The Federal High Court in Abuja has awarded N10 million fine against the Economic and Financial Crimes Commission (EFCC), in favour of Alhaji Nasiru Dalhatu Bafarawa and his company Nasdal Baf Nig Ltd. The fine was imposed by the court on the anti graft agency as general damage for contravening its own law by freezing the shares, stocks and securities belonging to Nasdal Baf Nig Ltd without obtaining court order to back it up since 2008.
Justice Gabriel Kolawole, who gave the order, also held that: “An interim administrative assets’ freezing order not backed/ratified by a court order is improper and unlawful.” This is contained in a judgment he delivered last in a suit filed by Nasiru Dalhatu Bafarawa, the younger brother of ex-Governor Alhaji Attahiru Bafarawa of Sokoto State who is standing trial in a separate suit in Sokoto for allegedly diverting Sokoto state government shares to the company.
Nasiru and Nasdal Baf Nig.Ltd whose shares, stocks and securities at the Nigerian Stocks Exchange Commission was frozen instituted the action against the Economic and Financial Crimes Commission (EFCC) in 2008 even as the EFCC alleged that the shares and stocks were proceeds of crimes.
Justice Kolawole said that where any assets or property has been seized by the Commission under the Act, the Commission ought to have caused an ex-parte application to be made to the Court for an interim order forfeiting the property concerned to the Federal Government.
“And the 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.”
According to him, the import of these provisions is to ensure that the Respondent does not exercise judicial or quasi-judicial powers by which it will expropriate the assets of suspects without recourse to the Court established by the Constitution and which guarantees right to own property as a “fundamental right.”
The Respondent cannot use its “Administrative Order” to freeze or place embargo on the shares of the applicants without later obtaining an interim order of forfeiture after its “Administrative Order” has been issued, and cannot retain the said order obtained Ex parte without preferring criminal Charge against the suspects as “Defendants”.
In this case, by virtue of Exhibit “A4” which was filed several months after the Applicants had filed their “Originating Summons” has made the consideration of the said question 3 to become academic.
The alternative question to question 3 is answered to the effect that the Respondent, by the provision of Section 28 of its enabling Act, has an obligation to proceed within a reasonable period after it has placed “administrative freezing order” or embargo/caveat on trading on the Applicants’ shares, to apply by Ex parte application for a judicial interim order of forfeiture pending the outcome of its investigation or of the criminal proceedings it would have initiated after the order of Court to freeze the Applicants’ shares from being traded on the floor of the Nigeria Stock Exchange was obtained.
The said order must, on the authority of the Constitution, be judicially reviewable as no Agency of government can by Ex parte proceedings, obtain final expropriatory orders against any citizen or resident in Nigeria that will run contrary to the letters and spirit of Sections 43 and 44 of the Constitution of Federal Republic of Nigeria, 1999, as amended.
The judge said that EFCC cannot be held liable for what appeared as seizure of the applicant’s International Passport because the applicant has not asked for it after it was collected from him as part of the conditions for the administrative bail. Besides, he added, it was not certain if the applicant International Passport was part of the conditions for the bail granted the applicant by the court in Sokoto state.
According to the judge, Relief 13 in the “Originating Summons” is one which flow from the failure of the Respondent to apply for and obtain interim forfeiture orders in relation to its “Administrative Freezing Orders” on the Applicants’ shares. The omission to do so was a violation of the Respondent’s own enabling Act.
The Applicants have applied for N100 Million as “exemplary damages”. The Respondent rejected the said claim on the ground that it had exercised its statutory powers properly.
“My finding is that it has not done so, but as a ‘statutory body’, I am unable to make any finding that it was actuated by malice to do so. It is for this reason that I am unable to award as “exemplary damages”, the sum of N100 million against the Respondent.
”However, I am mindful to award the sum of N10 Million in favour of the Applicants as “general damages” for the act of the Respondent which I have found to contravene its own enabling Act. This is more so as no word is said on the outcome of the proceedings it initiated by Exhibit “A4” attached to its “Counter-Affidavit” and which is gradually elongating the life span of an administrative order it never applied to ratify by any Court of competent jurisdiction.”
In summary, the Applicants’ suit succeeds in part on the basis of reliefs 2, 11 and 13 which partly succeed as couched in this Judgment.
Reliefs 1, 3, 4, 5, 6, 7, 8, 9, 10 and 12 fails as they are either dismissed or are no longer sustainable by reason of intervening events, i.e. the filing of the “Amended Charges” in Exhibit “A4” attached to the Respondent’s “Counter-Affidavit” or can only be granted by the High Court of Justice, Sokoto State seised of the proceedings in the same Exhibit “A4”.
There shall be no order as to costs. Both parties shall bear their respective costs.
