Attachment/Forfeiture

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HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Oyo State High Court delivered on the 24th day of January, 2017 by M. L. Abimbola, C. J. in suit No: I/1EFCC/2014.
By a Motion Ex-parte dated and filed on the 6th day of February, 2014, The Respondent had sought the order of the court below for interim attachment/forfeiture of the properties of named persons listed in the schedule to the Ex-parte Application. The Appellant is one of such named persons. For faster comprehension of the issue(s) in this appeal, the said Ex-parte Application prayed for:
1. An Order of this Honourable Court granting interim attachment/forfeiture of the properties of the persons listed in Schedules 1-9 of this application to the Federal Government of Nigeria pending the hearing and final determination of Charge No: I/6EFCC/2013 –Federal Republic of Nigeria v. Muili Hakeem Aderemi & 11 Ors.
2. An Order of this Honourable Court granting interim attachment/forfeiture of the properties of the persons listed in Schedules 1 – 9 of this application to the Federal Government of Nigeria pending conclusion of investigation into other acts of fraud and criminal allegations being carried out against them by the Economic and Financial Crimes Commission.
3. And for such further order or other orders as the Honourable Court may deem fit to make in the circumstances.
That Application was initiated pursuant to Section 44(2)(k) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); and Sections 28 and 29 of the Economic and Financial Crimes Commission Act, No.1 of 2004. The Motion was taken before Esan, J. of the Oyo State High Court who granted the reliefs sought by the Respondent herein, who was the Applicant. The Appellant herein was aggrieved by the decision of Esan, J. and therefore filed the Application subject of this appeal. The Application which was filed pursuant to Sections 1(3), 36(5) and 44 of the Constitution of the Federal Republic of Nigeria (as amended); and Sections 28 and 29 of the Economic and Financial Crimes Commission Act, 2004 prayed the Court for:
1. An Order of this Honourable Court setting aside the order of this Honourable Court made against the 1st Respondent/Applicant on the 6th day of February, 2014 granting interim attachment/forfeiture of the Applicant’s properties contained in Schedule 1 of the Order pending the determination of Charge No. I/6EFCC/2013; Federal Republic of Nigeria Vs. Muili Hakeem Aderemi & 11 Ors.
2. Setting aside the Order attaching/forfeiture of the Applicant???s properties pending the conclusion of investigation into other acts of fraud and criminal allegations being carried out against the 1st Respondent by the Economic and Financial Crimes Commission as contained in the Ruling of this Court on the 6th day of February, 2014.
The Grounds upon which the Application was predicated are as follows:
(i) That the Applicant/Respondent did not comply with the condition precedent to Section 28 before applying to this Court for order for interim attachment/forfeiture of the Applicant’s properties.
(ii) The Applicant/Respondent cannot apply for an order of interim attachment/forfeiture of the Applicant’s properties by one application.
(iii) When Section 29 of the Economic and Financial Crimes Commission Act offends against the provisions of Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
(iv) The Applicant/Respondent concealed/ misrepresented facts to this Court that the property contained in Schedule 1 of the order was acquired before the Commission of the crime with which the Applicant is charged in Charge No: I/6EFCC/2013: Republic of Nigeria Vs. Muili Hakeem Aderemi & 11 Ors.
(v) The Applicant/Respondent concealed the fact from this Court that the 1st Respondent/Applicant was alleged to have committed the offences in Charge No: I/6EFCC/2013: Federal Republic of Nigeria Vs. Muili Hakeem Aderemi & 11 Ors between September, 2010 and January, 2011.
(vi) The Applicant/Respondent misrepresented facts to this Honourable Court that the 1st Respondent/Applicant is being investigated for any other crime apart from the one with which he is charged in Charge No: I/6EFCC/2013 Hakeem Aderemi & 11 Ors.
In support of the Application which was dated and filed on the 01/4/2014, was an Affidavit of 17 paragraphs, to which were annexed several documents marked as Exhibits A, B, C, D, E, F, F1

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and G respectively. In response, the Respondent herein, filed a Counter-affidavit to which were annexed some documents, which incidentally were not marked as exhibits. Both parties filed Written Addressees for and against the Motion. The Applicant/Appellant also filed a Further Affidavit of 8 paragraphs and a Written Reply Address on points of law. The Application was argued on the 06/12/2016, and in a Ruling delivered on the 24/01/17, the learned trial Judge dismissed the Application. The Applicant being dissatisfied with the decision of the trial Court, has filed this appeal.
The Notice of Appeal containing eight (8) Grounds of Appeal was dated and filed on the 31/3/2017. The Appellant in obedience to the Rules of this Court filed an Appellant’s Brief of Arguments. It was dated and filed on the 26/01/2017 but Deemed filed on the 9/10/2017. Five (5) issues were distilled therein for determination as follows:
(a) Whether the learned trial Chief Judge was right in holding that the Respondent complied with the provisions of Sections 28 and 29 of the Economic and Financial Crimes Commission (Establishment) Act, 2004. [Grounds 1 and 2].
(b) Whether the provisions of Sections 28 and 29 of the Economic and Financial Crimes Commission (Establishment) Act, 2004 can apply to a property which was acquired before the commission of the criminal offence with which the Appellant was charged. [Grounds 3 and 4].
(c) Whether determining the Motion to set aside the interim order would amount to determination of issues meant to be determined at the end of the investigation and trial of the substantive criminal charge for which the Appellant is standing trial. [Ground 6].
(d) Whether the Court has the power to set aside an interim order granted under Section 28 of the Economic and Financial Crimes Commission (Establishment) Act, 2004. [Grounds 5 and 7].
(e) Whether the learned trial Chief Judge reviewed the application of the Appellant in his Ruling and or considered the facts placed before the Court in the Affidavit evidence of the Appellant. [Grounds 8 and 9].
The Respondent failed to filed any Respondent’s Brief of Arguments despite being served the Appellant’s Brief of arguments. Considering that this is a Fast Track Appeal pursuant to the Court of Appeal (Fast Track) Practice Directions, 2014, this appeal was heard on the Appellant’s Brief alone. Having reflected on the issues as formulated by the Appellant, I am of the view that this appeal can be adequately resolved on only one issue; which is:
1. Whether the learned trial Chief Judge was right in refusing to set aside the interim order for the attachment/forfeiture of the properties of the Appellant to the Federal Government of Nigeria pending the hearing and determination of Charge No: I/6EFCC/2013; Federal Republic of Nigeria Vs. Muili Hakeem Aderemi & 11 Ors.
In the consideration of arguments of counsel, I shall restrict myself to those issues that are relevant to the determination of this appeal.
Now, learned counsel for the Appellant began by contending that, the learned trial Judge was wrong in holding that the Respondent complied with the provisions of Section 28 of the Economic Crimes Commission (Establishment) Act, 2004 in attaching the property of the Appellant by the order of the 6/2/2014. It was then submitted that the Respondent did not comply with the provisions of Section 28 of the Economic Crimes Commission (Establishment) Act, 2004 before filing the Ex-parte Application of 6/2/2014. That, the Appellant was arraigned before the Oyo State High Court of Justice on the 06/11/13 while the application to attach his property was made and granted on the 6/2/2014. Learned Counsel then cited Sections 28 and 29 of the Economic and Financial Crimes Commission (Establishment) Act, 2004 EFCC Act, 2004; and the cases of Kallamu v. Gurin (2013) 16 NWLR (pt.847) 493 and Okon v. Ubi (2006) All FWLR (pt. 328) 717 at 741 to further submit that, the Respondent ought to have traced and attached the property of the Appellant on his being arrested; and therefore, that the Court could only resume jurisdiction to make the order of forfeiture upon the Respondent complying with Section 28 of the EFCC Act (supra).
Learned Counsel for the Appellant went on to submit that, the Respondent failed to apply for interim attachment of the Appellant’s property immediately upon his arrest and also failed to apply for an interim order of attachment from the Court before proceeding to obtain the order of interim attachment/forfeiture of the Appellant’s property. In other

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words, that the Respondent did not seize the Appellant’s property immediately he was arrested. The case of Mrs. Chinelo Nwaigwe & Ors v. Federal Republic of Nigeria (2009) 16 NWLR (pt.1166) 169 at 190 -191 was cited in support. Furthermore, that the Respondent cannot ask for an order of interim attachment/forfeiture of the Appellant’s property in the same application because, as held in Chinelo Nwaigwe & Ors. v. F.R.N. (supra), the power of the EFCC to make an application for forfeiture only matures upon the lawful seizure of the property.
It was further argued by learned counsel for the Appellant that Section 44(2)(k) of the 1999 Constitution relied upon, is not intended to deprive any citizen of his property. It was then contended that Section 44(2)(k) of the Constitution must, in the instant case, he read alongside Sections 28 and 29 of the EFCC Act. That the issue here, is whether the property affected by the interim order was acquired as a result of the proceeds of the crime with which the Appellant has been charged. It was then contended that a perusal of the Certified Tue Copy of the Information would show that the offence for which the Appellant was charged was committed between September, 2010 and January, 2011. That in the circumstances, the Respondent cannot indefinitely hold on to the Appellant’s property which was acquired before the commission of any offence.
Learned Counsel for the Appellant went on to submit that the Appellant has shown by his Affidavit that he acquired his property attached in 2004 and obtained a Certificate of Occupancy on same on the 28/12/2009 vide Exhibit B. That Exhibits D and F further go to prove that the property in question was acquired before the offence charged was allegedly committed. Learned Counsel then submitted that, the Appellant did not and could not have built his house with the proceeds of a crime allegedly committed between September, 2010 and January, 2011. That the deposition of the Appellant that he acquired the property in 2004 was never controverted by the Respondent; and that same should have been treated as an admission. The case of Isaac Omoregbe v. Daniel Pendor Lawani (1980) 3 – 4 S.C. 108 at 117 was cited in support. Furthermore, that there is no evidence before the Court to show that the Appellant is being investigated for any offence especially when the Appellant denied being investigated by the Respondent. That determining the issue whether the property was acquire as a result of the commission of any crime will not in any way affect the outcome of the criminal trial of the Appellant.
It was also contended that the learned trial Chief Judge erred when he held that there is no procedure of Court which allows the Court to set aside an order of interim attachment of property made pursuant to Section 28 of the EFCC Act. That it is trite law that a Court has the power to set aside its order or judgment which is a nullity, obtained by fraud or misrepresentation. That the Respondent obtained the Ex-parte order by misrepresenting that the property of the Appellant was acquired with the proceeds of crime and that he is still being investigated for another offence. It was then submitted that, whether or not there is a procedure stipulated for setting aside an interim order made pursuant to Section 28 of the EFCC Act, the Court has an inherent jurisdiction to set aside an order obtained by misrepresentation. The cases of Shittu Agiri & Anor v. Bello Ogundele & Anor (2005) All FWLR (pt.250) 81 at 102 and Dana Impex Ltd & Anor v. Stephen Aderofoye (2008) All FWLR (pt. 308) 1338 at 1349 were cited in support. Furthermore, that Section 6(6)(a) of the 1999 Constitution has given the Court the inherent power to look into whether a property was rightly attached under Sections 28 and 29 of the EFCC Act. The case of Chinelo Nwaigwe & Ors. v. F.R.N.(supra) was also cited in support. We were accordingly urged to hold that the learned Chief Judge erred when he held that there is no procedure provided by which the Court could set aside the Ex-parte order for attachment made pursuant to Section 28 of the EFCC Act.
Learned Counsel for the Appellant then contended that the trial Court did not review the Affidavit evidence placed before the Court by the Appellant. That there were several Applications on the same issue filed by other Applicants, praying the Court to set aside the interim order of attachment/forfeiture made against their properties. That, the trial Court heard the Applications separately but the learned trial Chief Judge gave a single ruling. That,

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each Applicant had different Grounds for the Application but the learned trial Chief Judge considered the law only without applying same to the facts presented by the Appellant. That in the process, the trial Court did not consider the issue whether the Appellant acquired the property attached with the proceeds of the crime charged. Furthermore, that the trial Court failed to evaluate the evidence presented by the Appellant vide Exhibits A-G. The cases of S. B. Fashanu v. M. A. Adekoya (1974) All NLR (pt.1) 35 at 41 – 42; Lion Building Ltd v. Imano (2000) FWLR (pt.19) 392 at 410 were cited in support. Learned Counsel then submitted that the Ruling therefore denied the Appellant of his Constitutional Right to Fair Hearing as enshrined in Section 36 of the 1999 Constitution. On that note, we were urged to allow the appeal and set aside the interim order of attachment/forfeiture made on the 06/2/2014.
Now, a determination of the substantive issue in this appeal would require the construction or interpretation of Sections 28 and 29 of the Economic and Financial Crimes Commission (Establishment, etc) Act. It is the law that in the interpretation of any statute or legislation, the Court is enjoined to consider the various provisions of the statute as a whole. In other words, the various provisions of the statute should be given a wholistic and harmonious consideration, such that no one provision be considered in isolation. See Tukur v. Government of Gongola State (1989) 4 NWLR (pt.117) 517; Director SSS v. Agbakoba (1999) 3 NWLR (pt.595) 314; A.G. Ondo State v. A.G; Federation (2002) 9 NWLR (pt.772) 222 and Dantsoho v. Mohammed (2003) FWLR (150) 1717 at 1742.Thus, in the case of Advertising Practitioners Council of Nigeria (APCON) v. The Registered Trustees of International Covenant Ministerial Council (ICMC) & Ors (2010) LPELR 630 (CA), Peter-Odili, JCA (as he then was) said:
In construing a statute, it must be read as a whole to get to the correct meaning of any particular expression. In other words, when a particular section of a statute is being interpreted, the section should not be read in isolation but the whole statute must be considered because the section is part of a whole
Similarly, in the case of Mobil Oil (Nig.) Plc v. IAL 36 Inc. (2000) 6 NWLR (pt.659) 146, my Lord, Karibi-Whyte, JSC held as follows:
It is an elementary principle and fundamental to the construction of the provisions of any statute to read the sections as a whole to enable the interpreter to gather the collective sense of the provision. Where the subject matter construed concerns other sections of the same statute, all the related provisions must be read, considered and construed together as forming a composite whole. It is imperative in the construction of a section to read together all sections and paragraphs. This is because the sub sections or sub-paragraphs may be and are necessarily complimentary to and explain the meaning and scope of the main section or paragraph. The meaning of a section may be controlled by other individual sections or sub-sections in the same Act
In exercising its interpretative jurisdiction, the Court should limit itself to the words used in the statute, such that no other words outside the statute be imported into it. Accordingly, the words used must be given their ordinary, literal or ordinary usage unless where such construction would lead to absurdity or injustice; or defeat the purpose of the legislation. In other words, since the primary purpose of interpretation of statutes is to discover the intention of the makers of the statute, the words used must be given their ordinary and grammatical meaning, and therefore the Court called upon to construe a particular statute should not read into the statute words not used by the giver of the statute. See S.P.D.C. Ltd. v. F.B.I.R. (1996) 8 NWLR (pt.466) 256 at 285; Agbareh v. Mimra (2008) NWLR (pt. 1071) 378; Ehuwa v. O.S.I.E.C. (2006) 10 NWLR (pt.1012) 544 and The Registered Trustees of the Airline Operators of Nigeria v. Nigerian Airspace Management Agency (2014) LPELR 22372(SC).
In the instant case, in construing Sections 28 and 29 of the EFCC Act (supra), the learned trail Chief Judge observed at page 287 lines 3-7 of the Record of Appeal as follows:
What calls for determination before me is whether the order of interim attachment or forfeiture as given by my learned brother ought to be set aside upon the fact deposed to in the respective supporting affidavits of the herein applicants. By way of recapitulation, the facts are that

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the condition precedent was never followed before the order was sought for and obtained which makes the order a nullity, that also there are suppression, falsification and misrepresentation of facts presented before the Court who (sic) gave the order. Also a Claim to ownership of the property which is subject matter of the order by a party not charged.
After referring generally to Section 44(1), (2) and (4) of the Constitution of The Federal Republic of Nigeria, 1999, and Sections 28 and 29 of the EFCC Act, 2004, the learned trial Chief Judge went on to hold at page 289 lines 4 – 18 as follows:
To me attachment and obtaining an Order of Court by way of interim attachment are words to be read together only purposively. An Order of interim Order of attachment is therefore impracticable without the attachment first made which simply is identifying the property and linking same with a crime to be investigated or charged, applying the concept of condition precedent thereafter will be totally out of place within the context of the usage in Section 28 of the Act. I am not so persuaded in the respective argument that a condition precedent existed which makes an order of interim attachment made by a Court a nullity. It is within this context that I hold that the order made by My Lord Esan Judge, was not a nullity. Similarly and in the same vein, I am constrained to hold that the power to obtain such interim order of attachment of property under investigation is not constrained by any condition precedent. The provision of the Constitution even overrides and is more superior to the provisions of a statute of the commission, since the commission stated to have brought the application under Section 44(2) (k) which has no condition prior to obtaining any order of interim attachment, the order is not subject to any condition and thus makes the order so obtained as regular and valid and not a nullity.
The learned trial Chief Judge went on hold at page 289 line 19-290 line 10 of the Record of Appeal as follows:
I am constrained in the same vein to say that the provision of interim attachment order is only to preserve the rest of a subject matter of investigation or charge pending final resolution of the matter. At the end of the day a property established not linked with the proceeds from a crime shall be released. To me the use of the word attachment is not a magic word with any specialized procedure than identifying the property as a property built from the proceeds of crime. Reading Sections 28 or 29 together communally and given a precise and purposive interpretation says nothing new, see Bada JCA in Dangabas case supra.
In my view, once a Court gives an interim order of attachment or forfeiture, it is presumed that a prima facie case has been established before the Court. Any consideration for setting aside is to me a review of the order upon factual depositions now presented.
Having stated the law as quoted above, the learned trial Chief turned to consider the merit of the Appellant’s Application based on the facts as deposed to in the various Affidavits of the Appellant. The learned trial Chief Judge, considering the Appellant’s case, held that the provisions of Sections 28 and 29 of the EFCC Act, 2004have been construed in the cases of Felimon Enterprises Nig. Vs. Chairman, Economic and Financial Crimes Commission delivered on the 18th day of January, 2013 by the Lagos Division of the Court of Appeal, in Appeal No: CA/L/987/2010 and Dangabar v. F.R.N. (supra) cited by the Appellant. Relying on those cases, the learned trial Chief Judge held at page 291 lines 11 -14 of the Record of Appeal as follows:
Lastly, the principle is settled law of practice that when a section of the law has been given interpretation by a higher Court, a Court lower in hierarchy has no business embarking on the exercise of interpreting such section but has a duty to look for and apply the interpretation given to the section by the higher Court.
On that note, the learned trial Chief Judge dismissed the application to set aside the interim order for attachment/forfeiture earlier made.
Before I proceed, I have noted that, learned counsel for the Appellant had disagreed with the learned trial Chief Judge, when he held that there is no procedure for setting aside an order Ex-parte for interim attachment under Section 28 of the EFCC Act, and that the remedy or procedure is to go all the hog of trial to establish non-culpability as charged leading to the order of attachment or forfeiture. While it is true that there is no provision in the EFCC

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Act specifically empowering a Court to set aside an interim order made, Section 6(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria, has given any Court established by law power to exercise its inherent powers in any given situation. Accordingly, the Court, and indeed the Court below, had inherent power to set aside the interim order of attachment or forfeiture made, where the Applicant or the party daminified by the interim order made, is able to put before the Court substantial and sufficient reasons which satisfy the Court that the interim attachment or forfeiture be set aside. I am not unaware of the decision of this Court in the case of Felimon Enterprises Enterprises Nigeria Ltd v. The Chairman, Economic & Financial Crimes Commission & Anor (2013) LPELR 20366 (CA). In that case, my learned brother, Pemu, JCA after considering the provisions of Sections 28 and 29 of the EFCC Act, 2004 held that:
It is apparent from Section 26 (sic: 28) of the Economic and Financial Crimes Commission (Establishment) Act, that where a person is arrested for an offence under this Act, the commission shall immediately trace and attach all the assets and properties of the person acquired, as a result of such illegal act, and shall thereafter cause to be obtained an interim attachment order by the Court. The provisions of the Economic and Financial Crimes Commission (Establishment) Act does not provide for the discharge and or setting aside of interim attachment of properties of culprits. If the Law had envisaged this, it should have stipulated it in its provisions.
It is my view that my learned brother stated the obvious in the portion of the judgment quoted above. However, it is my view that my learned brother did not consider nor did he pronounce that the Court seised of a matter has no inherent power to set aside an interim order of attachment or forfeiture made pursuant to Sections 28and 29 of the EFCC Act, 2004. I therefore hold that, the fact that no provision is made under the EFCC Act (supra) to set aside an interim order made pursuant to Sections 28 and 29 of the Act, will not derogate from or take away the inherent power of the Court enshrined in Section 6(6)(a) of the 1999 Constitution (supra) to set aside such interim order. It is therefore settled law that, all Courts of record have the inherent jurisdiction/power to set aside their judgments, decisions or orders in appropriate cases; or under certain circumstances. Some of those circumstances are:
(a) When the judgment or order is obtained by fraud or deceit of one or both of the parties;
(b) When the judgment in itself is a nullity;
(c) Where it is obvious that the Court was misled into giving the judgment;
(d) The judgment was given or the order was made without jurisdiction; and/or
(e) Where the procedure adopted by the trial Court was such as to deprive the Court of legitimate jurisdiction.
See CITEC International Estate Limited & Ors v. Josiah Oluwole Francis & Ors (2014) LPELR 22314 (SC). I therefore hold that, though no provision is made under the EFCC Act (supra) to set aside the interim order of attachment made, the trial Court had the inherent power under Section 6(6)(a) of the 1999 Constitution to set aside the interim order in a deserving situation. See also Chief Kalu Igwe & Ors v. Chief Okuwa Kalu & 3 Ors(2002) 14 NWLR (pt.787) 435 and Olufunmise v. Falana (1990) 3 NWLR (pt.136) 1.
The Application of the Appellant to set aside the interim order of attachment/forfeiture made on the 6/2/2014, was premised on the ground that the property of the Appellant attached/forfeited in the interim has no nexus with Charge No. I/6EFCC/2013, under which the Appellant and 11 Others were being tried. Learned Counsel for the Appellant thus argues that, the offences for which the Appellant was charged were committed between September, 2010 and January, 2011 while the property seized by the interim order was acquired before the date. It was thus argued that the Respondent cannot seize the Appellant’s property acquired by him before September, 2010.
Now, Sections 28 and 29 of the Economic and Financial Crimes Commission (Establishment) Act (supra), stipulate as follows:
28. Where a person is arrested for an offence under this Act, the commission shall immediately trace and attach all the assets and properties of the person acquired as a result of such Economic or Financial Crime and shall thereafter cause to be obtained an interim attachment order from the Court.
29. Where
(a) the assets or

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properties of any person arrested for an offence under this Act has been seized; or
(b) any asset or property has been seized by the commission under this Act,
The commission shall cause an Ex-parte Application to be made to the Court for an interim order forfeiting the property concerned to the Federal Government and the Court shall, if satisfied that there is prima facie evidence that the property concerned is liable to forfeiture, make an interim order forfeiting the property to the Federal Government.
It should be noted that Sections 28 and 29 of the EFCC Act (supra) are special provisions enacted to confer power on the EFCC and the Court to act to protect the res from being dissipated before the case is fully prosecuted. Thus, Section 28 of the Act gives administrative power to the commission to trace and then attach any asset or properties of a person arrested for an Economic or financial Crime. To attach here simply means to hold or associate the asset or property to the crime alleged against the person arrested. It also means to legally take or seize property as the proceeds of or attributed to the crime.
This should be distinguished from seizure and attachment of property in a civil action. In a civil action, no attachment can be made before judgment, except in few cases, such as where a mareva injunction is issued. However, in the case of an interim attachment under Section 28 of the EFCC Act, the seizure and attachment is made of the proceeds or property acquired as the proceeds of a crime. The attachment is made so as to protect the property or asset from being tampered with by the person accused of having acquired them as a result of an Economic or Financial Crime. As stated earlier, Section 28 of the Act merely permits the commission to take administrative steps to secure the assets or property traced to have been acquired as a result of an Economic or Financial Crime.
By Section 29 of the EFCC Act (supra), where the commission has traced and attached such assets or property so acquired, the commission is enjoined to apply by way of Ex-parte Application for such asset be forfeited to the Federal Government. The Court will make the interim order, only if it is satisfied that the property attached pursuant to Section 28 of the Act is liable to forfeiture in that there is prima facie evidence that it is the proceed of an Economic or Financial Crime. In making the interim order, the Court is guided by the facts or evidence deposed in the Affidavit in Support of the Ex-parte Motion. It is therefore not in doubt that Sections 28 and 29 of the EFCC Act should be read together in making any interim order of forfeiture because while the attachment is an administrative act done by the commission, the interim order of forfeiture is a judicial act.
In the instant case, the Appellant has argued vehemently that the property subject of the interim order of attachment and forfeiture was not acquired from the proceeds of any crime under the EFCC Act. The Respondent has countered to the effect that, the investigation into the activities of the Appellant as the Executive Secretary of the Oyo State Local Governments Pension Board covered the period from the year 2000. The property in question is a well fenced Duplex at Oluwo Village, Bodija in Ibadan North Local Government Area. It is covered by a Certificate of Occupancy No: 24/24/3595 dated the 28/12/2009. The Appellant thus argues that since the offence(s) he is alleged to have committed were done between September 2010 and February, 2011, the property having been acquired before those dates, cannot be subject of any attachment and/or forfeiture by the commission.
I have carefully perused the 213 charges preferred against the Appellant and the other co-accused. Upon reading those charges, it is apparent to me, that the offences were said to have been committed on or about October and March, 2011. The investigation that led to the arrest of the Appellant was triggered by the Petitions written on the 01/2/2013 and 04/2/2013 respectively. At page 1123 of the Black’s Law Dictionary (8th Ed.) by Bryan A. Garner, the phrase on or about is said to connote uncertainty. That, when used, it may also mean at or around the time of the happening of the event specified. It is often used when there is uncertainty about the exact date of the event specified. Thus, in the case of Akpa v. The State (2007) 2 NWLR (pt.1019) 500, My Lord, Kekere-Ekun, JCA (as he then was) said:
It has been held that when the phrase on or about is used in a charge it expresses some amount of

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uncertainty. While the word or introduces an alternative, the word about means a little more or less than, a little before or a little after. Thus when the phrase on or about is used in a charge it is not necessary to prove the precise date the alleged offence was committed.
In the context of this case therefore, it would mean that the commission is not certain about the exact date the offences were committed, but that they were nonetheless committed. It would therefore be wrong to tie the date the offences were said to have been committed to between October, 2010 and December, 2011. This is in view of the Respondent’s depositions in paragraphs 6(iii), (v), (vi) and (viii), and 7 of the Counter-Affidavit in opposition to the application to set aside the interim order for attachment/forfeiture as follows:
6. (iii) That between 2000 and 2012, the 1st Respondent was the Chief Executive Officer and the Secretary to the Oyo State Local Government Staff Pension Board.
(iv) That 1st Respondent is the Principal Shareholder, Chairman, Managing Director and Chief Executive Officer of the 2nd Respondent, a Private Limited Liability Company.
(v) Further to paragraph 6(iii) above, 1st Respondent was also the Chief Accounting Officer of the Pension Board and during the aforesaid period, acquired directly and through the 2nd Respondent the following assets:
(a) Assets itemized in Schedules 1 and 2 of the Order made by the Honourable Court on 6th February, 2014.
(b)
(c) Total net worth assets valued at N250,000,000.00 including 100,000 units of shares in Flour Mills Nigeria Plc, 100,000 Units of shares in Dangote Plc, 100,000.00 units of shares in Oceanic Bank Plc and 100,000 units of shares in Oando Plc not commensurate with his gross earnings from 1989 – 2012. Attached and marked Exhibits EFCC 1 -6 are documents to that effect.
(vi) That investigation is still on going by the commission in respect of the discovery above. Attached and marked Exhibits EFCC 7 -12 are documents to that effect.
(vii) That no loan was obtained by 1st Respondent from UBA Plc in 2008.
7. That contrary to the averment and Exhibit C annexed to paragraph 12 of the Affidavit in Support of 1st Respondent’s Motion, 1st Respondent in his statement to the commission stated that he bought the land at Oluwa Village in 2004 from Alhaji Arisekola Alao for the sum of N1.9million. Attached and marked Exhibit EFCC 13 is evidence to that effect.
???It is clear therefore that investigation into the activities of the Appellant as the Executive Secretary of the Oyo State Local Government Staff Pension Board was not limited to the period between October, 2010 and September, 2011. Considering the depositions reproduced above, and the 213 charges filed, it is obvious to me that the investigation covered the period 2000 to 2012 and beyond. To determine whether or not, the property indicated in schedule 1 to the Ex-parte Application for interim attachment/forfeiture, was acquired from the proceeds of the financial crimes charged, evidence has to be adduced and the issue determined at the trial. Where it is discovered, after the trial, that the asset or property was legitimately acquired, same would be discharged from the interim order of attachment/forfeiture and released to the Appellant. On that note, I find that the learned trial Chief Judge did not err in refusing to set aside the interim order of attachment and forfeiture made on the 6th day of February, 2014.
Having found as above, it is clear to me, that this appeal has no merit. It is accordingly dismissed. The Ruling of the Oyo State High Court delivered on the 24th day of January, 2017 in Suit No: I/EFCC/2014 is hereby affirmed.
MONICA BOLNA’ANÂ DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother Haruna Simon Tsammani, JCA dismissing this appeal.
As aptly stated in the lead Judgment, the provisions of Section 28 and 29 of the EFCC Act 2004 are enacted to confer on the EFCC and the Court, the power to hold on to suspect properties/possessions in protective custody until the final determination of the cases. By this means, the properties/possessions, which are the res are prevented from being squandered or dispersed before the determination of the case. Indeed, the res may be the sole evidence in the prosecution of the case and it could be very convenient to cause it to disappear. The Courts must not rush to release them.
The decision of the Hon. Chief Judge in refusing to set aside the interim order of attachment and forfeiture stands on terra firme.
This appeal is without merit and is hereby dismissed.
NONYEREM OKORONKWO, J.C.A.: I have had the opportunity of reading in draft the lead judgment in this appeal as written and delivered by my learned brother Haruna Simon Tsammani J.C.A. whereby the appeal against the ruling of the Chief Judge of Oyo State in refusing to set aside the interim order of attachment and forfeiture made on the 6th day of February, 2014 was dismissed.
I too will dismiss the appeal as being without merit.

FACTS BRIEFLY STATED:
The 2nd respondent, Francis Atuche in standing trial under a 44 count charge for several offences under the Economic and Financial Crimes Commission (EFCC) Act, the Banks and Other Financial Institutions Act amongst others.
The 1st respondent by an application brought under Section 27 of the EFCC Act obtained an interim order of attachment of assets on the 1st of March, 2010 including bank accounts believed to have been used as the conduit to siphon the illegal proceeds of crimes allegedly linked to the 2nd respondent, one of such accounts was that of the Appellant herein.
The appellant upon being served with the order of the Court filed an application seeking to discharge their interim order of attachment made against its assets. The High Court per Ajakaiye J., on the 6th day of July refused to discharge the order of interim attachment on the grounds that the Appellant’s name is referred to in several counts of the charge preferred against the 2nd respondent and that the links between the Appellant and the 2nd respondent can only be ascertained at the trial stage.

The trial High Court found that appellant featured prominently in count 38 of the criminal charge brought against Francis Atuche, the 2nd respondent herein and that the question of whether Felimon Enterprises and Felimon Enterprises Nigeria Limited are one and the same person can only be determined at the trial stage and that it is also at that stage that it will be determined whether the company is in anyway involved in the alleged criminal charge levelled against the 2nd respondent. The appellant application was refused and appeal to the Court below was dismissed hence the appeal to the Supreme Court.
On the 11th day of October, 2017 date of hearing, learned counsel for the appellant, Chimeziei Victor C. Ihekweazu Esq, adopted the brief of argument of the appellant filed on 30th October, 2013 in which he raised three issues for the determination of the appeal which are thus:-
1. Whether the legal principles for the discharge of an interim order of injunction applies to orders made under Section 28 of the Economic and Financial Crimes Commission Act and whether the Court has discretion to apply such principles in setting aside an interim order made under the EFCC Act.
(Grounds 1 AND 2).
2. Whether the Court below was right when it held that Sections 10 and 11 of the Federal High Court Act taken together do not apply to criminal matters as per the appellant’s case and whether same occasioned a miscarriage of justice against the appellant in the appeal (Ground 3).
3. Whether considering the position of the Law and the materials before it, the Court below was justified when it affirmed the decision of the learned trial judge in refusing to set aside and discharge the interim order on the grounds that the provision of the EFCC Act does not provide for the setting aside or discharging of the order and that the refusal was in order to protect the res. (Ground 4 and 5).
Learned counsel for the appellant also adopted the reply brief filed on 22/9/2015.
Olukayode Enitan Esq. of counsel for the respondent adopted the brief of argument of the respondent, settled by Kemi Pinheiro SAN and filed on 1st February 2014. He distilled a sole issue which is as follows:-
Whether in view of the facts and materials, the Court below was right in refusing to discharge or set aside the order of interim attachment granted against the appellant by the Federal High Court on 1st of March, 2010.

The sole issue of the respondent is apt and all embracing and I shall utilise it in the determination of this appeal.
SOLE ISSUE
whether in view of the facts and materials, the Court below was right in refusing to discharge or set aside the order of

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interim attachment granted against the appellant by the Federal High Court on 1st of March, 2010.
Mr. Ihekweazu of counsel for the appellant contended that the use of words “prima facie” under Section 29 of the EFCC Act presupposes that the Court has the inherent power to discharge and or set aside the interim order of attachment where it is satisfied that the property concerned is not liable be the forfeited that in doing this the Court has to exercise the discretion both judicially and judiciously considering the well settled legal principles in that regard.
He stated on that jurisdiction inheres in any Court of justice that has power to grant an order of interim injunction to also discharge same in appropriate circumstances where reasonable grounds have been furnished in that regard. He cited Universal Trust Bank Ltd and Anor v. Dolmetsch Pharmacy (Nig) Ltd (2007) 6SC (Pt.1) 1 at 385.

It was submitted for the appellant that the suppression or misrepresentation of facts is enough ground for a Court to set aside its own order which is the situation in this case. He referred to Okechukwu v. Okechukwu(1989) 3 NWLR (Pt.108) 234 at 238, R. Benkay (Nig) Ltd v. Cadbury (Nig) Ltd (2006) 6 NWLR (Pt.976) 338 at 367-368.

That the 1st respondent must satisfy the Court with cogent evidence to justify the attachment of the property of the appellant and so the appellant’s application should have been considered on the merit instead of dismissing it on the ground that the provisions of the EFCC Act do not provide for the discharge and or setting aside of interim attachment of properties of culprits, a situation which occasioned a miscarriage of justice against the appellant. That since the Court has the jurisdiction to make the order of injunction, it must as a matter of necessity possess the power to discharge same. He referred to Bello v. A.G., Oyo State (1986) 5 NWLR (Pt.45) 828.

Learned counsel for the appellant submitted further that the 1st respondent did not either in his affidavit in support of the motion or in the exhibit attached show any nexus whether real or imagined between the 2nd respondent and the appellant that led to the illegal or criminal acts alleged and no material presented to show the connection to the 2nd respondent or the alleged offence against the 2nd respondent. He cited U.T.B and 2 Ors v Dolmetsch Pharmacy (2007) 6 SC (Pt.1) 1 at 9; Adenuga v. Odumeru (2003) 4 SC (Pt.1) 1 at 11-12 etc,

That this is a good occasion where the Court can call in aid Section 22 of The Supreme Court Act and determine the appellant’s application on the merit in the interest of balanced justice. It was relied on the cases of Yusufu v Obasanjo (2003) 9-10 SC 53 at 106-107; FAAN v. Wamal Express Services (Nig) Ltd (2011) 1-2 SC (Pt.11) 93 at 113.
Learned counsel for the respondent contended that this is one of those instances where an appellate Court is loathe to interfering with the exercise of description by the Lower Court or trial Court unless it is based on misapplication of principles of law. See Atiku and Ors v. The State (2002) 4 NWLR (Pt.757) 265 at 283; Globe Fishing Ind. Ltd and Ors v. Coker (1990) 7 NWLR (Pt.162) 265 at 297.

That the powers of the Economic and Financial Crimes Commission to attach properties of an accused person reasonably believed to be proceeds of crime are statutorily provided for. He referred to Sections 13(b) and (d), 26, 27, 28 and 29 of the EFCC Act.

That counts 38-44 of the charge at first sight disclose the alleged complicity of the appellant in the commission of assorted Economic/Financial Crimes associated with the 45 counts amended charge in respect of which the Federal High Court made an interim order of attachment of the asset of the appellant on 1st March, 2010, That the Court having made the order on a conviction of the existence of a prima facie evidence that the property is liable to interim attachment, the order can only be liable to being set aside by the applicant showing that there is no prima evidence making the property liable to interim attachment in the first place and that situation has not occurred here. He cited Trade Bank Plc v Chami (2003) 13 NWLR (Pt.836); Shata v FRN (2009) 10 NWLR (Pt.1149) 411; Onagoruwa v. State (1993) 7 NWLR (Pt.303) 49 etc.

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In a nutshell, the appellant contends that the principle for the discharge or setting aside of an interim order applies even under the EFCC Act and that the Court has the discretion to discharge and set aside the interim order of attachment made under the Act aforesaid. That the appellant satisfied all the conditions necessary for the trial Court to set aside its order of 1st March, 2010 and with the Court of Appeal failing to intervene and do that, this Court is empowered by the virtue of Section 22 of the Supreme Court Act to do the needful.
The respondent’s stand is that the EFCC Act has no provision for the discharge or setting aside of the interim order of attachment once made.
The relevant provisions of the Economic and Financial Crimes Commission Act also briefly labelled EFCC Act Sections 26, 27, 28 and 29 provide thus:-
26-(1) Any property subject to forfeiture under this Act may be seized by the commission in the following circumstances.
(a) The seizure incidental to an arrest or search:-
(b) In the case of property liable to forfeiture upon process issued by the Court following an application made by the Commission in accordance with the prescribed rules.
(2) Whenever property is seized under any of the provisions of this Act, the commission may –
(a) place the property under seal; or
(b) remove the property to a place designed by the Commission.
(3) properties taken or detained under this section shall be deemed to be in the custody of the Commission, subject only to an order of a Court,
27(1) where a person is arrested for an offence under this Act, the commission shall immediately trace and attach all the assets and properties of the person acquired as a result of such illegal act and shall thereafter cause to be obtained an interim attachment order by the Court.
28-(1) where a person is arrested for committing an offence under this Act, it shall be obligatory for such person to make a full disclosure of all his assets and properties by completing the declaration of Assets form as specified in Form A of the Schedule to this Act.
(2) The declaration of Assets form shall be forwarded to the commission for full investigation by the General and Assets Investigations unit of the Commission.
(3) Any person who-
(a) Knowingly fails to make full disclosure of his assets and liabilities ; or,
(b) Knowingly makes a declaration that is false; or
(c) fails to answer any question;
(d) fails, neglects or refuse to make a declaration or furnishes any information required, in declaration of Assets Form, commits an offence under this Act and is liable on conviction to imprisonment for a term of ten years,
(4) subject to the provisions of Section 4 of this Act, whenever the assets and properties of any person arrested under this Act are attached, the General and Assets Investigation unit shall apply to the Court for an interim forfeiture order under the provisions of this Act.
29- Where-
(a) the assets or properties of any person arrested for an offence under this Act has been seized; or
(b) any assets or property has been seized by the commission under this Act, the commission shall cause an application to be made to the Court for an interim order forfeiting the property concerned to the Federal Government and the Court shall if satisfied that there is pima facie evidence that the property concerned is liable to forfeiture. Make an interim order forfeiting the property to the Federal Government.
It is not in dispute that there is no provision in the EFCC Act for the setting aside of interim orders of attachment that however cannot be taken as a blanket principle that once the attachment or seizure has been made, it became irrevocable. I say so because, Firstly the attachment under the relevant Sections, 27 28 and 29 of the EFCC Act is done upon an ex-parte interim order. That is outside the knowledge of the contending party and so when circumstances are thrown up which would impel the Court for a re-visit of that order, it behoves the Court of trial that made the interim order in the first place to take a second judicial and judicious look at the matter to see whether or not a need for setting aside or refusing to set

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aside exist. These are within the discretionary powers of the Court subject of course to the availability of sufficient facts and materials to do so. It follows therefore that where that discretionary power to set aside was wrongly applied the appellate Court should remedy the anomaly. I am encouraged in this position by what this Court per Uwaifo JSC stated in A. G. Ondo State v. A.G. Federation and Ors (2002) 9 NWLR (Pt.772) 22 at 420 wherein he stated thus:-
“Section 37 (identical to Section 25 of the EFCC Act) empowers the ICPC (kindred or sister anti corruption agency of the EFCC) to take custody of any movable or immovable property if it has reasonable ground to suspect that it is the subject matter or evidence of an offence committed under the Act. There is nothing unconstitutional in this. As always, if there is an improper seizure or taking of custody of any such property that may be a matter for contention, as appropriate to be decided by judicial process.”
What I am labouring to put across is that while the EFCC Act has made provisions for the forfeiture or attachment of the properties albeit by an interim order obtained ex-parte, the fact that there are no black and white provisions for a reversal does not foreclose the appellant’s constitutional right to cry out that the earlier order was wrongly made and a reversal should be put in place. For this later situation to apply however, the appellant must provide the material supporting the Court’s change of heart to discharge that interim order or setting aside.
See Kasunmu v Shitta-Bey (2006) 17 NWLR (Pt.1008) 422; Abacha v state (2002) 11 NWLR (Pt.779) 437; Itauma v. Akpe-Ime (2000) 12 NWLR (Pt.680) 168 at 180.
In this case at hand, the 1st respondent had in counter affidavit averred inter alia thus:-
“Para 8: our investigation further revealed that the said Mr. Francis Atuche in a bid to conceal the true ownership of the assets and properties in question, employed different individuals and entities, including the applicant, as fronts to disguise the true ownership of the said assets and properties. As revealed by the amended charge in charge No.FHC/L/369c/09
Para 9: Felimon Enterprises Nig. Limited (the Applicant) and Felimon Nigeria Enterprises are one and the same entity and or owned and controlled by the same individual(s) acting as their alter ego as revealed by the Exhibit attached to the further affidavit filed on behalf of the applicant on 23rd March, 2010.”
Those relevant paragraphs of 1st respondent stated that the assets in question are owned indirectly by 2nd respondent, Francis Atuche using different entities including the appellant.
The appellant did not effectively debunk those assertions and present to the Court a contrary persuasive position on which the Court could reverse itself and so since the trial Court, Court below and even the Supreme Court cannot make a consideration or pronouncement in vacuo without reference to peculiar facts with which the particular Court has been confronted, the Court has no option than to leave the situation as it was when this new application was brought before it. I rely on Clement v Iwuanyanwu (1989) 3 NWLR (Pt.107) 39 at 54.
A recourse to the Court of Appeal findings and conclusion per Rita Pemu JCA is instructive. She stated thus:-
“Regarding the issue of Felimon Enterprises Nigerian Limited and Felimon Enterprises, I agree with the learned trial judge, as observed at page 34 of the judgment (page 324 of the record of appeal), where he rightly in my view observed inter alia “…. as a matter of fact, the name Felimon Enterprises features prominently in count 38 of the criminal charge.
I will only say that it is at the stage of the trial that it will be ascertained whether Felimon Enterprises and Felimon Enterprises Nigeria Limited are one and the same. It is also at that stage that it will be determined whether the company is in any way involved in the alleged criminal charge levelled against Mr. Francis Atuche.”
That decision of the Court of Appeal sound as it is and affirming what the trial Court did makes it difficult for me to interfere with it. The reason is that the 1st respondent, EFCC having satisfactorily shown prima facie evidence that the property is a likely proceed of the commission of crime and may ultimately be liable to forfeiture, the appellant then had the burden or onus to show that the assets were rightly acquired by him and not within the purview of the criminal allegations and as I had earlier said the appellant failed in that bid. The expression ‘Prima Facie’ has been held to mean “at first sight “; “on the first appearance”; “on the face of it”; “so far as it can be judged from the first disclosure”, clearly there is the

…………………….E…………………….

presumption that the fact presumed to be truth can only be debunked or disproved by some evidence to the contrary. See Trade Bank Plc v Chami (2003) 13 NWLR (Pt.836) 198; Shata v FRN (2009) 10 NWLR (Pt.1149) 411; Onagoruwa v State (1993) 7 NWLR (Pt.303) 49.
For a fact, the appellant has not produced a superior argument or material upon which this Court can assume the powers pursuant to Section 22 of the Supreme Court Act to do that which the two Courts below should have done. There is no basis to interfere with the concurrent findings of the two Courts below as they stemmed from what was presented before them and were in no way from a perverse angle or from a miscarriage of justice.
This appeal lacks merit and I dismiss it as I affirm the judgment of the Court of Appeal, Lagos Division in its affirmation of the decision and orders of the trial High Court.
Appeal is dismissed.
OLABODE RHODES-VIVOUR, J.S.C.: I read in advance the leading judgment of my learned brother, Peter-Odili, JSC and I agree fully with it, that the appeal should be dismissed. I too dismiss the appeal.
CLARA BATA OGUNBIYI, J.S.C.: This is an appeal from the judgment of the Court of Appeal delivered on 18th January, 2013 which dismissed the appeal from the Ruling of the High Court, wherein the application of the applicant was dismissed. The applicant/appellant, sought inter alia, to discharge the interim order of attachment granted the Respondent on 1st March, 2010 on the ground that the appellant featured prominently in the criminal charge currently pending before the Federal High Court.
The 2nd respondent herein is standing a 44 count charge for several offences under the EFCC Act, the Banks and Other Financial Institution Act. The 1st Respondent by an application brought under Section 27 of the EFCC Act obtained on interim order of attachment of assets including Bank accounts believed to have been used as the conduit to siphon the illegal proceeds of crimes alleged linked to the 2nd respondent; one of such accounts belong to the appellant herein.
Appellant when served with order of attachment filed an application seeking to discharge the interim order thereof made against its assets. The High Court refused to discharge the order and so did the Court of Appeal, predicated on the ground that there was need to determine whether Felimon Enterprises and Felimon Enterprises Nigeria Ltd are one and the same person and this can be determined only at the trial stage. It is only the trial Court that could figure out whether the company is in any way involved in the alleged criminal charge leveled against Mr. Francis Atuche.
ISSUE
Whether in view of the facts and materials placed before the trial Court, the Court below was right in refusing to discharge or set aside the order of interim attachment made against the appellant by Federal High Court.
It is pertinent to state that this appeal is against an exercise of discretion in granting an order of interim attachment of properties believed to be proceeds of crime for which 2nd Respondent is standing trial and which refusal to set aside was on concurrent decisions by the two Lower Courts.
This Court generally is to exercise caution against interference by setting aside unless it is based on wrong principles of law.
The onus is on the appellant to show the good reason for such interference therefore.
It is apt to state that the basis upon which the order was made, was that the subject matter was owned directly/indirectly by Mr. Atuche (2nd Respondent) who is standing criminal trial in charge No.FHC/L/3696/09 and using different entities and persons, the appellant inclusive, as fronts. The case of the 1st Respondent is that the source of money and indeed ownership of those assets and properties were disguised by the 2nd respondent in using the appellant amongst other entities as fronts. Section 26, 27, 28, and 29 of the EFCC Act are all relevant specifically S.26 and S.27.
My learned brother Peter-Odili, JSC has dealt with the appeal adequately and I endorse her judgment as mine.
This appeal has no merit and is dismissed. The Lower Court’s decision is affirmed by me also.
Appeal is hereby dismissed in terms of the lead judgment of my learned brother herein.
AMIRU SANUSI, J.S.C.: The judgment just delivered by my learned brother Mary Odili, JSC was supplied to me before now. I agree with her reasoning and conclusion that this appeal is devoid of merit and deserves to be dismissed. My Lord, Odili JSC had in her judgment, before arriving at her conclusion, ably dealt with all the salient issues raised by the learned counsel for the parties. I have nothing useful to add, except to adopt them as mine. I accordingly dismiss the appeal for being meritless and hereby affirm the decision of the Court of Appeal, Lagos division (the Lower Court). Appeal dismissed.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Mary Ukaego Peter-Odili, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything to add. The appeal lacks merit, and it is accordingly dismissed by me. Judgment of the Court of Appeal Lagos Division is hereby affirmed.
Appearances