“I had earlier stated that the real Issue thrown up for the determination of this appeal is:
“Whether the Assets Investigation Edict of 1997, from which the Assets Investigation Tribunal derived its powers and the forfeiture of the properties of the Appellant to the Imo State Government, and subsequent revocation of the Statutory Rights of Occupancy of Appellant over properties adjudged by the Tribunal as improperly acquired, and affirmed by the Lower Court, should be declared unconstitutional, null and void.”
It is interesting to note that Appellant, at the Lower Court, appeared to have founded his claim for the setting aside of the decision of the Assets Investigation Tribunal on the grounds that he:
“Was away in the United States of America all during the Otokoto Saga, as the incident later became known” and so neither received any notice or invitation to appear before the Assets Investigation Tribunal, nor was any notice of revocation of the Plaintiff/Appellant’s Statutory Right of Occupancy… issued or served on the Plaintiff/Appellant.” (See paragraph 2.08 of the Brief)
But the grounds of this Appeal, and the issues distilled by Appellant, there-from, did not pursue the above complaints, implying that Appellant no longer contested the allegation of denial of fair hearing, having been established that the Notice to declare assets (Form B), was issued to Appellant, through his Counsel, D.D. Madu Esq, who submitted Form A (Exhibit B) as evidence that he, Appellant’s Counsel, had collected the said Asset declaration form for the Appellant, but Appellant failed to fill same and return to the Tribunal. There was also evidence that Appellant’s name was among those widely publicized in Schedules E1 and E2, being the names of those invited to appear before the Tribunal, being the persons identified in the White Paper by the Government of Imo State (published on the Report of the Assets Investigation Commission of Inquiry, headed by Hon. Justice P.C. Onnumajulu) for questioning.
Of course, Appellant can no longer complain of being denied fair hearing, having been granted ample opportunity to be heard, and he was duly represented by Counsel at the Investigation/Tribunal. See FHA Vs Kalejaiye (2011) ALL FWLR (Pt.562) 1633; Nwaigwe Vs Anyanwu (2016) LPELR – 40613 CA; Newswatch Communications Ltd Vs Atta (2006) 12 NWLR (Pt.993) 144; (2006) LPELR 1986 SC. Having not contested the findings of the Lower Court on the issue, and having not appealed against any of the Assets Investigation Tribunal’s decision, which adjudged Appellant’s said properties as being part of the Schedule E1 and E2, illegitimately obtained, which the Assets Investigation Tribunal recommend for forfeiture, and which the government accepted and revoked the rights of occupancy thereof for overriding public purpose, I cannot see how Appellant can fault the decision of the Lower Court on the allegation that he was not served with Notice of revocation of his rights of occupancy before the Legal Notice No.5 of 1999 was made, or because the Notice did not specify the said public purpose, in the Legal Notice No.5 of 1999, which warranted the revocation of his rights.
It is however the law that under Section 28(1) of Land Use Act, 1978, the State Governor may revoke a right of occupancy, for overriding public interest, but that can only be done as spelt out in subsections 2 and 3 of the section. And to act under this section, the Governor must take cognizance of Section 28(6) and (7) of the Land Use Act i.e. giving prior notice to the land holder of intention to acquire the property, before a revocation of his right, and the service of the Notice must be in accordance with the provisions of Section 44 of the said Act. See OSHO Vs Foreign Finance Corporation & Anor (1991) 4 NWLR (Pt.184) 157; Provost of Lagos State College of Education Vs Edun (2004) ALL FWLR (Pt.201) 1628; Sole Administrator of Offa LGA Vs Adegboye (2012) LPELR – 19677 CA; SUU Vs Jobak Nig. Ltd (2012) 49 WRN 53.
But compliance with the above law in my opinion would or should be liberally construed in a situation where the revocation is made as a punitive measure, following a findings by a Judicial Commission of Inquiry/Tribunal duly established by law to the effect that the property in question was unlawfully or fraudulently acquired, and the government White Paper thereon, affirmed the findings of the Commission of Inquiry and a Judicial Tribunal or Court, has adjudged and affirmed that the property was unlawfully/fraudulently acquired, and ordered a forfeiture of same in the public interest. And where the Appellant has admitted that painstaking due process was taken by government to arrive at the order of forfeiture of the property, and he being involved in the process as in this case, I cannot see any basis for questioning the order of Court which affirmed the order of forfeiture because Appellant is alleging none service of Notice of revocation and/or failure to state specifically the public interest that warranted the revocation. It is obvious that in such circumstances, the revocation was not ordinary being one that impugned or sought to punish Appellant for graft or vice, and the Appellant was carried along, by reason of all the publicities accorded the processes that led to the final decision in the Notice of forfeiture in the Legal Notice No.5 of 1999.
I think in such a situation, the “public purpose” or ‘public interest’ upon which the revocation was made is obvious, even when it is not stated expressly in the process. Appellant, as a matter of public policy is not expected or permitted to enjoy proceed of fraud, or to profit/benefit from his illegal act/transaction which warranted the forfeiture of the property. The order of forfeiture typifies sanction and conveys with it indictment of the Appellant.
Appellant had tried to make undue capital of the law relating to conflict or inconsistency between an Edict and a Decree, or between a State Law or statute and the provisions of the Constitution. He specifically maintained that the provisions of the Assets Investigation Edict of 1997, particular, Section 10(1), thereof, was inconsistent with Section 40(1A) of the Decree No.107 of 1993 (which was the Constitution (Suspension and Modification) Decree of 1993).
The Section 10(1) of the Assets Investigation Edict of 1997, states:
“Where, after investigation or inquiry, the Tribunal finds that a person acquired his asset through illegitimate or fraudulent means, the Tribunal may, subject to the Provisions of the Constitution, make an order for the forfeiture of such asset.”
And the Sections 40(1) and 40(1A) of the Constitution (Suspension and Modification) Decree No.107 of 1993, state:
Section 40(1):
“No moveable property or any interest in an immoveable property shall be taken possession of compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by law, that among other things;
(a) Requires the prompt payment of compensation therefor; and
(b) Gives to any person, claiming such compensation, a right of access for the determination of his interest in the property and the amount of compensation to a Court of Law or Tribunal or body having jurisdiction in that part of Nigeria.”
Section 40(1A):
Notwithstanding the foregoing provision, the Provisional Ruling Council may, by Decree, provide for the forfeiture of any property, right or interest described therein which has been illegally acquired by any officer in the public service of the Federation or State or any other person, and proved by a Court or Tribunal as being illegally acquired.”
It can be seen from the above that the Section 10(1) of the Imo State Assets Investigation Edict, 1997, derived legitimacy from the Constitution (Suspension and Modification) Decree No.107 of 1993 and was made subject to the Federal Law, and that, that section of the Edict was the Imo State equivalence of the Section 40(1A) of the Decree 107, allowing for forfeiture of any property, right or interest, described in the Section 40(1) of the Decree No.107, which has been adjudged by Court or Tribunal to have been illegally acquired by any person. There is therefore, no conflict in my view between the State Law (Edict of 1997) and the Federal Law (Decree No.107 of 1993), as to suggest the alleged inconsistency argued by Appellant’s Counsel. I believe the Learned Trial Judge duly considered this issue when the Plaintiff made a similar argument at the Court below, and the Judge held:
“A close look at Decree No.107 of 1993, and Section 10(1) of the Assets Investigation Edict 1997, it is obvious that the Assets Investigation Edict derived its power from the Constitution of 1979 which was the law in operation at that time. There is therefore nothing unconstitutional in the Assets Investigation Edict of 1997.”
I cannot fault that sound reasoning of the Lower Court as the whole idea of conflict/inconsistency canvassed by the Appellant appears to lie only in his imagination especially as he tried to trace the alleged defect in the Assets Investigation Edict of 1997 to the fact that the state law “does not provide for compensation and matters related thereto.”; that “it is for that reason in conflict with Section 40(1) of the Constitution (Suspension and Modification) Decree of 1993, and in so far as the same Assets Investigation Edict 1997… makes provision for forfeiture of property by the Tribunal set on there under…”
See page 16 (Paragraph 6.07) of the Appellant Brief. I think Appellant was confused as the idea of payment or claim of compensation is totally inconsistent with a situation where property is confiscated, seized or forfeited to/by government, upon findings of a Court or Tribunal that it was acquired through illegitimate or fraudulent means. See Section 10(1) of the Assets Investigation Edict 1997 on which Appellant’s properties were forfeited, and his rights revoked!
I had earlier held that Appellant did not contest or appeal against the decision/order of the Tribunal (which was affirmed by the Lower Court), that the properties were acquired by illegitimate and fraudulent means. A finding of Court not appealed against remains binding and conclusive. See Ladoja Vs Ajimobi & Ors (2016) LPELR – 40658 SC; Nsirim Vs Amadi (2016) LPELR – 26053 (SC); Anyalenkeya Vs Anya & Ors (2016) LPELR – 40218 CA. In such a situation, I do not think Appellant deserved the courtesy of being served with a formal revocation Notice, prior to the publication of the Legal Notice No.5 of 1999, revoking his rights of occupancy to the properties, since he was deemed to have taken part in the entire processes (hearing by the Tribunal and Investigations) that led to the order of forfeiture of the assets. He cannot also expect any compensation in the circumstances for revocation of his said rights of occupancy, having been adjudged to have acquired the properties illegitimately or fraudulently. “Per MBABA, J.C.A. (Pp. 16-26, Paras. D-B); OKECHUKWU v. UBA PLC & ANOR CITATION: (2017) LPELR-43100(CA)