Principles of Law Governing the Exercise of the Power of Forfeiture by the EFCC

INTRODUCTION:

The pith of this appeal is the exercise of an interim order of forfeiture by the EFCC.

CASE TITLE: EFCC V. Abubakar & ORS (2023) LPELR-60611(CA)

JUDGMENT DATE: 3RD JULY, 2023

PRACTICE AREA: JUDGMENT AND ORDER (INTERIM ORDER OF FORFEITURE)

LEAD JUDGMENT: MOHAMMED BABA IDRIS, J.C.A.

SUMMARY OF JUDGMENT:

FACTS:

This is an appeal against the judgment of the Federal High Court Kaduna Division (trial Court) in Suit No: FHC/KT/CS/6/2020.

By an Originating Summons filed on the 19th day of October 2020, the Respondents as Plaintiffs in the trial Court, filed an action against the Appellant as Respondent for the determination of some questions and sought the following reliefs, amongst others:

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 LFN 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 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”

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 learned trial judge delivered judgment on the 19th day of March 2021 in favour of the Respondents against the Appellant. Dissatisfied with the said judgment of the trial Court, the Appellant filed the instant appeal.

The Respondents herein also filed a cross-appeal.

ISSUES:

The Court determined the appeal on the following issues:

“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.

2. Whether the learned trial Judge was right when he held that the Appellant breached the Respondent’s 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.

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.”

The cross-appeal was determined on the following issues:

“1. Considering the facts and circumstances leading to the suit coupled with the finding of the lower Court declaring the action of the Cross Respondent of continuous holding of the Cross Appellants’ properties as illegal and unconstitutional, whether the lower Court was right in refusing to grant an order of perpetual injunction against them.

2. Whether the lower Court has the requisite jurisdiction to grant an order/relief not asked for by any party then turn round to grant an order/relief asked for in the alternative.

3. Whether the damages of Two Million Naira only is adequate considering the evidence before the lower Court.”

DECISION/HELD:

In the final analysis, the appeal was dismissed for lack of merit while the cross-appeal was allowed in part.

RATIOS:

• JUDGMENT AND ORDER – INTERIM ORDER – Nature of an interim order; whether same can be extended indefinitely
• GOVERNMENT AGENCY – ECONOMIC AND FINANCIAL CRIMES COMMISSION – Whether the exercise of the power of forfeiture by the EFCC must be in accordance with the law
• EQUITABLE REMEDY – PERPETUAL INJUNCTION – Instance(s) in which the grant of a perpetual injunction will be appropriate
• COURT – JURISDICTION – Principles of law with respect to the question/issue of jurisdiction
• APPEAL – DUTY/ROLE OF A RESPONDENT – Role of a respondent to an appeal
• APPEAL – CROSS-APPEAL – Nature of a cross-appeal