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Before Their Lordships
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
Between
FELIMON ENTERPRISES LIMITED – Appellant
AND
THE CHAIRMAN, ECONOMIC AND FINANCIAL CRIME COMMISSION & ANOR – Respondents
…………………….A…………………….
MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Lagos Division or Court below or Lower Court Coram: Adamu Jauro, Rita Nosakhare Pemu and Fatimo Omoro Akinbami JJCA which lead judgment was delivered by Rita Pemu JCA on the 18th day of January, 2013 affirming the decision of the Federal High Court, Lagos dated 6th July, 2010 per A. O Ajakaiye J.
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
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
…………………….B…………………….
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