Hepa Global Energy V. Federal Republic of Nigeria (2016)
LawGlobal-Hub Lead Judgment Report
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
The Appellant/Applicant vide a motion on notice dated and filed 7th June, 2016 sought for an order, to wit:
1. “A Mandatory Order of restorative injunction compelling the Respondent including the EFCC and/or anyone acting or purporting to act for on their behalf to restore and/or refund the sum of USS975,709.50 (Nine Hundred and Seventy-Five Thousand, Seven Hundred and Nine United States Dollars, Fifty Cents) or any other sum of money contained in the Appellant/Applicant’s Company Naira Account No: 0342986032, domiciled with First City Monument Bank Plc (FCMB), together with interests at 60% per annum, which was unlawfully transferred by the Respondent including EFCC and/or through (FCMB) from the account of the Applicant to the Consolidated Revenue Fund account domiciled with the Central Bank of Nigeria on 27/11/2015 in spite of the prompt service of the Applicant’s Notice of Appeal dated 18/11/2015 and the Motion on Notice dated 26/11/2015 for stay of execution of judgment on the Respondent, pending the determination of the appeal against the judgment
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of the lower Court in CHARGE NO: FHC/L/156C/2014 delivered on 30/10/2015;
2. A Mandatory Order of restorative injunction compelling the Respondent including EFCC and/or anyone acting or purporting to act or on their behalf to restore and/or refund the sum of N40,966,345.73 (Forty Million, Nine Hundred and Sixty-six Thousand, Three Hundred and Forty-five thousand naira, Seventy-three Kobo only) or any other sum of money contained in the Appellant/Applicant Company’s Naira Account No: 0342986018, domiciled wit First City Monument Bank Plc (FCMB), together with unlawful transferred by the Respondent including EFCC and or through (FCMB) from the account of the Applicant on 27/11/2015 to the Consolidated Revenue Fund account domiciled with the Central Bank of Nigeria in spite of the prompt service of the Applicant’s Notice of Appeal on 18/11/2015, and the Motion on Notice dated 26/11/2015 for stay of execution of judgment on the Respondent, pending the determination of the appeal against the judgment of the lower Court in CHARGE NO: FHC/L/156C/2014 delivered on 30/10/2015;
3. A Mandatory Order of restorative injunction compelling the Respondent include
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EFCC and/or purporting to act for or on their behalf to restore and/or refund the sum of N24,999,990.00 (Twenty-four Million, Nine hundred and Ninety-nine Thousand Naira only) or any other sum of money contained in the Appellant/Applicant Company’s Naira Account No: 0342986063, domiciled with First City Monument Bank Plc (FCMB) together with interest at 28% per annum, which was unlawfully transferred by the Respondent including E.F.C.C. through (FCMB) from the account of the Applicant on 30/11/2015 to the Consolidated Revenue Fund account domiciled the Central Bank of Nigeria in spite of the prompt service of the Applicant’s Notice of Appeal dated 18/11/2015 and the Motion on Notice Dated 26/11/2015 for stay of execution of the judgment of the Respondent, pending the determination of the appeal against the judgment of the lower Court in CHARGE NO: FHC/L/156C/2014, delivered on 30/10/2015.”
The grounds upon which the application is predicated are as follows:
1. “Following the judgment of the lower Court, the Applicant issued a Notice of Appeal dated 18/11/2015 and filed 20/11/2015, challenging the judgment of the lower Court delivered on 30/10/2015
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within 21 days of the delivery of the same;
2. The Notice of appeal was duly and promptly served on the Respondent on 20/11/2015;
3. The Applicant also filed a Motion on Notice dated 26/11/2015 at the lower Court to restrain the Respondent from executing the judgment aforesaid, pending the determination of the appeal filed by the Applicant, and same also promptly served on the Respondent on 27/11/2015, at about 11am;
4. The Applicant’s motion on Notice dated 26/11/2015 was fixed by the trial Court for hearing on 08/12/2015;
5. The Applicant’s Motion on Notice dated 26/11/2015 was not heard by the lower Court before the Appeal filed by the Applicant was entered at this Honourable Court, as a result of which the lower Court ceased to have jurisdiction over the matter;
6. The Respondent has nothing to lose by the grant of this application, pending the outcome of the appeal since they would still be able to have the fruit of the judgment, if the appeal is disallowed, and
7. It is in the interest of justice to grant the application.”
?The application is supported by an Affidavit in support dated 7th June, 2016; deposed by Mike
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Ogie, a legal practitioner in the law office of Femi Atoyebi & Co, Solicitors to the Appellant/Applicant.
In response, the Respondent filed a Counter-Affidavit dated and filed 11th July, 2016 deposed to by one Moses Awolusi, an Investigative Officer with the Economic and Financial Crimes Commission (EFCC).
The relevant facts deposed to in the Affidavits are as follows:
a. The Applicant has acquired a legal right to be heard in the appeal before its assets could be confisticated.
b. The action of bank and the E.F.C.C. has effectively infringed on the said right;
c. Unless the sums of monies which were transferred from the Applicant’s account are returned, the Court would be foisted with a situation of helplessness and whatever decision given by the Court will be rendered nugatory, especially if given in favour of the Applicant.
d. It will be in the interest of justice to refund the sums of money that were transferred from the Applicant’s accounts pending the outcome of the appeal at the Court of Appeal so as not to render the subsequent decision of this Honourable Court useless.
e. The Applicant will be highly
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prejudiced if a stay of execution of the judgment for the forfeiture of the Applicant to the Federal Government of Nigeria is not granted as the Respondent will be at liberty to levy execution of the said judgment and the Applicant’s appeal will become merely academic.
f. The Respondent as nothing to lose by the restoration of the sum of money transferred from the accounts of the Applicant’s owners pending the outcome of the since they would still be able to reap the fruit of the judgment if the appeal is disallowed.
g. It is only proper and necessary to maintain the status quo ante bellum before the execution of the said judgment of the lower Court relating to the transfer of monies belonging to the Applicant’s owners, pending the determination of the appeal which has already been filed and served.
On the other hand, the relevant paragraphs of the Respondent’s counter-affidavit are:
a. The various sums of money in the account of the Applicant were found to be proceeds of crime for which the Applicant was convicted.
b. The Respondent on the 11th July, 2014 filed a summons ex parte to the trial Court for an order of interim
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forfeitures of the MT Good Success and the sums of money in the Applicant’s account domiciled in F.C.M.B. which sum was found to be proceeds of illegal dealing in petroleum products.
c. The trial Court proceeded to trial of the Applicants and found them guilty as charged on the 30th October, 2015.
d. On the 13th November, 2015, E.F.C.C. complied with the order of the Court by informing the FCMB to comply with the order by transferring the judgment sum to the consolidated Revenue Funds account of the Federal Government of Nigeria domiciled with the Central Bank of Nigeria.
e. The application is intended to deny the Federal Government the fruits of its judgment.
f. The grounds of appeal are neither substantial nor arguable.
g. Applicant has not shown any exceptional circumstances to justify the grant of the application.
h. The act of the Respondent which the Applicant is seeking the ordure of this Honourable Court to restrain has been completed or concluded.
i. The offences for which the Applicant was convicted are grievous economic sabotage against the economic well being of this country.
j. By the practice direction of
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this Court, the Honourable Court deals with criminal appeal expeditiously.
k. The Applicant did not have any substantial grounds of appeal.
l. There is nothing technical about the Applicant’s appeal before this Honourable Court to justify the grant of this application.
Counsel submitted that following the complaint lodged an appeal and filed a Stay of Execution of the Appeal, Exhibits FA2 & FA2B which was served on 23/11/2015; same was served on the Respondent and the Bank. After which the Respondent threatened the bank to transfer the funds to the Consolidated Funds Account of the Federal Government. The bank in turn sent a letter in Exhibit FA5-7 acknowledging the transfer of the money; all these sums were transferred after service of Notice of Appeal and Stay of Execution. Counsel urged the Court for a restorative order and the funds also restored to the account. Counsel further submitted that where the action would be amount to an abuse of Court processes, the order shall be granted. He cited IVORY MERCHANT BANK v. PARTNERSHIP INVESTMENT LIMITED [1996] 5 NWLR (Pt. 448) 363 at 367-368 paras H-B; ABUBAKAR v. UNIPETROL (2002) 8 NWLR
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(Pt. 769) 242 at 251-252 paras A-C. Learned counsel for the Applicant further submits that the action is affront to the Court.
Respondent’s counsel on the other hand submitted that the Appellant conceded both for legal argument and affidavit annexure, the lower Court found that the funds in the account were proceeds from illegal sale of petroleum products.
He referred to page 920 Volume 3 of the record of appeal and stated that one captain Samuel Adebambi is the alter ego of the Hepa Global Energy Ltd. He further submitted that the lower Court during the application for bail in paragraph 4 at page 970 of the record found that the said alter ego is still at large. He then urged the Court to refuse the application so as to allow the judgment creditors reap the fruit of his judgment as it is his right. He further contended that in granting the application, it would amount to the Court pre-judging the appeal, because the grounds of appeal was the proprietary of the forfeiture of the monies in the account which is a substantive issue, he submitted that this action of the applicant is a backdoor approach which is prejudicial to the
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Respondent.
It is the further submission of counsel that the Applicant does not challenge Exhibits FA5-7; the Court will treat same as evidence. He urged the Court to reject same as they are in breach of Section 84(4) of Evidence Act for failure to produce Certificate of Identification stating that the letter is from FCMB, as there is no certificate of genuineness that the equipment was functioning properly as provided for in the Evidence Act. He therefore urged the Court to refuse the application.
Learned Silk, Femi Atoyebi, SAN in reply on points of law on the issue of the transfer of money submitted that there is proof of transfer of same. On the issue of Section 84 of Evidence Act, he submitted that it is relevant and urged the Court to hold same. On the point of whether the funds were transferred is not in issue as same is an established fact. He also submitted that the Applicant did not ask for a restraining order, rather a restorative order.
He argued further that Order 15 of the judgment was that the evidence of compliance shall be filed within 21 days and he submitted that it is not the case, as there is nothing
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before the Court to show that the order was complied with.
Counsel finally submitted that the action is for a restorative order and that neither of the parties should hold the funds, rather it should be kept in the custody of the bank, and then bank be given an order not to touch the funds.
I have carefully considered the oral submissions of the counsel herein and I am of the firm view that the issue that calls for the determination of this appeal is, whether the Applicant is entitled to the reliefs sought?
Generally, where a Court is asked to restrain a party from doing an act pending the decision in a matter before it, no order to restrain can be validly made where the act has been completed. Simply put, injunction does not lie against a completed act. See A-G, ABIA STATE v. A-G, FEDERATION (2006) LPELR-613(SC); IDEOZU v. OCHOMA [2006] 4 NWLR (Pt. 970) 364. Herein, the Applicant seeks for an order of restorative injunction for an act that had already been completed, that is, “a mandatory order of restorative injunction compelling the Respondent, including the E.F.C.C. and/or anyone acting or purporting to act for on their behalf to
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restore and/or refund the sum.” In ABBI v. CHIEF (PRO) J.J.T. PRINCEWILL & ORS (2011) LPELR-3952 (CA), this Court, per EKO, JCA, at page 14-15, paras E-E, held:
“Restorative or mandatory’ injunction by its very nature is designed to judicially instill discipline on an erring party in order for the Court to maintain, restore and preserve its dignity and respect. See EZEGBU v. F.A.T.B. (supra) at 725. The Court exercises this, inter alia, to undo what has been done by the erring party irrespective of what the Court will decide on the merits eventually when the matter is heard….”
It is the submission of Learned silk for the Appellant/Applicant that referenced sum of money was unlawfully transferred by the Respondent including E.F.C.C. and/or through FCMB from the account of the Applicant to the consolidated Revenue Fund account domiciled with the Central Bank of Nigeria on 27th November, 2015 in spite of the prompt service of the Applicant’s Notice of Appeal dated 18th November, 2015 and the motion on Notice filed 26th November, 2015 for stay of execution of judgment on the Respondent, pending the determination of the appeal.
?It is
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trite law that a notice of appeal per se does not operate as a stay of judgment. See OLORI MOTOR CO. LTD & ORS v. U.B.N. PLC [2006] 10 NWLR (Pt. 989) 586. Although the Appellant/Applicant filed the notice of appeal on 20th November, 2015 against the judgment of the lower Court delivered on 30th October, 2015, the Notice of Appeal does not and cannot operate to stay or stall the execution of the order of the lower Court. I believe that it is as a result of the Applicant’s desire to stay execution of the judgment of the lower Court that it filed 26th November, 2015 seeking to restrain the Respondent from tampering with the Appellant/Applicant’s monies with FCMB.
Now it is on record that that as at the 13th of November, 2015, the Respondent had already written to the First City Monument Bank (FCMB) informing the Bank to comply with the order of the lower Court. Indeed, Order 15 of the Enrolled Judgment, Exhibit FA1, it was ordered that evidence of compliance with the judgment of the lower Court must be filed within twenty-one (21) days. Therefore, there is a presumption that before the evidence of compliance can be filed, the order of the Court must
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be carried out. Herein, well before the Notice of Appeal as well as the Application for stay of execution was filed by the Applicant, the Respondent had already put the Bank on notice of the order of the Court with respect to the forfeiture of the sum to the Federal Government.
Although, the Appellant alleged that the Respondent was served with the application for stay of execution on 27th November, 2015 at about 11:00am before the transfer of the said sum was done and there is an Affidavit of service to this effect, the Appellant however, in my view, was not able to show that the transfer was done after the service of the Application. I agree with the Respondent’s counsel that Exhibits FA5 to FA7 are documents produced by computers and the provision of Section 84 (2) of the Evidence Act, 2011 must be complied with before they can be admissible. Here, the Applicant failed to comply with that section. Exhibits FA5 to FA7, been inadmissible cannot be relied upon in order to show at what date or time the transfer was done. It is not in dispute that the transfer of sums alleged was done by FCMB to the Central Bank of Nigeria. Again, I am however of the
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firm view that the Applicants were unable to show whether the transfers were done before or after the service of the Application for stay of execution of the judgment of the lower Court.
As earlier noted, the letter written by the Respondent to FCMB was done on 13th November, 2015 consequent upon the judgment of the lower Court delivered on 30th October, 2015. See Exhibit FA1. At the time the Bank was notified of the order of the Court, there was no legal impediment as per its compliance. It no longer lies in the hand of the Respondent to stop the process when what they had done is no more than inform the bank of the order of the Court. The Appellant/Applicant ought to have communicated to the bank the fact that it had eventually filed an application for stay of execution in order to forestall the eventual transfer of the monies. The judgment of the lower Court is evidently correct and final until set aside by this Court. Appellant/Applicant has raised issues bothering on the propriety of the lower Court in ordering the transfer of the monies to the Respondent. It would not only amount to overreaching the issues if the Appellant/Applicant’s application
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is granted as the monies stands forfeited pursuant to the judgment/order of lower Court.
I believe the middle way out of this is that the sums allegedly transferred to the Respondent are undisputed; and in the event that the Appellant’s appeal succeeds, the monies will be restored back and/or refunded to the Appellant.
Meanwhile, the argument of the learned senior counsel with respect to the propriety or otherwise of the fifteen order made the learned trial judge relates to an issue which cannot be determined at this stage. Since it has been raised as a ground of appeal, it will be improper to pronounce on same at this stage. I need not say more.
On the whole, the Appellant/Applicant’s application is unmeritorious. It is hereby dismissed. No order as to cost.
Other Citations: (2016)LCN/8927(CA)
