E.B. Ukiri V. Economic And Financial Crimes Commission (2018)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This first motion was filed on the 10th March, 2017 wherein the appellant/applicant seeks an order of this Court setting the appeal for hearing on the appellant’s brief of argument alone, the respondent having willfully neglected to file and serve the respondent’s brief of argument.

The grounds for this application are:

(a) The time within which to file and serve the respondent’s brief as required by the 2013 Practice Directions of the Supreme Court has lapsed.

(b) This appeal involves the Economic and Financial Crimes Commission whose appeals are to enjoy expedited hearing in this Honourable Court.

The application is supported by a six (6) paragraph affidavit deposed to by Okparaki, Legal Practitioner in the Law Firm of E. B. Ukiri & Co.

The appellant’s brief of argument in the appeal was filed on 19/10/2013.

The respondent filed a Counter Affidavit deposed to by Chinedu Ogbu, detective with the respondent. It is a counter affidavit of 14 paragraphs.

The respondent, Economic and Financial Crimes Commission (EFCC) filed a motion on

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11/5/17 praying for the following orders:

(a) An Order setting aside the Record of Appeal compiled by the appellant.

(b) An Order compelling the Registrar of the Court of Appeal to come up with the authentic Record of Appeal.

(c) And for such other Order or Orders as the Honouroble Court may deem fit to make in the circumstances.

The grounds upon which this later motion is brought are that the record as compiled and transmitted by the appellant/applicant has significant omissions. That the record as compiled and transmitted have significant errors and the fact of these errors are shown in the appellant’s brief of argument which cited the correct record of appeal. The application is supported by a 19 paragraphs affidavit deposed to by Ogbu, a detective of the applicant. The appellant/respondent himself deposed to a 19 paragraph counter affidavit filed on 19/10/17.

On the 1st November, 2017 this Court adjourned the two motions for hearing to the 8th November, 2017 and the counsel on either side to file written addresses.

Canvassing for the favourable consideration for the application, learned counsel A. Olatunji Esq. going

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along applicant’s written address filed on 3/11/2017 submitted that their supporting affidavit of 19 paragraphs and attached exhibits marked EFCC 1, 2, 3, 4 and 4a. He stated that the appellant/respondent by himself compiled and transmitted the Record of Appeal to this Court on the 18th October, 2016, 21 days after he filed the Notice of Appeal which was filed on 29th day of September, 2016. That some of the documents in the record are not a true reflection of what was filed and used of the lower Courts and some of those used of the Court of Appeal are not certified at all. He referred to some relevant paragraphs of the supporting affidavit. That even at the Court of Appeal a challenge was thrown at the record transmitted to that Court as not reflecting what transpired at the Federal High Court. That the authentic Record of Appeal transmitted to the Court of Appeal and used therein is attached as Exhibit EFCC 3.

Learned counsel had for ease of reference crafted two issues for determination which are thus;

1. Whether this Honourable Court can use the Record of Appeal transmitted by the appellant/respondent to this Honourable Court in view of the

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fact that the said Records contain documents not used at all at the lower Courts and documents that are different in content from what was filed and used at the lower Courts.

2. Whether this Honourable Court can use the Record of Appeal transmitted by the appellant/respondent to this Honourable Court in view of the uncertified Process purportedly filed at the Court of Appeal.

The appellant/respondent adopted his written address filed on 7/11/17 in which he distilled a single issue as follows:

What is the remedy available in law to a respondent who is not satisfied with the completeness or accuracy of the record of appeal compiled and transmitted by the appellant.

I shall utilise the issues as formulated by the applicant and I shall do so altogether.

ISSUES 1 & 2.

1. Whether this Honourable Court can use the Record of Appeal transmitted by the appellant/respondent to this Honourable Court in view of the fact that the said Records contain documents not used at all of the lower Courts and documents that are different in content from what was filed and used at the lower Courts.
2. Whether this Honourable Court can

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use the Record of Appeal transmitted by the appellant/respondent to this Honourable Court in view of the uncertified process purportedly filed at the Court of Appeal.

For the applicant, learned counsel contended that the grouse of the applicant over the Record of Appeal compiled and transmitted to this Court by the appellant/respondent are based on the fact that the documents therein do not represent what took place in the Courts below. That the situation is so gross that no supplementary record can meet the gaps that have now occurred by reason of this substantially fake record. That these strange and extraneous documents have drained this Court of the jurisdiction to enter into the appeal. Also that some of the documents from the Court of Appeal lack certification. He cited Orugbo v UNA (2002) FWLR (Pt.127) 1024: Shari v Anumokyen (2015) ALL FWLR (Pt.773) 1898 at 1903-1904; Garuba v Omokhodion (2011) 14 NWLR (Pt.1269) 145: Federal Airports Authority of Nigeria v Wamal Express Services (Nig) Ltd (2011) 8 NWLR (Pt. 1249) 219 at 236 – 737 etc.

Learned counsel for the applicant further submitted that the anomalies applicant is challenging in the

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Record of Appeal transmitted by the appellant/respondent featured in the Record of Appeal compiled and transmitted by the appellant from the Federal High Court to the Court of Appeal and the Court below laid to rest the issues pertaining thereto upon a motion therein challenging the Record which is herein as Exhibit EFCC 1 by ordering the Registrar of the Federal High Court to come up with the authentic Record of Appeal and instead of doing that, the appellant proceeded to compile and transmit to this Court by himself 20 days after filing his Notice of Appeal without waiting for the Registrars 60 days to expire. He cited Garba v Ummuani (2014) ALL FWLR (Pt. 722) 1715 at 1740.

Learned counsel for the appellant now respondent in the motion along the lines of his written address contended that the Registrar of Court below is not a party to this appeal and so cannot apply for extension of time to compile and transmit records of appeal and so appellant acted within the Rules of Court to compile and transmit the said record. He referred to Order 7 Rule 7 (2) of the Practice Direction of 2013:P. Michael & Ors v Bank of the North (2015) 12 NWLR

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(Pt. 1473) 370 at 402 & 413. That if dissatisfied with what has been sent forth the respondent applicant had the right to compile and transmit Additional Record of Appeal.

I shall set out the salient paragraphs of the supporting affidavit to the motion which are thus:

I, Chinedu Ogbu, Adult, Male, Christian and a Nigerian Citizen of No.60 Olumeni Street, Old G.R.A, Port Harcourt, do hereby make Oath and state as follows:

1. That I am a detective with the Economic and Financial Crimes Commission (EFCC) and a member of the team of operatives assigned to investigate the complaint that gave rise to this appeal, by virtue of which I derived the facts deposed herein.
2. That I have the authority and consent of the respondent/applicant to depose to this affidavit from facts within my knowledge and information I received in the course of my investigation.
3. That the judgment of the Court of Appeal in this matter was delivered on the 14th day of July, 2016.
4. That the respondent/applicant was served with the Record of Appeal compiled by the applicant on 21st day of October, 2016
5. That the Record of Appeal compiled and

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transmitted by the appellant has some material errors, omissions and documents which do not form part of the record of the lower Courts.

6. That the respondent/applicant wishes to rely on the accurate record of this appeal.
7. That the respondent/applicant on 14/2/2014, being the respondent at the lower Court (Court of Appeal) challenged the record compiled and transmitted to the Court of Appeal by the appellant by filing a motion challenging the record, on affidavit in support, and attaching as Exhibits the Record as it ought to be. Attached as Exhibit EFCC 1 is the motion on notice challenging the Record at the Court of Appeal, together with accompanying affidavit only, without the exhibits.
8. That on the 15th day of April, 2014 the motion of the respondent/applicant, challenging the Record of Appeal at the Court of Appeal was heard and the Court held that the record attached to the respondent’s motion and that transmitted by the appellant should be sent back to the Registrar of the Federal High Court for it to come up with an “authentic record” for the appeal within 30 days. Attached as Exhibit EFCC 2 is a certified true copy of the minutes

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of the Court of Appeal for the 15th day of April, 2014 and Order of the Court made on the same day.

9. That the Federal High Court eventually transmitted the authentic record of appeal on the 5th day of December, 2014, outside the 30 days stipulated by the Court of Appeal. A copy of the authentic Record of Appeal transmitted by the Federal High Court to the Court of Appeal is hereby attached and marked as Exhibit EFCC 3.
10. That due to the delay in transmitting the authentic record by the Federal High Court, the respondent/applicant, on the 8th day of December, 2014, filed a motion on Notice at the Court of Appeal praying the Court of Appeal for an extension of time within which the Federal High Court can transmit the authentic Record of Appeal and also deeming the already transmitted Record of Appeal by the Federal High Court as the authentic Record of Appeal. The said motion was granted as prayed and the record compiled by the Federal High Court and transmitted on the 5th day of December, 2014 was deemed to be the authentic record of appeal.

Attached as Exhibit EFCC 4 and EFCC 4a respectively is the said motion of 8th December, 2014 by the

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respondent/applicant and a certified true copy of the minutes of proceedings of the Court of Appeal on the 29th day of April, 2015.

11. That the record of appeal transmitted by the appellant to this Honourable Court has some substantial errors already corrected by the authentic Record of Appeal and other fresh errors.
12. That pages 2, 55,56,57,58, 63, 64, 65, 84, 126, 127, 128, 134, 45, 147, 149, 151, 153,155, 159, 161, 165, 167, 170, 173, 175, 77, 179, 181, 184, 196, 197, 198, 199, 207, 208 – 462, 467 – 485, 491, 499, 542, 582, 596 – 604,669, 698 – 730, 762 and 763 of the authentic Record of Appeal (Exhibit EFCC 3) were omitted in the appellant’s Record of Appeal which he transmitted to the Supreme Court.
13. That the omitted pages of authentic record of appeal (Exhibit EFCC 3) are important for a just determination of this appeal.
14. That the “respondent/applicants Further and Better Affidavit” found on pages 583 at 595 of the authentic Record of Appeal (Exhibit EFCC 3) is a 62 paragraph affidavit and not a 12 paragraph Affidavit as found in pages 236 – 238 of the Record transmitted to the Supreme Court by the applicant.

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That the “Affidavit in Support of Motion Action dated the 4th day of December, 2012 found on page 488- 491 of the Authentic Record of Appeal (Exhibit EFCC 3) is a 12 paragraph affidavit and not a 62 paragraph affidavit as found on pages 239 – 250 of the Record of Appeal compiled and transmitted to this Honourable Court by the appellant.

16. That pages 222 – 233, 388 – 389 were never used in this matter at the Federal High Court and at the Court of Appeal at all and pages were not certified at all by the lower Court.
17. That it is necessary for this Honourable Court to use the authentic Record of Appeal in determining this appeal.
18. That it is in the interest of justice that this application be granted.Reacting against those averments of the applicant, the appellant’s counter affidavits are stated hereunder, viz:

I Emonena Ukiri Male, Christian, Legal Practitioner, Nigerian Citizen of full age of plot 8 Mission Avenues off Odili, Trans Amadi, Port Harcourt, make Oath and state as follows:

1. That I am the appellant in this Appeal. The facts I dispose in this affidavit are within my personal knowledge.
2. That I

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have read and understood the respondent’s motion on notice and the affidavit in support thereof. Paragraphs 1, 2, 5 – 19 of the said affidavit are untrue and I hereby deny them.

3. That in further denial of the aforesaid Affidavit I state as follows:

(i) It is not true that the deponent was assigned to investigate any complaint which gave rise to this appeal on the contrary this appeal did not arise from any complaint against the appellant and the aforesaid Deponent who played no role or part in the proceedings in the Court of Appeal and was not even Present throughout the proceedings giving rise to this appeal, has no personal knowledge about the facts to which he had falsely deposed nor was he involved in the investigation of any complaint at or during the proceedings in the Court of Appeal, from which this appeal had risen.

(ii) I am also aware that the deponent to the respondent’s/applicant’s strange affidavit, who is not a legal practitioner and does not work in the legal department of the respondent, has not read or seen the record of appeal compiled, transmitted and upon which this appeal was entered. It is absolutely untrue that the

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record of appeal is incomplete and incorrect.

(iii) On the contrary, the record I compiled and transmitted is complete and sufficient for the resolution/determination of my complaint against the decision of the Court of Appeal. I have since filed and served on the respondent the appellants brief of argument, relying on the said record since October 2016 – a period of more than one year ago. The respondent has failed and/neglected to file its Brief of Argument in response to my brief. I have already filed and served on the respondent a motion to hear this appeal on my Brief of Argument alone.

(iv) I am aware that the respondent was at liberty to compile and transmit for its use any record/document necessary for its Brief of Argument as Additional Record under the Rules of this Honourable Court within specified number of days from 21st October 2016 when the record of appeal and the Appellants Brief of Argument were served on the respondent.

(v) I am aware that the time allowed for the respondent to file additional record of appeal under the Rules/Practice Directions of the Honourable Court has lapsed. The prayers sought by the

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respondent/applicant in its motion are unknown to law and the Rules of this Honourable Court. The Registrar of the unnamed division of the Court of Appeal against whom the second relief is sought is also not a party to this appeal.

4. That I am aware that it is Mrs. A. Olatunji who has been misusing her position in the respondent to harass and intimidate me in her bid to settle personnel scores with me that has invented the respondent’s unknown application to this Honourable Court for the sole purpose of delaying the hearing of this appeal to perpetuate the forfeiture of N11.175m, the subject matter of this appeal, which fund I derived from the judgment given in my favour in Suit No. PHC/156/2008 against UBA plc by the High Court of Rivers State in 2008.
5. That the said Mrs. Olatunji had used the same strategy to frustrate the expeditious hearing and determination of my appeal in the Court of Appeal and thereby perpetrated the respondent’s illegal seizure of my aforesaid personal funds from 2008 till date, even though the dispute with my former client over my earned legal fees had been resolved and did not relate to the sum of N11.175m which was

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paid to me as judgment debt by the defendant (UBA Plc) in suit No PHC.156/2008 bank draft issued in my name, seven years after the dispute with my former client, as shown in the record of appeal.

6. That Mrs. A Olatunji is aware that the respondent’s Headquarters has entered into terms of settlement with me in Suit No. FHC/ABJ/CS/280/2008 which I had filed to challenge Mrs. Olatunjis misuse of the respondent to harass and intimidate me. In the terms of settlement entered as the consent judgment of the Federal High Court, it was held, amongst others, that:

….The plaintiff having been discharged and absolved from all liabilities by the decision in Suit No PHC/1082/2008 and the 1st defendant having indicated in those proceedings that it was no longer interested in the complaint of the Plaintiffs former client, Chief Samuel O. Onowighose, the 1st defendant is estopped from taking any other steps prejudicial to the plaintiff and contrary to the tenor of the aforesaid subsisting judgment of the High Court of River State.

7. That the 1st defendant referred to in the above consent judgment is the respondent/applicant. The respondent’s

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Mrs. Olatunji has constantly opposed every attempt made by the respondent to release my illegally seized N11.175m, contending that the matter is subjudice in the appellate Courts even though the illegal seizure of my funds was done during the pendency of the litigation (FHC/ABJ/CS/280/2008).

8. That the sole purpose of the respondent’s motion is to frustrate the release of the sum of N11. 175m which is my Personnel fund, to me by frustrating the expeditious determination of this appeal. I know that the respondent’s motion was brought in absolute bad faith and is a deliberate delay tactics, aimed at subjecting my family and I to untold financial hardship and torture/trauma.
9. That I know that the respondent’s only remedy against alleged incompleteness and inaccuracy of record of appeal, is for the respondent to compile and transmit additional record of appeal, file its brief of argument pointing out in the brief the alleged inaccuracies in the record of appeal.
10. It is in the interest of justice to dismiss the respondent’s motion and set down this appeal for hearing on the appellant’s brief of argument alone. The appellant’s brief of argument

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was served on the respondent over a year ago. The respondent has not challenged the appellant’s brief of argument at all.

The applicant filed a further affidavit on 23/10/17 by the same deponent as the supporting affidavit and the relevant paragraphs are thus:

1. That I have the authority and consent of the respondent/applicant to depose to this affidavit from facts within my knowledge and information I received in the course of my investigation.
2. That I have seen and read the applicant/respondent’s counter affidavit filed on the 19th day of October, 2017, the content of which are not true and are hereby denied.
3. That the respondent/applicant denies paragraphs 2 to 11 of the appellant/respondent’s counter affidavit as though they were set out individually and denied seriatim.
4. That contrary to the denied averments in the appellant/respondent’s counter affidavit, the respondent/applicant wishes to state as follows:

(a) That the Record of Appeal transmitted by the appellant/respondent to this Honourable Court does not reflect the true content of what was filed and used at the lower Courts.

(b) That the funds forfeited

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in the interim, referred to in Paragraphs 4, 5, 7 and 8 of the appellant/respondent’s counter affidavit. are funds stolen by the applicant and laundered in a web of financial transactions for which he is presently standing trial in charge number FHC/PH/247C/2017 at the Federal High Court, Port Harcourt Judicial Division.

(c) That I know as a fact that there was/is no settlement entered into by the respondent/applicants headquarters or any of its offices as described in paragraphs 6 and 7 of the appellant/applicant’s counter affidavit or at all.

(d) That I know as a fact that this matter arose from a complaint written against the appellant/respondent which was investigated by the respondent/applicant and for which the appellant/applicant is now standing criminal trial in charge number FHC/PH/247C/2012.

5. That A. Olatunji informed me on the 20th day of October, 2017 at her office at No. 6a Olumeni Street, Old GRA Port Harcourt at about 3-30pm and I verily believe her as follows:

a. That she has no Personal relationship whatsoever with the appellant/respondent and does not know him in any other capacity other than as a suspect and

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thereafter, an accused person in charge No. FHC/PH/247C/2012.

b. That she is not aware of any settlement entered into by the respondent/applicants headquarters or any of its offices as described in paragraphs 6 and 7 of the appellant/applicant’s counter affidavit or at all.

c. That there has been attempt on the part of the respondent/applicant to release the forfeited funds to the appellant/respondent as described in paragraph 7 of the appellant/respondent’s counter affidavit or at all.

The two sides of the divide show, the appellant/respondent positing that the lapses in the Record of Appeal already compiled and transmitted are no big deal as the option open to the applicant is the compilation and transmission of additional or supplementary records to fill whatever gaps. The respondents answer to that is that what is complained about in the Records already in are too grave to be so easily rectified as the appellant is suggesting and that the situation translates to a drastic action to be taken by the Court.

A consideration of the affidavit evidence show that some of the documents contained in the Record of Appeal are

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different from what were filed and used in the two Courts below and cannot be relied upon herein. Also some documents used in the lower Courts are of a different content compared to what was compiled and transmitted to this Court by the appellant. Again of note is that some of the documents filed and used at the Court of Appeal are not certified.

In fact getting into specifics, paragraph 14 of the supporting affidavit to this motion and the Further and Better Affidavit found on pages 236 – 238 of the Record of Appeal transmitted by the appellant is not a 12 paragraph affidavit as contained in pages 236 – 238 of the Record of Appeal transmitted by the appellant, rather it is a 62 paragraph affidavit as shown in Exhibit 3 which the applicant is stating is the authentic Record of Appeal which the Court of Appeal ordered the Federal High Court to come up with for use in the determination of the appeal at the Court below.

Also shown up in paragraph 15 of the applicant’s affidavit in support is a 12 paragraph affidavit as shown in pages 488 – 491 of the Authentic Record of Appeal (Exhibit EFCC 3) attached to the applicant’s affidavit to this motion

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and not a 62 paragraph Affidavit as found in pages 239 – 250 of the Record of Appeal transmitted to this Court by the appellant.

To be noted again is that pages 222 – 233, 388 – 389 of the Record of Appeal were documents never filed and used at the lower Courts and were also not certified by the lower Courts.

See paragraph 16 of supporting affidavit. Then several pages of different processes contained in the Record of Appeal were omitted as shown in paragraph 12 of supporting affidavit. There are numerous documents as seen in pages 402- 432, 433 – 462, 463 – 479 and 480 – 504 of the said record not certified as true copies. The same scenario goes on and on and so it is easy for this Court to come to the conclusion that these are strange and extraneous documents not to talk of incompleteness of the process i.e. the Record of Appeal have drained this Court of the jurisdiction to entertain the appeal. Assuming one is to be persuaded to go on to the appeal, the question that would naturally crop up, is with what record is the Court to utilise in the venture. Just like an artisan setting out in the creation of an artifact or furniture without the necessary

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tools or implements. See Orugbo v UNA (2002) FWLR (Pt. 127) 1024, Shari v Anumakyen (2015) ALL FWLR (Pt.773) 1898 at 1903 – 1904.

This Court had held in the case of Garuba v Omokhodion (2011) 14 NWLR (Pt. 1269) 145 thus:

“A record of appeal/proceeding has to be duly and properly compiled to guarantee as to its correctness; and it must be meticulously checked and compared vis-a-vis the original process/documents filed in the matter as well as the proceedings of Court.

A record of appeal/proceeding having been duly compiled has to be authenticated and certified as prescribed by law.

This Honourable Court has also laid down as precedent, the fate to befall such uncertified record/proceeding of appeal in the case of Federal Airports Authority of Nigeria v Wamal Express Services (Nig) Ltd. (2011) 8 NWLR (Pt. 1249) at page 219, particularly at page 236 – 237, where this Honourable Court, having quoted the provision of Section 111(1) of the Evidence Act on certification of public documents held thus by per /Muhammed JSC:

“Vol 11 of the Record of Appeal in this appeal lacks all the requirements stipulated by the Evidence Act, it has not

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been done in conformity with the Evidence Act. It is difficult for the Court to rely on such uncertified public documents. Vol. II of the Record of Appeal is hereby discountenanced.”

It is to be stated that it is now well settled in law that any averment in an affidavit which has not been clearly, explicitly and directly denied is deemed admitted. That being the case, it is seen that the appellant/respondent did not deny in any manner the inclusion of uncertified processes never used in the Courts below nor deny the fact that even the processes used at the lower Courts are not the same in content as those compiled and transmitted by him to this Court. There is no denial in any part of the counter affidavit of the appellant/respondent that the processes purportedly filed at the Court of Appeal including the judgment of the Court below which is the base of the appeal is equally uncertified.

Paragraph 14 of the supporting affidavit shows that respondent/applicant’s Further and Better Affidavit as seen on pages 236 – 238 of the Record of Appeal is not a 12 paragraph affidavit as contained in the said pages 236 238 of the Record of Appeal

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transmitted by the appellant rather it is a 62 paragraph affidavit as shown in Exhibit EFCC 3, which is the authentic Record of Appeal used in the appeal at the Court of Appeal. Again at paragraph 15 of the same affidavit in support is a 12 paragraph affidavit as shown in pages 488 – 491 of the Authentic Record of Appeal (Exhibit EFCC 3) attached to applicant’s affidavit to this motion and not a 62 paragraph affidavit as found in pages 239 – 250 of the Record of Appeal.

Also of note is that pages 1-2 of the Authentic Record of Appeal ordered and used by the Court of Appeal, the originating summons upon which the order of Forfeiture which the appellant seeks to set aside by this appeal is based is a two page document and not a single page document found on page 1 of the Record of Appeal in question. Again there are other missing aspects of the transmitted document for which there is no need to go one after the other.

I need to bring to the fore also that the appellant did not wait for the 60 days given by the Court of Appeal to the registrar of that Court to transmit a compiled record and within 20 days filing the Notice of Appeal sent in his

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version of the compiled record of appeal. The explanation for this fast forwarding by the appellant has not been accorded this Court, thus leading to the conclusion that a serious breach or infraction has occurred. Therefore taking that aspect alongside the missing documents and the incomplete documentation not to talk of the uncertification of documents that must be certified, there is nothing else to say than that the Record being incomplete is not utilisable and has to be discountenanced. The appellant having not denied those facts it is very safe to say he admitted the assertions by the applicant. I am following in the path earlier laid by this Court in Lawson-Jack v SPDC Nig. Ltd. (2002)7 SC (Pt. 11) 112, The Reg. Trustees of National Association of Community Health Practitioners of Nigeria & Ors. (2008) 7 SCNJ 348; Garba v Ummuani (2014) ALL FWLR (Pt.722) 1715 at 1740.

The bottom line in this application and the submissions for and against it, is that the Record of Appeal as compiled and transmitted by the appellant is unusable and there is no redemption in sight. That being so the option open to this Court is to strike out the

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appeal.

It follows that the application which I earlier stated at the beginning in which the appellant prays for the appeal to be heard on his appellant’s brief alone is a non starter as there really cannot be an Appeal without a Record of Appeal from which a consideration will be made.

This appeal is incompetent from the foregoing and I strike it out. I make no order as to costs.

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SC.867/2016(R)