⦿ CASE SUMMARY OF:
Hon. Justice I. A. Umezulike (RTD) v. Chairman, Economic and Financial Crimes Commission (2017) – CA
by NSA PaulPipAr
⦿ AREA OF LAW
– Constitutional Law.
– Freezing of bank accounts.
– Fair hearing.
Hon. Justice I. A. Umezulike (RTD)
Chairman, Economic And Financial Crimes Commission
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Helen Moronkeji Ogunwumiju, J.C.A.
* FOR THE APPELLANT
– Prof Agu G. Agu.
* FOR THE RESPONDENT
– Wahab Shittu.
⦿ FACT (as relating to the issues)
This is an appeal against the ruling of the Federal High Court sitting at Enugu presided over by His Lordship, Hon. Justice A. M. Liman in Suit No. FHC/EN/CS/25/2017 which was delivered on 2/6/2017.
The ruling arose from an application on notice dated 10/3/2017 seeking for the lower Court’s Order to set aside, vacate or quash the ex parte order of that Court made on 23/2/2017, wherein the Appellant’s account with Zenith Bank Plc. was temporarily frozen, seized and forfeited to the Federal Government of Nigeria pending conclusion of investigation relating to abuse of office and receiving of gratification for a period of 60 days when same shall be charged.
The lower Court on 23/2/2017 had given the following order on page 14 of the record:
1. That an order is granted that the Bank account of the persons referred to as the account holder and/or on the bank account set out in the schedule herein be temporarily frozen, seized and forfeited in the interim to the Federal Government of Nigeria pending the conclusion of the investigation and prosecution of the said person in connection with his involvement in abuse of office and receiving gratification.
2. That an Order of Court is granted directing the Managers, Agents, Privies of Zenith Bank Plc, to provide every necessary information on Account Names: Innocent Umezulike.
3. That the accounts are hereby frozen for the period of 60 days pending which the matter shall be charged to Court, and except the order is renewed by the Court, it shall automatically lapse.
Thereafter the Appellant approached the lower Court to set aside/quash the said order. The lower Court refused to do so.
1. Whether having regard to the clear provisions of Section 24, 26, 27, 28, 29, 30 and 34(1) of the Economic and Financial Crimes Commission Act 2004, the lower Court acted wrongly and breached the Appellant’s right to fair hearing in refusing to set aside its earlier order of interim attachment granted on 23/2/2017 and dismissing the Appellant’s motion on notice dated 10/3/2017 and filed on 13/3/2017.
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. I have read all the affidavit of both parties submitted for consideration before the lower Court. I have to agree with the opinion of the lower Court on the point that there is no affidavit evidence that there were facts misrepresented or suppressed before the Court which granted the order that if now considered would convince the lower Court to quash or set aside the order to freeze the account. Most of the arguments and facts proferred by the learned Appellant’s counsel go to the merit of the substantive criminal matter already pending in Charge No. E/74C/2017. Any legal argument validly made to quash the order must be extrinsic to the facts of the criminal charge involving the account frozen. I find no facts or legal arguments in aid of the proposition that the Respondent at the time the order was sought and obtained did not comply with both statutory and procedural requirements of S. 34 of the EFCC Act.
S. 34 EFCC Act.
S. 29 EFCC Act.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
A prayer to vary the terms of an order concedes that the order was properly made but for certain reasons, the terms should be varied. An application to set aside, quash or vacate an order is in effect attacking the validity of the order. – Ogunwumiju, J.C.A. Umezulike v. EFCC (2017)
Where an application to vary the terms of an attachment or freezing order is made, the Court must consider the whole circumstances in order to determine whether the terms of the order can be varied to allow the defendant some limited access to the funds in order to maintain his livelihood, pay legal fees, take care of his health etc. – Ogunwumiju, J.C.A. Umezulike v. EFCC (2017)
I have read the judgment of this Court in Felimon Enterprise Ltd v. EFCC (2013) LPELR- 20366 and I cannot align myself with the REASONS given for the dismissal of the appeal and the sweeping proposition that because the EFCC Act does not provide for the discharge of the freezing order, it cannot be done. That would be a forfeiture of the discretion of judicial officers. – Ogunwumiju, J.C.A. Umezulike v. EFCC (2017)
The application in this instance to freeze the Appellant’s account was brought pursuant to S. 24, 29 and 34(1) of the EFCC Act. All that is required is that the Chairman of EFCC be satisfied that the account relates to an offence under the EFCC Act, Money Laundering Act and Advance Fee Fraud and Other Related Offences Act. I must state categorically that I do not have any reason to quarrel with the rationale and the need to preserve the res where the proceeds of crime are sometimes the main stay of the evidence against an alleged offender. No doubt, the Court is justified and even entitled prior to conclusion of investigation and trial to restrain the defendant from dissipating the assets alleged to have been illegitimately acquired. I just cannot find myself agreeing to a blanket cover for all such orders whether properly sought or not. I also agree with the opinion of the lower Court that the question whether the Respondent has failed to disclose or suppress material facts is not relevant for the consideration of the judge for the purpose of granting a freezing order under Section 34(1) of the EFCC Act. – Ogunwumiju, J.C.A. Umezulike v. EFCC (2017)