Legalpedia Citation: (2024-06) Legalpedia 53807 (CA)

In the Court of Appeal

HOLDEN AT ABUJA

Thu Jun 13, 2024

Suit Number: CA/ABJ/CV/413/2024

CORAM

Joseph Olubunmi Kayode Oyewole,Justice of the Court of Appeal

Abubakar Mahmud Talba, Justice of the Court of Appeal

Danlami Zama Senchi ,Justice of the Court of Appeal

PARTIES

ECONOMIC AND FINANCIAL CRIMES COMMISSION

APPELLANTS

ALHAJI YAHAYA BELLO

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, FINANCIAL CRIME, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

The Respondent approached the High Court of Kogi State, Lokoja Judicial Division, seeking enforcement of his fundamental rights. On 9th February 2024, the lower court granted an application made pursuant to a motion ex parte No: HCL/71M/2024, with the reliefs granted detailed in the leading judgment.

The lower court delivered its judgment on the substantive originating motion for the enforcement of the applicant’s fundamental rights on 17th April 2024. On 25th April 2024, the Applicant/Respondent filed an ex parte application seeking reliefs as contained in the leading judgment. The learned trial Judge entertained and granted this ex parte application on 25th April 2024, despite having already determined the substantive originating motion on 17th April 2024.

Dissatisfied with these decisions, the Appellant invoked the appellate jurisdiction of this Court.

HELD

Appeal allowed

ISSUES

1. Whether the trial Court had jurisdiction to grant the Respondent’s ex-parte application for issuance of Form 49 despite the fact that the ex-parte orders of 9th February 2024 which it sought to enforce, were already spent?
2. Whether the trial Court was right when it assumed jurisdiction to hear and determine the Respondent’s ex-parte application for issuance of Form 49 against the Executive Chairman of the Appellant, despite the fact that there was no proper service of the Requisite Forms 48 and 49?

RATIONES DECIDENDI

TECHNICALITIES – CONDUCT OF COURTS TO TECHNICALITIES

…In the circumstances, fine as the contending arguments are, they are in my view, contentions on procedural irregularities which must bow at the feet of substantive jurisdiction. See ODOM & ORS VS PDP & ORS (2015) LPELR-24351 (SC), OBIUWEUBI VS. CBN (2011) LPELR-2185 (SC), BENUE STATE UNIVERSITY VS MOGAJI (2022) LPELR-56729 (CA) and KUBOR & ANOR VS. DICKSON & ORS (2012) LPELR-9817 (SC).

– Per J. O. K. Oyewole, JCA

INTERIM ORDER – HOW COURTS CONSTRUE THE OPERATION OF INTERIM ORDERS

I do not think that the coming to an end of an interim order adversely affects whatever that order was meant to achieve or achieved. If the order was a restraining order you cannot say that while it lasted or remained in operation, the party sought to be restrained was never restrained It only means that the restraint is now at an end and that the party is free of the restraint. See KUBOR & ANOR VS. DICKSON & ORS (2012) LPELR-9817(SC) at 40-41.

– Per J. O. K. Oyewole, JCA

JURISDICTION – THE IMPORT OF JUDICIAL POWER EXERCISED WHERE JURISDICTION IS LACKING

Jurisdiction is the very bedrock of the exercise of judicial power. Any exercise of judicial power without the requisite jurisdiction will be incapable of conferring any legal benefit on the victorious party notwithstanding the time, industry and resources expended. See CHIEF OF AIR STAFF & ORS VS. IYEN (2005) LPELR-3167 (SC), ROFICO LTD VS STUDIO PRESS (NIG) PLC (2023) LPELR-60615(CA), DOGO VS TARE (2022) LPELR- 57401(CA), MOBIL PRODUCING COMPANY UNLIMITED VS LASEPA (2002) 18 NWLR (PT. 798) 1 and NICON INSURANCE LTD & ORS V. AMCON & ORS (2021) LPELR-56223 (CA).

– Per J. O. K. Oyewole, JCA

SEPERATION OF POWERS – THE IMPORTANCE OF THE DOCTRINE OF SEPARATION OF POWERS

Essential and in fact fundamental to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is the doctrine of separation of powers. In Sections 4, 5 and 6 of the Constitution, broad and recognizable functions were allotted to each arm of government. The smooth operation of the ship of State depends largely on how each of the three arms of government faithfully carries out its functions without impeding the smooth functioning of the other arm. Where therefore the Legislature has created an executive body and ascribed powers to it, it is outside the jurisdictional competence of the Judiciary to prevent it from carrying out its statutory functions. This Court relying on various decisions of the Supreme Court made a vital pronouncement on the issue per BULKACHUWA, JCA (as he then was) thus:

“For a person, therefore, to go to Court to be shielded against criminal investigation and prosecution is an interference with powers given by the Constitution to law officers in the control of criminal investigation. The plaintiff has no legally recognizable right to which the Court can come to his aid. His claim is not one the Court can take cognizance of for it has disclosed no cause of action. The plaintiff cannot expect a judicial fiat preventing a law officer in the exercise of his Constitutional power.”

It is indeed trite that no Court has the power to stop the Police from investigating a crime and whether to or how it is done is a matter within the discretion of the Police. See Fawehinmi v I.G.P. (2002) 7 NWLR (Pt. 767) 606; Agbi v. Ogbeh (2005) 8 NWLR (Pt. 926) 40; Christlieb PLC v. Majekodunmi (2008) 16 NWLR (Pt. 1113) 324; Onah v. Okenwa (2010) 7 NWLR; Hassan v. E.F.C.C. (2013) LPELR (CA). See ATTORNEY GENERAL ANAMBRA STATE VS. CHIEF CHRIS UBA (2005) 15 NWLR (PT 947) 44. See also IGP & ANOR VS UBAH & ORS (2014) LPELR-23968(CA). – Per J. O. K. Oyewole, JCA

CRIMINAL INVESTIGATION – WHETHER THE COURTS HAVE THE POWER TO SHIELD A PERSON FROM CRIMINAL INVESTIGATIONS

Essential and in fact fundamental to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is the doctrine of separation of powers. In Sections 4, 5 and 6 of the Constitution, broad and recognizable functions were allotted to each arm of government. The smooth operation of the ship of State depends largely on how each of the three arms of government faithfully carries out its functions without impeding the smooth functioning of the other arm. Where therefore the Legislature has created an executive body and ascribed powers to it, it is outside the jurisdictional competence of the Judiciary to prevent it from carrying out its statutory functions. This Court relying on various decisions of the Supreme Court made a vital pronouncement on the issue per BULKACHUWA, JCA (as he then was) thus:

“For a person, therefore, to go to Court to be shielded against criminal investigation and prosecution is an interference with powers given by the Constitution to law officers in the control of criminal investigation. The plaintiff has no legally recognizable right to which the Court can come to his aid. His claim is not one the Court can take cognizance of for it has disclosed no cause of action. The plaintiff cannot expect a judicial fiat preventing a law officer in the exercise of his Constitutional power.”

It is indeed trite that no Court has the power to stop the Police from investigating a crime and whether to or how it is done is a matter within the discretion of the Police. See Fawehinmi v I.G.P. (2002) 7 NWLR (Pt. 767) 606; Agbi v. Ogbeh (2005) 8 NWLR (Pt. 926) 40; Christlieb PLC v. Majekodunmi (2008) 16 NWLR (Pt. 1113) 324; Onah v. Okenwa (2010) 7 NWLR; Hassan v. E.F.C.C. (2013) LPELR (CA). See ATTORNEY GENERAL ANAMBRA STATE VS. CHIEF CHRIS UBA (2005) 15 NWLR (PT 947) 44. See also IGP & ANOR VS UBAH & ORS (2014) LPELR-23968(CA). – Per J. O. K. Oyewole, JCA

EFCC – THE POWERS EFCC IS VESTED WITH

I may only point out that pursuant to Section 8(5) of the Economic and Financial Crimes (Establishment) Act, 2004 the Appellant is vested with all the powers of the Nigerian Police. – Per J. O. K. Oyewole, JCA

EXPARTE ORDER – CONDUCT OF COURTS WHERE AN EXPARTE ORDER HAS LAPSED

Now after the lower Court had determined the substantive application for the enforcement of the Applicant/Respondent’s fundamental rights, it is elementary knowledge that the exparte order granted on the 9th February 2024 had lapsed. The learned trial Judge was in grave error when he entertained an exparte application on 25th of April 2024 and granted the reliefs when he knew that the substantive originating motion was determined on 17th of April 2024. The exparte motion of 25th April, 2024 was no doubt an abuse of Court process. The exparte order granted on 9th February, 2024 was not existing, having elapsed. It is trite law that you cannot put something on nothing. – Per A. M. Talba, JCA

SHERIFFS AND CIVIL PROCESS LAW AND JUDGMENT ENFORCEMENT RULES – THE IMPORTANCE OF THE SHERIFFS AND CIVIL PROCESS LAW AND THE JUDGMENT ENFORCEMENT RULES

It is settled law that the Sheriffs and Civil Process Law and the Judgment (Enforcement) Rules are made in such a way as to ensure that a person being deprived his liberty in respect of an order or judgment made in civil litigation deliberately intended to flout the order of the Court. Furthermore, the law and its rules are made to ensure that a person is given an opportunity to retrace his steps by service on him of Forms 48 & 49.

If he remains recalcitrant then the Court will descend on him and commit him to prison. The price placed on human liberty by our law should grow rather than diminish with time. I do not think the law of this country regarding the freedom of the individual has descended to such abysmal depth of rough and ready justice of a medieval era that a person should be thrown into prison for contempt without giving him an opportunity to retrace his steps. Per Ubaezonu, JCA in Ojeme V. Momodu (1995) 6 NWLR (Pt. 403) 587. – Per A. M. Talba, JCA

LIBERTY – CONDUCT OF COURTS TO THE ISSUE OF RIGHT TO PERSONAL LIBERTY IN LAW ENFORCEMENT

It is settled law that the Sheriffs and Civil Process Law and the Judgment (Enforcement) Rules are made in such a way as to ensure that a person being deprived his liberty in respect of an order or judgment made in civil litigation deliberately intended to flout the order of the Court. Furthermore, the law and its rules are made to ensure that a person is given an opportunity to retrace his steps by service on him of Forms 48 & 49.

If he remains recalcitrant then the Court will descend on him and commit him to prison. The price placed on human liberty by our law should grow rather than diminish with time. I do not think the law of this country regarding the freedom of the individual has descended to such abysmal depth of rough and ready justice of a medieval era that a person should be thrown into prison for contempt without giving him an opportunity to retrace his steps. Per Ubaezonu, JCA in Ojeme V. Momodu (1995) 6 NWLR (Pt. 403) 587. – Per A. M. Talba, JCA

EFCC – THE EFFECT OF SERVICE OF CONTEMPT PROCESSES ON EFCC

…the Appellant cannot be regarded as a meddlesome interloper in this appeal. The fundamental rights action was initiated against the Appellant that led to the contempt proceedings. The Appellant is an institution or a statutory body/person and not a biological person. Therefore, service of contempt processes on the occupier of the office of the Appellant or any officer in the institution or statutory body is not akin to biological person. See Egbebu V. I. G. P. & ORS, (2016) LPELR – 40224 (CA) FCDA V. AGAY, (2010) 14 NWLR (Pt 1213) 377 at 391 – 392, Military Governor of Kwara State V. Afolabi, (1991) 6 NWLR (Pt 196) 212, I.G.P V. Akpan, (2008) All FWLR (Pt 425) 1782 at 1793, Bureau of Public Enterprises & Anor V. BFI Group Corp. (2022) LPELR-56791 (CA). Thus, the fact that the occupier/chairman of the Appellant was served with the contempt proceedings emanating from Suit No. HCL/68M/2024 being the alter ego of the Appellant, does not preclude or disqualify the Appellant from appealing the contempt proceedings. – Per D. Z. Senchi, JCA

EFCC – WHETHER SERVICE OF CONTEMPT PROCEEDINGS ON EFCC DISQUALIFIES EFCC FROM APPEALING THE CONTEMPT PROCEEDING

…the Appellant cannot be regarded as a meddlesome interloper in this appeal. The fundamental rights action was initiated against the Appellant that led to the contempt proceedings. The Appellant is an institution or a statutory body/person and not a biological person. Therefore, service of contempt processes on the occupier of the office of the Appellant or any officer in the institution or statutory body is not akin to biological person. See Egbebu V. I. G. P. & ORS, (2016) LPELR – 40224 (CA) FCDA V. AGAY, (2010) 14 NWLR (Pt 1213) 377 at 391 – 392, Military Governor of Kwara State V. Afolabi, (1991) 6 NWLR (Pt 196) 212, I.G.P V. Akpan, (2008) All FWLR (Pt 425) 1782 at 1793, Bureau of Public Enterprises & Anor V. BFI Group Corp. (2022) LPELR-56791 (CA). Thus, the fact that the occupier/chairman of the Appellant was served with the contempt proceedings emanating from Suit No. HCL/68M/2024 being the alter ego of the Appellant, does not preclude or disqualify the Appellant from appealing the contempt proceedings. – Per D. Z. Senchi, JCA

INTERIM ORDER – THE LIFESPAN OF AN INTERIM ORDER

…the law is crystal clear that the ex-parte Orders of 9th February, 2024 sought to be enforced by the Order granted, on 25/04/2024 despite the trial Court’s decision of 17/04/2024 no longer has any life of enforceability because it had already lapsed and non-existent and thus the trial Court has no jurisdiction to enforce the orders made on 9/02/2024 by its decision of 25/04/2024. See Goodie Minabo Ibru V. Ikeja Hotels Plc, (2017) LPELR- 4987 (CA) Brittania- U (Nig) Ltd & ORS, V. Seplat Petroleum Development Co. Ltd LPELR- 40007 (SC) Alhaji Aminu Ahmed & Co. Nig Ltd V ACB Ltd (2001) 10 NWLR (Pt 721) 391, General Oil Ltd V. Oduntan(1990) 7 NWLR (Pt 163) 423 at 441.

The law is that where an interim order of injunction is made pending the determination of all applications before the trial Court whether interlocutory or in substantive suit, the interim order ceases, lapses or end on the date the applications or substantive suit is determined or any subsequent order is made. See Christlieb Plc & Ors V. Majekodunmi & Ors, (2008) LPELR – 8453(CA), A.G. Federation V Fafunwa-Onikoyi, (2006) 18 NWLR (Pt 1010) 51 (CA). – Per D. Z. Senchi, JCA

ORDER – WHETHER A COURT CAN MAKE AN ORDER FOR THE ENFORCEMENT OF A SPENT ORDER

What all the aforementioned points indicate conclusively is that the interim Orders made by the lower Court were no longer in existence on the 25th April, 2024 when the Respondent moved the lower Court for contempt proceedings against the Appellant in enforcement thereof. The situation radically differed from what the Apex Court was confronted with in KUBOR & ANOR VS. DICKSON & ORS (supra) where it was a question of the continued existence of the state of affairs created in compliance with the interim orders, exhibit N in that case, after the withdrawal and cessation of the existence of the suit from which it arose. A Court cannot make an order for the enforcement of a spent order. See BRITTANIA-U (NIG) LTD VS SEPLAT PETROLEUM DEVELOPMENT CO. LTD & ORS (2016) LPELR- 40007 (SC), IBRU V. IKEJA HOTELS PLC (2017) LPELR-49867 (CA). It is therefore improper of the lower Court to have initiated contempt proceedings against the Appellant in enforcement of the interim orders made by that Court after the expiration thereof.

– Per J. O. K. Oyewole, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Court of Appeal (Fast Track) Practice Directions, 2021
3. Court of Appeal Rules, 2021
4. Evidence Act, 2011
5. Economic and Financial Crimes (Establishment) Act, 2004
6. Sheriffs and Civil Process Law 
7. Judgment (Enforcement) Rules
   

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