LawPavilion Online



(2018) LPELR-44213(SC)

In The Supreme Court of Nigeria

On Friday, the 13th day of April, 2018


Before Their Lordships

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria





Other Citations

; ;


This appeal borders on criminal law and procedure.

This is an appeal against the decision of the Court of Appeal, Port Harcourt Division delivered on the 13th December, 2013, remitting the case to the trial Court for hearing de novo before another Judge.

On 19th October, 2007, the Economic and Financial CrimeS Commission (EFCC) received a petition written by a Law Firm, Charles Eduzor and Associates on behalf of one CHIEF SAMUEL ONOWIGHOSE (the petitioner) calling for investigation of the Appellant. The thrust of the petition is that the petitioner secured a judgment against Nigerian Agip Oil Company Ltd in consolidated suits No. PHC/755/94 and PHC/403/95 to the tune of ???24,005,000.00 (twenty four million, five thousand naira) with 10% as interest until the said judgment sum is paid. When the Nigerian Agip Oil Company Ltd (Judgment debtor) refused to pay the said judgment sum, the petitioner proceeded by Garnishee proceedings against the judgment debtor and their Banker (UBA PLC) as Garnishee in suit No.PHC/421M/2004 by which he obtained Garnishee Order Nisi on 1st December, 2004 which was made absolute on 17th January, 2005 at pages 82-83 and 84 of the supplementary record of appeal respectively.

The UBA Plc (the Garnishee) also refused to pay over the said Garnishee sum to the petitioner in obedience to all the said Garnishee Order Absolute. In order to enforce the said Garnishee Order Absolute against UBA Plc (the Garnishee), the petitioner engaged the services of the appellant with express instructions that the payment of the judgment sum should be made in his (petitioner's) name. In furtherance of this brief, the appellant instituted a Garnishee proceeding in suit No: PHC/1405/2006 against the Banker of UBA Plc (i.e. the Central Bank of Nigeria "CBN") as Garnishee and obtained Garnishee Order Nisi and absolute against CBN on 14th November 2006 and 19th February 2007 respectively.

At the time the judgment was executed on CBN, the judgment sum (???24,005,000.00) plus the accrued interest of 10% rose to ???62,128,415.00 only (Sixty two million, one hundred and twenty eight thousand, four hundred and fifteen Naira) which the CBN paid albeit a fraudulent diversion of the said sum by the appellant to his Law Firm, (E.B. Ukiri & Co) Diamond Bank account against the express instructions of the petitioner to both the CBN and appellant that the money be paid in his name and/or directly into his (the petitioner's) First Bank Plc account which the petitioner furnished the appellant and CBN. And also against the clear and unambiguous order in the Garnishee Absolute Order that "CBN pay to the judgment creditor/Garnishor the money thereby attached" as is glaring ex-facie the Garnishee order Absolute. The petitioner never at anytime agreed with the appellant nor did the Garnishee order absolute direct the CBN to pay the Garnisheed sum through the appellant or his Law Firm.

???Upon receipt of the petition, the EFCC immediately commenced investigation into the allegation therein, the appellant and many others were interrogated at different times and the appellant made statements under caution to the Commission. In the course of investigation, it was discovered amongst other things that:-
(a) The said consolidated suits No.PHC/755/94 and PHC/403/95 given rise to the judgment debt and Garnishee proceedings (suits No. PHC/421M/2004) against the judgment debtor's Bankers (i.e. UBA Plc) was prosecuted by different Lawyers other than the appellant and last before the appellant being one Charles Eduzor Esq., who took over the brief from another Lawyer one ECN lgbokwe Esq.
(b) Before the said Charles Eduzor Esq. took over the brief from ECN Igbokwe Esq. he did an official letter dated 30/3/2006 to ECN Igbokwe Esq. in accordance to the Ethics of the Legal Practice on taking over of brief from a colleague to inquire if he has been properly debriefed by the petitioner to which he (ECN lgbokwe Esq.) responded by a letter dated 10th April, 2006 stating that the petitioner was owing him N350,000.00 as unpaid fees and N200,000.00 as loan allegedly obtained at the instance of the petitioner to execute the judgment which said claims of N200.000.000.00 alleged loan, the Petitioner denied and disputed in a letter to E.C.N Igbokwe Esq. dated 1st August 2006.
(c) It was after Charles Eduzor Esq. and not ECN Igbokwe Esq. that the appellant was briefed by the petitioner to prosecute the execution of the judgment debt plus interest on agreed fees by both parties at 20% of the judgment sum confirmed in a letter dated 29/9/2006 and further correspondence to the effect increasing the appellant's legal fees from 20% to 25% subject to CONDITIONS therein.
(d) Against the express instruction of the petitioner both to the appellant and CBN and also against the express wording of the Court judgment that the sum be paid to the Creditor/Garnishor, the judgment sum plus interest (i.e. N62, 128, 415, 00) was paid by CBN in obedient to the said Court order albeit surreptitious diversion of same by the appellant into his Law Firm Diamond bank Account which he is the sole signatory.
(e) From the said ???62,128,415.00 paid by CBN into his (Appellant's) Law Firm Diamond Bank Account, the appellant only remitted ???24,000.005 (Twenty four million, five thousand naira only) to the petitioner and withheld balance ???38,123,415.00 (thirty eight million, one hundred and twenty three thousand, four hundred and fifteen naira) which the appellant claimed in his letter to the petitioner dated 11th April, 2007 at page 49 of the Record of Appeal that the sum was withheld by him; in view of the dispute over the interest element, the pending appeals and motion thereof, on your entitlement to interest or otherwise on the said debt, the accrued interest would be released to you, subject to your furnishing an indemnity, guaranteed by a reputable Bank in Port Harcourt, of your irrevocable undertaking to refund the interest on the judgment debt, .... The above condition are mandatory if you require the funds to be released to you before the determination of the said appeals and motions.
This said claim by the appellant in the referred letter is contrary to his latter claims that the withheld sum represents his appellant's and his colleagues fees.
(f) Rather as soon as the said N62,129,415.00 was paid by the CBN into the appellant's Law Firm Diamond Bank Account on 3/4/2007, the appellant started dissipating and misappropriating same without any notice of the payment to the petitioner, by using up and trading in said judgment sum save for the sum of N24,005,000 (twenty four million, five thousand naira) the appellant managed to pay to the petitioner on the 10th day of April, 2007 (a week) after CBN paid the money to him.

While this investigation was on going, the appellant filed suit no. FHC/ABJ/CS/280/2008 against the EFCC and the petitioner at the Federal High Court, Abuja Division where the counsel to the EFCC on 13th November, 2008 during one of the proceedings told the Court that EFCC will not do anything that will affect the plaintiff as regards the facts of this case. At the end of the investigation in 2012, the EFCC convinced that there was substance in the allegation in the petition and a prima facie case disclosed against the appellant, filed a 3 count charge of Money Laundering contrary to Section 14 (1) (a) of the Money Laundering Prohibition Act 2004 against the appellant.

The appellant was arraigned before the trial Court on the three count charge of Money Laundering and the appellant pleaded not guilty to the said three count charge on 15th October, 2012. Therefore, the appellant by a motion on notice dated 10th November, 2012 and filed on 20th November, 2012 sought some reliefs from the trial Court. The respondent filed a 68 paragraph counter affidavit. The motion on notice was heard on 7th March, 2013 and Ruling reserved for 30th May, 2013. Before the adjourned date (30th May, 2013) for the Ruling, precisely on 16th April, 2013, the respondent realizing that proof of evidence was inadvertently omitted to be filed along with the charge when the charge was filed on 27th September, 2012, filed proof of Evidence with documents annexed thereof which are the same with Exhibits EFCC1-EFCC 52B attached to the respondents counter affidavit in opposition to the appellant's motion to quash which was served on the appellant. The Ruling was however, not delivered on 30th May, 2013 until 13th December, 2013. The trial judge dismissed the application of the applicant now the appellant, refused the request to quash the three count charge. Aggrieved by the decision, the appellant appealed to the Court of Appeal.

In a judgment delivered on 9th July, 2014 the Court of Appeal struck out 7 of the 14 grounds of Appeal and also struck out 11 of the 12 issues formulated by the appellant but still upheld the appeal of the appellant on the only survived single issue and remitted the case to the trial Court to be heard afresh before another judge of the Federal High Court, Port Harcourt Division. Aggrieved by the decision, the appellant appealed to the Supreme Court.
The Appellant raised two issues for determination, viz:-
(i) Were the learned Justices of the Court of Appeal right in considering and upholding the respondent's Preliminary Objection which had been withdrawn and struck out by the Court of Appeal?
(ii) Were the learned justices of the Court of Appeal right in remitting the case to the trial Court for hearing without considering and determining the merits or otherwise of the appellant's motion to quash/dismiss charge No: FHC/PH/247C/2012, thereby violated the appellant's right to fair hearing.
In conclusion, the apex Court found no merit in the appeal which was accordingly dismissed. The judgment of the Court of Appeal was affirmed.

Read Full Judgment