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THE ECONOMIC AND FINANCIAL CRIMES COMMISSION v. MR. AYODELE FAYOSE & ANOR

(2018) LPELR-44131(CA)

In The Court of Appeal of Nigeria

On Thursday, the 19th day of April, 2018

CA/EK/8C/2017


Before Their Lordships

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria


Between

THE ECONOMIC AND FINANCIAL CRIMES COMMISSION - Appellant(s)

AND

1. MR. AYODELE FAYOSE
(GOVERNOR OF EKITI STATE)
2. ZENITH BANK PLC - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on the propriety or otherwise of a Judge setting aside the judgment/orders of a Court of co-ordinate jurisdiction.
FACTS:
By an originating summons filed on 24/06/2017 at the Ekiti Division of the Federal High Court, the first respondent as claimant raised six questions for determination by that Court.

First respondent sought the following reliefs from the Court by the same summons in the event that his questions are determined in his favour:

1. A declaration that having regard to the provisions of Section 308 of the Constitution of the Federal Republic of Nigeria, as altered, and the entire circumstances of this case taken into consideration, the 1st respondent or any other security agency is not legally empowered to attach the properties of and/or freeze, restrict or block the accounts of the applicant, a sitting governor, while still in office, for alleged offences purportedly committed under the Economic and Financial Crimes Commission Act, 2004, and/ or under any other law or statute.

2. A declaration that Sections 6, 7, 27, 28, 34 and 38 of the Economic and Financial Crime Commission Act, 2004 and any other provision of the same Act do not supersede or override the express provisions of Sections 1(1) and 308 of the Constitution of the Federal Republic of Nigeria, 1999, as altered.

3. A declaration that attaching the property of, freezing, restricting, blocking or purportedly freezing, restricting or blocking of the accounts of the applicant, a sitting governor while still in office, and specifically Account No: 1003126654 and 9013074033, domiciled with the 2nd respondent is illegal, unlawful, wrongful, unconstitutional and ultra vires the powers of the respondents having regard to the clear and unambiguous provisions of Sections 1(1) and 308 of the Constitution of the Federal Republic of Nigeria.

4. A declaration that having regard to the provisions of Sections 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33 and 34 of the Economic and Financial Crimes Commission (Establishment) Act, 2004, 1st Respondent cannot issue nor obtain against the applicant an "interim order of forfeiture", or trace, freeze, or attach the assets, properties, or monies of the applicant without first arresting the applicant "for an offence under this act, (EFCC Act) and without first applying for an obtaining interim order ex-parte from a Court of competent jurisdiction.

5. A declaration flowing from paragraph 4 above, the 1st respondent cannot issue or obtain against the applicant, an interim order of forfeiture, ex-parte, or obtain such ex-parte, or obtain such ex-parte order without first arresting the applicant for an offence and without committing a violent violation of the clear provisions of Section 1(1) and 308 of the Constitution of the Federal Republic of Nigeria, 1999 as altered, and Sections 18, 19, 26, 27, 28, 29 and 34 of the Economic and Financial Crimes Commission (Establishment) Act, 2004.

6. A declaration flowing from paragraphs 4 and 5 above, the 1st respondent cannot legally proceed to attach assets, properties, or monies belonging to the applicant especially the applicant's monies domiciled with the 2nd defendant in account numbers 1003126654 and 9013074033.

7. A declaration that freezing by the 1st respondent of account numbers 1003126654 and 9013074033 belonging to the applicant and domiciled with the 2nd respondent, is illegal, unconstitutional, wrongful, unlawful, null and void and of no effect whatsoever.

8. A mandatory order directing the respondents to immediately defreeze and make operational, the frozen, restricted or blocked accounts of the applicant domiciled with the 2nd respondent, to wit, account numbers 1003126654 and 9013074033.

9. An order or perpetual injunction restraining the respondents, whether by themselves, servants, agents and/or privies howsoever, from further attaching the properties of, or freezing or blocking account numbers 1003126654 and 9013074033, belonging to the applicant domiciled with the 2nd respondent as same constitute a blatant violation of the provisions of Section 1(1) and 308 of the Constitution of the Federal Republic of Nigeria, 1999 as altered.

10. An order awarding the sum of 5 Billion Naira to the plaintiff/applicant against the 1st respondent, only representing punitive, aggravated and exemplary damages for the illegal and unconstitutional acts committed by the 1st respondent against the applicant.

11. Costs of the suit.

And for such further or other orders as this Honourable Court may deem fit to take in the circumstances of this case.

Appellant opposed the action by filing a counter affidavit together with a written address. In opposition, he argued, among others, that that Court cannot properly entertain the summons because it virtually sought the Court to set aside the orders of Idris J, of the Lagos Division of the same Federal High Court, a Court of coordinate jurisdiction, freezing the same accounts. Taiwo J. of the Federal High Court Ekiti Division to whom the case was assigned did not see with appellant. He dismissed all its arguments and entered judgment in favour of 1st respondent de-freezing his said accounts. 

Appellant, being dissatisfied with that judgment, lodged this appeal.

ISSUES:
The appeal was determined on the following issues:
1. Whether having regards to the facts and circumstances of this case the Court below has the requisite jurisdiction to order the appellant and the 2nd respondent to jointly or severally unblock and make operational account Numbers 100312665 and 9013074033 belonging to the 1st respondent notwithstanding an existing order of the Federal High  Court, Lagos Judicial Division made by Hon. Justice M.B. Idris. 
2. Whether having regards to the facts and circumstances of this case, the learned trial judge was not in error when he held that not hearing the 1st respondent was a breach of his constitutional right.
3. Whether the lower Court was not in error when it held that having regard to the provisions of Section 308 of the Constitution and the circumstances of this case, the appellant has no power to freeze the account of the 1st respondent being a sitting Governor.

DECISION/HELD:
The appeal was allowed, the judgment delivered by Taiwo J. of the Federal High Court, Ekiti Judicial Division, on 13/12/2016 granting the claims of 1st respondent in Suit FHC/AD/CS/27/2016 was set aside.


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