DANGABAR v. FRN

CITATION: (2012) LPELR-19732(CA)

In the Court of AppealIn the Abuja Judicial Division

Holden at Abuja

ON TUESDAY, 24TH JULY, 2012Suit No: CA/A/256/2012

Before Their Lordships:

ZAINAB ADAMU BULKACHUWA Justice, Court of AppealJIMI OLUKAYODE BADA Justice, Court of AppealHUSSEIN MUKHTAR Justice, Court of Appeal

BetweenESAI DANGABAR - Appellant(s)

AndFEDERAL REPUBLIC OF NIGERIA - Respondent(s)

RATIO DECIDENDI

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1. CONSTITUTIONAL LAW - BREACH OF RIGHT TO FAIR HEARING: Whether the grant of an ex parte application topreserve the property of a party pending the final determination of a criminal case amount to breach of fair hearing"The issue under consideration here is whether the Court violated the rights of the Appellant to fair hearing in granting theorders attaching and forfeiting the assets of the Appellant pending the hearing and determination of the criminal chargespending before the Court against the Appellant. It was contended on behalf of the Appellant that the Court order violated hisright to fair hearing because he was not given notice to be heard in the determination of his rights. The learned Counsel forthe Respondent on the other hand contended that the right of the Appellant to fair hearing was not breached. I have to pointit out at this stage that the power conferred on the Court under Sections 28 and 29 of the EFCC Act is a special jurisdiction. Itis a statutory power which is superior to the Rules of the lower Court. The interim order of attachment made by the lowerCourt pursuant to Sections 28 and 29 of the EFCC Act was not meant to be indefinite but only to last till the finaldetermination of Charge No: FCT/CR/64/2012 preferred against the Appellant which is pending at the High Court of FederalCapital Territory, Abuja. Therefore I do not see how the ex-parte order granted by the lower Court violated the Appellant'sright to fair hearing because the order was in the nature of a preservatory order. The order is in my view in the interest ofboth parties. This is because it will prevent dealing with the properties in such a way that could render the final Judgment ofthe Court nugatory. The order therefore operates until the determination of the civil rights and obligations of the parties withregard to the properties under consideration. See the case of:- -Nwude v. Chairman EFCC (2005) All FWLR Part 276 Page740. I have said earlier that the order made by the lower Court is preservatory. This is consistent with the intendment ofSection 44(2)(k) of the Constitution of the Federal Republic of Nigeria 1999 which provides as follows:- "Nothing in Sub-section (1) of this Section shall be construed as affecting any general law; (k) relating to the temporary taking of possessionof property for the purpose of any examination, investigation or inquiry." The lower Court made the order in issue in order topreserve the properties suspected of being proceeds of crime in view of the fact that the Appellant may take steps to defeatthe purpose of the relevant provisions of the EFCC Act which deals with forfeiture. In Chief Constable of Kent v. V. & another(1982) 3 All E.R. page 36 one of the issues for consideration was the extent of the Court's power to grant an interlocutoryinjunction to the police for the preservation of the proceeds of crime in the public interest. Lord Denning M. R. expoundedthe legal position as follows at page 41:- "I turn therefore to the crucial question in this case, has the Chief Constablesufficient interest to apply for an injunction? We considered the position of the Police in R v. Metropolitan PoliceCommissioner Ex-Parte Blackburn (1968) 1 All E. R. Page 760 at 763 where I said- "I hold it to be the duty the Commissionerof Police as it is of every Chief Constable to enforce the law of the land. He must take steps so as to post his men that crimesmay be detected, and that honest citizens may go about their affairs in peace." To this I would now add that it is the dutyonce he knows or has reason to believe that goods have been stolen or unlawfully obtained to do his best to discover andapprehend the thief and to recover the goods. Corresponding to that duty, he has a right or at any rates an interest onbehalf of the public to seize that goods and detain them pending the trial of the offender and to restore them in due courseto the true owner. In pursuance of that duty and of that right and interest, he can apply to the magistrate for a searchwarrant and to a High Court for an injunction." In 7up Bottling Company Ltd. vs. Abiola & Sons Ltd (Supra) Page 257 Adio JSCat Page 277 stated as follows:- "In the present case, the motion ex-parte was for an interim injunction restraining theAppellants from doing certain things to the properties of the Respondents....... If as it was in this case, the learned trial Judgecould not properly determine any contentious issue when the motion ex-parte for an order of interim injunction came beforehim, the question of giving an opportunity of being heard to the Appellant before determining the application could not ariseand the Provisions of Section 33(1) of the Constitution were not applicable and were not violated." In his own contributionUwais JSC (as he then was) elaborated at page 280 as follows:- "In both criminal and civil proceedings, there are certainsteps to be taken which are incidental or preliminary to the substantive case such steps include motion for direction, interimor interlocutory injunctions..... It is in respect of such cases that provisions are made in Court Rules to enable the partyaffected or likely to be affected to make ex-parte applications. The orders to be made by the Court, unlike final decisions, aretemporary in nature, so that they do not determine the "civil rights and obligations of the parties in the proceedings asenvisaged by the Constitution." It is therefore my view that mere granting of an ex-parte application to preserve theproperties of the Appellant pending the final determination of the criminal case filed against him cannot violate theAppellant's fundamental right to fair hearing. Another important thing to note is the final order which the Court can makeafter the trial of the appellant, if found guilty. Section 30 of the EFCC Act provides thus:- "Where a person is convicted of anoffence under this Act, the Commission or any authorized officer shall apply to the Court for an Order of Confiscation andforfeiture of the convicted persons assets and properties acquired or obtained as a result of the crime subject to an interimorder under this Act." Also, where the accused is discharged and acquitted by a Court of the offences charged, the Court isempowered under Section 33 of the EFCC Act to revoke the Interim Order of Attachment. All that I have been saying boileddown to the fact that the object of Court's Jurisdiction to make a freezing injunction at the interlocutory stage is to keep theaccused's assets available to satisfy any confiscation order which may be made in the event of conviction. In the finalanalysis on this issue, it is my view that what Sections 28 and 29 of the EFCC Act intend to achieve is to be able to preservethe assets of accused persons pending trial. It is after an accused has been convicted that the assets can be finallyconfiscated or forfeited and if acquitted the properties will be returned to him. And until the stage of determination of thecriminal liability of an accused person is reached, there is no determination of the right of the accused. In view of theforegoing it is clear that the lower Court did not breach the Appellant's right to fair hearing as enshrined in Section 36(1) ofthe 1999 Constitution of the Federal Republic of Nigeria in granting the order attaching and forfeiting the Appellant's assetsin Suit No: M/11005/2012 pending the hearing and determination of the criminal charge filed against the Appellant in ChargeNo: FCT/CR/64/2012 in the High Court of the Federal Capital Territory, Abuja."Per BADA, J.C.A. (Pp. 23-28, Paras. D-D) - readin context

2. COURT - POWER OF COURT: Power of Court to grant interim reliefs"A careful reading of the Ruling of the learned trial Chief Judge would reveal that the order sought for and obtained by theRespondent at the lower Court is similar to mareva injunction which the lower Court is empowered to make under Section 28of the Economic and Financial Crimes Commission (Establishment) Act 2004 hereinafter referred to as EFCC Act of 2004 andSection 15 of the High Court of the Federal Capital Territory Act. Furthermore, in Common Law Jurisdiction, the Court isempowered to grant interim reliefs including freezing injunction or mareva injunctions, where proceedings between thesame parties are pending in the other Courts including Courts of other countries. See the case of:- -The Siskina (1979) 1 A.C.Page 210. The Court can make freezing order against assets within the Jurisdiction and outside the Jurisdiction including theassets in the name of third parties if it can be established that those assets are beneficially issued by a Defendant. See thefollowing cases:- -Derby vs. Weldon No. 2 (1989) 1 All E.R. Page 1002: -TSB vs. Chabra (1992) 1 NWLR Page 231."Per BADA,J.C.A. (Pp. 20-21, Paras. E-D) - read in context

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3. CRIMINAL LAW AND PROCEDURE - SEIZURE, RESTITUTION, FORFEITURE AND DISPOSITION OF PROPERTY:Whether a Court order dealing with assets suspected to be proceeds of crime pending the final determination of a criminalcase against an accused person is unconstitutional"In this Appeal under consideration, the interim order of attachment made by the lower Court is a restraining order to stopthe Appellant from dealing with the properties in issue pending the determination of the criminal case filed against him. TheEFCC Act recognizes that any suspect who is detected by the Police and who may potentially face a confiscation or forfeitureorder may attempt to dispose of the said properties before the determination of the criminal case pending against him sothat the law would not be able to deprive him of the properties. In this respect, the Court has been empowered to makerestraining orders such as interim order of attachment, or mareva injunction which have the effect of freezing the propertythereby preventing the suspect or accused person as the case may be from dealing with the proceeds of crime held by himor the third parties on his behalf. See Section 20 - 27 of the EFCC Act. The trend all over the world is to prevent the accusedperson from retaining the proceeds of his crime and to deprive him of whatever benefit he may have derived from hiscriminal conduct. The pertinent question at this juncture is whether the practice of temporarily depriving the accused personfrom dealing with the assets suspected to be proceeds of crime pending the final determination of the criminal case againsthim is unconstitutional? There is no doubt that pursuant to Sections 43 and 44 of the 1999 Constitution of the FederalRepublic of Nigeria (as amended) all Citizens of this country have the right to acquire and own property anywhere in Nigeriaand their property should not be compulsorily acquired without payment of compensation. However there is a caveat, thisright to property is not absolute. Section 44(2)(K) of the said Constitution creates exception and it states as follows:-"Nothing in Sub-section (1) of this Section shall be construed as affecting any general law; (k) relating to the temporarytaking of possession of property for the purpose of any examination, investigation or inquiry." The above stated provisionshowed the intention of the law maker is to validate any law such as Sections 28 and 29 of the EFCC Act which allowstemporary taking over of assets of the accused persons pending the hearing and determination of a criminal case that hasbeen pending against him. See the case of:- - Dr. B. O. Akingbola vs. The Chairman. Economic and Financial Commission(Unreported) Appeal No: CA/L/388/10 delivered on 2/3/2012 . In my own view, the intention of Sections 28 and 29 of theEFCC Act is merely to get a preservative order on the property suspected to be proceeds of crime so as to prevent theaccused person or suspect from dissipating the assets and thereby create a situation of a fait accompli upon his conviction.The learned Senior Counsel for the Appellant argued that the reference to examination investigation or enquiry referred to inSection 44(2) (K) of the 1999 Constitution could not be extended to criminal trial. It would therefore be necessary tounderstand the meaning of the words used under the said Section of the Constitution. The word investigate is defined byBlack's Law Dictionary, 6th Edition to mean to examine and inquire into with care and accuracy, to find out by carefulinquisition, examination, the taking of evidence, a legal inquiry. Also, Legal and Commercial Dictionary 6th Edition by TapashGan Choudhury defines 'investigation' at page 479 as:- Careful search, study, closes inquiry, scrutiny, detail examination,collection of facts, inquiry to ascertain facts, inquiry, exhaustive study, and systematic search. The same Black's LawDictionary 6th Edition at page 558 defines examination as it relates to crime as follows:- "An investigation by a Magistrate ofa person who has been charged with crime and arrested or of the facts and circumstances which alleged to have attendedthe crime in order to ascertain whether there is sufficient ground to hold him to bail for his trial by the proper Court. Thepreliminary hearing to determine whether person charged with having committed a crime should be held for trial." Enquiryas defined by Legal and Commercial Dictionary 6th Edition means:- Investigation of a matter from the various sources inorder to find the truth ( Dr K. C. Malhotra vs. The Chancellor A. P. University Shimla AIR 1995 HP (156) Enquiry covers thehearing of the case i.e. recording evidence, admitting documents and generally completing the record upon which a findingwould be based. It is only after all the material has been placed on record by both sides that the stage of reporting a findingwould arise. Dr M. N. Dasanna v. State of A. P. (1973) 2 SCC Page 378: (1973) 1 SCWR Page 932 . After a careful examinationof the above definitions, it would be clear that allowing temporary taking of possession of property for the purpose ofexamination, investigation or enquiry would perforce, extend to the conduct of a criminal case. I am of the view that to dootherwise will give the constitutional provision a very narrow interpretation which will defeat the purpose of the Constitutionitself. See - Bronik Motors v. Wema Bank (Supra). There is also no dispute about the fact that the Appellant was investigatedbefore the criminal charge in Charge No: FCT/CR/64/2012 was preferred against him. Sections 26, 27, 28 and 29 and 30 ofthe EFCC Act envisage that the interim order for the preservation of assets is obtainable immediately after thecommencement of the investigation and to last till final determination of the criminal charge that may be initiated againstthe accused persons. The learned Senior Counsel for the Appellant argued that there was no evidence that the propertiesare proceeds of crime. It must not be forgotten that the Appellant has failed to apply to the lower Court to discharge the ex-parte order, paragraph 10 of the affidavit in support of the ex-parte originating summons stated that the properties andassets attached by the lower Court were proceeds acquired from the crime alleged against the Appellant. The saidparagraph 10 was not denied, it is therefore deemed admitted. The Appellant cannot be heard to deny the existence of thatfact. Consequent upon the foregoing it is my view that the order of interim attachment and forfeiture of the assets of theAppellant pending hearing and final determination of the criminal case against him in Charge No: FCT/CR/64/2012 is notinconsistent with the Constitution of the Federal Republic of Nigeria 1999 (as amended). See the case of:- -A. G. Ondo Statevs. A.G. Federation (Supra)."Per BADA, J.C.A. (Pp. 33-38, Paras. D-A) - read in context

4. GOVERNMENT AGENCY - ECONOMIC AND FINANCIAL CRIMES COMMISSION: Power of the Economic and FinancialCrimes Commission to attach or seize any property suspected to have been acquired by committing any offence under itsAct"In Nigeria, Sections 28 and 29 of the EFCC Act empowers the Commission upon the arrest of any person suspected to havecommitted economic and financial crimes to first administratively trace and attach all the assets and properties of theaccused person and cause, by way of an ex-parte application, an interim order of attachment or forfeiture to be obtained inCourt in respect of the assets. For ease of reference I hereby reproduce the provisions of the Sections 28 and 29 of the EFCCAct 2004 which provides as follows:- "(28) Where a person is arrested for an offence under this Act, the Commission shallimmediately trace and attach all the assets and properties of the person acquired as a result of such economic and financialcrime and shall thereafter cause to be obtained an interim attachment order from the Court. (29) Where:- (a) the assets orproperties of any person arrested for an offence under this Act has been seized; (b) any assets or property has been seizedby the Commission under this Act, the Commission shall cause an ex-parte application to be made to the Court for an interimorder forfeiting the property concerned to the Federal Government and the Court shall, if satisfied that there is prima facieevidence that the property concerned is liable to forfeiture, make an interim order forfeiting the property to the FederalGovernment." It could be seen from the provisions set out above that Section 28 confers authority on the EFCC to attach orseize any property suspected by it to have been acquired by committing any offence under the EFCC Act."Per BADA, J.C.A.(Pp. 21-22, Paras. D-E) - read in context

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5. GOVERNMENT AGENCY - ECONOMIC AND FINANCIAL CRIMES COMMISSION: Power of the Economic and FinancialCrimes Commission to attach or seize any property suspected to have been acquired by committing any offence under itsAct"Under Section 28 of the EFCC Act the Commission is empowered not only to arrest any person suspected to havecommitted an offence under the EFCC Act but also to trace and attach all his assets and properties which are reasonablysuspected to have been acquired as a result of such Economic and Financial Crime and thereafter cause to be obtained, aninterim attachment order. In the instant appeal it is my view that if the accounts frozen by the order of the lower Courtbelong to the Appellant, then such accounts and the moneys in them would be qualified as properties and assets envisagedunder Section of the EFCC Act. In this case the money inside the accounts of the Appellant which is alleged to be proceeds ofcrime is qualified as assets and properties under the said Section. Furthermore by Section 34(1) and (2) of the EFCC Act, theaccount of a person may be frozen even when he is not arrested and made a party to criminal proceedings. It is only whenan ex-parte order has been made by the Court that the Chairman of the EFCC will issue an order specified in Schedule B tothe Act addressed to the Manger of the Bank or person in control of the account to freeze the account. In this appeal underconsideration the Chairman of EFCC did not first of all approach the bank without obtaining the freezing order and it is clearthat from the materials placed before the Court, the provision of Section 34 of the EFCC Act was substantially compliedwith."Per BADA, J.C.A. (Pp. 39-40, Paras. D-D) - read in context

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JIMI OLUKAYODE BADA, J.C.A. (Delivering theLeading Judgment): This is an appeal against theRuling of the High Court of Justice, Federal CapitalTerritory Abuja in Motion No: M/11005/2012FEDERAL REPUBLIC OF NIGERIA V. ESAIDANGABAR & 5 OTHERS delivered on the 3rd dayof May 2012 upon an Ex-parte application to forfeitthe assets of the Appellant to the FederalGovernment of Nigeria pending the hearing anddetermination of the Criminal Charges against theAppellant before the High Court of Justice, FederalCapital Territory, Abuja.

Briefly the facts of this case are that on the 29thday of March 2012, the Appellant and 5 otherpersons were arraigned before the High Court of11

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Justice, Federal Capital Territory Abuja on 16counts charge for offences of criminal breach oftrust punishable under Section 315 of the PenalCode Act Cap 532, Laws of the Federal CapitalTerritory, Abuja, acceptance of valuable thingwithout consideration contrary to Section 119 ofthe Penal Code Act Cap 532, Laws of the FederalCapital Territory Abuja etc.

The charges were read to the accused/appellantand he pleaded not guilty. He was then granted bailpending the hearing and determination of the saidcharges.

On 3rd day of May 2012 the Respondent by anEx-Parte application to the High Court of Justice,Federal Capital Territory presided over by Hon.Justice L. H. Gummi (Chief Judge) sought for thefollowing orders:-(1) An Order of the Court granting interimattachment/forfeiture of the assets of the personslisted in respect of the assets and properties in theschedule to this application pending the hearingand final determination of Charge No: FCT/CR/64/2012 between Federal Republic of Nigeria vs.Esai Dangabar & 5 others.(2) An Order of this Honourable Court freezing thebank accounts of the persons referred to as theaccount holders/or their bank accounts set out inthe schedule to this application pending the hearingand final determination of Charge No: FCT/CR/64/2012 between Federal Republic of Nigeria vs.Esai Dangabar & 5 others .

The application was heard and granted by the12

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learned trial Chief Judge of the High Court ofJustice, Federal Capital Territory, Abuja.

The Appellant who was dissatisfied with the saidorder now appealed to this Court. Two notices ofappeal were filed; the first notice of appealcontaining four grounds of appeal was filed on10/5/2012 while the second notice of appealcontaining six grounds was filed on 16/5/2012.

The learned Senior Counsel for the Appellantapplied to abandon the notice of appeal filed on10/5/2012 and he adopted the notice of appeal,filed 16/5/2012 for the determination of theappeal.

The learned Counsel for the Respondent did notreact to the application made by learned Counselfor the Appellant.

In the circumstance the application by learnedCounsel for the Appellant to abandon the notice ofappeal filed on 10/5/2012 is hereby granted andthe said notice is hereby struck out.

The learned Senior Counsel for the Appellantformulated three issues for the determination ofthe appeal. The issues are reproduced as follows:-(1) Whether the Court violated the rights of theAppellant to fair hearing in granting the ordersattaching and forfeiting his assets pending thehearing and final determination of the criminalcharges pending before the Court against theAppellant.(2) Whether the order of the Courtattaching/forfeiting the assets of the Appellantpending the hearing and final determination of13

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Charge No: FCT/CR/64/2012 between the FederalRepublic of Nigeria and the Respondent (Appellant)is not inconsistent with the provisions of theConstitution of the Federal Republic of Nigeria 1999(as amended).(3) Whether the order of the Court which froze theaccounts of the Appellant is consistent with theprovisions of Section 34 of the Economic andFinancial Crimes Commission Act (EFCC Act).

On the other hand the learned Counsel for theRespondent also formulated three issues for thedetermination of the appeal. The issues are asfollows:-"(1) Whether the lower Court breached theAppellant's right to fair hearing as enshrined inSection 36(1) of the 1999 Constitution in grantingthe order attaching and forfeiting the Appellant'sassets in Suit No: M/11005/12 pending the hearingand final determination of the criminal chargespreferred against the Appellant in Charge NoFCT/CR/64/2012 at the High Court of the FederalCapita Territory, Abuja.(2) Whether the interim order of attachment andthe forfeiture of the assets of the Appellant madeon 3rd May 2012 by the lower Court pending thehearing and final determination of Charge No:FCT/CR/64/2012 is inconsistent with the provisionsof the Constitution of the Federal Republic ofNigeria 1999 (as amended).(3) Whether the freezing order made by the lowerCourt on 3rd May 2012 against the accounts of theAppellant is inconsistent with the provisions of14

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Section 34 of the Economic and Financial Crimes(Establishment) Act 2004."

At the hearing, the learned Senior Counsel forthe Appellant referred to the Appellant's brief ofargument filed on 17/5/2012 and the Appellant'sreply brief filed on 8/6/2012.

He adopted the said briefs in urging that the appealbe allowed.

The learned Counsel for the Respondent alsoreferred to the Respondent's brief of argument filedon 4/6/2012.

He adopted the said Respondent's brief as hisargument in urging that the appeal be dismissed.He relied on the case of:-- Dr Erastus B. O. Akingbola v. The ChairmanEconomic and Financial Crimes Commission(Unreported) CA/A/L/388/10 delivered on the 2ndday of March 2012.

The issues formulated by Counsel on behalf ofthe parties are similar, however I will rely on theissues as formulated on behalf of the Appellant inthe determination of the appeal.

ISSUE 1Whether the Court violated the rights of theAppellant to fair hearing in granting the ordersattaching and forfeiting his assets pending thehearing and final determination of the criminalcharges pending before the Court against theAppellant.

The learned Counsel for the Appellant contendedthat when the lower Court granted the order15

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against the Appellant, it made no other orderdirecting that the Appellant and all the personslisted in the schedule be given notice to be heard inthe determination of their rights, obligations andinterests.

He reiterated that the nature and limitations ofex-parte application/order as it relates to the rightsof citizen under the Constitution has been givenjudicial exposition in several cases. He relied on thefollowing cases:--Kotoye v. Central Bank of Nigeria (1989) 1 NWLRPart 98 Page 419:-7Up Bottling Company Ltd vs. Abiola & Sons Ltd(1995) 3 NWLR Part 383 Page 257.

He submitted that the application before thelearned Chief Judge was made pursuant to Section28 of the Economic and Financial CrimesCommission Establishment Act 2004.

He stated that the application before the Courtwas to attach/forfeit all the properties listed in theschedule and he submitted that the Court inmaking such orders had the duty to hear theAppellant because the interimattachment/forfeiture was not limited to a datenamed.

It was contended on behalf of the Appellant thatthe orders made are in the form and nature ofinterlocutory attachment and forfeiture which ineffect last until the determination of the right andobligations of the Appellant in the criminal trial. Itwas contended further that this is inconsistent withthe intendment of Section 36(1) of the 199916

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Constitution of the Federal Republic of Nigeria (asamended).

Learned Counsel for the Appellant also submittedthat the powers of the Court to order interimattachment and forfeiture of assets is limited underSection 28 of the EFCC Act to properties acquiredas a result of the economic and financial crimes inwhich the suspect was being investigated ordetained.

It was submitted further that there is no evidencebefore the Court that the properties listed in theschedule were such properties.

He argued further that the list before the Courtdid not show the dates when the properties of theAppellant were acquired and that they were fromthe resources traceable to the alleged financialcrimes.

He went further in his argument that if thelearned trial Chief Judge had adverted his mind tothe obligation for fair hearing preserved by Section36(1) of the 1999 Constitution, he would haveordered that the Appellant be heard before makingthe orders.

On the legal effect of breach of right of fairhearing, he relied on the following cases:--Adigun v. A.G. Oyo State (1987) 1 NWLR Part 53Page 678;-Alhaji Raufu Gbadamosi vs. Olaitan Diaro &another (2007) (NSCQLR) Volume 29 Page 134.

He finally urged that this issue be resolved infavour of the Appellant.On his own part the learned Counsel for the17

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Respondent referred to the reliefs sought and partof the Ruling of the lower Court. He stated that thelower Court made a preservative order on theproperties of the Appellant allegedly acquired byhim with the proceeds of his alleged crime. It wasfurther stated on behalf of the Respondent that theorder sought for and obtained by the Respondent atthe lower Court is akin to a freezing injunction ormareva injunction which the lower Court isempowered to grant.He relied on the case of:--Nwaigwe v. FRN (2009) 16 NWLR Part 1166 Page169 at 190 - 192.

The learned Counsel for the Respondentsubmitted that once the basic requirement of thelaw has been met by the Respondent as to themanner of seeking preservative order on theproceed of crime, there can be no infraction of theAppellant's right to fair hearing as enshrined inSection 36(1) of the 1999 Constitution.

He submitted further that the right of the Appellantto fair hearing was not breached by the Ex-Parteorder.

He finally urged the Court to resolve this issue infavour of the Respondent.

The learned Counsel for the Appellant in his replybrief of argument contended as follows:-(1) That there was no evidence before the learnedChief Judge of the date, amount of purchase of theproperty and the evidence that the properties werebought with the proceeds of crime.(2) That the Court of Appeal has nullified Section18

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29 of the EFCC Act.(3) That Section 33 and 36 of the 1999Constitution of the Federal Republic of Nigeria (asamended) which require that every person accusedof an offence shall be presumed innocent untilotherwise proven guilty and that in thedetermination of his right and obligation shall beentitled to fair hearing.(4) The procedure which led to the decisionappealed against is one of such that the Appellantmust be heard before a decision is taken.(5) What the Appellant is complaining about is thatthe order of which is interlocutory under thedetermination of the criminal trial was not beforethe Hon. Chief Judge but before another Court, fora time indefinite ought to be on notice notex-Parte.

He argued further that the stipulation of ex-parteproceeding by Section 28 of EFCC Act isunconstitutional.He relied on the case of--Chidolue vs. FRN (2012) 5 NWLR Part 1229 Page160.

It was further stated on behalf of the Appellantthat all the Respondent had for the order offorfeiture was evidence of mere circumstances ofsuspicion and not a decision of a Court ofcompetent jurisdiction that all the property of theAppellant were procured from the proceeds ofcrime.He urged that this issue be resolved in favour ofthe Appellant.19

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In this case under consideration it was contendedon behalf of the Appellant that his right to fairhearing has been breached by the lower Courtbecause-(i) The order of attachment and forfeiture wasmade pursuant to an ex-parte application withouthearing him.(ii) That there is no evidence before the lowerCourt that the properties were proceeds of crimepursuant to Section 28 of the EFCC Act.(iii) That the order is void for lack of fair hearing inthat it is meant to last till the hearing and finaldetermination of the charge.(iv) That Section 29 of the EFCC Act did notprohibit notice to the suspect or the Respondent.(v) That the interim order made by the lower Courtwhich is meant to last till the end of the trial isoppressive and hereby violated Section 36 of the1999 Constitution.

Earlier in this Judgment I have reproduced thereliefs sought in the ex-parte originating summonsfiled at the lower Court. After hearing theapplication the learned trial Chief Judge granted it.(See pages 24-35 of the Record of Appeal).

A careful reading of the Ruling of the learnedtrial Chief Judge would reveal that the order soughtfor and obtained by the Respondent at the lowerCourt is similar to mareva injunction which thelower Court is empowered to make under Section28 of the Economic and Financial CrimesCommission (Establishment) Act 2004 hereinafter20

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referred to as EFCC Act of 2004 and Section 15 ofthe High Court of the Federal Capital Territory Act.Furthermore, in Common Law Jurisdiction, theCourt is empowered to grant interim reliefsincluding freezing injunction or mareva injunctions,where proceedings between the same parties arepending in the other Courts including Courts ofother countries.See the case of:--The Siskina (1979)1 A.C. Page 210.The Court can make freezing order against assetswithin the Jurisdiction and outside the Jurisdictionincluding the assets in the name of third parties if itcan be established that those assets are beneficiallyissued by a Defendant. See the following cases:--Derby vs. Weldon No. 2 (1989) 1 All E.R. Page1002:-TSB vs. Chabra (1992) 1 NWLR Page 231 .

In Nigeria, Sections 28 and 29 of the EFCC Actempowers the Commission upon the arrest of anyperson suspected to have committed economic andfinancial crimes to first administratively trace andattach all the assets and properties of the accusedperson and cause, by way of an ex-parteapplication, an interim order of attachment orforfeiture to be obtained in Court in respect of theassets.For ease of reference I hereby reproduce theprovisions of the Sections 28 and 29 of the EFCCAct 2004 which provides as follows:-"(28) Where a person is arrested for an offence21

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under this Act, the Commission shall immediatelytrace and attach all the assets and properties of theperson acquired as a result of such economic andfinancial crime and shall thereafter cause to beobtained an interim attachment order from theCourt.(29) Where:-(a) the assets or properties of any person arrestedfor an offence under this Act has been seized;(b) any assets or property has been seized by theCommission under this Act, the Commission shallcause an ex-parte application to be made to theCourt for an interim order forfeiting the propertyconcerned to the Federal Government and theCourt shall, if satisfied that there is prima facieevidence that the property concerned is liable toforfeiture, make an interim order forfeiting theproperty to the Federal Government."It could be seen from the provisions set out abovethat Section 28 confers authority on the EFCC toattach or seize any property suspected by it to havebeen acquired by committing any offence under theEFCC Act.

In this case under consideration the Respondentfollowed the procedure as stated in Sections 28 and29 of the EFCC Act, earlier set out in thisJudgment.

As soon as the Appellant was arrested along withother accused persons, the proceeds of crime wereimmediately traced and attached. See paragraphs10 to 14 of the affidavit in support of the ex-parteoriginating summons. The Appellant and the other22

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accused person were investigated for economic andfinancial crimes, subsequently arrested and chargedto Court in charge No: FCT/CR/64/2012. Theirassets which were alleged to have been acquiredwith the proceeds of crime were immediatelytraced.

In view of the fact that the Respondent hadcomplied with the provisions of Sections 28 and 29of the EFCC Act the lower Court ordered asfollows:-"I am satisfied that the applicant has satisfied therequirements of Sections 28 and 29 of the EFCCAct. I am further convinced by the arguments thatthere is a need to preserve the various propertiesallegedly acquired by the Respondents from theproceeds of the alleged crimes. Accordingly, I grantthe application as prayed."

The issue under consideration here is whetherthe Court violated the rights of the Appellant to fairhearing in granting the orders attaching andforfeiting the assets of the Appellant pending thehearing and determination of the criminal chargespending before the Court against the Appellant.It was contended on behalf of the Appellant thatthe Court order violated his right to fair hearingbecause he was not given notice to be heard in thedetermination of his rights.The learned Counsel for the Respondent on theother hand contended that the right of theAppellant to fair hearing was not breached.I have to point it out at this stage that the powerconferred on the Court under Sections 28 and 29 of23

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the EFCC Act is a special jurisdiction. It is astatutory power which is superior to the Rules ofthe lower Court . The interim order of attachmentmade by the lower Court pursuant to Sections 28and 29 of the EFCC Act was not meant to beindefinite but only to last till the finaldetermination of Charge No: FCT/CR/64/2012preferred against the Appellant which is pending atthe High Court of Federal Capital Territory, Abuja.Therefore I do not see how the ex-parte ordergranted by the lower Court violated the Appellant'sright to fair hearing because the order was in thenature of a preservatory order. The order is in myview in the interest of both parties. This is becauseit will prevent dealing with the properties in such away that could render the final Judgment of theCourt nugatory. The order therefore operates untilthe determination of the civil rights and obligationsof the parties with regard to the properties underconsideration.See the case of:--Nwude v. Chairman EFCC (2005) All FWLR Part276 Page 740 .I have said earlier that the order made by thelower Court is preservatory. This is consistent withthe intendment of Section 44(2)(k) of theConstitution of the Federal Republic of Nigeria 1999which provides as follows:-"Nothing in Sub-section (1) of this Section shall beconstrued as affecting any general law; (k) relatingto the temporary taking of possession of propertyfor the purpose of any examination, investigation24

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or inquiry."The lower Court made the order in issue in orderto preserve the properties suspected of beingproceeds of crime in view of the fact that theAppellant may take steps to defeat the purpose ofthe relevant provisions of the EFCC Act which dealswith forfeiture.In Chief Constable of Kent v. V. & another (1982)3 All E.R. page 36 one of the issues forconsideration was the extent of the Court's powerto grant an interlocutory injunction to the police forthe preservation of the proceeds of crime in thepublic interest.Lord Denning M. R. expounded the legal position asfollows at page 41:-"I turn therefore to the crucial question in thiscase, has the Chief Constable sufficient interest toapply for an injunction?We considered the position of the Police in R v.Metropolitan Police Commissioner Ex-ParteBlackburn (1968) 1 All E. R. Page 760 at 763where I said-"I hold it to be the duty the Commissioner of Policeas it is of every Chief Constable to enforce the lawof the land. He must take steps so as to post hismen that crimes may be detected, and that honestcitizens may go about their affairs in peace."To this I would now add that it is the duty once heknows or has reason to believe that goods havebeen stolen or unlawfully obtained to do his best todiscover and apprehend the thief and to recoverthe goods. Corresponding to that duty, he has a25

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right or at any rates an interest on behalf of thepublic to seize that goods and detain them pendingthe trial of the offender and to restore them in duecourse to the true owner. In pursuance of that dutyand of that right and interest, he can apply to themagistrate for a search warrant and to a High Courtfor an injunction."In 7up Bottling Company Ltd. vs. Abiola & SonsLtd (Supra) Page 257 Adio JSC at Page 277 statedas follows:-"In the present case, the motion ex-parte was foran interim injunction restraining the Appellantsfrom doing certain things to the properties of theRespondents.......If as it was in this case, the learned trial Judgecould not properly determine any contentious issuewhen the motion ex-parte for an order of interiminjunction came before him, the question of givingan opportunity of being heard to the Appellantbefore determining the application could not ariseand the Provisions of Section 33(1) of theConstitution were not applicable and were notviolated."In his own contribution Uwais JSC (as he then was)elaborated at page 280 as follows:-"In both criminal and civil proceedings, there arecertain steps to be taken which are incidental orpreliminary to the substantive case such stepsinclude motion for direction, interim orinterlocutory injunctions..... It is in respect of suchcases that provisions are made in Court Rules to26

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enable the party affected or likely to be affected tomake ex-parte applications. The orders to be madeby the Court, unlike final decisions, are temporaryin nature, so that they do not determine the "civilrights and obligations of the parties in theproceedings as envisaged by the Constitution ."It is therefore my view that mere granting of anex-parte application to preserve the properties ofthe Appellant pending the final determination ofthe criminal case filed against him cannot violatethe Appellant's fundamental right to fair hearing.Another important thing to note is the final orderwhich the Court can make after the trial of theappellant, if found guilty. Section 30 of the EFCCAct provides thus:-"Where a person is convicted of an offence underthis Act, the Commission or any authorized officershall apply to the Court for an Order of Confiscationand forfeiture of the convicted persons assets andproperties acquired or obtained as a result of thecrime subject to an interim order under this Act."Also, where the accused is discharged and acquittedby a Court of the offences charged, the Court isempowered under Section 33 of the EFCC Act torevoke the Interim Order of Attachment.All that I have been saying boiled down to thefact that the object of Court's Jurisdiction to make afreezing injunction at the interlocutory stage is tokeep the accused's assets available to satisfy anyconfiscation order which may be made in the eventof conviction.In the final analysis on this issue, it is my view27

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that what Sections 28 and 29 of the EFCC Actintend to achieve is to be able to preserve theassets of accused persons pending trial. It is afteran accused has been convicted that the assets canbe finally confiscated or forfeited and if acquittedthe properties will be returned to him. And until thestage of determination of the criminal liability of anaccused person is reached, there is nodetermination of the right of the accused.In view of the foregoing it is clear that the lowerCourt did not breach the Appellant's right to fairhearing as enshrined in Section 36(1) of the 1999Constitution of the Federal Republic of Nigeria ingranting the order attaching and forfeiting theAppellant's assets in Suit No: M/11005/2012pending the hearing and determination of thecriminal charge filed against the Appellant inCharge No: FCT/CR/64/2012 in the High Court ofthe Federal Capital Territory, Abuja.

This issue No. 1 is resolved in favour of theRespondent against the Appellant.

ISSUE NO.2Whether the order of the Courtattaching/forfeiting the assets of the Appellantpending the hearing and final determination ofCharge No: FCT/CR/64/2012 between the FederalRepublic of Nigeria and the Appellant is notinconsistent with the provisions of the Constitutionof the Federal Republic of Nigeria 1999 (asamended).

The learned Counsel for the Appellant relied on the28

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facts as presented in the argument of issue 1.

He stated that out of the 16 Counts Charge at thelower Court, the Appellant pleaded only to 11Counts. It was also stated that there is no evidencebefore the learned trial Judge that the Appellantpleaded guilty to any of the Counts. He wentfurther that there is no evidence before the Courtthat the Appellant admitted during investigationthat any of the properties listed against his name inthe schedule of properties were products of orrepresent the gross receipt obtained directly as aresult of the violation of the EFCC Act.

He referred to Section 24(a) of the EFCC Act on thedefinition of property.

He submitted that the power to order attachmentand forfeiture of properties of a Nigerian Citizenunder the Constitution is circumscribed by Sections28 and 29 of the EFCC Act.

He also submitted that the Court should not haverelied on the provisions of Section 29 of the EFCCAct because it had been struck down in ChineloNwaigwe & 16 Others vs. Federal Republic ofNigeria (Supra).

It was contended on behalf of the Appellant thatthe Court in the interest of Justice should not haveread and interpreted the EFCC Act in isolation,rather the Provisions of Section 28 of the EFCC Actought to have been read subject to Section 36(5),43, 44(1) (2)(b) and (K) of the 1999 Constitutionof the Federal Republic of Nigeria (as amended).

The learned Counsel for the Appellant submittedthat the EFCC Act cannot take away the29

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presumption of innocence under Section 36(5) ofthe Constitution.He relied on the case of:--State v. Akaa (2002) 10 NWLR Part 774 at 157.

He argued further that a person charged for anoffence also enjoys the right to own property asguaranteed under Sections 43 and 44 of the 1 999Constitution (as amended).He relied on the case of:-A.G. Bendel vs. Aideyan (1989) 4 NWLR Part 118Page 646 at 674.

It was further submitted on behalf of theAppellant that the order of the learned trial Judgewhich generally dispossessed and forfeited theAppellant's properties while standing trialcompletely negates the presumption of innocence.

He also argued that the facts of this case are notconsistent with the Provision of Section 44(2)(K) ofthe Constitution.

He went further in his submission that thecommunity reading of Section 36(1)(5), 43,44(1)(2)(b) and (K) of the 1999 Constitution of theFederal Republic of Nigeria will show that theProvision of Section 28 of the EFCC Act asinterpreted and applied by the Respondent and theCourt was wrong and misconceived.

He finally submitted that in this type of situationthe Court should hold that the violation of theAppellant's right to fair hearing rendered the ordersof the lower Court null and void.In his response, the learned Counsel for theRespondent submitted that the order of interim30

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attachment and forfeiture of the assets of theAppellant pending the hearing and finaldetermination of the criminal case against him incharges No: FCT/CR/64/2012 is not inconsistentwith the Constitution of the Federal Republic ofNigeria 1999 (as amended).

He submitted further that the right granted tothe Appellant under the 1999 Constitution of theFederal Republic of Nigeria is not absolute. Herelied on Section 44(2) (K) of the Constitution. Hewent further that the Constitution should not beinterpreted narrowly so as not to defeat its purposeor intendment.He referred to the case of:-- Bronik Motors vs. Wema Bank (1983) 1 SCNLRPage 296 at 321 .

He therefore urged this Court to reject thenarrow interpretation placed on Section 44(2)(K) ofthe Constitution by the Appellant.He relied on the case of:--A. G. Ondo State vs. A.G. Federation (2002) 9NWLR Part 772 Page 222 at 309 - 310.

On the contention by the Appellant that therewas no evidence that the properties or assets of theAppellant attached were obtained directly as aresult of the violation of the EFCC Act.

The learned Counsel for the Respondentsubmitted that the issue being raised is outsideissue No. 2 and therefore incompetent.

He went further that the argument of the31

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Appellant lacks substance because paragraph 10 ofthe affidavit in support of the ex-parte originatingsummons which stated that properties and assetsattached were proceeds obtained or acquired fromcrime alleged against the Appellant was not deniedand he failed to apply to the lower Court todischarge the ex-parte order.

On the issue of presumption of innocence underSection 36(5) of the 1999 Constitution by theAppellant the learned Counsel for the Respondentsubmitted that the interim order by its nature doesnot finally determine the right of party, and it isnot permanent. He relied on the case of:--Nwaigwe v. F.R.N. (Supra).

He finally submitted that the interim orderpreserving the assets and properties allegedlyacquired from the Economic and Financial Crimeswould not violate the presumption of innocenceguaranteed under Section 36(5) of the 1999Constitution.

In his reply brief of argument the learned Counselfor the Appellant submitted that the reliance placedon the cases of:--Nwude vs. EFCC (2000) All FWLR Part 276 Page270and- Akingbola vs. EFCC (Unreported) CR/4/388/2010delivered on 2/3/2012 is unfounded.

He went further in his submission that the crimehas not been proved, there was no pending motionon notice but there was a decision which made theCourt to become functus officio.32

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He finally urged the Court to dismiss theargument of the Respondent and resolve the issuesin this appeal in favour of the Appellant.

The learned Senior Counsel for the Appellant alsocontended that the ex-parte order of attachmentand forfeiture made against the properties andassets of the Appellant is unconstitutional because;(a) Under Section 36(5) of the 1999 Constitution,the Appellant is presumed innocent and theattachment of his property is a punishment whichviolates the said presumption of innocence.(b) Under Sections 33 and 34 of the 1999Constitution, the Appellant enjoys the right toproperty which is sacrosanct and inviolate.(c) There was no evidence that the propertiesattached were obtained directly as a result ofviolation of the EFCC Act.In this Appeal under consideration, the interimorder of attachment made by the lower Court is arestraining order to stop the Appellant from dealingwith the properties in issue pending thedetermination of the criminal case filed againsthim. The EFCC Act recognizes that any suspect whois detected by the Police and who may potentiallyface a confiscation or forfeiture order may attemptto dispose of the said properties before thedetermination of the criminal case pending againsthim so that the law would not be able to deprivehim of the properties. In this respect, the Court hasbeen empowered to make restraining orders suchas interim order of attachment, or marevainjunction which have the effect of freezing the33

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property thereby preventing the suspect or accusedperson as the case may be from dealing with theproceeds of crime held by him or the third partieson his behalf.See Section 20 - 27 of the EFCC Act.The trend all over the world is to prevent theaccused person from retaining the proceeds of hiscrime and to deprive him of whatever benefit hemay have derived from his criminal conduct.Thepertinent question at this juncture is whether thepractice of temporarily depriving the accusedperson from dealing with the assets suspected to beproceeds of crime pending the final determinationof the criminal case against him is unconstitutional?There is no doubt that pursuant to Sections 43 and44 of the 1999 Constitution of the Federal Republicof Nigeria (as amended) all Citizens of this countryhave the right to acquire and own propertyanywhere in Nigeria and their property should notbe compulsorily acquired without payment ofcompensation. However there is a caveat, this rightto property is not absolute. Section 44(2)(K) of thesaid Constitution creates exception and it states asfollows:-"Nothing in Sub-section (1) of this Section shall beconstrued as affecting any general law; (k) relatingto the temporary taking of possession of propertyfor the purpose of any examination, investigationor inquiry."The above stated provision showed the intention ofthe law maker is to validate any law such asSections 28 and 29 of the EFCC Act which allows34

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temporary taking over of assets of the accusedpersons pending the hearing and determination of acriminal case that has been pending against him.See the case of:-- Dr. B. O. Akingbola vs. The Chairman. Economicand Financial Commission (Unreported) Appeal No:CA/L/388/10 delivered on 2/3/2012 .In my own view, the intention of Sections 28 and29 of the EFCC Act is merely to get a preservativeorder on the property suspected to be proceeds ofcrime so as to prevent the accused person orsuspect from dissipating the assets and therebycreate a situation of a fait accompli upon hisconviction.The learned Senior Counsel for the Appellantargued that the reference to examinationinvestigation or enquiry referred to in Section44(2) (K) of the 1999 Constitution could not beextended to criminal trial.It would therefore be necessary to understand themeaning of the words used under the said Sectionof the Constitution.The word investigate is defined by Black's LawDictionary, 6th Edition to mean to examine andinquire into with care and accuracy, to find out bycareful inquisition, examination, the taking ofevidence, a legal inquiry.Also, Legal and Commercial Dictionary 6th Editionby Tapash Gan Choudhury defines 'investigation' atpage 479 as:-Careful search, study, closes inquiry, scrutiny,detail examination, collection of facts, inquiry to35

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ascertain facts, inquiry, exhaustive study, andsystematic search .The same Black's Law Dictionary 6th Edition atpage 558 defines examination as it relates to crimeas follows:-"An investigation by a Magistrate of a person whohas been charged with crime and arrested or of thefacts and circumstances which alleged to haveattended the crime in order to ascertain whetherthere is sufficient ground to hold him to bail for histrial by the proper Court. The preliminary hearingto determine whether person charged with havingcommitted a crime should be held for trial."Enquiry as defined by Legal and CommercialDictionary 6th Edition means:-Investigation of a matter from the various sourcesin order to find the truth ( Dr K. C. Malhotra vs. TheChancellor A. P. University Shimla AIR 1995 HP(156) Enquiry covers the hearing of the case i.e.recording evidence, admitting documents andgenerally completing the record upon which afinding would be based. It is only after all thematerial has been placed on record by both sidesthat the stage of reporting a finding would arise.Dr M. N. Dasanna v. State of A. P. (1973) 2 SCCPage 378: (1973) 1 SCWR Page 932 .After a careful examination of the abovedefinitions, it would be clear that allowingtemporary taking of possession of property for the36 (2

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purpose of examination, investigation or enquirywould perforce, extend to the conduct of a criminalcase. I am of the view that to do otherwise will givethe constitutional provision a very narrowinterpretation which will defeat the purpose of theConstitution itself.See - Bronik Motors v. Wema Bank (Supra)There is also no dispute about the fact that theAppellant was investigated before the criminalcharge in Charge No: FCT/CR/64/2012 waspreferred against him.Sections 26, 27, 28 and 29 and 30 of the EFCC Actenvisage that the interim order for the preservationof assets is obtainable immediately after thecommencement of the investigation and to last tillfinal determination of the criminal charge that maybe initiated against the accused persons.The learned Senior Counsel for the Appellantargued that there was no evidence that theproperties are proceeds of crime.It must not be forgotten that the Appellant hasfailed to apply to the lower Court to discharge theex-parte order, paragraph 10 of the affidavit insupport of the ex-parte originating summons statedthat the properties and assets attached by thelower Court were proceeds acquired from the crimealleged against the Appellant. The said paragraph10 was not denied, it is therefore deemed admitted.The Appellant cannot be heard to deny theexistence of that fact.Consequent upon the foregoing it is my view thatthe order of interim attachment and forfeiture of37

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the assets of the Appellant pending hearing andfinal determination of the criminal case against himin Charge No: FCT/CR/64/2012 is not inconsistentwith the Constitution of the Federal Republic ofNigeria 1999 (as amended).See the case of:--A. G. Ondo State vs. A.G. Federation (Supra).In the circumstance this issue No. 2 is resolvedagainst the Appellant and in favour of theRespondent.

ISSUE 3Whether the order of the Court which froze theaccounts of the Appellant is consistent with theprovisions of Section 34 of the Economic andFinancial Crimes Commission Act (EFCC Act).

The learned Senior Counsel for the Appellantreferred to the order of the lower Court whichtemporarily froze the account of the Appellant andsubmitted that the powers of the Court to grantex-parte order of interim attachment under Section28 of the EFCC Act does not extend to bankaccounts.

He argued further that the provision of Section34 of the EFCC Act is clear and unambiguous. Hewent further that the Court acted unlawfully inissuing an order which froze the account of theAppellant.

He finally urged the Court to resolve the issue infavour of the Appellant.

The learned Counsel for the Respondentsubmitted that by Section 34(1) of the EFCC Act,38

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the Chairman of the EFCC or his authorizedofficers, if satisfied that the money in the accountof a person is made through the commission of anoffence under the Act or under any enactmentspecified in Section 7(2)(a) of the Act includingoffences under Penal Code, may apply ex-parte tointer alia freeze the account. Likewise, an ordermay be issued under Subsection (2) of Section 34of the EFCC Act to the bank or other financialinstitutions to supply any information and producebooks and documents relating to the account andstop all onward payments, operation, transactionsin respect of the account of the person.

He finally urged this Court to dismiss theAppellant's Appeal and hold that the freezing ordermade by the lower Court on 3/5/2012 is consistentwith the provisions of Section 34 of the EFCC Act.

Under Section 28 of the EFCC Act theCommission is empowered not only to arrest anyperson suspected to have committed an offenceunder the EFCC Act but also to trace and attach allhis assets and properties which are reasonablysuspected to have been acquired as a result of suchEconomic and Financial Crime and thereafter causeto be obtained, an interim attachment order.In the instant appeal it is my view that if theaccounts frozen by the order of the lower Courtbelong to the Appellant, then such accounts andthe moneys in them would be qualified asproperties and assets envisaged under Section 28of the EFCC Act.In this case the money inside the accounts of the39

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Appellant which is alleged to be proceeds of crimeis qualified as assets and properties under the saidSection.Furthermore by Section 34(1) and (2) of theEFCC Act, the account of a person may be frozeneven when he is not arrested and made a party tocriminal proceedings.It is only when an ex-parte order has been madeby the Court that the Chairman of the EFCC willissue an order specified in Schedule B to the Actaddressed to the Manger of the Bank or person incontrol of the account to freeze the account .In this appeal under consideration the Chairmanof EFCC did not first of all approach the bankwithout obtaining the freezing order and it is clearthat from the materials placed before the Court,the provision of Section 34 of the EFCC Act wassubstantially complied with.

This issue No. 3 is resolved in favour of theRespondent.

I cannot conclude this Judgment without statingmy mind on the issue of corruption in Nigeria.Corruption has eaten deep into our system that thiscountry is almost at a standstill. There is lack oftransparency in every sector and it is about toassume a normal way of life which is dangerous forthe existence of this country.

The way forward is for all of us as citizens of thiscountry to be transparent and accountable in allthat we do and obey the laws of the land.Finally, with the resolution of all the three issues40

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for determination of this appeal against theAppellant, it is my view that the Appeal lacks meritand it is hereby dismissed.

ZAINAB ADAMU BULKACHUWA, J.C.A.: I haveread the draft of the judgment just delivered by mylearned brother, BADA, JCA. I agree entirely withhis reasoning and the conclusion reached that theappeal is completely bereft of merit. I adopt samein dismissing the appeal and abide by theconsequential orders as contained in the judgment.

HUSSEIN MUKHTAR, J.C.A.: I have had theadvantage of a preview of the leading judgment justrendered by my learned brother BADA, J.C.A. I amin complete agreement with his admirableexposition of the law, the entire reasoning thereinand the conclusions which thereby adopt as mine.The appeal is glaringly bereft of substance. I toowould dismiss it. I abide by the other orders madein the judgment.

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