FACTS:
The application for enforcement of their fundamental rights
filed by the 1st and 2nd Respondents at the Federal High Court,
Port Harcourt Division, which led to an appeal to the Supreme
Court, was prompted by a letter of invitation written by the 3rd
Respondent Economic and Financial Crimes Commission (EFCC) against
the 1st and 2nd Respondents on the issue of bank fraud and
diversion of funds to other use.
The facts are that the 1st & 2nd Respondents as the
applicants at the Court of Appeal were customers of the Appellant
bank since 1994. The relationship continued until 2003 when the 1st
2nd Respondents suspected some discrepancies in the management of
their account with the Appellant. They engaged a banking consultant
to investigate, and it was allegedly discovered that the Appellant
had illegally over charged the 1st & 2nd Respondents, in the
management of their account, to a tune of N10,776,921.19K refund of
which they demanded. The 1st & 2nd Respondents though not
convinced, mutually agreed with the banking consultant that the
matter be referred to the Chartered Institute of Banker’s Committee
on ethics and professionalism for arbitration. The matter was still
pending there for arbitration when the Appellant reported the 1st
Respondent to the Financial Malpractices Investigation Unit of the
Nigeria Police Force CID Annex, Lagos. Consequently, policemen from
Lagos came to Port Harcourt, arrested and detained the 1st
Respondent on 18th April, 2005. The 1st Respondent was not granted
bail until the policemen made him pay N2,000,000.00K to the
Appellant. The police further directed the 1st Respondent to appear
before them at Lagos on 10th May, 2005. In the meantime, the 1st
& 2nd Respondents approached the Federal High Court, Port
Harcourt in suit no. FHC/PH/CS/385/2005 between H.R.H Eze (Dr)
Peter Opara & 1 OR Vs Diamond Bank & 4 ORS for leave
to apply for enforcement of their fundamental rights.
The 3rd Respondent’s letter, Exhibit “V” inviting the 1st
Respondent, as Managing Director of the 2nd Respondent, to appear
in Lagos before her officer in charge of Bank Fraud, Team 3 on 11th
December, 2007 stated that “the Commission was investigating a case
of Bank Fraud/Diversion of depositors fund reported by Diamond Bank
Plc against you and your company.” The Appellant’s letter of 14th
March, 2005 to the 1st & 2nd Respondents had demanded from the
latter, payment of the outstanding sum of N44,137,700.76K plus
interest thereon due from the latter to the former within 21 days
failing which all necessary actions will be taken against the 1st
& 2nd Respondents to recover the sum without further notice.
The letter was Exhibit ‘N’, Exhibit ‘T’ was the letter from the
Nigeria Police Force CID Lagos inviting the 1st Respondent to
appear in Lagos on 10th May, 2005 and 1st Respondent’s arrest and
detention in April, 2005 have some nexus or connection with the 1st
Respondent’s letter Exhibit ‘N’
The Appellant’s Counter Affidavit seems to admit in paragraph 7
thereof that the 1st & 2nd Respondents “through their agents
reported the matter to the Bankers subcommittee on ethics and
professionalism” for arbitration and that “the committee – is yet
to finally adjudicate on the matter.” Paragraph 6 of the said
Counter Affidavit also admits that the Appellant went to lodge a
complaint with the Financial Malpractice Investigation Unit of the
3rd Respondent which has the statutory duty to investigate
transactions where Banks are being defrauded or the risk of the
same exists. The 1st & 2nd Respondents were merely invited for
an Interview on routine investigation. Nobody has threatened to
arrest them. The Counter Affidavit of the 3rd Respondent avers that
they (EFCC) are investigating the alleged fraud and obtaining by
false pretense, not diversion of depositors’ funds, reported
against the 1st & 2nd Respondents to them through Appellant’s
letter of 27th October 2007, Exhibit “EFCC A”. The letter, Exhibit
‘V’, inviting the 1st Respondent for interview on 11th December,
2006 had triggered the 1st & 2nd Respondents resolve to apply
for leave to apply for the enforcement of their fundamental rights.
Upon leave granted to the 1st & 2nd Respondents to bring the
application to enforce their fundamental rights, the 1st & 2nd
Respondents filed, vide the originating motion on 6th December,
2006, an application seeking orders enforcing their fundamental
rights The parties were heard on the 1st & 2nd Respondents’
application on 19th January, 2007. The learned trial Judge in his
Ruling delivered on 23rd January, 2007 dismissed the
application.
Dissatisfied with the ruling of the Federal High Court, the 1st
& 2nd Respondents appealed against that decision. The Court of
Appeal in its judgment, dated 3rd March, 2011 allowed the appeal
and granted all the reliefs. Dissatisfied with the decision, the
Appellant appealed to the Supreme Court.
Issues For Determination As Formulated By The
Appellant
ISSUE 1: Whether the Court of Appeal was right
when it held that the complaint to EFCC by the Appellant vide
letter dated 27th October, 2006 constitutes an abuse of the process
of the law and was made maliciously to cover up fraud against the
1st and 2nd Respondents.
ISSUE 2: Whether the Court of Appeal was right
when it held that the invitation by EFCC (Exhibit V) to the 1st and
2nd Respondents constituted an infringement or a likelihood of an
infringement to the fundamental rights of the 1st & 2nd
Respondents.
JUDGEMENT
From the foregoing, it is my view that the parties having
mutually agreed to refer the matter to the Chartered Institute of
Bankers – sub-committee on ethics and professionalism, the
Appellant should not have gone ahead to report the matter to
Financial Malpractices Investigation Unit, C.I.D. annex, Lagos
since the Banker’s Committee directed the parties to say away from
any further action pending the determination of the investigation,
and this was clearly understood and agreed by both parties.
It is important for me to pause and say here that the powers
conferred on the 3rd Respondent, i.e. the EFCC to receive
complaints and prevent and or fight the commission of Financial
Crimes in Nigeria pursuant to Section 6(b) of the EFCC Act (supra)
does not extend to the investigation and/or resolution of disputes
arising or resulting from simple contracts on civil transactions as
in this case.
The EFCC has an inherent duty to scrutinize all complaints that
it receives carefully, no matter how carefully crafted by the
complaining party, and be bold enough to counsel such complaints to
seek appropriate/lawful means to resolve their disputes. Alas! The
EFCC is not a debt recovery agency and should refrain from being
used as such.
Generally, abuse of process involves circumstances and
situations of infinite variety and conditions and which may be
occasioned by malice, bias and desire to misuse or pervert the
system of administration of justice. See Saraki Vs Kotoye (1992)
Nwlr (Pt.264) at 156. I agree entirety with the lower court in its
judgement at page 312 of record of appeal.
Looking at all that has been said, I am convinced by the learned
counsel for the 1st & 2nd Respondents that, the actions of the
Appellant was aimed at frustrating the investigation that is before
the Bankers Committee. The subsequent actions of reporting the
matter to the police and to the 3rd Respondent were nothing but
abuse of process of law. What is even more disturbing in recent
times is the way and manner the police and some other security
agencies, rather than focus squarely on their statutory functions
of investigation, preventing and prosecuting crimes allow
themselves to be used by overzealous and /or unscrupulous
characters for the recovery of debts arising from simple contracts,
loans or purely civil transactions. Our security agencies,
particularly the police, must know that the citizenry’s confidence
in them ought to first be ensured by the agencies themselves by
jealously guarding the integrity of the uniform and powers
conferred on them.
The beauty of salt is in its taste. Once salt loses its own
taste, its value is irredeemably lost. I say this now and again,
our security agencies, particularly the police, are not debt
recovery agencies. The agencies themselves need to first come to
this realization, shun all entreaties in this regard and they will
see confidence gradually restored in them.
Where we are now in this country is that place where our ‘’Men –
in black & blue’’ command almost no respect from the citizenry
because of how low we have sunk. But it is my belief, which belief,
I must say I hold very dearly, that all hope is not lost, many
women and men of deep integrity are in our security agencies, and
they only need to rise now to the occasion.
The first issue is resolved against the
Appellant.
On the second issue, all that the 1st & 2nd Respondents need
to show to sustain this action are the facts or conditions
stipulated in Order2 Rule 1 of the fundamental right (enforcement
procedure) Rules, 2009.
The fundamental right, the 1st & 2nd Respondents seeking to
enforce is the right to personal liberty guaranteed by Section 35
(1) of the Constitution.
As I have stated earlier, the multiple actions by the Appellant
were nothing but abuse of process of law. However, the actions also
constituted breach of fundamental right. The detention of the 1st
Respondent by the police in Lagos where he was compelled to pay
N2,000,000.00 before he was granted bail, when the Appellant knew
very well that the Banker’s Committee which is the constituted
authority to investigate the alleged matter, was conducting its
investigation, is a clear case of breach of fundamental right.
Exhibit V, which is the letter of invitation from EFCC inviting
1st Respondent also constituted likelihood of an infringement to
the fundamental right of the 1st & 2nd Respondents.
The 1st Respondent sensing another round of detention and
intimidation from another Law Enforcement Agency, similar to what
happened by the police in Lagos ran to the Court for enforcement of
their fundamental right.
There is no way, the Appellant could have reasonably suspected
the 1st & 2nd Respondents to have committed any offence when
the investigation, which the Appellant submitted itself to the
Banker’s Committee, has not been concluded. I agree with the
decision of the Court of Appeal on page 316 of the recordsThis
appeal lacks merit and is accordingly dismissed, the judgement of
the lower court is hereby affirmed.
The 1st & 2nd Respondents are awarded costs of N500,00.00K
against the Appellant.
Representations:
Oochukwu Onyekwuluje Esq, for the Appellant
K.O. Ozoukwu Esq, for the 1st & 2nd Respondents
Ifeanyi Agwu Esq, for the 3rd Respondent
FACTS:
The application for enforcement of their fundamental rights
filed by the 1st and 2nd Respondents at the Federal High Court,
Port Harcourt Division, which led to an appeal to the Supreme
Court, was prompted by a letter of invitation written by the 3rd
Respondent Economic and Financial Crimes Commission (EFCC) against
the 1st and 2nd Respondents on the issue of bank fraud and
diversion of funds to other use.
The facts are that the 1st & 2nd Respondents as the
applicants at the Court of Appeal were customers of the Appellant
bank since 1994. The relationship continued until 2003 when the 1st
2nd Respondents suspected some discrepancies in the management of
their account with the Appellant. They engaged a banking consultant
to investigate, and it was allegedly discovered that the Appellant
had illegally over charged the 1st & 2nd Respondents, in the
management of their account, to a tune of N10,776,921.19K refund of
which they demanded. The 1st & 2nd Respondents though not
convinced, mutually agreed with the banking consultant that the
matter be referred to the Chartered Institute of Banker’s Committee
on ethics and professionalism for arbitration. The matter was still
pending there for arbitration when the Appellant reported the 1st
Respondent to the Financial Malpractices Investigation Unit of the
Nigeria Police Force CID Annex, Lagos. Consequently, policemen from
Lagos came to Port Harcourt, arrested and detained the 1st
Respondent on 18th April, 2005. The 1st Respondent was not granted
bail until the policemen made him pay N2,000,000.00K to the
Appellant. The police further directed the 1st Respondent to appear
before them at Lagos on 10th May, 2005. In the meantime, the 1st
& 2nd Respondents approached the Federal High Court, Port
Harcourt in suit no. FHC/PH/CS/385/2005 between H.R.H Eze (Dr)
Peter Opara & 1 OR Vs Diamond Bank & 4 ORS for leave
to apply for enforcement of their fundamental rights.
The 3rd Respondent’s letter, Exhibit “V” inviting the 1st
Respondent, as Managing Director of the 2nd Respondent, to appear
in Lagos before her officer in charge of Bank Fraud, Team 3 on 11th
December, 2007 stated that “the Commission was investigating a case
of Bank Fraud/Diversion of depositors fund reported by Diamond Bank
Plc against you and your company.” The Appellant’s letter of 14th
March, 2005 to the 1st & 2nd Respondents had demanded from the
latter, payment of the outstanding sum of N44,137,700.76K plus
interest thereon due from the latter to the former within 21 days
failing which all necessary actions will be taken against the 1st
& 2nd Respondents to recover the sum without further notice.
The letter was Exhibit ‘N’, Exhibit ‘T’ was the letter from the
Nigeria Police Force CID Lagos inviting the 1st Respondent to
appear in Lagos on 10th May, 2005 and 1st Respondent’s arrest and
detention in April, 2005 have some nexus or connection with the 1st
Respondent’s letter Exhibit ‘N’
The Appellant’s Counter Affidavit seems to admit in paragraph 7
thereof that the 1st & 2nd Respondents “through their agents
reported the matter to the Bankers subcommittee on ethics and
professionalism” for arbitration and that “the committee – is yet
to finally adjudicate on the matter.” Paragraph 6 of the said
Counter Affidavit also admits that the Appellant went to lodge a
complaint with the Financial Malpractice Investigation Unit of the
3rd Respondent which has the statutory duty to investigate
transactions where Banks are being defrauded or the risk of the
same exists. The 1st & 2nd Respondents were merely invited for
an Interview on routine investigation. Nobody has threatened to
arrest them. The Counter Affidavit of the 3rd Respondent avers that
they (EFCC) are investigating the alleged fraud and obtaining by
false pretense, not diversion of depositors’ funds, reported
against the 1st & 2nd Respondents to them through Appellant’s
letter of 27th October 2007, Exhibit “EFCC A”. The letter, Exhibit
‘V’, inviting the 1st Respondent for interview on 11th December,
2006 had triggered the 1st & 2nd Respondents resolve to apply
for leave to apply for the enforcement of their fundamental rights.
Upon leave granted to the 1st & 2nd Respondents to bring the
application to enforce their fundamental rights, the 1st & 2nd
Respondents filed, vide the originating motion on 6th December,
2006, an application seeking orders enforcing their fundamental
rights The parties were heard on the 1st & 2nd Respondents’
application on 19th January, 2007. The learned trial Judge in his
Ruling delivered on 23rd January, 2007 dismissed the
application.
Dissatisfied with the ruling of the Federal High Court, the 1st
& 2nd Respondents appealed against that decision. The Court of
Appeal in its judgment, dated 3rd March, 2011 allowed the appeal
and granted all the reliefs. Dissatisfied with the decision, the
Appellant appealed to the Supreme Court.
Issues For Determination As Formulated By The
Appellant
ISSUE 1: Whether the Court of Appeal was right
when it held that the complaint to EFCC by the Appellant vide
letter dated 27th October, 2006 constitutes an abuse of the process
of the law and was made maliciously to cover up fraud against the
1st and 2nd Respondents.
ISSUE 2: Whether the Court of Appeal was right
when it held that the invitation by EFCC (Exhibit V) to the 1st and
2nd Respondents constituted an infringement or a likelihood of an
infringement to the fundamental rights of the 1st & 2nd
Respondents.
JUDGEMENT
From the foregoing, it is my view that the parties having
mutually agreed to refer the matter to the Chartered Institute of
Bankers – sub-committee on ethics and professionalism, the
Appellant should not have gone ahead to report the matter to
Financial Malpractices Investigation Unit, C.I.D. annex, Lagos
since the Banker’s Committee directed the parties to say away from
any further action pending the determination of the investigation,
and this was clearly understood and agreed by both parties.
It is important for me to pause and say here that the powers
conferred on the 3rd Respondent, i.e. the EFCC to receive
complaints and prevent and or fight the commission of Financial
Crimes in Nigeria pursuant to Section 6(b) of the EFCC Act (supra)
does not extend to the investigation and/or resolution of disputes
arising or resulting from simple contracts on civil transactions as
in this case.
The EFCC has an inherent duty to scrutinize all complaints that
it receives carefully, no matter how carefully crafted by the
complaining party, and be bold enough to counsel such complaints to
seek appropriate/lawful means to resolve their disputes. Alas! The
EFCC is not a debt recovery agency and should refrain from being
used as such.
Generally, abuse of process involves circumstances and
situations of infinite variety and conditions and which may be
occasioned by malice, bias and desire to misuse or pervert the
system of administration of justice. See Saraki Vs Kotoye (1992)
Nwlr (Pt.264) at 156. I agree entirety with the lower court in its
judgement at page 312 of record of appeal.
Looking at all that has been said, I am convinced by the learned
counsel for the 1st & 2nd Respondents that, the actions of the
Appellant was aimed at frustrating the investigation that is before
the Bankers Committee. The subsequent actions of reporting the
matter to the police and to the 3rd Respondent were nothing but
abuse of process of law. What is even more disturbing in recent
times is the way and manner the police and some other security
agencies, rather than focus squarely on their statutory functions
of investigation, preventing and prosecuting crimes allow
themselves to be used by overzealous and /or unscrupulous
characters for the recovery of debts arising from simple contracts,
loans or purely civil transactions. Our security agencies,
particularly the police, must know that the citizenry’s confidence
in them ought to first be ensured by the agencies themselves by
jealously guarding the integrity of the uniform and powers
conferred on them.
The beauty of salt is in its taste. Once salt loses its own
taste, its value is irredeemably lost. I say this now and again,
our security agencies, particularly the police, are not debt
recovery agencies. The agencies themselves need to first come to
this realization, shun all entreaties in this regard and they will
see confidence gradually restored in them.
Where we are now in this country is that place where our ‘’Men –
in black & blue’’ command almost no respect from the citizenry
because of how low we have sunk. But it is my belief, which belief,
I must say I hold very dearly, that all hope is not lost, many
women and men of deep integrity are in our security agencies, and
they only need to rise now to the occasion.
The first issue is resolved against the
Appellant.
On the second issue, all that the 1st & 2nd Respondents need
to show to sustain this action are the facts or conditions
stipulated in Order2 Rule 1 of the fundamental right (enforcement
procedure) Rules, 2009.
The fundamental right, the 1st & 2nd Respondents seeking to
enforce is the right to personal liberty guaranteed by Section 35
(1) of the Constitution.
As I have stated earlier, the multiple actions by the Appellant
were nothing but abuse of process of law. However, the actions also
constituted breach of fundamental right. The detention of the 1st
Respondent by the police in Lagos where he was compelled to pay
N2,000,000.00 before he was granted bail, when the Appellant knew
very well that the Banker’s Committee which is the constituted
authority to investigate the alleged matter, was conducting its
investigation, is a clear case of breach of fundamental right.
Exhibit V, which is the letter of invitation from EFCC inviting
1st Respondent also constituted likelihood of an infringement to
the fundamental right of the 1st & 2nd Respondents.
The 1st Respondent sensing another round of detention and
intimidation from another Law Enforcement Agency, similar to what
happened by the police in Lagos ran to the Court for enforcement of
their fundamental right.
There is no way, the Appellant could have reasonably suspected
the 1st & 2nd Respondents to have committed any offence when
the investigation, which the Appellant submitted itself to the
Banker’s Committee, has not been concluded. I agree with the
decision of the Court of Appeal on page 316 of the recordsThis
appeal lacks merit and is accordingly dismissed, the judgement of
the lower court is hereby affirmed.
The 1st & 2nd Respondents are awarded costs of N500,00.00K
against the Appellant.
Representations:
Oochukwu Onyekwuluje Esq, for the Appellant
K.O. Ozoukwu Esq, for the 1st & 2nd Respondents
Ifeanyi Agwu Esq, for the 3rd Respondent
Read more https://www.nairalaw.com/the-police-efcc-are-not-debt-recovery-agencies/