Diamond Bank Plc V. H.r.h. Eze (Dr) Peter Opara & Ors (2018)
LAWGLOBAL HUB Lead Judgment Report
SIDI DAUDA BAGE, J.S.C.
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 this appeal, 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.
FACTS OF THE CASE
The facts are that the 1st & 2nd Respondents as the applicants at the lower Court, 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
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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 mean time, 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. Exhibit ‘U’ contains the order granting the leave sought. The 1st & 2nd Respondents, at paragraph 28 of their supporting affidavit, aver in the suit as follows:-
“28. That the matter is still pending in the Federal High Court 2 and instead of waiting for the judgment of the Court, 1st Respondent, in disregard of the Court,
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petitioned us again to EFCC on spurious claims when it is owing us just to use its right to intimidate us.”
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 states that “the Commission is 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. This letter is Exhibit ‘N’, Exhibit ‘T’ is 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’
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The Appellant’s Counter Affidavit seems to admit in paragaph 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 pretence, 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
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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. They sought 3 reliefs, namely:
“(i)A declaration that the invitation of the 1st Applicant by the 2nd Respondent at the behest of the 1st Respondent is unlawful and a violation of his fundamental right to liberty and dignity of his person and a continuation of the harassment of the Applicants by the 1st Respondent in view of a pending action in this Court in suit no FHC/PH/CS/385/2005 between the Applicants and Diamond Bank Limited and 4 Ors.
(ii) A declaration that the 2nd Respondent by the enabling Act establishing it, lacks the statutory Power to function as a debt collector on behalf of the 1st Respondent or anybody for that matter in matters of commercial contract.
(iii) An order of Court restraining the Respondents from disturbing or Interfering with the right to liberty of the 1st Applicant through further threat of
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invitation ‘arrest’ detention, intimidation and unnecessary interrogation or in any other way or manner whatsoever.”
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 lower Court in its judgment dated 3rd March, 2011 allowed the appeal and granted all the reliefs.
It is against the decision of the Court of Appeal above, that the Appellant has now appealed to this Court. The Notice of Appeal filed on the 1/6/2011 is contained on page 320 of the record of appeal.
In keeping with the tradition of this Court, parties filed, and exchanged their briefs. The Appellant’s brief of argument, filed on the 26/04/2013 and was settled by one Ogochukwu Onye Kwuluje Esq. of counsel.
On the other hand, the 1st & 2nd Respondents brief of argument which was settled by one K. O. Uzoukwu Esq., contained a preliminary objection and was filed on the 25/2/2014. I will now consider the preliminary objection
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first before going into the substantive case, if need be.
PRELIMINARY OBJECTION
The first leg of the Preliminary Objection is as follows;
(1) That the two (2) Issues for determination are not tied to any of the seven (7) Grounds of appeal contained in the Notice of Appeal.
Learned counsel for the 1st and 2nd Respondents submitted that, the omission has no doubt left the Court with the duty of now looking at the grounds of appeal to determine whether the two issues raised are from any of the grounds of appeal. Learned counsel urged the Court to strike out the issues formulated by the Respondents as being incompetent. He cited CHUKWUMA VS IFELOYE (2009) 168 LRCN 47 at 71 and OBIM VS CHIEF ACHUK (2003) FWLR (Pt.179) 558 at 564.
The learned counsel’s argument on the second leg of the preliminary objection is that the Appellant is not an aggrieved person under the circumstances of the case. He submitted that under no circumstances can a party to a proceeding who has not been affected by a decision appeal against it as a party. He argued that the Appellant’s appeal before this Court is most incompetent and should be struck out in its entirety.
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Having examined the argument by the learned counsel for the 1st & 2nd Respondents above, it is my position that, by the rules of Court and practice, the issue or issues for determination are imperatively circumscribed or limited by the grounds of appeal. It is the law that any issue for determination not encompassed in the grounds of appeal is incompetent and should either be struck out or discountenanced.ABE VS UNIVERSITY OF ILORIN (2013) 6 NWLR (pt. 1319) page 183 at 205 paragraph D – G HONIKA SAWMILL (NIG.) LTD. VS MARY OKEJIE (1994) 2 NWLR (Pt. 326) 252 at 262. However, not tying the issues to the grounds of appeal is a mere inelegance, which cannot render the issue to be incompetent and struck out. This Court in UBN LTD. VS ODUSOTE BOOK STORES LTD. (1995) NWLR (Pt.421) at 563 held thus: “While it is true that the rules as regards filing of brief of argument do not specifically state that counsel must indicate in his brief which of the ground or grounds of appeal are covered by an issue, it is highly desirable that, that should be done. This will assist the appellate Court tremendously in relating arguments on the issues to
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the grounds of appeal they are related, thus saving the time of the Court and enhancing quick disposal of the appeal.”
From the above, it is crystal clear that the rules do not specifically state that counsel must indicate in his brief which of the ground or grounds of appeal are covered by an issue, therefore failure to do that is mere inelegance which cannot render the issue or issues void. See also NIGERIAN PORTS PLC VS B.P. PTE LTD. (2012) 18 NWLR (Pt.454) at 480 HANSEATIC INTERNATIONAL LTD. VS USANG 2002 13 NWLR (Pt.784) at 401-402.
The 1st & 2nd Respondents in their argument did not show that the issues formulated were not derived from the grounds of appeal, I have meticulously gone through the grounds of appeal and observed that all issues are related to the grounds of appeal. To this end, I hold that the arguments by the 1st and 2nd Respondents on this, is unmeritorious and are hereby discountenanced.
On the second leg of the preliminary objection, that the Appellant is not an aggrieved person under the circumstances of the case, the record of appeal shows that the Appellant, right from the trial Court to this Court was/is a party to this suit.
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The lower Court in its judgment at page 317 of the record of appeal restrained the Appellant from disturbing, harassing and/or howsoever interfering with the personal liberty of the 1st and 2nd Respondents.
The above decision of the lower Court shows that the letter of invitation from 3rd Respondent to the 1st & 2nd Respondents was as a result of a complaint submitted by the Appellant. I am not convinced by the argument of the Respondents that the Appellant is not aggrieved person under the circumstances of this case. In my view, an aggrieved person as in the circumstances of this appeal can be likened to a party interested as espoused by this Court, per Mohammed, CJN (Rtd.) in the case of NWAOGU VS ATUMA (2013) All FWLR (669) 1022 at 1034 where His Lordship stated the law in these words:
“….. for a person to qualify as a person interested, the Applicant must show not only that he is a person having interest in the matter but also that the order or judgment of the Court below he is seeking leave to appeal against pre-judicially affects his interest. In other words, to succeed in the application,
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the applicant must show that they are persons who are aggrieved, or persons who have suffered legal grievances, or persons against whom decisions have been pronounced which have wrongly deprived them of something or wrongly refused them something or wrongly affected their title to something.”
See also In RE: UGADU (1988) 5 NWLR (Pt. 93) 189.
What is more, the Appellant herein has been a party to the suit from the trial Court.
Having said this, the preliminary objection is hereby overruled. I now consider the appeal in its merit.
ISSUES FOR DETERMINATION
The two issues for determination as formulated by the appellant which were also adopted by the 1st & 2nd Respondents will be considered together in the determination of this appeal, as both issues are closely related.
ISSUE 1
“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 constitute an abuse of the process of the law and was made maliciously to cover up fraud against the 1st and 2nd Respondents.”
ISSUE 2
“2. Whether the Court of Appeal was right when it held that the invitation by EFCC (Exhibit V) to the 1st
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and 2nd Respondents constituted an infringement or a likelihood of an infringement to the fundamental rights of the 1st and 2nd Respondents.”
On the first issue, learned counsel for the Appellant submitted that after the Appellant wrote the 1st Respondent demanding the liquidation of the sum of N44,134,700.16K being outstanding indebtedness on the account of 2nd Respondent, the 1st Respondent started an investigation in to the quantum of the indebtedness to the bank.
Learned counsel submitted that, it was this controversy that prompted the 1st and 2nd Respondents to petition the Bankers committee to determine the amount owed to the Appellant. Learned counsel argued that it is not true that the parties mutually agreed to refer the matter to the Banker’s Committee as held by the lower Court in its judgment.
Learned counsel further argued that the petition written by the Appellant to the 3rd Respondent (EFCC) was a complaint of the unpaid balance on the account of the 1st & 2nd Respondents and urged the 3rd Respondent to thoroughly investigate the fraud complained of. Learned counsel submitted that such
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a petition cannot, in view of the circumstances of the case, be said to have been written to cover up a fraud perpetuated by the Bank against the 1st & 2nd Respondents as found by the lower Court.
Counsel submitted that the 3rd Respondent is one of the law enforcement agencies created by law to receive complaints and prevent and or fight the commission of financial crimes in Nigeria. He cited the provision of Section 6(b) of the EFCC Act 2002 CAP E 1, LFN 2004.
Learned counsel for the Appellant argued that the lower Court was wrong when it held that the petition to the 3rd Respondent was made without justification or made with malice in view of the business relationship that has gone sour between the Appellant and the 1st Respondent. The counsel finally urged this Court to resolve this issue in favour of the Appellant.
On the second issue, learned counsel argued that the 3rd Respondent is an agent of the Federal Government created by law and saddled with the duty to receive complaints, investigate crimes, arrest and detain suspects and generally prosecute suspected criminals for acts considered criminal in nature.
Learned counsel further argued that, it was in the
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discharge of this constitutional power of the 3rd Respondent, that it received a petition alleging the commission of a crime by the 1st and 2nd Respondents.
Learned counsel for the Appellant submitted that the lower Court dwelt so much into an examination of the remote causes or of things that happened in the past, such factors according to the counsel are not necessary for the just determination of the issue raised by the application of the 1st & 2nd Respondents.
Learned counsel argued that, a citizen cannot run to the Court and ask the Court to shield him from investigation by the police or the EFCC in the guise of protection of fundamental rights. Learned counsel cited ATTORNEY GENERAL OF ANAMBRA STATE VS CHIEF CHRIS UBA & ORS (2005) 15 NWLR(Pt 947) 44 at 66-67. Learned counsel contended that until the 1st Respondent reports to EFCC (the 3rd Respondent) as demanded in the letter, he will not be able to know whether his fundamental rights to freedom of movement or respect to his person will be infringed. Counsel cited and relied on the decision of the Court in IGBO PETER VS ARC. GEORGE OKOYE & ANOR
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(2002) 3 NWLR (Pt. 755, 529) ratio 4 and 5.
Learned counsel finally submitted that, the mere letter of invitation extended to the 1st Respondent did not affect his fundamental rights and same is not in violation of his rights as provided in the Constitution. Learned counsel urged the Court to allow the appeal, set aside the judgment of the lower Court and affirm the judgment of the trial Court.
On the other hand, Learned counsel for the 1st and 2nd Respondents submitted that it is the constitutional right of the 1st and 2nd Respondents to insist and where necessary protest where their account with the Appellant was not kept properly in line with the Central Bank guidelines as contained in the offer letters on which the transaction between parties was regulated.
Learned counsel argued that there was an agreement between the 1st and 2nd Respondents on one hand, and the Appellant on the other hand to refer the matter to the Banker’s Committee for investigation. Learned counsel referred the Court to page 12 of the Record of Appeal. Learned counsel submitted that, the Court of Appeal was right when it held that the Appellant and the 1st Respondent mutually agreed to refer the matter
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to Banker’s Committee for Investigation. He further submitted that it is only by employing subterfuge against the 1st and 2nd Respondents by falsely petitioning them to the police and the 3rd Respondent that the Appellant thought she would have been able to cow them to abandon their claim before the Banker’s Committee.
Learned Counsel argued that the action of the 1st and 2nd Respondents in submitting themselves to the Banker’s Committee is a case of clear conscience that fears no accusation.
Learned Counsel further argued that the petition from the Appellant to the 3rd Respondent was not enough for the 3rd Respondent to act upon, in the absence of any verifiable material from the Appellant and that it amounted to an abuse of the process of reporting civil matters to the 3rd Respondent.
Learned Counsel contended that, it is evidently clear that the petition to the 3rd Respondent was made mala fide and clothed with untruths and occasioned by malice.
On the second issue, learned counsel to the 1st & 2nd Respondents submitted that, it is very clear that the invitation of the 1st Respondent by the EFCC cannot
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be considered in isolation of the arrest and detention of the 1st Respondent by the agents of the Appellant and also the intimidation of the 1st Respondent when the Appellant forcefully collected N1,000,000.00K cash and another N1,000,000.00K in post dated cheque while in the police cell just for the simple reasons of the 1st & 2nd Respondents referring the Appellant’s conduct and/or unprofessionalism to the Banker’s Committee.
Learned counsel contended that the letter to the 3rd Respondent by the Appellant did not show any statement of account showing how the alleged debt can be verified if any.
Learned counsel argued that, the lower Court was right in holding that the issuance of (Exhibit V) by the 3rd Respondent at the behest of the Appellant was unlawful and a violation of the fundamental right of the 1st Respondent to personal liberty.
Learned counsel further submitted that the 1st Respondent was gripped with fear as a result of the treatment the Appellant and it’s agents earlier meted out to the 1st Respondent. Counsel submits finally that the Appellant was only bent on using law enforcement agencies to extort money from the 1st and 2nd
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Respondents than allowing the matter to be verified by the Banker’s Committee.
He urged this Court to dismiss this appeal and confirm the decision of the lower Court.
Upon a critical consideration of the entirety of the submission of Learned counsel in this case vis-a-vis the facts and circumstances of the case, I hold the view that there is no doubt that a mere letter of invitation from the 3rd Respondent to the 1st & 2nd Respondents did not constitute abuse of the process of law, and/or breach of fundamental right. However, looking at the surrounding circumstances, before the letter, one will think otherwise. Very material for consideration herein is the supporting Affidavit of the Applicants, particularly paragraphs 9 – 33 thereof. The said affidavit is reproduced thus:
- “That in early 2003 the Applicants suspected that their Account with 1st Respondent was not kept in line with the dictates as it affects lending and complained to the 1st Respondent after going through their statement of Account.
- That with this suspicion confirmed, the Applicants made up their mind to sue the 1st Respondent
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but were advised to consult a Banking consultant -Trust Adjusters Nigeria Limited to look into the Account to affirm their suspicion.
- That pursuant to the advice, the Applicants instructed their Lawyer K.O. Uzoukwu Esq., to instruct the Banking consultants to reconcile their Account. Annexed as EXHIBIT “C” is the letter.
- That on reconciliation of the Account by the consultant it was discovered by the consultant that the 1st Respondent charged excess Bank charges on the Applicants Account to the tune of N6,701,029.34K as at 15th October,2003 and N10,776,921.12K as at 31/3/2004.
- That on this overwhelming discovery the Applicants mandated the consultants to recover the excess charges from the 1st Respondent.
- That the consultant immediately wrote the 1st Respondents Managing Director with these facts and demanded that the excess Bank charges be credited back to the Applicants Accounts. Annexed as EXHIBIT “D” is the letter from the Consultant to the 1st Respondent.
- That the 1st Respondent acknowledged receipt of the letter and thereafter the consultant and the 1st Respondent exploited the channel of communication and on that basis the matter was referred to the
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Bankers Committee – sub-committee on ethics and professionalism by the Applicants with a payment of N50,000.00K (Fifty Thousand Naira) only to adjudicate on the claims and counter claims of the parties. Annexed as EXHIBIT “E”, “F” and G are the 1st Respondent reply, the consultants letter to the Bankers Committee and their acknowledgement.
- That on discovery of this excess Bank charges, the Applicants wrote to the 1st Respondent for the suspension of the interest on the Account.
Annexed as EXHIBIT ‘H’ is the letter.
- That while the matter was pending before the Bankers Committee the Applicants continued to make payments into the Account to show good faith in paying off the loan while expecting the 1st Respondent to credit their Account with the excess Bank charges. Annexed as EXHIBIT “J” are the tellers used in paying the 1st Respondent to date and amounting to N12,760,000’00K (Twelve Million Seven Hundred and Sixty Thousand Naira) only.
- That inspite of the matter before the Bankers Committee the 1st Respondents’ staff kept on harassing the Applicants to abandon their claim or else they will frame him up and drag him to the E.F.C.C. that he is a “419”.
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That this intimidation and harassment resulted in the Applicants letter to the Managing Director dated 20th December, 2004. Annexed as EXHIBIT ‘K’ is the letter.
- That due to the pressure on the Applicants by the 1st Respondents’ staff who obviously were not interested in waiting for the outcome of the adjudication by Bankers Committee reported to the Banking consultant who wrote a reminder to the Bankers Committee on the 10th March, 2005, to hasten up the adjudication among other cases before the Committee as referred to it by him. Annexed as EXHIBIT ‘M’ is the letter.
- That on the 14th March, 2005, the 1st Respondent who had failed to give the Applicants any statement of Account for more than a year came up with a frivolous outstanding balance of N44,134,700.76K without saying anything on the Applicants letter of 20/12/2004, to their Managing Director. Annexed as EXHIBIT “N” is the letter.
- That in reaction, the Applicants wrote back to the 1st Respondents on the 29th March, 2005, advising it to wait for the decision of the Bankers Committee before anyone can ascertain the true indebtedness. Annexed as EXHIBIT “P” is the letter.
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That the 1st Applicant was at Eastern Bulkem Company premises transacting his cement business when the 1st Respondent, Port Harcourt Branch vehicle (a Peugeot Station Wagon) stopped by his office and the policemen emerged from the vehicle while others remained inside and informed him that they were Police men from Lagos and that he was required at Mile 1, Police Station Port Harcourt.
- That he enquired to know why he was required at the Station but they informed him that they will tell him when they get there and he immediately followed them to the Station where he was informed by the policemen that the 1st Respondent petitioned that he was a “419” and the policemen immediately gave orders for the 1st Applicant to be detained in the cell which was promptly carried out after he was stripped naked.
- That few hours in the cell his blood pressure rose drastically and he complained to his Manager who summoned his Doctor and who rushed down immediately and gave him treatment that will last till the next day as the policemen after clamping the 1st Applicant in the cell left and never came back until the next day (19/4/2005).
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That on arrival the next day, the policemen forcefully extracted the sum of N1,000.000.00K and which was paid into the 1st Respondents Account on the 20/4/2005, and another N1,000,000.00K post dated cheque in favour of the 1st Respondent and dated 4/06/2005, as they informed the 1st Applicant that it is on the basis of the said payments that they will grant him bail failing which, they will bundle him to Lagos for more detention.
- That further to the detention of the 1st Applicant, the policemen invited the 1st Applicant to their office in Lagos on the 10th May, 05, and the 1st Applicant being afraid that his humiliation and intimidation will continue once he reports in Lagos over a purely commercial/civil transaction which the 1st Respondent has labeled a “419” sought for leave to enforce his fundamental right from this Court and which Justice A. O. FAJI granted on the 9th May, 2005. Annexed as EXHIBITS “T” and “U” is the invitation letter and the order of the Court.
- That the matter is still pending in the Federal High Court 2 and instead of waiting for the judgment of the Court the 1st Respondent in disregard of the
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Court petitioned us again to EFCC on spurious claims when it is it that is owing us just to use its might to intimidate us.
- That debt recovery is not part of EFCC duties under its Act or at all and that I am afraid that my humiliation and intimidation will continue once I report in Lagos over a purely commercial/Civil transaction which the 1st Respondent has labeled a Bank fraud/Diversion of depositors fund. Annexed as EXHIBIT “V” is the invitation from EFCC to me.
- That it is the 1st Respondent that is owing me and not the other way round hence the 1st Respondent did not allow the Bankers Committee to intervene in the matter which it has done in other matters referred to it by the same Banking consultant for intervention. Annexed as EXHIBIT “W” is the intervention of Bankers Committee in a matter referred to by the Banking consultant.
- That the 1st Respondent is using its connection with Law Enforcement Agencies (Police & EFCC) to intimidate and harass me into abandoning our claims of Excess Bank charges which it is owing us.
- That the 1st Respondent has not applied to Court for the forfeiture of the security for the said
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facility neither has it sued us for the recovery of the said debt.
- That there is no judgment against the Applicants in favour of the 1st Respondent.”
I must say that I took the pain to reproduce the above paragraphs of the affidavit because I have looked at the affidavit by the Appellant in opposing the application, but these averments were not effectively denied by the Appellant. The Appellant has not offered sufficient explanation in refuting them. See L. C. C. VS OGUNBIYI (1969) 1 All NLR 297 at 299; LEWIS & PEAT (NIG) LTD VS AKHIMIEN (1976) 7 S.C. 157.
The learned trial judge in his Ruling at page 23 of the record of appeal stated as follows:
“I have read the facts in support of this applications itemize (a) – c and 2 (a) – d, all the facts that relates to acts that occurred in 2005, i.e. in April, 2005, are not relevant for the purposes of the matter before me 1st they are acts that occurred for more than 12 months before the present suit was initiated……”
The above view of learned trial Judge is in clear contradiction to the Provisions of Sections 4 and 5 of the
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Evidence Act 2011, which provide thus:
“4. Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, is relevant, whether they occurred at the same time and place or at different times and places.
“5. Facts which are the occasion, cause or effect, immediately or otherwise, of relevant facts, or facts in issue or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transition’ are relevant.”
From the foregoing, it is my view that the parties having mutually agreed to refer the matter to the Chartered Institute of Banker’s – sub-committee on ethics and professionalism, the Appellant should not have gone ahead to report the matter to Financial Malpractices Investigation Unit, force C. I. D. annex, Lagos since the Banker’s Committee directed the parties to stay away from any further action pending the determination of her investigation, and this was clearly understood and agreed by both Parties.
As if that was not enough, the Appellant again reported the matter to the Economic and Financial Crime Commission EFCC (3th Respondent).
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This amounted to an abuse of process.
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 or civil transactions 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 complainants 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 entirely with the lower Court in its judgment at page 312 of the record of appeal when the Court held:-
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“The complaint of the Appellants, which unfortunately the learned trial misconceived, is that the 1st Respondent is resorting to multiplicity of complaints against them over the same issue to law enforcement agencies purposely to harass and emasculate them from complaining about the fraud of the 1st Respondent subjecting their account to illegal charges to its benefit and to the detriment of the Appellants. A banking consultant employed by the Appellants detected the fraud. Thereafter the Appellants and the 1st Respondent mutually agreed and the matter was referred to the Bankers Committee (sub-committee) on ethics and professionalism for arbitration. The 1st Respondent admits this fact and avers in the Counter Affidavit that the “committee – is yet to finally adjudicate on the matter’” While the matter is yet to be finally adjudicated upon by the committee the 1st Respondent reported the Appellants to the police. The 1st Appellant was arrested and detained, and had to unwillingly pay N2,000,000.00K to the 1st Respondent in order to be granted bail.”
Looking at all that has been said. I am convinced by the Learned counsel for the 1st & 2nd
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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
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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 Order 2 Rule 1 of the Fundamental Right (Enforcement Procedure) Rules, 2009 which says:
“Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the State where the infringement occurs or likely to occur, for redress.”
The fundamental right, the 1st & 2nd Respondents seeking to enforce is the right to personal liberty
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guaranteed by Section 35(1) of the Constitution. The Section provide as follow:
“Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with procedure permitted by law.”
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 N2,000,000.00K 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 Economic and Financial Crimes Commission 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
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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 Bankers Committee, has not been concluded.
I agree with the decision of the Court of Appeal on page 316 of the records wherein it stated:
“The application ought to have been granted’ I hereby grant it. Accordingly, it is hereby declared that the invitation of the 1st Applicant/Appellant, vide Exhibit ‘V” by the 2nd Respondent at the behest of the 1st Respondent is unlawful and a violation of the fundamental right of the 1st Applicant/Appellant to personal liberty and a continuation of the harassment of the Applicants/Appellants by the 1st Respondent in relation to the disputed or dubious debt allegedly owed by the Appellants to the 1st Respondent. The 1st Respondent cannot, under the enabling statute establishing the 2nd Respondent, improperly use the 2nd Respondent as their debt collectors in transactions that are completely civil and contractual. The Respondents, jointly and/or severally, are hereby
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restrained from disturbing, harassing and/or howsoever interfering with the personal liberty of the 1st Applicant/Appellant through intimidation, threats of invitation for interrogation, arrest, detention or in any other way or manner. Those shall be the declarations and order of the trial Court. The Ruling dismissing the application No. FHC/PH/CS/5087/2006, the subject of this appeal, is hereby set aside.”
Having said this, issue No. 2 is resolved against the Appellant.
This appeal lacks merit and is accordingly dismissed, the judgment of the lower Court is hereby affirmed.
The 1st & 2nd Respondents are awarded costs of N500.000.00K against the Appellant.
SC.375/2012
