“…the Order is not made to last in perpetuity, but pending the appearance of the suspect in Court….The Order is preservatory in nature, to compel lawful attendance of the suspect in Court to answer and defend the Charge against him, and justifiable by Section 44(2) (k) of the 1999 Constitution”
In the Court of Appeal
In the Lagos Judicial Division
Holden at Lagos
On Thursday, the 26th Day of October, 2017
Before Their Lordships
Joseph Shagbaor Ikyegh
Ugochukwu Anthony Ogakwu
Abimbola Osarugue Obaseki-Adejumo
Justices, Court of Appeal
Government Ekpemupolo (Alias Tompolo) ………Appellant
Federal Republic of Nigeria ……Respondent
(Lead Judgement delivered by Hon. Abimbola Osarugue
Obaseki- Adejumo, JCA)
The lower Court, based on the application of the Respondent, made an Order of Substituted Service and Warrant of Arrest against the Appellant. The Appellant consequently filed a Motion on Notice, wherein it prayed the Court to set aside the Orders made. The Appellant’s ap- plication was dismissed and the Appel- lant filed an appeal against the Ruling. Further to this, the Respondent filed a Motion Ex-parte to inter-alia, attach several properties belonging to the Appellant pursuant to Sections 80 and 81 of the Administration of Criminal Justice Act, 2015. This application was granted by the Court. Aggrieved by the aforesaid Order of Court, the Ap- pellant filed an appeal to the Court of Appeal vide his Notice of Appeal dated 29th February, 2016.
Issues for Determination:
The issues adopted for consideration by the Court were: 1. Whether the Order attaching the Appellant’s properties was validly made. 2. Whether the Ex-parte Order attaching the Appellant’s properties was in breach of the Appellant’s constitutional rights.
Arguing the first issue, learned Counsel for the Appellant stated that the Ex- parte application of the Respondent, upon which the properties were attached was brought pursuant to Sections 80 and 81 of the Administration of Criminal Justice Act, 2015 (ACJA); he however, contended that before any Summons can issue under Section 41 of the ACJA, there must be at least thirty (30) clear days after issuance of the Summons, upon the refusal of the suspect to respond. He observed that, the Affidavit of Service on record, did not indicate a date on which the purported service was effected; thereby making it difficult to compute the thirty day period. He argued that, no further step could be taken once the condition precedent was not complied with. ATOLAGBE v AWUNI (1997) 9 NWLR (PT. 522) 536. Counsel submitted that, upon an application to set aside the purported service of the Warrant and other processes, the trial Court delivered a Ruling which the Appellant had filed a Notice of Appeal against at the Registry of the lower Court. Hence, the lower Court has actual and constructive notice of the appeal. He observed that, at the time the Order of attachment of the Appellant’s properties was made, the powers exercisable by Section 80 of the ACJA had not crystallised. More so, where service is challenged as in the instant case, the jurisdiction of the Court is called into question, and the Court cannot proceed without satisfying itself that there was indeed proper service of the process(es). OKOYE v EBODAGHE (2000) 1 NWLR (PT. 640) 250.
Submitting on the propriety of the Orders granted pursuant to an Ex-parte application against a party who has been represented by Counsel in Court, Counsel submitted that once parties have put up legal representa- tion in a Court of law, all Orders to be made by the Court must be on Notice, especially Orders relating to the proprietary rights of a party. SABRU NIG. LTD. v JEZCO NIG. LTD (2000) 6 WRN 149 AT 168.
On the issue whether the Order of attachment breached the provisions of the Constitution, the Appellant submitted that no Finite Order can be granted on the basis of an Ex-parte application, as shutting out the opposing party from being heard contravenes the provisions of Section 36 of the 1999 Constitution. He posited that whenever there is the need to file an Ex-parte application which will affect a party adversely, the said application ought to be accompanied by a Motion on Notice inviting the party to react to the Orders made or sought to be made. OBEYA MEMORIAL SPECIALIST HOSPITAL v ATTORNEY-GENERAL OF THE FEDERATION (1987) 3 NWLR (PT. 60) 325. It was argued for the Appellant that the provisions of Sections 41, 80 and 81(3) of the ACJA, which purport to give the State powers to sell properties even before a citizen is arraigned, tried and convicted, is contrary to the provisions of Section 36 of the 1999 Constitution on presumption of innocence.
On his part, Counsel for the Respondent stated that a Warrant of Arrest was issued against the Appellant on 14th February, 2016, further to the evidence of service of the Summons and the Court thereafter, ordered the attachment of the Appellant’s properties pursuant to Sections 80 and 81 of the ACJA. He submitted that a period of thirty days had lapsed between the time of service of the Warrant of Arrest, and the Order attaching the Appellant’s properties. Counsel argued further that, assuming the thirty day period had not lapsed, the Order would still be valid, as same was made against the Appellant for disobeying the Summons and Warrant served on him pursuant to Sections 123 and 124, and not in disobedience of a Public Summons under Section 41 of the ACJA. In relation to the issue of the Appellant filing an appeal against the Ruling of the Court before the Order of Attachment was made, Counsel clarified and distinguished between filing an appeal and entry of an appeal and the consequential effect of each. U.B.A. v TAAN (1993) 4 NWLR (PT. 287) 368 at 379.
On the second issue, Counsel submitted that Sections 80 and 81 of the ACJA, allow the trial Court to order the attachment of the property of a suspect who is in disobedience of a Court Summons/Order. He argued that the foregoing Sections, are not in conflict with the provisions of Section 44 of the Constitution as subsection (2) of the Section which provides for circumstances where the right to property may be denied or restricted.
He opined that having failed to avail himself every opportunity of being heard, the Appellant cannot be heard to complain of breach of his right to presumption of innocence.
Court’s Judgement and Rationale
In deciding the issues posed by Counsel, the Court construed the relevant provisions of the Act to wit: Sections 41, 80 and 81(1). Section 41 of the Act, empowers the Court to publish a Public Summons in writing requiring a suspect, who the Court has reason to believe has absconded after a Warrant of Arrest has been issued against him, to appear at a specific place and time not less than 30 days from the date of publishing the Public Summons. Section 80 of the Act, grants the trial Court the discretion to make an Order attaching the property belonging to a suspect who disregards the Summons or Warrants issued against him. The Section goes further to provide the two instances when such Order can be made – (1) after action has been taken under Section 41; and (2) upon an application made after Summons and Warrant has been issued but disobeyed. Thus, the Court can act in either of the circumstances, and it is only in the first instance that a period of thirty days must have lapsed before the Order of attachment can be validly made; such condition does not exist in the second instance.
On the contention that the lower Court erroneously made the Order of Attachment when the Appellant had lodged an appeal against an earlier Ruling of the Court in the suit; it is beyond argument that filing an appeal is in law, distinguishable from entry of an appeal. While filing an appeal does not terminate the jurisdiction of the lower Court, upon entry of an appeal, a lower Court shall cease to have jurisdiction over any matter in respect of the suit, the subject of appeal. SHELL PET. DEV. CO. OF NIG. LTD. v AMADI & ORS (2011) LPELR-3204(SC) 38-39. Based on the authority of the Supreme Court above, the Order of Attachment granted by the trial Court after filing of an appeal to the Court of Appeal but before the appeal was entered, cannot be faulted, as there was no pending appeal in the real sense of entry of appeal, so as to preclude the lower Court from entertaining applications from the parties.
Regarding the submission of Counsel for the Appellant that Section 81(3) of the ACJA empowers the State to sell the properties of a Nigerian Citizen even before he is arraigned, tried and convicted, contrary to the provisions of Section 36 of the 1999 Constitution, it must be noted that the question of constitutionality of the provision was not a live issue before the Court, as it did not arise from the facts of the instant suit. An appellate Court is duty bound to restrict itself to live questions, and not to speculate or entertain hypothetical questions.
On the issue that the Ex-parte Order made by the lower Court contravened the provisions of Section 36(5) of the Constitution on presumption of innocence, it must be noted that the power conferred on the Court by Section 80 of the ACJA to make an Order of Attachment at any time after action has been taken under Section 41 or an application made in that regard after Summons or Warrants has been issued but disobeyed, is a special power. There is no prescription of a particular mode, in which the application must be made upon fulfilment of the condition that the Summons or Warrants had been disobeyed. The Order herein, is not invalidated merely on the ground that the party affected is not afforded a hearing. More so, the Order is not made to last in perpetuity, but pending the appearance of the suspect in Court. The Order neither violates the Appellant’s rights to fair hearing nor displaces the presumption of innocence held in his favour. The Order is preservatory in nature, to compel lawful attendance of the suspect in Court to answer and defend the Charge against him, and justifiable by Section 44(2)(k) of the 1999 Constitution.
Representation: Ikhide Ehiahelua for the Appellant.
T.N. Anata with Ehis Okoebor for the Respondent.
Reported by Optimum Law Publishers Limited (Publishers of the Nigerian Monthly Law Reports (NMLR))
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