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.
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.
Oochukwu Onyekwuluje Esq, for the Appellant
K.O. Ozoukwu Esq, for the 1st & 2nd Respondents
Ifeanyi Agwu Esq, for the 3rd Respondent
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