THE Lagos Division of the Court of Appeal has voided the final forfeiture order issued on the assets of the former Governor of the Central Bank of Nigeria (CBN), Godwin Emefiele, to the Federal Government.
In a split decision of two-to-one, delivered on April 9, and detailed in a Certified True Copy (CTC) obtained by The Punch on Sunday, June 15, the court set aside the judgment and ordered a retrial of the case at the lower court.
Recall that the Federal High Court in Lagos had, in its ruling of November 1, last year, granted the application of the Economic and Financial Crimes Commission (EFCC) for the final forfeiture of Emefiele’s assets.
These include two fully-detached duplexes located at No. 17B, Hakeem Odumosu Street, Lekki Phase 1, Lagos; an undeveloped land measuring, 1,919.592 square metres, with survey plan No. DS/LS.340, at Oyinkan Abayomi Drive (formerly Queens Drive), Ikoyi, Lagos; a bungalow at No. 65A, Oyinkan Abayomi Drive, Ikoyi, Lagos; and a four-bedroom duplex at No. 12A, Probyn Road, Ikoyi, Lagos.
Others were an industrial complex under construction on 22 plots of land in Agbor, Delta State; eight units of uncompleted apartments on a plot measuring 2,457.60 square metres at No. 8A, Adekunle Lawal Road, Ikoyi, Lagos; a fully-detached duplex on a plot measuring 2,217.87 square metres at No. 2A, Bank Road, Ikoyi, Lagos; as well as $2,045,000 and shares certificates in Queensdorf Global Fund Limited.
The anti-graft agency argued that the properties were reasonably suspected to have been acquired with proceeds of unlawful activities.
But dissatisfied with the lower court’s judgment, Emefiele, represented by his legal team, led by Olalekan Ojo (SAN), challenged the decision, EFCC named as the sole respondent in the appeal marked: CA/LAG/CV/1051/24.
The appellant raised five issues for determination: “Whether the trial Judge adequately evaluated the totality of the affidavit evidence before granting the EFCC’s motion for the final forfeiture of the listed properties.
“Whether the trial Judge erred in not holding that the appellant had established an interest in the listed properties, thereby warranting a refusal of the forfeiture application.
“Whether it was proper to dismiss the appellant’s motion for a stay of proceedings in both the civil and criminal cases against the appellant.
“Whether the trial court ought to have struck out the EFCC’s counter-affidavit for not being provided for under Section 17 of the Advance Fee Fraud Act. “Whether the trial Judge was correct in declining jurisdiction to entertain the appellant’s application for a stay of proceedings.”
EFCC Counsel, Rotimi Oyedepo (SAN), however, argued that the “appellant did not produce single evidence on how he acquired the forfeited properties, but only placed the purported income he received from Zenith Bank Plc and CBN before the court, and that how he used the funds to acquire the properties were not shown to the court.”
He added that Emefiele did not show to the court a single piece of evidence of transfer of legitimate funds from him to the sellers of the properties provided, adding that none of the properties was acquired in the name of the appellant, as submitted by his Counsel, but rather they were acquired in various company names that do not have him as a shareholder or director.
Oyedepo said “the companies in whose names the properties were acquired did not challenge the forfeiture of the properties,” and the appellant failed to declare all the forfeited assets to the Code of Conduct Bureau.
He added that since the appellant could not show cause how he legitimately acquired the forfeited properties, the decision of the trial court forfeiting them to the Federal Government was in order.
However, in the lead judgment delivered by Justice Abdulazeez Anka, the appellate court said it was convinced that the legitimate earnings of the appellant could acquire the properties.
Justice Anka held: “These funds are the legitimate earnings of the appellant, as provided, and the contention of the appellant, as I do comprehend, is that from his earnings from the days he was at Zenith Bank Plc up to his career as CBN governor for 10 years in office, he can be able to afford the said properties in contention.”
He added that from the contentions of the appellant before him, “he deposed to the fact that at his exit as the managing director of Zenith Bank Plc, his severance package was in excess of a N1,750,000,000, while his acquired Zenith Bank Plc share was in the values of a N500,000,000, and then as CBN governor, his annual remuneration is at a N350,000,000, with quarterly reimbursements of N75million, excluding estacodes paid for foreign trips, which is at $6,285,000, at $5,000 per day.”
Furthermore, Justice Anka said the facts presented before him, which are the facts presented by the parties before the trial court, were very conflicting and highly disputed, regarding the legitimacy of the properties in contention, as provided, and as such, “there is, in my view, a need to call for further oral, as well as documentary evidence, where possible, and for parties to cross-examine the deponents and witnesses.
“Hence the initial processes filed at the trial court tried via affidavit evidence shall metamorphose into a trial to be conducted via oral testimonies for parties to provide their various witnesses and to be cross-examined by both Counsel on either side to prove the legitimacy or otherwise of the properties in contention, and I so order.
“In effect, the court hereby sets aside the final forfeiture order made by the trial court of 1st November 2024.”
He said it appeared that the appellant did not wish to and had not contested the forfeiture of the $2,045,000 forfeited to the Federal Government, adding: “Hence the final forfeiture against the said sum of $2,045,000 to the FGN is hereby affirmed.
“From the totality of all I’m stating, the appeal succeeds in part, considering the final forfeiture is set aside, while the parties are given the opportunity to call oral evidence at the trial court.
“It is also hereby ordered that the case be remitted to the trial court for a rehearing.”
Justice Mohammed Mustapha, while agreeing with Justice Anka, stated: “I am in total agreement with the conclusions arrived and have little or nothing to add to this impeccable write-up, except to say, by way of emphasis, that l am not aware of any legal impediment to the purchase of property by one party for and on behalf of another, to be held in trust for that other.”
He further held that the income of the appellant was more than enough to buy up the properties in question and even more, adding he also noticed that Emefiele declared his, and his wife’s code of conduct forms, attached to the counter affidavit, indicating his and his wife’s properties and assets.
Justice Mustapha noted that while the assets declared are for the years 2014 to 2019, the properties sought to be forfeited permanently covered the period 2020 to 2023, “which means that the appellant’s code of conduct forms filled in 2014 or 2019 could not have conceivably covered properties bought in 2020.
“It is absurd, therefore, to expect the appellant to have declared properties acquired in 2020 in forms filled in 2014. The declaration the prosecution ought to have properly queried is, therefore, the next declaration to follow in 2023.”
He added: “Now, in view of the parallel pendency of both criminal and civil action, common sense, logic and the law dictate that the criminal action ought to be disposed of before the civil one can even be initiated.
“In the circumstances, therefore, I too allow this appeal in part, the final forfeiture having been set aside, thus affording parties the opportunity of calling witnesses to buttress their respective positions at the lower court.
“Accordingly, I hereby order that the case be remitted back to the Chief Judge of the Federal High Court for re-hearing by any Judge other than Justice D. I. Dipeolu.
“I abide by the consequential orders.”
However, Justice Danlami Senchi, disagreed with his two justices brothers, stating: “I have carefully read through the counter-affidavit to the same, there is no conflict in the affidavits that warrant the calling of oral evidence. The issue is very narrow in this case.
“The companies whose names were used to purchase and whose names were used to perfect the title of the properties in the ex parte application dated the 14th of August, 2024, have not filed an affidavit to show cause nor denied the ownership of the said companies.
“The interested party has denied any links with the companies that purchased the property and so cannot lay claim to what is not his. That would amount to being a meddlesome interloper.
“Certainly, from the records on this appeal, there is no conflict in affidavit evidence of parties, as rightly held by the trial court.
“Thus, calling of oral evidence in this clear case of parties is a waste of judicial time that will not achieve any success, but scuttle the administration of justice under the forfeiture proceedings.
“On the whole, I resolve the two issues against the appellant and in favour of the respondent. I hold the view that this appeal lacks merit and I dismiss same accordingly.
“The judgment of the Federal High Court in suit No. FHC/L/MISC/500/2024 delivered on 1st November 2024 by D. I. Dipeolu is hereby affirmed.”
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