by the PPPRA.
  2. Whether the Honourable Court by virtue of the judgment delivered on the 22nd day of May, 2012 in Suit No. FHC/ABJ/CS/617/2012 YANATY PETROCHEMICAL LIMITED VS PETROLEUM PRODUCT PRICING REGULATORY AGENCY & ANOR where it held that the plaintiff, not being indicted in previous investigation by various security agencies, panels and investigating bodies set up to investigate the issue of fraud or money laundering arising out of the payment of fuel subsidies granted to the plaintiff, the defendant is restrained from conducting any new or further investigation into any allegation of fraud and money laundering against the plaintiff.

If the answers to

2

the above questions raised are in the affirmative, the appellant then sought the following RELIEFS against the respondent.

  1. A declaration that as far as the plaintiff is concerned, investigation on the payment of fuel subsidies by the respondent or indeed any other agency has been concluded.
  2. An order of injunction restraining the Defendant whether by themselves, their servants, agents, privies or representatives or any other agency from carrying out any act capable of restricting the movement of the plaintiff or any of its staff with regards to the above named Suit on the basis of fraud and money laundering.
  3. An order of injunction restraining the defendant whether by themselves, their servants, agents, privies or representatives or any other agency from violating the Plaintiff’s fundamental right to personal liberty and freedom of movement as guaranteed under the 1999 Constitution of the Federal Republic of Nigeria (as amended).
  4. And for such other or further Orders as this Honourable Court shall deem necessary to make in the circumstance.”

In support of the said Originating summons was an affidavit of 29 paragraphs

3

deposed to by one Elias Adebunmi Adeojo, a Director of the Appellant. Annexed to the said affidavit were six (6) Exhibits marked as YAN1 to YAN6 respectively. A written address was also filed as required by the rules.

In response to the Originating Summons, the respondent filed a counter affidavit of 13 paragraphs deposed to by one Chudi Nweke to which couple of Exhibits were annexed and marked as Exhibits 1-11 respectively and a written address in support.

The appellant later filed a reply on points of law, in response to the respondent’s processes served on the appellant. A further and better affidavit of 30 paragraphs was also filed to which couple of Exhibits were attached and marked Exhibits PET7-23 respectively.

After both parties had addressed the Court and adopted their respective written addresses, the trial Court in its reserved judgment delivered on the 19th December, 2013 granted all the reliefs sought by the appellant.

Being dissatisfied with the judgment of the trial Court, the respondent appealed to the Court below. In its reserved judgment delivered on 7th December, 2015 the Court below allowed the appeal and set aside the

4

judgment of the trial Court in its entirety.

Being dissatisfied with the decision of the Court below led to the instant appeal upon ten (10) grounds of appeal contained in the Notice of Appeal which, though filed on 16/3/2016, was deemed properly filed and served on 04/10/17.

Parties filed and exchanged briefs of argument. This appeal was later heard on 4th October, 2017 on the following processes:

(i) Notice of Appeal deemed filed on 4/10/2017.

(ii) Appellant’s brief of argument filed on 26/7/2016 but deemed filed on 4/10/2017.

(iii) Respondent’s brief of argument filed on 21/9/2016 but deemed filed on 4/10/2017.

(iv) Appellant’s reply brief of argument filed on 2/2/2017, but deemed filed on 4/10/2017.

In the appellant’s brief of argument settled by Chief Bolaji Ayorinde, SAN, the following five (5) issues were distilled from the ten (10) grounds of appeal, for the determination of the appeal:

Issues for Determination

  1. Whether the learned Justices of the Court of Appeal were in error in holding that the judgment of Mohammed, J. in Suit No: FHC/ABJ/CS/617/2012 does not operate as estoppel per rem judicatam

5

thereby restricting the cause of action therein and allowing the respondent to re-open investigation of the appellant in respect of fuel subsidy payments despite conclusion of investigations by various security agencies (Grounds 1, 2, 3 and 10 of the Notice of Appeal).

  1. Whether the learned Justices of the Court of Appeal acted erroneously in holding that the injunctive order made by the learned trial Court amounted to issuing “judicial fiat” to restrain the respondent from carrying out its statutory function. (Grounds 4 and 8 of the Notice of Appeal).
  2. Whether having regard to the findings of the lower Court, the discretionary powers of the respondent is at large such that it dictates the law and can be used at its whims and caprices to re-open investigation of the appellant in respect of fuel subsidy payments despite the conclusion of investigations by various security agencies in respect thereof. (Ground 5 of the Notice of Appeal).
  3. Whether the learned Justices of the Court of Appeal acted erroneously in interfering with the judgment of Mohammed, J. in Suit No: FHC/ABJ/CS/617/2012 when same was not the subject of the appeal before

6

them. (Grounds 6 and 7 of the Notice of Appeal).

  1. Whether the lower Court acted erroneously in dismissing the Notice of Preliminary Objection before it despite the manifest incompetence of Grounds 1 and 2 of the respondent’s Notice of Appeal. (Ground 9 of the Notice of Appeal).

On the other hand, the respondent in its brief of argument settled by Sylvanus Tahir, Esq., of counsel for the respondent, formulated six (6) issues from the same ten (10) grounds of appeal filed by the appellant in this appeal.

I have carefully perused the said issues distilled by the respondent, and I am convinced that having been couched from the same ten grounds of appeal filed by the appellant, the issues are not radically different from the five issues distilled by the appellant. The parties are saying the same thing only in slightly different way in couching. I shall therefore apply the issues as formulated by the appellant.

Issue No.1

Whether the learned Justices of the Court of Appeal were in error in holding that Judgment of Mohammed, J. in Suit No. FHC/ABJ/CS/617/2012 does not operate as estoppel per rem judicatam thereby restricting the cause of

7

action therein and allowing the respondent to re-open investigation of the appellant in respect of fuel subsidy payments despite conclusion of investigations by various security agencies. On this, learned Senior counsel for the appellant submitted that the Court of Appeal erred in law, thereby occasioning miscarriage of justice to the appellant when it held that the Judgment of Mohammed, J. in Suit No, FHC/ABJ/CS/617/2012 – Exhibit YAN 5 does not operate as estoppel per rem judicatam. He submitted further that contrary to the findings of the lower Court, the judgment of Mohammed J. under reference was a judgment in rem which conclusively settled all issues in controversy relating to conclusion of investigations by various security agencies in respect of fuel subsidy payments.

It was contended that estoppel per rem judicatam arises where an issue of fact has been judiciously determined to finality by a Court of competent jurisdiction and a party seeks to agitate the same issue again. He relied on Attorney General of Nasarawa State vs. Attorney General of Plateau State (2012) All WLR (Pt. 630) 1262, 1296 C-F per Adekeye, JSC. Makun & 6 Ors vs.

8

Federal University of Technology, Minna & 2 Ors (2011) All FWLR (pt. 594) 1, 22-23 G A Ayuya & 4 Ors Vs Yonrin & 2 Ors (2011) ALL FWLR (Pt. 583) 1842-1859 B-D.

Learned senior counsel submitted that in the present situation, the proper course for this Court to chart is to carefully peruse the processes/judgment in suit No. FHC/ABJ/CS/617/2012, i.e. Exhibit YAN 5 to which the lower Court made reference in its judgment vis-a-vis the judgment of Ademola, J. in Suit No.FHC/ABJ/CS/412/2013 and compare them with the renewed bid of the respondent to re-open investigation of the appellant in respect of fuel subsidy payment with a view to ascertain the following:

(i) Whether the subject matter are the same (i.e. the issue of conclusion of investigation of the appellant by various security agencies).

(ii) Whether the parties are the same;

(iii) Whether the decision of the Court in suit No. FHC/ABJ/CS/617/2012 by Mohammed, J. had finally settled the claims or dispute between the parties.

(iv) Whether the respondent, having chosen to stand by while suit No. FHC/ABJ/CS/617/2012 was being agitated despite its awareness was bound by the

9

eventual outcome of the suit and therefore stopped from re-opening the concluded investigation of the appellant in respect of fuel subsidy payment by various security agencies.

The appellant contended that the principal relief in Suit No. FHC/ABJ/CS/617/2012 was for Declaratory Reliefs to the effect that various security agencies have concluded investigation of the appellant in respect of the fuel subsidy payment.

Learned senior counsel referred to what he called compelling factors or set of facts in existence in the case, including the following.

(i) Questions No. (i), (ii), (iv), (v) AND (vi) submitted for determination in Suit No. FHC/ABJ/CS/617/2012 primarily called for resolution and directly put in issue, the question of conclusion of investigation of the appellant in respect of the fuel subsidy payment by various security agencies.

(ii) By Reliefs 1, 2, 3 and 4 sought in suit No. FHC/ABJ/CS/617/2012, the declaratory reliefs predicated upon the conclusion of investigation of the appellant by various security agencies in respect of the fuel subsidy payment was also directly put in issue.

(iii) Reliefs 1, 2 and 4 sought in the said

10

suit of 2012 are declaratory and determined in rem against the whole world all issues relating to the conclusion of investigation of the appellant by various security agencies in respect of the fuel subsidy payment.

(iv) The present respondent was informed of the pendency of Suit No. FHC/ABJ/CS/617/2012 before Mohammed J., vide a letter dated 14th December, 2012 (Exhibit YAN 4) inviting its attention to the pending Suit as well as forwarding all the processes filed and exchanged by the parties to it.

(v) The respondent despite being aware of the pending Suit No.FHC/ABJ/CS/617/2012 before Mohammed J. wherein the issue of conclusion of investigation of the appellant by various security agencies in respect of the fuel subsidy payment was an issue, refused and or failed to join in the said suit.

(vi) Mohammed J. at the conclusion of hearing in suit No. FHC/ABJ/CS/617/2012 delivered its judgment on 22nd December, 2013 allowing all the Reliefs sought by the present appellant.

(vii) The judgment in Suit No. FHC/ABJ/CS/617/2012 specifically allowed the appellant’s Declaratory Reliefs that its investigation by various security agencies in respect of

11

the fuel subsidy payment have been concluded.

(viii) Suit No. FHC/ABJ/CS/617/2012 before Mohammed J. was heard and determined on the merit by a Court of competent jurisdiction.

(ix) The judgment in suit No. FHC/ABJ/CS/617/2012 is valid, subsisting, final and conclusively settled all the issues in controversy relating to conclusion of investigation of the appellant by various security agencies in respect of the fuel subsidy payment.

(x) Judgment in Suit No. FHC/ABJ/CS/617/2012 is binding on the respondent who had sufficient legal interest on the subject matter of the suit was duly informed of the pendency of the suit, obliged with copies of all the processes filed and exchanged in the suit, but willingly stood by and refused to join in the suit to ventilate its own interest and has not appealed against the judgment till date.

(xi) Judgment in Suit No. FHC/ABJ/CS/617/2012 finally and conclusively disposed of the rights of the parties specifically concerning the issue as to whether or not investigation of the appellant by various security agencies in respect of the fuel subsidy payment have been concluded.

Learned senior counsel contended

12

further that the judgment of Mohammed J. in the Suit of 2012 is not only against the respondent in that suit i.e. PPPRA but also include any other security agency involved in the investigation of the appellant with regards to payment of fuel subsidies.

Learned senior counsel referred to the various meetings held by and with the Federal Government’s Presidential Committee on the Verification and Reconciliation of fuel subsidy payments for the purpose of verifying, reconciling as well as investigating the payment of subsidy to the appellant and other petroleum marketers. He contended that the said meetings were attended by various security agencies including the State Security Services and the Nigeria Police Force.

Learned senior counsel contended that throughout the meetings of the said Presidential Committee on the Verification and Reconciliation of Fuel subsidy Payments, the various security agencies acting for and on behalf of the Federal Government of Nigeria including the present respondent did not find the appellant culpable and therefore did not recommend for the prosecution.

The appellant contended that the question that should be asked

13

is whether the respondent herein i.e. E.F.C.C. can be classified to be among various security agencies as contained in relief 2 of the Originating Summons in the suit under reference so as to be bound by the judgment of Mohammed, J.

Learned senior counsel referred to Section 6 (b) of the EFCC Act Cap E2, Laws of the Federation, 2004 on the functions of the EFCC as including:

“the investigation of all financial crimes including advanced fee fraud, money laundering, counterfeiting, illegal charge transfer, forgeries, market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud.”

See also  Chief Obaseki V African Continental Bank Ltd. & Anor (1965) LLJR-SC

He contended that from the above function of the respondent, it is not in doubt that the EFCC is one of the agencies envisaged by the word “various security agencies” in the originating summons in the 2012 suit in question. He submitted that the EFCC, that is the respondent, in this appeal is an agency of the Federal Government and therefore it is covered by the words “other security agencies” referred to in reliefs 2 & 4 in the aforesaid Suit No. FHC/ABJ/CS/817/20I2 before Mohammed, J. He relied on Amadi Vs. FRN (2008) 18 NWLR (Pt.1119)

14

259 at 276; Mathew Oluese Vs. FRN & Anor (2013) LPELR 22016.

Learned counsel submitted that in view of the above, that the word “other security agencies” in reliefs 2 & 4 of the 2012 suit, which reliefs were granted as judgment of the Court over the EFCC and consequently the respondent is bound by the judgment of Mohammed, J. in the said suit. He submitted further that the said judgment is in rem as it validly and conclusively resolved the direct issue of conclusion of investigation of the appellant in respect of the fuel subsidy payment by various security agencies. On what constitute a judgment in rem, he cited Ogboru & Anor Vs. Uduaghan & 2 Ors (2012) All FWLR (Pt. 1206) 1206, 1243; Okorocha Vs. PDP & Ors (2014) LPELR 22058, Idris Vs. ANPP (2008) 8 NWLR (Pt. 1088) 1 at 159-160.

Learned senior counsel contended that the respondent, as investigatory agency of the Federal Government of Nigeria was duly notified of the pendency of Suit No: FHC/ABJ/CS/617/2012, vide the letter of 14th December, 2012 (Exhibit Yan 4) and all the processes filed and exchanged by the parties forwarded to it. By the foregoing, learned senior counsel further

15

contended that the respondent has a duty to apply to be joined in the said suit in order to canvass and agitate its contrary position. He submitted that but regrettably the respondent knowingly stood-by, and conducted itself in a manner that suggested that it has no interest or it accepted the issue of conclusion of investigation of the appellant by various security agencies. He concluded that the respondent is therefore bound by the judgment of Mohammed, J. in the Suit in question, Exhibit YAN5 and is legally stopped from reopening the investigation of the appellant or asserting any position inconsistent with the said judgment. He relied on Section 169, Evidence Act, 2011; Iga & Ors Vs Amakiri & Ors (1976) 11 SC 1 at 12-13; Attorney General of Nasarawa State Vs. Attorney General of Plateau State (2012) NWLR (Pt. 630) 1262 at 1296-1299.

Learned senior counsel contended that it was upon the appellant becoming aware of the unlawful and renewed steps by the respondent to reopen investigation of the issue despite conclusion of investigation that prompted the letter of 14th December, 2012 Exhibit YAN4. He submitted that the intendment and import of the

16

foregoing letter was to bring to the attention of the respondent, the pendency of the said suit of 2012, before Mohammed, J. But that instead of taking the requisite procedural steps of joining in the suit in order to canvass its contrary position, the respondent folded its arms and merely watched while the trial Court in the 2012 case delivered its judgment wherein the position of the appellant was determined in rem against all persons or agencies interested in the subject matter of conclusion of investigation of the appellant by various security agencies in respect of the fuel subsidy payment. He submitted that having stood-by and watched while the suit was being determined, the respondent will not be allowed in law to reopen the said investigation. He cited Green Vs. Green (2001) 45 WRN 90 at 109; Amancio Santos Vs. Okosi Industries Ltd & Anor (1943) 8 WACA 29 at 35; Omiyale Vs Macaulay & Ors (2009) 3-4 SC 1 at 20-21; Kamsclen Vs. Dyson (1866) LR 1 HL 129.

Learned senior counsel submitted that the Court below erred in law in allowing the appeal of the present respondent. He contended that even though there was a question of Advance Payment

17

Guarantee in Suit No, FHC/ABJ/CS/617/2012, the primary issue directly determined by the trial Court was conclusion of investigation of the appellant by various security agencies. He submitted that it is settled law that in dealing with pleadings or processes, the Court has a duty to read the totality of same in order to get a flowing case of the party and not in isolation. He cited, Okochi & Ors. Vs. Animkwoi & 2 Ors (2003) 18 NWLR (Pt. 851) 1 at 24.

Learned senior counsel contended that the lower Court erred in law in limiting or restricting the cause of action in the suit of 2012 merely to the release of the Advance Payment Guarantee (APG). He submitted that contrary to the findings of the lower Court, the question of release of the APG is a consequential issue arising from the conclusion of the investigation of the appellant by various security agencies in respect of the fuel subsidy payment.

Learned senior counsel contended further that a party is legally interested in a subject matter if the answer of the question in issue may curtail his vested rights. He submitted that, the respondent knowing that it has interest in the conclusion of the

18

investigation of the appellant by various security agencies ought to have taken the requisite procedural step of joining in the matter in suit No. FHC/ABJ/CS/617/2012.

Learned senior counsel urged the Court to exercise its powers pursuant to Order 8 Rule 12 (2) of the Supreme Court Rules, and evaluate the documentary evidence before it, particularly the letter of 14th December, 2012 (Exhibit YAN 4), the Judgment of Mohammed, J. in Suit No. FHC/ABJ/CS/617/2012 (YAN 5) as well as the Report of the Presidential Committee on Verification and Reconciliation of Petroleum Subsidy, Volume 2 i.e. Exhibit PET 23 and draw the necessary inferences to the effect that Judgment in the said 2012 suit is a judgment in rem pendency of which the respondent was duly aware of but chose to stand-by while issues affecting its interest were being determined in rem, the investigation of the appellant by various security agencies in respect of the fuel subsidy payment have been concluded and is therefore caught up by estoppel per rem judicatam. He cited Ogundele & Anor Vs. Agiri & Anor (2009) 18 NWLR (Pt.1173) 219, 250.

It was contended that the findings of the lower

19

Court were perverse as it did not arise from the totality of the materials and evidence before the Court. Learned senior counsel submitted that it was antithetical to the evidence before the Court and ought to be set aside in its entirety. He urged the Court to resolve issue No.1 in favour of the appellant.

On this issue No.1, the respondent submitted that the lower Court was right to have held that the respondent had no interest, were not bound and consequently the question of estoppel by standing by could not be invoked against the respondent on the basis of the judgment of Mohammed. J. in Suit No. FHC/ABJ/CS/617/2012- Yanaty Petrochemical Ltd vs. PPPRA & Anor. The respondent referred to the arguments of the appellant on this point on why the respondent is bound by the said judgment and submitted that all the appellant’s arguments on this issue are fallacious.

The respondent contended that it absolutely had no interest whatsoever in the said 2012 suit. Learned counsel for the respondent referred to Exhibit YAN4 on pages 17-18 and 64-65 of the Record of Appeal which was a letter written by the counsel for the appellant to the respondent on the

20

pendency of the aforesaid suit before Mohammed, J. He contended that the said letter is quite revealing and throws some light on the relationship between the appellant and PPPRA, to which the respondent was not a party. He quoted paragraph 2 of Exhibit YAN 4 and contended further that from paragraph 2 of the said Exhibit YAN 4, it is explicit that the bone of contention between the appellant and the PPPRA sued to Court in the 2012 suit was the Advance Payment Guarantee issued in favour of PPPRA arising of petroleum products between the appellant and the PPPRA. He contended that the right parties in the suit were before the Court, that is, the appellant and PPPRA. He submitted that the respondent would have been a knight errant, a rabble rouser, and a Meddlesome interloper, if it had sought to join in that action.

Learned counsel contended that, in any event, if the appellant, as the Plaintiff in the suit had felt that the respondent was a necessary party in the suit, it behoved the appellant to have made the respondent a party in order to make the outcome of the judgment binding on the respondent. But the appellant refused to sue the respondent nor any

21

other security agency in the suit, yet fantasizing that all the security agencies are bound by the outcome of that suit. He concluded that, that would be tantamount to shaving the respondent’s head in its absence.

Learned counsel for the respondent referred to the claims of the appellant that it was given a clean Bill of health by the Presidential Committee on Verification and Reconciliation of Fuel Subsidy Payments, when the appellant put so much reliance on its Exhibit PET 23 at pages 416-471 of the record of appeal and that the said Presidential committee did not recommend the prosecution of the appellant as a result of its non-indictment by the various security agencies that verified, reconciled and investigated the matter. Learned counsel submitted that the appellant’s claim was far from the truth and an attempt to twist the report of the said Presidential Committee. Learned counsel referred to Exhibit YAN 3 at pages 13-16 of the record of appeal on the findings and action taken, particularly at page 16 paragraph 3.63, the Presidential Committee on Verification etc regarding the appellant clearly stated that “the company engaged in five (5)

22

transactions and claimed a total amount of N6,962,191,091.04 (six billion, nine hundred and sixty two million, one hundred and ninety one thousand, ninety one Naira four kobo). And that all the five transactions could not be verified legitimate. That the transactions were being referred to the EFCC who were then currently investigating the OM & T.”

The respondent contended that the above report of the committee was as at November, 2012 whereas the much talk about Suit FHC/ABJ/CS/617/2012 before Mohammed, J. was commenced on the 28th September, 2012, while the respondent actually commenced investigation against the appellant in February 2012.

Learned counsel further contended that it is instructive to note that the membership of the Presidential committee that conducted fact finding but not criminal investigation did not include any representative of the respondent (EFCC) and that the only security agencies that were represented in the Committee were the Nigeria Police Force and the State Security Services. It can therefore not be correct that investigation against the appellant had been concluded by the Presidential Committee barring further

23

investigation of the appellant on the fuel subsidy payments by the respondent who was not a party to the 2012 suit decided by Mohammed, J.

Learned counsel referred to the principle of law on joinder of parties and the need for a party seeking to join or to be joined to have interest in the suit, and relied on R.T.N.A.C.H.P.N. Vs M. & H.W.U.N. (2008) 2 NWLR (Pt. 1012) SC. 575 at 641 Ibigbami Vs. Military Governor, Ekiti State (2004) 4 NWLR (pt. 863) 243 at 642; Onyekweli Vs INEC (2008) 14 NWLR (pt. 1107) 317. He submitted that the respondent had no interest in the said suit decided by Mohammed, J. And that the allegation that the respondent folded its hands and stood by, while the PPPRA fought its battle is preposterous and should be discountenanced.

On whether or not the respondent is bound by the judgment of Mohammed, J. Learned counsel submitted that the said judgment being one in personam but not in rem can only be binding on the parties thereto, not the respondent who is not a party. He submitted further that, the Court below was therefore right in holding that the said judgment was one in personam rather than a judgment in rem binding on the

24

whole world. He urged the Court to resolve issue 1 against the appellant but in favour of the respondent.

It is note worthy that the appellant also relied on a reply brief of argument filed on 02/2/2017 but deemed filed on 4/10/2017. In paragraph 1.03 of the said appellant’s 20 page reply brief, the appellant states thus:

“In reply to the respondent’s brief, the appellant has filed the present Reply Brief in urging Your Lordships to discountenance the submissions of the respondent and find merit in the appeal.”

What then is a reply brief Ordinarily, it is a brief that responds to issues and arguments raised in the brief previously filed by one’s opponent. In other words, it is an appellant’s brief of argument in opposition. See; Musaconi Limited Vs. Mr. H, Aspinall (2013) 14 NWLR (Pt.1375) p. 35; (2013) 12 SCM (Pt. 2) 380; (2013) 6-7 SC (Pt. 1); (2014) All FWLR (Pt.70) 1275.

A reply brief is only filed when an issue of law or arguments raised in the respondent’s brief call for a reply. Therefore, a reply brief should and is expected to deal with only new points arising from the respondent’s brief. Where there is no new point, a reply brief

25

is unnecessary and will serve no useful purpose in the determination of the appeal, and the Court is entitled to discountenance it. A reply brief is not a repair kit to put right any lacuna or error in the appellant’s brief of argument. See; Mozie & Ors Vs. Mbamalu & Ors (2006) 12 SCM (Pt. 1) 306; (2006) 15 NWLR (Pt. 1003) 466; Popoola Vs. Adeyemo (1992) 8 NWLR (Pt. 257) 1; Shuaibu Vs. Maihodu (1993) 3 NWLR (Pt. 284) 748.

InOsuji Vs. Ekeocha (2009) 10 SCM 72; (2009) 16 NWLR (Pt. 1166) 81, this Court when considering the essence of a reply brief of argument opined, inter alia, as follows:

“On a close scrutiny of the respondent’s brief, I observed that he did not file a Notice of Preliminary Objection or raise any fresh issue of law for argument in the respondent’s brief. All the issues covered by the Reply Brief, were already argued in the appellant’s brief. This leads to the question – what is the essence of a reply brief A reply brief is necessary when a new issue of law or arguments raised in an objection in the respondent’s brief not covered in the Appellant’s brief calls for a reply. An appellant in such peculiar situation ought to file a

26

reply brief in the interest of his case. Argument is restricted to the new points arising. Where the respondent has not introduced a new issue or point of law, a reply brief is most unnecessary. Failure to file a reply brief can only be fatal to the case of the appellant if the issues raised in the respondent’s brief are weighty, substantial, competent and relevant in law ….

See also  Chiabee Bayol Vs Iorkighir Ahemba (2014) LLJR-SC

The appellant used the Reply brief in this case as an opportunity to elaborate on the issue already argued in the appellant’s brief. A reply brief is not to afford the appellant another bite at the cherry. It is not proper to use the reply brief to extend the scope of argument and submissions in the appellant’s brief. See; Edjerode Vs. Ikine (2001) SCNJ 184; Okonji v. Njokanma (1999) 12 SCNJ 259; Akinrinmade Vs. Lawal (1996) 2 NWLR (Pt. 429) 21; Umeji Vs. A.G. Imo State (1995) 4 NWLR (Pt. 391) 552; Nwali Vs. State (1991) 3 NWLR (Pt. 182) 663; etc.”

In the instant case, the respondent did not file any Preliminary Objection to the appeal and did not raise any fresh issue of law for argument, not already argued in the appellant’s

27

main brief of argument. The appellant has only tried to further reargue or emphasize the argument in its brief of argument earlier filed. I consider it unnecessary and will therefore discountenance same. A reply brief is not a forum for re-argument of an appeal or filling of gaps in the earlier argument by the appellant. Accordingly, the appellant’s reply brief of argument being otiose is discountenanced.

Let me now proceed to deal with the appeal.

As earlier stated, the appellant herein had commenced an action before the Federal High Court, Abuja Division by an Originating Summons filed on 11/06/2013. In the said summons, the plaintiff sought the determination of the three questions earlier stated in this judgment. The appellant also sought three reliefs, if the three questions were answered in the affirmative. It is very clear that the main relief was declaratory while the other two reliefs were for injunctive orders.

For ease of reference, the three questions posed for determination, the reliefs to which the trial Court granted totally, which culminated into this appeal are as follows:

(i) Whether in view of the judgment delivered by

28

Hon. Justice A. R. Mohammed, on the 22nd day of May, 2013 in Suit No.FHC/ABJ/CS/617/2012: Yanaty Petrochemical Limited Vs Petroleum Product Pricing Regulatory Agency Anor, and in particular Relief 2 therein investigation into any allegation of fraud and money laundering with respect to the payment of fuel subsidy, and which investigation was by relevant agencies including the Economic Financial Crimes Commission or any other agency has been concluded.

(ii) Whether in view of the judgment delivered by Hon. Justice A. R. Mohammed on the 22nd day of May, 2013, in Suit No. FHC/ABJ/CS/617/2012: Yanaty Petrochemical Limited Vs. Petroleum Product Pricing Regulatory Agency & Anor, the respondent or any other agency can further investigate or reopen any investigation into fraud or money laundering arising from the payment of subsidy to the plaintiff by the PPPRA.

(iii) Whether the Honourable Court by virtue of the judgment delivered on the 22nd day of May, 2013 in Suit No. FHC/ABJ/CS/617/2012: Yanaty Petrochemical Limited Vs. Petroleum Product Pricing Regulatory Agency & Anor where it held that the plaintiff, not being indicted in previous

29

investigations by various security agencies, panels and investigating bodies set up to investigate the issue of fraud or money laundering arising out of the payment of fuel subsidies granted to the plaintiff, the defendant is restrained from conducting any new or further investigation into any allegation of fraud and money laundering against the plaintiff.

From the declaratory relief sought, the plaintiff wanted the Court to declare and hold that by that judgment of Mohammed, J. referred, delivered on 22/5/2013, and as far as the plaintiff was concerned, investigation on the payment of fuel subsidies by the EFCC or indeed any other agency has been concluded. And then injunctive orders against the respondent whether by itself, its servants, agents, privies or representatives or any other agency from carrying out any act capable of restricting the movement of the plaintiff or any of its agents and from further investigation, interrogation of the plaintiff or any of its staff with regards to the above named suit on the basis of fraud and money laundering.

However, since the questions posed in the Originating Summons and the reliefs sought were

30

predicated on the decision of Hon. Justice A. R. Mohammed handed down on 22/5/2013 in suit No. FHC/ABJ/CS/617/2012, it is apposite to see what exactly was the basis of the decision of the trial Court in that case.

It is noteworthy that Suit No. FHC/ABJ/CS/617/2012 was between Yanaty Petrochemical Limited (the instant appellant) and Petroleum Products Pricing Regulatory Agency, (PPPRA) & Engineer Reginald Stanley, Executive Secretary PPPRA. In the originating summons filed on 28/9/2012 by which the action was instituted, the plaintiff had sought the determination of the following questions:

(i) Whether under the Advance Payment Guarantee provided for the plaintiff by its bankers, Sterling Bank Plc, the defendants can extend the period of the Guarantee provided by the Guarantee.

(ii) Whether the defendants being the beneficiary of the Guarantee, can continue to retain the Guarantee under the guise that the investigations by the beneficiaries have not been concluded.

(iii) Whether following the conclusion of investigations by the various Agencies set up by the principal of the defendants and the publication of the names of companies

31

indicted, which does not include the plaintiff, the defendants can still insist that there is an on-going investigation which has not been completed.

(iv) Whether the plaintiff having appeared before the various panels set up to carry out the investigations, and not having been indicted by anyone of the panel of investigation, the defendants can still maintain that there is an on-going investigation which has not been completed.

(v) Whether upon the release of the Presidential Committee on the Verification and Reconciliation of Fuel Subsidy Payments Report by the Presidency and the release of the list of companies indicted by the Report, the Defendants can still contend that there is an on-going investigation.

(vi) Whether the expression that the Advance Payment Guarantee “will automatically be renewed thereafter until investigations by the beneficiary and concluded” contained in the letter of Sterling Bank Plc dated 15th October, 2011 can be taken to mean that, the investigations being conducted by the defendants and other Agencies can continue interminably.

(vii) Whether in the circumstances of this case, the plaintiff have not made out a

32

case for the release of the Advance Payment guarantee, made by Sterling Bank Plc of which the defendants are beneficiaries.

The plaintiff then sought the following reliefs:

  1. A declaration that Sterling Bank Plc Advance Payment Guarantee (APG) No.ST/255/2011 dated 10th day of June, 2011 issued in favour of the defendants has expired upon the completion of the various investigation panels.
  2. A declaration that investigations on the payment of Fuel Subsidies by various security Agencies in so far as the plaintiff is concerned having been concluded, there is no further need for the defendants, who are the beneficiaries of the Advance Payment Guarantee to withhold it.
  3. A declaration that in all the circumstances of this case, there is no further need for the defendants to hold Sterling Bank Plc bound to further renew the Advance Payment Guarantee (APG) there being no further need for the automatic renewal by the bank.
  4. A declaration that all the transactions involving the Plaintiff Yanaty Petrochemical Limited and the Defendants Petroleum Products Pricing Regulatory Agency and one other having been investigated by the various

33

security Agencies, panels and investigating bodies set up to investigate the issue of Fuel Subsidies granted to Yanaty Petrochemical Limited, there is no further need to renew the Advance Payment Guarantee granted by Sterling Bank Plc to the defendants Petroleum Products Pricing Regulatory Agency the beneficiary.

  1. An order of Court directing the defendants to surrender the Advance Payment Guarantee (APG) given by the Sterling Bank Plc as the same is no longer enforceable and valid in the circumstances of this case.
  2. An order of Court directing the defendants to release the Advance Payment Guarantee (APG), given by Sterling Bank Plc, as the same is no longer being used to secure any further funds following the release of the Reports of the various Committees.

There is no doubt, and this is clear on pages 37-38 of the record of appeal, that the trial Court, in the particular case under reference had found as follows:

“In the situation in this case, it is apparent that the plaintiff has not been indicted by any organization or being prosecuted in connection with the fuel Subsidy Payment. There being no indictment or prosecution against the

34

plaintiff since the probe into fuel subsidy commenced, it will be most unfair, inequitable and unjust for the defendants to continue to insist that the Advance Payment Guarantee, is still subsisting. In the circumstance, on this case, and also having regard to the fact that the plaintiff has not been indicted and the state of the affidavit evidence, adduced by the parties, I hold that the Advance Payment Guarantee (APG) does not exist any more. The plaintiff suit has therefore succeeded. I therefore grant all the reliefs being claimed by the plaintiff…”

In the action that culminated into the instant appeal which was also commenced by an Originating Summons, the first question which was sought for determination as earlier stated, but for ease of reference was:

“Whether in view of the judgment delivered by Hon. Justice A. R. Mohammed, on the 22nd day of May, 2013 in Suit No. FHC/ABJ/CS/617/2012 Yanaty Petrochemical Limited Vs. Petroleum Product Pricing Regulatory Agency & Anor, and in particular Relief 2 therein, investigation into any allegation of fraud and money laundering with respect to the payment of fuel subsidy and which investigation

35

was by relevant agencies including the Economic and Financial Crimes Commission or any other agency has been concluded.”

In the action that led to the instant appeal, the trial Court, per Ademola, J., after referring to the same findings and holdings of the trial Court in the earlier suit by the instant appellant, opined as follows:

“…..as far as investigation on the payments of Fuel Subsidies by various security agencies is concerned, the judgment of my learned brother, A. R. Mohammed, J., is a judgment in Rem and estopps the defendant from relitigating this issue in respect of the plaintiff Yanaty Petrochemical Limited.”

Relying on pages 3, 19 and 20 of Exhibit YAN5 – the judgment of the trial Court in the earlier action instituted by the appellant against yet other defendants, decided by Mohammed J. on 22/5/2013, the trial Court granted the three Reliefs sought in the instant case against the respondent.

On appeal to the Court below, the two surviving issues of the appellant were said to be the same as the main two issues of the respondent. The two issues considered by the Court below were:

“Whether the trial Court did not err in

36

law in placing reliance on the judgment of A.R. Mohammed, J., in Suit No. FHC/ABJ/CS/617/2012 between YANATY PETROCHEMICAL LIMITED VS PETROLEUM PRODUCT PRICING REGULATORY AGENCY & ANOR (Exhibit YAN5) and consequently declaring investigation into fuel subsidy as having been concluded and further issuing an injunction restraining the appellant from further investigation, interrogation and invitation of the respondent or any of its officials on the ground that investigation on the said fuel subsidy payment has been concluded by the appellant or indeed any other agency of the Federal Government when the appellant was not a party to the aforesaid suit relied upon.

  1. Whether the trial Court did not err in law in holding that the judgment in Suit No.FHC/ABJ/CS/617/2012 between Yanaty Petrochemcial Limited Vs Petroleum Product Pricing Regulatory Agency & Anor was a judgment in rem thereby operating against or having binding force on the appellant and the whole world.”

It is note worthy that the Court below had found as follows:

“It is correct to state that relief No.2 granted by A.R. Mohammed, J. in Suit No. FHC/ABJ/CS/617/2012 was in part,

37

to the effect that investigation on the payment of fuel subsidies by various security agencies in so far as the respondent is concerned had been concluded. On account of this, the trial Court granted all the reliefs sought in the Originating Summons including relief No.2 – the restraining order.”

The Court below later found that the trial Court wrongly interfered with the exercise of its statutory discretionary powers of investigating economic and financial crimes by the respondent. As a result, the above two issues were accordingly resolved in favour of the appellant. The appeal was found to be meritorious and allowed. The judgment of the trial Court was set aside and the case before the trial Court was accordingly dismissed.

There is no doubt that the trial Court in this matter relied on the judgment of Hon. Justice A. R. Mohammed in the suit earlier instituted by the appellant, in particular, the grant of Relief No.2. A careful look at the said relief No.2 in Exhibit YAN5 will show that it was a declaration by the Court in favour of the appellant, that there was no further need for the then defendants – Petroleum Products Pricing Regulatory Agency

38

(PPPRA) & Anor who were the beneficiaries of the Advance Payment Guarantee to continue to withhold same, investigations on the payment of Fuel Subsidies by various security agencies in so far as the plaintiff was concerned, having been concluded.

It is clear from the record that the appellant herein as the plaintiff in Exhibit YAN5 was concerned with the release of Advance Payment Guarantee and discharge of Sterling Bank Plc from liability on the said Guarantee, having not been indicted or recommended for prosecution by any of the security agencies investigating the fuel subsidy payment. Whereas, the defendants had strongly contended that with the report of the Presidential Committee on Verification and Reconciliation of fuel Subsidy Payment issued in November, 2012, the plaintiff was indicted “to the tune of N6,962,191,091.04 for transactions not verified as legitimate”. And that the matter had then been referred to the respondent for investigation. Therefore, that investigation cannot be said to have finally been concluded.

There is no doubt, that the appellant, as the plaintiff before the trial Court had relied on the decision of Hon. Justice

39

R. Mohammed in suit No. FHC/ABJ/CS/617/2012 between itself Yanaty Petrochemical Limited and PPPRA & Anor delivered on 22/5/2013 and therefore pleaded same as Estoppel per rem judicatam. Indeed, the learned senior counsel for the appellant argued the point vigorously before the trial Court as plaintiff’s counsel that the judgment of Mohammed, J. should be seen and applied to prevent the respondent as defendant from carrying out investigation on any allegation of fraud and money laundering with respect to the payment of fuel subsidy.As I stated earlier, the trial Court in this matter had answered the three questions raised by the appellant in affirmative and granted all the three reliefs sought after holding that the judgment of Hon. Justice, A. R. Mohammed created “an issue estoppel per rem judicatam against further investigations of the plaintiff by the defendant in the suit.”

See also  National Union Of Road Transport Workers & Anor Vs Road Transport Employers Association Of Nigeria & Ors (2012) LLJR-SC

Generally, the principle of law is well settled, that the plea of estoppel per rem judicatam is a shield rather than a sword. The plea is therefore ordinarily not available to a plaintiff to be pleaded in its statement of claim, as he would by that be impugning the

40

jurisdiction of the Court to which he has brought his present action, since its successful plea would in effect, oust the jurisdiction of the Court before which it is raised. See; Yoye Vs Olubode (1974) 1 All NLR (Pt. 2) 118 at 126-127; Emmanuel Igwego & Ors Vs Fidelis Ezeugo & Anor (1992) 6 NWLR (Pt. 249) 561 at 587; Umeano Achiakpa & Anor Vs Josiah Nduka & Ors (2001) 14 NWLR (Pt. 734) 623 at 646.

It is trite law, that for the plea of estoppel per rem judiatam to succeed, the party relying on the doctrine must establish the following:

(i) That the parties or their privies involved in both the previous and present proceedings are the same

(ii) That the claim or issue in dispute in both proceedings are the same

(iii) That the res or the subject matter of the litigation in the two cases is the same

(iv) That the decision relied upon to support the plea is valid, subsisting and final; and

(v) That the Court that gave the previous decision relied upon to sustain the plea is a Court of competent jurisdiction.

Unless all the above preconditions are established, the plea of estoppel per rem judicatam cannot be

41

sustained. See; Oke Vs. Atoloye (No. 2) (1986) 1 NWLR (Pt. 15) 241 at 260; Yoye Vs. Olubode & Ors (supra) Fadiora Vs Gbadebo (1978) 3 SC 219 at 229. However, the burden lies squarely on the party who sets up the defence of estoppel per rem iudicatam to conclusively establish the said pre-conditions.

Generally, and the law is clear about this, that a plaintiff in an action is entitled to plead and rely on a previous judgment in his favour not as estoppel per rem judicatam but simply as an estoppel in the sense that it constitutes or relevant fact to the issue in his present action and the judgment so relied upon will be conclusive of the facts which it decided. See; Ukaegbu & Ors Vs Duru Ugoji & Anor (1991) 6 NWLR (Pt. 196) 127; Esan Vs. Olowa (1974) 3 SC 125. Therefore, even though the doctrine of estoppel per rem judicatam cannot be made the basis of an action by a plaintiff, a defence can certainly be based entirely on it. See; Achiakpa Vs. Nduka (supra) at p. 647.

It is note worthy that the trial Court per Ademola, J. opined that the judgment of Mohammed, J. earlier decided, created an issue estoppel per rem judicatam. But the Court below

42

held a different view, that the judgment in Suit No. FHC/ABJ/CS/617/2012 was not a judgment in rem and was not binding on the respondent. And that even of it was a judgment in rem, the res was the APG but not the investigation, and therefore it held that it did not operate as estoppel per rem judicatam.

From the records, there is no doubt that the appellant was the plaintiff in the two suits, whereas the defendants were not the same neither can the respondent herein be said to be a privy or agent of the defendant in the earlier suit – that is, the Petroleum Products Pricing Regulatory Agency (PPPRA). In the same vein, the res in the two suits cannot be said to be the same. Indeed, they are not the same. In suit NO. FHC/ABJ/CS/617/2012 Yanaty Petrochemical Limited Vs. Petroleum Product Pricing Regulatory Agency & Anor, the res was the Advance Payment Guarantee, provided for the plaintiff by its bankers – Sterling Bank Plc as Guarantee in favour of the PPPRA. I agree with the Court below when on page 759 of the record in its judgment had opined as follows:

“In the earlier suit, as can be seen from the questions and reliefs set out earlier, the

43

subject matter of the suit was the Advance Payment Guarantee (APG) issued for the respondent in this appeal in favour of Petroleum Product Pricing Regulatory Agency (PPPRA) and its Executive Secretary. The whole essence of the suit was to compel the PPPRA to surrender or release the APG. The appellant had no interest whatsoever in the APG, and so had no battle to fight in the earlier case nor did it have a common interest in the APG with PPPRA.”

On page 29 of the record, in particular, in Exhibit YAN5 -the judgment of Hon. Justice A. R. Mohammed, the trial Court in the earlier suit on what the subject matter of the suit was opined inter alia, as follows:

“……the core issue for determination in this suit is whether or the Advance Payment Guarantee has lapsed or is still subsisting… The Court will therefore have to determine whether the Advance Payment Guarantee still subsists or same has lapsed.”

Therefore, in view of the fact that the doctrine of estoppel per rem judicatam is not applicable to this case, the Court below was right in holding that the judgment of Mohammed, J. in suit No. FHC/ABJ/CS/617/2012 does not operate as estoppel

44

preventing investigation into any allegation of fraud and money laundering with respect to the payment of fuel subsidy by the respondent. Accordingly, this issue is resolved against the appellant but in favour of the respondent.

The remaining issues (ii), (iii), (iv) & (v) distilled by the appellant are to be taken together.

Issue 2 is whether the learned Justices of the Court below acted erroneously in holding that the injunctive order made by the learned trial Court amounted to issuing “judicial fiat” to restrain the respondent from carrying out its statutory function.

On this, the appellant submitted that the lower Court erred in law. It was contended that contrary to the findings of the lower Court, the injunctive Order made by the trial Court was a consequential order necessary for the protection of the jurat rights of the appellant from permanent infringement by the respondent who had demonstrated manifest intention to reopen the concluded investigation of the appellant in respect of the fuel subsidy payment. It was therefore submitted that it does not amount or constitute an “unwarranted interference” with the exercise of the

45

statutory powers and functions of the Commission as wrongly found by the lower Court.

The appellant referred to the correct finding of the Court below in respect of the grant by the trial Court of relief No. 2, the restraining order on page 814 of the record of appeal. Learned senior counsel submitted that the appellant’s entitlement to the injunctive order was firmly established upon the preponderance of material and evidence before the lower Court. He submitted further that the injunctive order was imperative considering the fact that the respondent has shown manifest readiness to reopen the concluded investigation of the appellant if unrestrained.

The appellant on the statutory powers of the respondent conceded that, in any event, the said powers must be exercised in accordance with the law and that any aggrieved person has the right to approach the Court for redress.

It was submitted that the lower Court was in error when it adjudged the injunctive order as a “judicial fiat” whereas it became necessary as a consequential order arising from the final determination of the jurat rights of the parties by the trial Court. It was submitted that the

46

trial Court exercised its judicial and inherent powers in making the necessary consequential order of injunction, hence the lower Court erred in holding that it amounted to issuing “judicial jurat” to restrain the respondent from carrying out its statutory function.

On this issue, learned respondent’s counsel referred to the findings of the Court below on pages 813-814 and the submission of the appellant and submitted that the order of injunction slammed against the respondent by Ademola, J. from further investigation, interrogation, and invitation of the appellant or any of its staff on the issue of payment of fuel subsidy was indeed a “judicial fiat”.

Learned counsel contended that there was absolutely no shred of evidence placed before the trial Court by the appellant to the effect that the appellant had been investigated and exonerated by any law enforcement or security agency. Nothing whatsoever was placed before the Court to warrant the trial Court making the order of injunction.

Learned counsel referred to the counter affidavit wherein the defendant deposed to copious facts through its investigating officer that investigation against the

47

appellant was still going on, and that no particular investigation had revealed that appellant had fraudulently claimed to have discharged certain million litres of PMS at Lister Jetty in Apapa, Lagos, which alleged fraudulent claim resulted into over payment of a whooping sum of N1,840,758,720.00 (One billion, eight hundred and forty million, seven hundred and sixty eight thousand, seven hundred and twenty Naira) only as subsidy paid by the Federal Government for PMS not supplied by the appellant. Learned counsel referred to pages 310-316 of the record of appeal in particular paragraphs 11(a)-11(i) of the counter affidavit of the respondent before the trial Court as defendant to the originating summons. He contended that those paragraphs were not contradicted, yet the trial Court, held that the investigation had been concluded and went ahead to issue an injunctive order, restraining the respondent from concluding its investigation of the appellant or any of its staff with regards to the payment of fuel subsidy.

Learned counsel submitted that the order of injunction issued by the trial Court against the respondent indeed amounted to judicial fiat, and

48

the Court below was therefore right to have set aside the judgment of the trial Court. He urged the Court to uphold the decision of the Court below. He urged the Court to resolve this issue against the appellant.

There is no doubt that upon answering the three questions posed by the plaintiff in its Originating Summons in the affirmative the trial Court had granted the declaratory and injunctive reliefs as claimed. That certainly led to the appeal to the Court below by the respondent herein which felt aggrieved with the judgment of the trial Court.

Upon hearing the appeal, the Court below had opined as follows:

“There is no doubt that the allegation of fraud and money laundering with respect to payment of fuel subsidy which the appellant was investigating against the respondent falls under the definition of economic and financial crime in Section 46 of the Act. Issuing an order of injunction to restrain the commission from further investigation of the allegation and from interrogation and invitation of the respondent or any of its members of staff as the trial Court did amounted with all due respect, to an unwarranted interference with the

49

exercise of the statutory powers and function of the Commission.”

There is no controversy on the fact that the Court is empowered to, in an appropriate circumstances, grant an order of injunction to protect the existing right of a person from unlawful invasion by another. Generally, the claim for an injunction is won and lost on the basis of the existence of competing legal rights. Therefore, where the applicant for an injunction has no legal right recognisable by the Court, there is no power to grant the applicant an injunction. But injunction being an equitable remedy, he who comes to equity, must come with clean hands. See; Chief T.A.L Akapo (Ojora of Lagos) Vs. Alhaji H.A. Hakeem-Habeeb & Ors (1992) 7 SCNJ 119; (1992) NWLR (Pt. 247) 266; (1992) LPELR 325 (SC) Engineer S. D. Yalaju Amaye Vs. Associated Registry Engineering Contractors Ltd & Ors (1990) 6 SC 157; (1990) NWLR (Pt. 145) 22; (1990) LPELR- 3511 (SC).

As earlier alluded to the decision of the trial Court in granting all the reliefs sought by the plaintiff/appellant, inclusive of the injunctive orders, was based or predicated upon the earlier decision of Mohammed, J. in suit NO.

50

FHC/ABJ/CS/617/2012 delivered on 22/5/2013. However, having held that the said decision does not operate as estoppel per rem judicatam, it ordinarily follows that, the bottom has been knocked off the foundation of the decision of Ademola, J, which was rightly set aside by the Court below. In other words, with the available facts contained on the record, in the counter affidavit of the respondent and Exhibit YAN5 itself, there was no basis for the decision of Ademola, J. to go the way it went. The Court below was therefore right in holding that the grant of injunctive orders by the trial Court restraining the respondent whether by itself, its servants, agents, privies or representatives or any other agency from carrying out further investigation of the plaintiff or any of its staff with regards to the alleged fraud and money laundering on fuel subsidy payment, is to say the least an arbitrary exercise of judicial power of the trial Court. In other words, the said injunctive order made by the trial Court amounted to issuing “judicial fiat.” In the circumstance, this issue is also resolved against the appellant in favour of the respondent.

On issues 3, 4

51

and 5 of the appellant, with the conclusions reached in the others, there is no need to further consider them in any details. There was no interference with the judgment of Mohammed, J. in Suit No. FHC/ABJ/CS/617/2012 delivered on 22/5/2013, by the Court below. The said judgment produced in Court as Exhibit YAN5 by the appellant was made the foundation upon which it based its instant case. There was therefore no way the Court could have considered the appellant’s case without looking into Exhibit YAN5.

In the final analysis, and without any further ado about nothing, I hold that this appeal is unmeritorious and deserves to be dismissed. Accordingly, the appeal is dismissed. The judgment of the Court below delivered on 7/12/15 is affirmed.

Even though costs follow events, there shall be no order as to costs.


SC.68/2016

More Posts

Facebook
Twitter
LinkedIn

Leave a Reply

Your email address will not be published. Required fields are marked *

LawGlobal Hub is your innovative global resource of law and more. We ensure easy accessibility to the laws of countries around the world, among others