IN THE COURT OF APPEAL
FEDERAL REPUBLIC OF NIGERIA
(DELIVERED BY SAIDU TANKO HUSAINI, JCA)
This appeal is against the ruling of the Federal High Court, Yola delivered on the 11th day of May, 2015 dismissing the Motion on Notice filed by the Appellant on 18/5/2015 seeking the release of his Mitsubishi Pajaro Jeep with registration No. CL488 JJJ from the custody of the National Drug law Enforcement Agency or the respondents.
The background facts to this case appeal can be traced to the arrest of the appellant, Dantsoho Alhassan. It was on the 25/8/2011. He was riding in his Mercedes Benz Car with registration No. AU 927ABC when along Ngurof-Numan Road he was forced to halt by a group of officers from National Drug Law Enforcement Agency who demanded to know from the Appellant the contents of the bag he was carrying in the boot of his Mercedes Benz Car. There and then the appellant was arrested along with one other person in the car by the name Abdullahi Adamu (Pw3). At the close of investigation, the appellant and him alone was charged to Federal High Court Yola for being in possession of 7.4 kilogrammes of a substance suspected to be Cannabis Sativa (Idian hemp) contrary to and punishable under Section 19 of the National Drug Law Enforcement Act, Cap N.30 Laws of the Federation of Nigeria 2004 and prosecuted accordingly. At the close of hearing of his case at Federal High Court, Appellant was convicted and sentenced to a term of imprisonment of 3 years without an option of fine, in the Judgment delivered at that Court on the 2nd November, 2012 in charge or Suit No. FHC/YL/128c/2011, Coram: Justice S. ,M. Shuaibu. Facts on record reveal that on that same date that Judgment was delivered the Appellant drove himself to premises of the Federal High court in a Mitsubishi Pajero Jeep but the officers of the National Drug Law Enforcement Agency had cause to impound this car upon the appellant being convicted and sentenced for the offence he was charged. Record reveal that the appellant has since served the term of his imprisonment.
After conviction and sentence of the appellant, counsel who prosecuted the case filed a Motion on Notice on the 1st February, 2013 seeking an order forfeiting 2 (two) vehicles belonging to the Appellant to the Federal Government of Nigeria pursuant to the provision of Sections 32 (c), 33 (1) (a) and 27 (1) (c) of the National Drug Law Enforcement Agency Act. The vehicle in question are: (i) the Mercedes Benz with Registration Number AU927ABC and, (ii) Mitsubishi Jeep with Registration Number CL 488 JJJ.
Upon the hearing of the application, the Court in a considered ruling delivered on the 14th February, 2013 granted same and ordered the forfeiture of the Mercedes Benz Car to the Federal Government of Nigeria pursuant to section 27 (1)(c) of the National Drug Law Enforcement Act. As for the Mitsubishi Jeep, an order of interim forfeiture of same was made pending investigation into the source of the procurement of the said vehicle by the appellant. See Respondents additional record of Appeal from page 61, particularly at page 65. There was no appeal against the ruling. The same court had earlier on the 30th January, 2013refused the application of the appellant seeking for, among other reliefs or prayers, the release of the appellants Mercedes Benz Car, V-Boot and Mitsubishi Pajero Jeep to him vide the ruling delivered on the 30th January, 2013, the reason being that to grant the request would over reach on the application filed by the National Drug Law Enforcement Agency seeking to forfeit those same vehicles but which application was still pending before the court.
On 1st December, 2014the appellant by a Motion on Notice prayed the trial Federal High Court for the release of the same Mitsubishi Pajero Jeep to the Appellant. This application was heard, refused and dismissed on the 11th May, 2015 wherein the Federal High Court in its ruling at page 74 of the record held that the Appellant:
is bound to explain the source of the vehicle to the NDLEA an having fault (sic) to report, he cannot ask the court to release the Jeep to him.
Still not done, the appellant by another Motion dated the 18th May, 2015 prayed the court below to release to him the Mitsubishi Pajero Jeep. See pages 77 81of the printed record. At the hearing of this application on the 8th June, 2015 the court again dismissed same and held thus:
This was dismissed earlier, the applicant can only go on appeal because I have become funtus offcuor (sic) on the matter. This application is dismissed for being, an abuse of courts process. The objection of the respondent has merit and it is upheld.
See pages 89 90 of the printed record.
The appeal to this Court is not against this decision but against the earlier ruling delivered on the 11th May, 2015, wherein by the Notice filed on the 6th July, 2015 the appellant appealed on three grounds. See pages 91 94 of the printed record of appeal. The record was deemed as properly transmitted to this court on the 16th May, 2016. I will now reproduce in full all the 3 (three) grounds of appeal as appear on record together with the particulars which accompany the grounds as follows:
1. GROUND ONE
The learned trial Judge erred in law when he dismissed the Appellants Motion seeking an order of the lower Court releasing the Appellants vehicles Mitsubishi Pajero Jeep with registration No. 488 JJJ to the Appellant which was seized by the national Law Drug Enforcement Agency (NDLEA) and had remained in its custody.
PARTICULARS OF ERROR:
a. The Appellant was convicted by the Federal High Court, Yola Division, Adamawa State on 2nd November, 2012 for the offence of Knowingly possessing cannabis sativa in Charge No. FHC/YL/128C/2011dated and filed on 15th November, 2011
b. The appellant was released from Yola Prison custody on 1st November, 2014having fully served his said term of imprisonment and while still pursuing his appeal against the conviction.
c. The Appellants vehicle, a Mitsubishi Pajero Jeep with Registration No. CL 488 JJJwas impounded from the Appellant in the premises of the Federal High Court, Yola Division immediately after the conviction of the Appellant by the Federal High Court, Yola Division on 2nd November, 2012and the vehicle was later moved and detained by the officer of the National Drug Law enforcement Agency (NDLEA) at their Adamawa State Command Headquarters, Jimeta up till the time the Appellants motion of 1st December was filed at and determined by the lower court.
d. There was no order for the forfeiture of either the Appellants said Mitsubishi Pajero Jeep with Registration No. CL 488 JJJ or the Appellants Mercedes Benz V. Boot car with which the said offence was alleged to have been committed by the Appellant and neither of the vehicle had been released to the Appellant by the National Drug Law Enforcement Agency.
e. By virtue of the provision of the National Drug Law Enforcement Agency Act, Cap No. 30 Laws of the Federation of Nigeria under which the Appellant was convicted, the Respondent ought to have obtained a final order of the Federal High Court for the forfeiture of any property, real or personal of the Appellant before such property could be permanently seized by the Respondent.
f. No order of forfeiture interim or final was produced before the trial Judge by the Respondent before the Court dismissed the Appellants Motion for the release of the vehicle, Mitsubishi Pajero Jeep
g. The trial Court had no basis in law to refuse and/or dismiss the appellants application for the release of the vehicle
2. GROUND TWO:
The lower Court erred in law when it held as follows:-
The applicant is bound to explain the source of the vehicle to the NDLEA and having faults (sic)to report, he cannot ask the court to release the Jeep to him
PARTICULARS OF ERROR:
a. There was no credible evidence before lower court that the Appellant failed, refused or neglected to make himself available for any investigation in respect of the Mitsubishi Pajero Jeep seized by the Respondent.
b. There was no evidence before the trial Court that the Appellant was contacted by the 1st Respondent or properly contacted to enable the Appellant explain the source of the vehicle seized by the Respondent.
c. Nothing in law prevented the Respondent or the national Drug Law Enforcement Agency from contacting the Appellant while serving his term of imprisonment at Yola prison in order to fully investigate the Appellant regarding the seized vehicle.
d. The judgment convicting and sentencing the Appellant on 2nd November, 2012was delivered by Honourable Justice S. M. Shuaibu and not the Honourable Justice B. B. Aliyu who dismissed the Appellants application for the release of the seized vehicle.
e. There was no basis in law or in fact for the holding of the learned trial judge
f. The finding and decision of the learned trial judge is a flagrant breach of the Appellants constitutional right to fair hearing
3. GROUND THREE:
The Ruling/Judgment of the lower Court is against the weight of evidence.
In line with the rules of this court parties on both sides filed and exchanged their briefs of argument.
The brief of argument for the appellant dated the 18th May, 2016 was filed on the 19th May, 2016.In it he raised just one issue for determination at page 5, thus:
Whether having regard to the relevant provisions of the national Drug Law Enforcement Act, Cap N30, 2004, laws of the Federation of Nigeria and the affidavit evidence filed by parties in relation to the Appellants application filed on 1st December, 2014, the trial court ought not to have granted the said application?(Grounds 1, 2 and 3).
Upon the Appellants brief being served, the Respondent on the 20th may, 2016 and at page 6 thereof raised three (3) issues for determination of court, thus:
i. Whether having regard to the relevant provisions of the National drug law Enforcement Agency Act Cap N30 Laws of the Federation of Nigeria 2004, the affidavit evidence before the court and the subsisting order of interim forfeiture of the Mitsubishi Pajero Jeep, the learned trial Judge was right in law dismissing the Appellants Motion for the release of the same Mitsubishi Pajero Jeep to the applicant/appellant (Ground 1, 2 & 3).
ii. Whether the Appellant is not bound by the subsisting order of court for the interim attachment of the Mitsubishi Pajero Jeep to the NDLEA pending investigation, which order has not been appealed against and or discharged (Ground 1, 2 & 3).
iii. Whether this present appeal is competent in the light of issues 1 and 2 above (Grounds 1 2 & 3)
On the 23rd May, 2016 the appellant filed a Reply brief of argument ostensibly in response to the brief of argument for the Respondent earlier served on him and thus the stage was set for the hearing of the appeal which came on the24th May, 2016. Parties on both sides were each represented by counsel who adopted their respective briefs of argument. Mr. Hassan T. Fajimite has urged on the court to allow the appeal. Contrariwise is the prayer coming from B. S. Abdullahi, learned counsel from the respondent. He urged us to affirm the decision of the court below, that is to say, to dismiss this appeal.
I will examine each of these claims in the course of this exercise. But first, I want to make an observation, just one (1) and this is as regards the 3 (three) issues formulated by the Respondent in their brief of argument. Issue 1 is derived from all the three grounds of appeal. i.e grounds 1, 2 and 3. Issue 2 (two) is similarly derived from those same grounds of appeal i.e grounds 1, 2 and 3. Ditto issue No. 3 as having been derived from Grounds 1, 2 and 3 of the grounds of appeal.
By this arrangement it means that the respondent has formulated or distilled 3 issues from each and every ground of appeal as to render incompetent all the issues distilled by them in their brief of argument. The multiplicity of issues more than the grounds of appeal should be discountenanced. It amounts to proliferation of issues which is not acceptable. See: Agbetoba V. L.S.E.C. (1991) 4 NWLR (Pt. 188) 664 Nwankwo V. Yaradua (2010) 12 NWLR (Pt. 1209)578 (SC); Unilorin Vs. Oluwadare (2003) 3 NWLR (Pt. 808) Pg. 557. For this reason therefore, I will prefer and abide by the sole or lone issue formulated in the appellants brief of argument in addressing this appeal. The Issue again, for the avoidance of doubt is:
Whether having regard to the relevant provisions of the national Drug Law Enforcement Agency Act, Cap N30, 2004, Laws of the Federation of Nigeria and the affidavit evidence filed by parties in relation to the Appellants application filed on 19th December, 2014 the trial Court ought not to have granted the said application? (Ground 1, 2and 3).
The appellant in answer to the question raised above returned an affirmative answer in that the court below ought to have granted the request or prayers before it and release to the appellant the Mitsubishi Jeep in the custody of the respondent or the agency, the Nation Drug Law Enforcement Agency. To them, it is wrong in law and on the facts for the trial court to have dismissed that application rather than granting it.
Learned appellants counsel alluded to the provision of the National Drug law Enforcement Agency Act CapN30, to Section 34 in particular, to submit that the provision vest on the Agency the power to trace and attach all or any asset once any person was arrested in connection with any offence under this law. He argued that the appellant having been arrested and detained he has since the 25th August, 2011 and only released on the 1st November, 2014 at the completion of his sentence, he was virtually in the custody of the respondent and the respondent had access to him, the appellant. Consequently argued the learned counsel, it was incongruous of the respondent to contend that the appellant refused to submit himself to them for the purpose of investigating the source of the acquisition of that vehicle as directed by the court below.
According to the learned counsel for the appellant, there being no final order of forfeiture of the Mitsubishi jeep to the respondent, the court below was in error to refuse their application seeking for the release of the said vehicle and the affidavit in support of their application particularly paragraph 4 (e) and (f) at page 59 of the printed record which it is argued were not controverted by the party on the other side. Those averments he said are deemed as admitted relying on Nwosu v. I.S.E.S.A (1990) 1 NWLR (Pt. 135) 688. He referred to section 37 of National Drug Law enforcement Agency Act. This refusal to release the vehicle he said, impacted negatively on the appellants right to the ownership and use of his property, the Mitsubishi Jeep in reference, to Section 44 of the Constitution of the Federal Republic of Nigeria and Section 37 and 38 of the National Drug Law Enforcement Agency Act, 2004. Learned appellants counsel urged on this court to set aside the order of the trial court refusing and dismissing appellants Motion of the 1st December, 2014, Relying on the decision in State V. Ajie (2000) 8 WRN 1. It was argued that where a trial court wrongly applied facts in an affidavit evidence or where inference drawn from those facts are erroneous or where the findings and/or conclusion of the trial court are not reasonably justified or supported by the applicable law, an appellate court would hold such findings or conclusions of the trial court perverse and therefore set aside same especially where a miscarriage of justice has been occasioned. Such conclusion he argued, is perverse. He urged on the court to so hold and allow this appeal on this lone issue.
Arguing per contra on the same issue counsel for the respondent is of the opinion that the interim Order of forfeiture of the Mitsubishi Pajero Jeep made by the court below and the ruling of the said court refusing the appellants application for the release of the said vehicle were in order.
Drawing inspiration from the provision of the National Drug Law Enforcement Act, particularly Section 3 (1) (c) (f), 27, 31 and33 learned respondents counsel argued that the Act empowers the National Drug Law Enforcement Agency to identify, trace, freeze, confiscate or seize proceeds derived from drug related offences or property. Citing further the constitution of the Federal Republic of Nigeria at Section 250 (1) and Section 26 of the Act he argued that the Federal High Court has jurisdiction to adjudicate on drug related matters to grant or refuse the prayers of the appellant and the court below rightly refused the prayers for the release of the Mitsubishi Pajero Jeep to the Appellant. He submits further that even on the state of the affidavit evidence the court below was right in refusing the Motion for the release of the vehicle.
In reference to the counter-affidavit filed by them (respondent) at the court below in respect of the Motion, the ruling of which give rise to this appeal was definitive when they referred to the appellant as major dealer in drug in the North-East region and a second time offender.
On the reason why the respondent suspended further investigation of the appellant, counsel attributed this suspension to the fact that the appellant (as convict) was at that time serving a jail term in prison and he needed time and opportunity to be heard and to defend himself. Still by reference to the counter-affidavit at the court below, learned counsel in his brief argued that the appellant denied all invitations extended to him for the purpose of investigation and proof of the ownership of the Mitsubishi Jeep.
It is further argued that the appellant is a drug peddler who has no other trade. Learned respondents counsel further contends that all the facts adumbrated above in the counter-affidavit before the court below were never controverted hence same all are taken as admitted relying in Asikpo V. George (2013) All FWLR (Pt. 690) 1426, 1438.
According to the learned respondents counsel, those grave depositions in the counter-affidavit not having been debunked by the Appellant and the fact that the Appellant had failed to submit himself to investigation and thus frustrating same, he (appellant ) was not entitled to the order sought at the Federal High Court vide the Motion on Notice filed by him. It is further argued that evidence of proof of ownership of the Mitsubishi Jeep was imperative in an application such as this hence the appellant cannot in his claim for an order for the release of the vehicle if he failed to prove his ownership of the Mitsubishi Pajero Jeep.
In reference to the ruling made or delivered at the court below on the 14th February, 2013 and as captured by the enrolled order dated 4th February, 2014 granting interim attachment of the Jeep to the National Drug Law Enforcement Agency or the respondent pending investigation, the Appellant cannot approach this Court for the release of the same Mitsubishi Pajero Jeep since the order of the Court below has not been appealed against or set aside. He argued that the appellant has a duty to obey the order of a court whether made for or against his interest until such order is set aside. He cited the decision in Attorney General Anambra State Vs. Attorney General of the Federation (2005) All FWLR (Pt. 268) 1557, 1584 and Odu Vs. Jolaoso (2005) All FWLR(Pt. 262) 428, 442. He submitted that the order of interim attachment of the vehicle as done at the court below has not been set aside and the same still subsists whether or not it was made by a different Judge as far as it was/is an order of the same Federal High Court.
There being no appeal against the order of interim attachment of the property or vehicle, the appeal to this Court seeking for the release of the Mitsubishi Jeep, constitute an abuse of court process, wanting in bonafide and that same is frivolous. He cited and relied on Ogoejeofor v. Ogoejoefor (2006) All FWLR (Pt. 301) 1972, 1802-1803; A.R.C. vs. J. D. p. Construction (Nig.) Ltd (2003) All FWLR (Pt. 153) 251, 270.
It is respondents further submission that once a court in satisfied that any proceedings before it is an abuse of process it has the power to strike it out. He cited Christian Outreach Ministry Inc. V. Cobham (2006) All FWLR (Pt. 310) 16 75, 1691. Learned respondents counsel urged on the court therefore to dismiss this appeal.
In response to those submission of counsel for the Respondent is the Reply brief filed on behalf of the Appellant on the 23rd May, 2016 wherein it is argued par contra that in relation to paragraph 5.3 and 5.4 in the
Respondents brief of argument on the jurisdiction of the Federal High court to entertain the case as it did and raised by the respondent in his brief was outside the scope that this appeal relates and for which reason, it is urged on the court to discountenance same. Learned counsel referred us to the decision in Chukwema V. ifeloye (2009) All FWLR (Pt. 460) 629, 650; Fawami Ali vs. Alesinloye (2000) 16 WRN 1, 37.
In reference to the submission of the respondents counsel at paragraph 5.6 and 5.7oftheir brief of argument that the counter-affidavit filed by the respondent was not challenged or controverted so far as it relates to paragraph 11 of the said counter-affidavit it is argued, contrariwise that the said paragraph 11 only relate to the previous counsel, and that the appellant not being in the know of those averments, it cannot be held against him. He urged us to so hold.
On the question of the ownership of the Mitsubishi Jeep and the proof to ownership, learned counsel for the appellant submitted that the vehicle is vested in the appellant and he argued stating in any case that the question of the ownership of the Mitsubishi Jeep was not the issue in the appeal before this court.
On the issue of the subsisting order of forfeiture of the Jeep by the Federal High court, the appellant argued that his application was not predicated on the propriety or otherwise of the order for interim forfeiture of the said car and therefore the subsistence of the order does not in law practice the grant of the application for the release of the car since no final order for its forfeiture was made by the lower Court as at the time the application was determined.
Arguing par contra to the submission made at in the respondents brief of argument at page 14 -15, learned counsel for the appellant submits that it does not amount to an abuse of court process for the appellant to seek for an order for the release of his car since no final order of the court has been made forfeiting the car. He urged on the court therefore to discountenanced the submission of the respondent and allow the appeal and grant the reliefs sought for in this appeal.
In beginning this exercise I gave a short resume of the case leading to this appeal. The appellant is a convict by reason of the Judgment of the Federal High Court delivered on the 2nd November, 2012 in charge No. FHC/YL/128C/2011 This fact is not in dispute. Also not in dispute is the fact of several or multiple application which follow as a consequence of the Judgment by which the appellant was convicted and sentenced to a term of imprisonment. These various applications, reference to which I have already made, sought a variety of reliefs.
It is important to note that at the time the appeal to this court was lodged there have been a number of existing orders of the Federal High Court in terms of:
i. The ruling and orders made on the 30th January, 2013vide Suit No. FHC/YL/128C/2011wherein the court refused the grant of the application to release 2 vehicles i.e. Mercedes Benz Car. V-Boot and Mitsubishi Pajero Jeep. See page 56 of the Respondents additional record of appeal.
ii. The ruling delivered on the 14th February, 2013videCharge No. FHC/YL/128C/2013wherein the court, (a) ordered the forfeiture of the Mercedes Benz , V-Boot car Registration No. AU 927 ABC to the Federal Government of Nigeria. (b) ordered for the interim forfeiture of the Mitsubishi jeep with Registration No. CL 488 JJJ and for the officers of the NDLEA to hold the Jeep pending investigation into the source of its procurement by the Appellant. See page 65 of the Respondents additional record of appeal
iii. The ruling of the 11th May, 2015dismissing the application seeking for the release of the Mitsubishi Pajero Jeep. See page 75 76 of the main record of appeal.
iv. The ruling of the 8th June, 2015dismissing the application by appellant filed on the 18th May, 2015 for the release of the Mitsubishi jeep. See pages 89 90 of the printed record of appeal.
All those various applications and rulings made thereto were sought or made pursuant to the relevant provisions of the National Drug Law Enforcement Agency, Cap N. 30, LFN, 2004.Counsel in their respective briefs of argument have alluded to some of these provisions. I have in mind provisions at Sections 3 (1) (c) (f), 26, 27, 31, 32, 33, 34 36, 37 38 and 41 among others of the National Drug Law enforcement Agency Act.
There is the need, I think to reproduce some of these provisions of the National Drug Law Enforcement Agency Act so as to derive home some points as follows:-
3(1) Subject to this Act and in addition to any other functions expressly conferred on it by other provisions of this Act, the Agency shall have responsibility for-
(a)x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x xx x x
(b)x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x
(c)adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from drug-related offences or property whose value corresponds to such proceeds.
x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x
(f) adoption of measures which shall include coordinated preventive and repressive action introduction and maintenance of investigative and control techniques;
26(1) the Federal High Court shall have exclusive jurisdiction to try offenders under this Act.
(2) the Federal High Court shall have power to impose the penalties provided for in this Act.
27(1) Any person convicted of an offence under this Act shall forfeit to the federal Government
(a) all the assets and properties which may or are the subject of an interim order of the Federal High Court after an attachment by the agency as specified in section 34 of this Act;
(b) any asset or property constituted, or derived from, any proceeds the person obtained, directly or indirectly, as a result of such offence not already disclosed in the Asset Declaration Form or not falling under paragraph 9a) of this subsection;
(c) any of the persons property or instrumentalities used in any manner or commit or to facilitate the commission of such offence not already disclosed in the Assets Declaration Form or not falling under paragraph 9a) of this subsection.
(2) The Federal high Court in imposing sentence on such person, shall order, in addition to any other sentence imposed pursuant to section 11 of this Act, that the person forfeit to the Federal Government all property described in subsection (1) of this section
31 The following property is subject to forfeiture to the Federal Government and no other propriety right shall exist in them-
(a) Any property, real or personal, which represents the gross receipt a person obtains directly as a result of the violation of this act or which is traceable to such gross receipts;
32 Without prejudice to the provision of any other law permitting the forfeiture of property, the following shall also be subject to forfeiture under this Act and no propriety right shall exist in them-
(c) all instrumentalities of conveyance, including aircraft, vehicles, or vessels which are used or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession or concealment of substances described in paragraph (a) or (b) of this section
33(1) Any property subject to forfeiture under this Act may be seized by the Agency in the following circumstances
(a) if the seizure is incidental to an arrest or search;
(b) in the case of property liable to forfeiture upon process issued by the federal High Court following an application made by the Agency in accordance with the prescribed rules
(a) the assets or properties of any person arrested for an offence under this Act,
(b) any asset or property has been seized by the Agency under this Act, the Agency shall cause an application to be made to the Federal High Court for an interim order forfeiting the property concerned to the Federal
Government and the Federal High 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
37 Where an arrested person convicted of an offence under this Act, the Agency, or any authorized officer, shall apply to the Federal High Court for a final order of confiscation and forfeiture of the convicted persons assets and properties already subjected to an interim order under this Act.
As can be seen from the above provisions, the National Drug Law Enforcement Agency Act empowers the agency to arrest and investigate any person whom the agency reasonably suspects or believes has committed an offence under the Act and to inspect or carry out a search of any means or instrumentality which the agency believes is connected with the commission of the offence involving prohibited drugs and to impound such carriers or properties.
In the event of conviction and sentencing of such person by the Federal High Court after prosecution, the agency shall apply to the same court for final order forfeiting any assets of the convict seized and is connected to the case, to the Federal Government of Nigeria including assets or properties of the convict already subject to an interim order pursuant to the Act. That is the law as clearly spelt out in the various provisions under reference.
The issue in this current appeal is the propriety or otherwise of the refusal by the court below to release to the Appellant, the Mitsubishi Pajero Jeep, in respect which, there is an existing interim order of court forfeiting the vehicle to government by reason of the ruling delivered at the Federal High Court Yola on 14th February, 2015. That ruling or order is contingent upon an investigation being conducted into the source of the procurement of the said vehicle. It is thus not a final order. An order is interim when it is temporary or provisional. It is not absolute yet or final. It is merely a transistory order and can only become absolute or final upon the happening of the event as stated before that is, the holding of an investigation into the source of the procurement of that vehicle. See: Kotoye V. CBN (1989) 1 NWLR (Pt. 98) 419. The question now is whether that event has taken place? Has the agency fully conducted investigation into the sources of procurement of the Mitsubishi jeep as directed by the court below?
In the brief of argument filed and exchanged by counsel on both sides, are arguments and counter-arguments as to who is to blame for the failure in the investigation being carried out by the Agency.
For the counsel to the appellants, the argument has been that the appellant even though convicted and sentenced and incarcerated in prison, he was nevertheless in the custody of the respondent and as such respondents had access to him even during that period the appellant was in prison and thus carry out the desired investigation if respondent (NDLEA) so wished but they failed. See paragraphs 2.6-2.11 of Reply brief at pages 3-4.
In contrast, the respondent argue that the agency was adviced to suspend further investigation into the matter to allow the appellant serve and complete his sentence in prison but upon the completion of his term of imprisonment the appellant was invited for the purpose of carrying out but further investigation but the appellant rebuffed and refused to honour that invitation. See: paragraphs 5.5 to 5.9 of the respondent brief of argument at pages 8-12.
The submission made by counsel for the appellant upon which this appeal is hinged therefore is that since there had been no final order of court in relation to the Mitsubishi Vehicle confiscating same nor a provision in the national Drug law Enforcement Agency Act requiring the respondent to obtain a final order of the trial court before it could forfeit and therefore permanently seize any property of the appellant after conviction, then this court on appeal can set aside the order of the trial court refusing and dismissing appellants Motion on Notice of 1st December, 2014 seeking the release of his vehicle. See argument of counsel at paragraph 4. 16 in the appellants brief of argument. I do not think this submission of counsel for the appellant represent the state of the law in view of Section 37 of the National Drug law Enforcement Agency Act, cap N. 30 LFN, 2004 which provide thus;
Where an accused person is convicted of an offence under this Act, the Agency or any authorized officer, shall apply to the Federal High court for a final order of confiscation and forfeiture, of the convicted persons assets and properties already subject to an interim order under this Act.
Words underlined for emphasis. There is thus a requirement for an application by the agency to the Federal High court for a final order confiscating the property as in this case, of the property of the appellant, subject of interim order. But as the facts in this case reveal, where it is required of the Agency to conduct or carry out an investigation, an application to the Federal High Court to make a final order cannot be made in my view , unless and until the investigation was completed. Thus the holding of an investigation as in this case is a condition precedent. The question still is whether that investigation into the procurement of Mitsubishi jeep was fully conducted and if not what is it that was responsible for the non-completion of that investigation. Let us take another look at the facts, in particular the facts of the application, the ruling of which gave rise to this appeal:
The Appellant approached the Federal High Court on the 1st December, 2013by way of the Motion on Notice of the same date and prayed for an:
order against the respondent to release the vehicle (Mitsubishi Pajero Jeep) of the applicant with registration number CL 488 JJJ which is in the custody of the national Drug law Enforcement Agency (NDLEA) Yola command
The appellant in the supporting affidavit deposed to through one Joseph Williams, a lawyer, stated diverse facts and consistences why the application should be granted. In particular he deposed that he was released from prison in November, 2014 after serving his terms of imprisonment that he, the appellant was earlier arrested by officers of NDLEA on the 25th August, 2011 and remained in their custody for about 2 weeks before his transfer to Yola prison on the order of court, that upon his conviction on the 2nd November, 2012 he was referred to Yola prison where he served and completed his sentence, that by a final order of forfeiture his V-Boot Mercedes Benz car with which he conveyed the illegal drugs was confiscated; that his Mitsubishi jeep was impounded after his conviction on the 2nd November, 2012; that he acquired the said Jeep through his legitimate earnings as a businessman and politician; that no final order was made relating to the said vehicle but only an interim order; that he has for many years been engaged in transport business and also inherited properties from his father and proceeds he realized from the sale of one of those properties, to purchase the Mitsubishi jeep, whose Registration number is CL488 JJJ; that no investigation has been conducted by National Drug Law Enforcement Agency or any of the officials of the agency as to how he acquired the vehicle; that while he was in the custody of the national Drug law Enforcement Agency and even till date nobody has asked him to fill a declaration of asset form; that it will amount to double jeopardy for him to be subjected to the loss of his vehicle after he has already served the prescribed prison term for the offence which he committed; that there is nothing linking the said Mitsubishi Pajero Jeep with the offence for which he was convicted. See page 57-60 of the printed record.
In the counter-affidavit filed by the respondent at the court below on 9th December, 2014 in opposition to the application are facts deposed to that the appellant had been a defendant in different cases for dealing and being in possession of prohibited drugs; that the appellant was a second time drug offender; that he was one of the major illicit drug dealers in the North Eastern Nigeria; that the investigation of the appellant in connection with the acquisition of the Jeep was suspended to enable appellant complete his jail term; that the appellant completed his jail term sometimes in November, 2014 and was invited by the agency to their office through his agent for investigation in respect of the Mitsubishi Jeep; that counsel to the respondent D.S. Abdullahi met the appellant at the premises of the Federal high Court, Yola and requested him to report to National Drug Law Enforcement agency Area Command for investigation on the Mitsubishi jeep; that the appellant did not report for investigation; that it is not in the interest of the appellant to take further steps on the Mitsubishi jeep without hearing from him; that the respondent (NDLEA) prior to this time had no contact with the applicant; that the appellant has no other means of income than trade in illicit drug; that the appellant refused to forward to the National Drug Law Enforcement Agency the particulars of the said Jeep for investigation and proof of ownership; that the respondent is in custody of the preliminary report of investigation on the Mitsubishi Jeep and are ready to submit same to court.
Those are the facts placed before the Federal High Court on the 11th May, 2015 when it heard and dismissed the appellants application dated and filed on the 1st December, 2014. See pages 75-76 of record. it is instructive to note that by the counter-affidavit at pages 64-66 of the printed record, the respondents at their paragraph 11 (a) (f) thereof raised issues regarding the invitation extended to the appellant to report at the office of the National Drug law Enforcement Agency at Numan with a view of proceeding to conclusions the investigation into the forfeiture of the Mitsubishi jeep but which the appellant did not respond to. This fact stands admitted so far as there is no reply to the counter-affidavit of the respondent by the Appellant on this very important point as to whose fault it was who frustrated all efforts being made to get to the root of the source of the procurement of the Jeep Car. When facts deposed to in an affidavit are unchallenged, the Court may accept those facts as true and correct. In Chief salami V. Adesina V. Commissioner Boundary Commission (1996) LPELR-148 (SC) the apex Court held:
If a party deposed to certain facts in an affidavit, his adversary, who wishes to dispute the facts so stated has a duty to swear to an affidavit to the contrary, otherwise the facts deposed to may be regarded as duly established per Adio, JSC.
See further decision in Ajomale V. Yaduat (No. 2) (1991) 5 SCNJ 178, 184; Attorney General, Plateau state Vs. Attorney General Nasarawa State (2005) 4 SCNJ 120, 125 Eze V. State (1985) 3 NWLR )Pt. 13) 429; Adejumo Vs. Ayantegbe (1989) 3 NWLR(pt. 110) 417. Therefore, the appellant having failed or refused to submit himself to investigation on the source of the acquisition of the Mitsubishi Jeep as directed by the Court below, was by that act of refusal or failure, is a disobedience of court Order. But parties or litigants before a court have a duty to obey the order of court affecting them so long as they exist hence the party in disobedience can be punished for it see Platinum bank V. Tari International Ltd (2008) LPELR-4855 (CA) ; Oshiomhole v. Federal Government of Nigeria (2005) 1 NWLR (Pt. 905) 414; Odu V. Jolaoso (2005) 1 NWLR (Pt. 950) 178. The effect of this failure of appellant to submit to investigation by the Respondents (NDLEA) means that investigation cannot be concluded or be completed and where investigation was not concluded there would be nothing or no application can be made relative to the existing order of interim forfeiture to the Federal High Court urging it to take appropriate action as to make the forfeiture absolute or final. Se: section 37 of the National Drug Law Enforcement Agency Act, Cap No. 30, 2004 Act.
As it appears to me based of course on the facts on record, the appellant by the application made by him to the Court below, for the release of the Mitsubishi Pajero Jeep was by that singular application, seeking to benefit from his acts of disobedience to the existing orders of court which enjoin the appellant to give account of his sources of the procurement of the Mitsubishi Jeep consequent upon which an interim order of forfeiture was placed on the Jeep. This order to investigate the source of purchase of the car not having been discharged, was extant as at the time the application was made by the appellant to release the same vehicle.
I am not impressed by the argument of counsel for the appellant that the appellant can apply for the release of the Mitsubishi Jeep Car without having to first apply to set aside the order of forfeiture made on the vehicle. I think common sense and the law dictate that an order in terms of an interim order forfeiting property belonging to another cannot just be released as a matter of course but upon that Interim Order forfeiting the property first being discharged.
In the current case on appeal, the Mitsubishi Pajero Jeep is the common denominator so to say, in the two applications covered by the Interim order of forfeiture as well as the application seeking the release of same. The subject-matter in the two applications is the same. To get to the other and secure the release of the vehicle, the interim order of forfeiture must necessarily be discharged. The appellant having not submitted himself before the National Drug law Enforcement Agency by the respondent for investigation and also failed to get the interim order of forfeiture set aside, the court below is right in its ruling of the 11th May, 2015 when it dismissed the application brought before it in Charge No. FHC/YL/128c/2011.Those acts in my view are condition precedent to the grant of the application of the appellant for the release of the Mitsubishi Pajero Jeep and unless those conditions are met or discharged, the application by the appellant seeking as at were the release of the Mitsubishi Pajero, No. CL 488 JJJ was still-born. See: Salati V. Shelu (1986) 1 NWLR (Pt. 15) 198; Madukolu vs. Nkemdelin (1962) 1 All NLR 587 hence this appeal lacks merit and the same is dismissed on that sole issue canvassed.
Accordingly I affirm the decision or ruling of the Federal High Court, Yola delivered on 11th May, 2015 in Charge No. FHC/YL/128C/2011. Cost is assessed in the Sum of N50, 000. 00 against the Appellant and in favour of the Respondent.
JUMMAI HANNATU SANKEY, J.C.A.
I read before now the Judgment of my learned brother, Husaini, J.C.A.
I am in agreement with him that the Appeal is devoid of any merit and it should be dismissed.
I hereby dismiss the Appeal and affirm the Ruling of the trial Federal High Court, Yola Division, and abide by the order as to costs.
BIOBELE ABRAHAM GEORGEWILL, JCA:
I have been afforded in advance a draft copy of the judgment just delivered by my learned brother SAIDU TANKO HUSAINI, JCA; and I am in complete agreement with the reasons and conclusions reached therein which I adopt as mine. I have nothing more to add.
I too hold that the appeal lacks merit and is thus liable to be dismissed. Consequently, I too hereby dismiss the appeal for lacking in merit. I shall abide by the consequential orders made in the lead judgment.?
1. Hassan Taiwo Fajimite., Esq., for the Appellant.
2. B. S. Abdullahi, Esq., for the Respondent.