E.F.C.C v. AGBETUYI
(2020)LCN/14679(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, October 09, 2020
CA/LAG/225/2019
RATIO
EFCC: DUTY OF THE EFCC TO SCRUTINIZE ALL COMPLAINTS RECEIVED
The Supreme Court held in that regard in the fairly recent case of EFCC v. Diamond Bank Plc (2018) 8 NWLR (pt. 1620) 61 at 79 per the lead judgment prepared by His Lordship, Bage, J.S.C., now His Royal Highness, The Emir of Lafia) that the appellant (EFCC) has an inherent duty to scrutinize all complaints that it receives carefully, no matter how carefully crafted.
To scrutinise something is to examine it in detail or to observe it carefully vide Webster Comprehensive Dictionary (International Edition) page 1132. The evidence in the record does not disclose that the appellant examined the petition in detail and/or observed it by way of investigation to ascertain whether it disclosed any reasonable ground that the respondent had committed an offence before the appellant arrested the respondent. Thus, in Isheno v. Julius Berger (Nig.) Plc (2008) 6 NWLR (pt. 1084) 582 read with Duruaku and Anor. v. Nwoke and Ors. (2015) 15 NWLR (pt. 1483) 417 at 474 and 476 following Ogor v. Roland (1983) 1 NCR 343 and Fawehinmi v. I.G.P. (2002) 7 NWLR (pt. 767) 606 the Court (Owerri Division) held inter alia that an arrest before or pending investigation is unconstitutional because the investigation of the allegation to establish a prima facie case of reasonable suspicion of the suspect having committed an offence must precede or be done before the person is arrested. PER IKYEGH, J.C.A.
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
ECONOMIC AND FINANCIAL CRIMES COMMISSION APPELANT(S)
And
VENERABLE SEGUN AGBETUYI RESPONDENT(S)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal emerged from a decision of the High Court of Lagos State (the Court below) whereby it granted the reliefs of the respondent for the enforcement of his fundamental right to personal liberty against the appellant by specifically ordering the appellant to tender public apology to the respondent as well as compensate the respondent with the sum of N1 million for the said infringement of his fundamental right to personal liberty.
Expressed concisely, the facts of the case according to the appellant’s version were that it received a petition on 19.02.2016 from the law firm of Ade Adegbite & Co. against Consecrated Farms Ltd, a company of the respondent as the alter ego; the petition was referred to the Extraction Industry and Fraud Section (EIFS) of the appellant; the petitioner was invited at the appellant’s office where he made statements alleging the offence of fraud and obtaining by false pretense against the respondent; the appellant made several efforts to invite the respondent to its office to no avail; upon intelligence report the appellant was able to arrest the
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respondent on 02.06.2016 at Four Points Hotel, Lekki and was taken to the appellant’s office at No. 15A Awolowo Road, Ikoyi, Lagos where the respondent was informed of the reason for his arrest and was also shown the petition written against him.
According to the appellant, the respondent was cautioned and he subsequently volunteered his statement and was granted bail on the same day and he went home on the same day vide pages 84 — 85 of the record of appeal (the record); after the respondent was on administrative bail, he visited the appellant’s office severally voluntarily and made some additional statements and also made an undertaking to amicably settle the issue in dispute with the petitioner vide pages 72 — 83 of the record; and that after a year elapsed the respondent who had been on administrative bail turned round to file a fundamental right application against the appellant alleging breach of his fundamental right vide pages 2 — 25 of the record.
On the other hand, the respondent’s case in a nutshell was that he was at all material times the Chairman of Consecrated Farms Limited which had entered into contract with Coppers
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International BV of which the 4th respondent at the Court below was its Managing Director; their contractual relationship was smooth up to 2011 but due to cash crunch and other problems experienced by Consecrated Farms Limited, he was unable to meet his repayment for the supplies made to his company by Coppers International BV.
Consequently, the respondent entered into negotiations with the said Managing Director of Coppers International BV on modalities for repayment of the outstanding debt and even made some repayments only to be subsequently arrested by some officials of the appellant based on a petition written on behalf of Coppers International BV by her solicitors requesting the appellant to help her recover the outstanding balance of £44,901.28 from the respondent.
According to the respondent, he upon his arrest, the appellant’s officials detained him and made him to pay N4.5 million to the 4 respondent at the Court below through the appellant; that despite the payment of part of the indebtedness, the appellant mandated the respondent to be reporting to its office on regular basis and requested him to deposit the title documents of
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the property he proposed to sell to satisfy the debt.
It was also stated that it was when the harassment of the respondent became “unbearable” that he filed an application at the Court below for the enforcement of his fundamental rights which the Court below heard on the merit and granted the respondent’s application by ordering the appellant to tender public apology to the respondent and also pay N1 million compensation to the respondent for the said breach of his fundamental rights.
Not satisfied with the decision of the Court below, the appellant filed a notice of appeal with a solitary ground of appeal contained in pages 190 — 182 of the record. The appellant’s brief of argument was filed on 13.11.19 and deemed as properly filed on 28.05.20 with a solitary issue for determination distilled as follows –
“Whether having regard to the facts and circumstances of this case, the lower Court was right to hold that the arrest of the Respondent by the Appellant for the purpose of investigation was unconstitutional, ultra vires its powers and an infringement of the Respondent’s Fundamental Right.”
The appellant referred to
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Sections 7(1) and 41 of the EFCC Act, 2004 and the cases of Fawehinmi v. I.G.P. (2000) 7 NWLR (pt. 665) 481 at 519 – 521, Joshua v. State (2009) ALL FWLR (pt. 475) 1626 at 1651, I.G.P. v. Ubah (2014) LPELR 23968, Okanu v. C.O.P. (2001) 1 CHR (cases of Human Rights) 407 at 408, Fawehinmi v. I.G.P. (2002) 7 NWLR (pt. 767) 645 to contend that the arrest and apprehension of the respondent was lawful in that it was based on his perpetration of an economic and financial crime therefore by carrying out its statutory duties the appellant was protected by the proviso to Section 35(1) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) read with Section 35(3) (a) thereof and could not have been liable for the infringement of the respondent’s fundamental right to personal liberty for his arrest in connection with the investigation of an allegation of economic and financial crime of false pretense as wrongly held by the Court below.
The appellant contended that the Court below had relied heavily on the petition to hold that the action was civil sounding in contract outside the powers of the appellant and thus unconstitutional without
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considering paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the appellant’s counter-affidavit against the application contained in page 124 of the record which disclosed a case of fraud within the statutory powers of the appellant and that the appellant at no time admitted or insisted that the respondent must pay money as erroneously stated by the Court below.
The appellant further contended that in all its dealings with the respondent it acted within its statutory powers to detect and investigate crime by questioning anybody in relation to the commission of crime under the EFCC Act as the allegation in the petition read along with the counter affidavit disclosed that the respondent fraudulently changed the payment terms of the contract from letters of credit to payment by bill of collection; and that it was based on the said allegation that the respondent was arrested for the sole purpose of investigation after several attempts to invite him proved abortive vide Fajemirokun v. CBC (CL) Ltd. (2002) 7 NWLR (pt. 767) 606.
The appellant also contended that the investigation of crime is not “rocket science” as it cannot be easily determined
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unless the gathering of facts, analysis of documents, questioning, interview sessions, arrest and detention when the need arises are done by the investigator which require time, not by “the wave of a magic wand;” and that the appellant never coerced, insisted, forced, harassed and or compelled the respondent to pay for the goods supplied to his company as “erroneously and maliciously” arrived at by the Court below; rather it was the respondent who willingly expressed the desire to pay back the money owed Coopens International BV in order to stop further investigation of the case vide the extra-judicial statements of the respondent contained in pages 72 — 83 of the record.
The appellant contended that although findings of fact will not ordinarily be interfered, such findings of fact when perverse and unsupported by the evidence as in this case where the Court below held that the appellant used its powers for the purpose of recovering debt when the respondent admitted the fraud in his voluntary extra judicial statement and pleaded with the victim of the alleged offence corroborated the reasonableness of the suspicion of the appellant that the
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respondent had committed the economic crime alleged in the petition; and that the Court should not allow any suspect under investigation to use the Court as a shield against his investigation and possible prosecution vide the cases of Jolayemi and Ors. v. Olaoye and Anor. (2004) LPELR — 1625, Fashanu v. Adekoya (1974) 6 SC 83 at 91, Awudu and Anor. v. Daniel and Anor. (2004) LPELR – 7348, Igago v. State (1996) 6 NWLR (pt. 608) 568 at 580, Ogbechie v. Onochie (1998) 1 NWLR (pt. 70) 370, Mogaji v. Odofin (1978) 4 SC 91, Omoregbe v. Edo (1971) 1 ALL NLR 282, Kalio v. Woluchem (1985) 1 NWLR (pt. 4) 610, Obiaso v. Okoye (1989) 5 NWLR (pt. 119) 80, Oro v. Falade (1995) 5 NWLR (pt. 396) 385 at 416, A. – G., Anambra State v. UBA (2005) 15 NWLR (pt. 947) 14 at 53; upon which the appellant urged that the appeal should be allowed and the judgment of the Court below set aside.
The respondent’s brief of argument was filed on 14.01.2020 and deemed as properly filed on 28.05.20. It was argued in the brief that the decision of the Court below did not run contrary to the evidence, nor did the Court below take into account matters it ought not to take into
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consideration, nor did the Court below shut its eyes to the evidence, nor did the holding of the Court below occasion a miscarriage of justice, therefore the decision of the Court below contained in page 169 of the record cannot be said to be perverse vide the case of Unilorin Teaching Hospital v. Abegunde (2015) 3 NWLR (pt. 1447) (no pagination).
The respondent argued that since his arrest was not based on reasonable suspicion of his having committed an offence, the appellant acted ultra vires its statutory and constitutional powers as rightly held by the Court below vide paragraphs 6 and 7 of the respondent’s affidavit contained in page 57 — 57(d) of the record and the petition contained in page 128 thereof and the cases of Oteri v. Okorodudu and Anor. S.C. 39/1968(?) C.O.P. v. Obolo (1989) 5 NWLR (pt. 120) 130.
The respondent further argued that the facts in the counter affidavit stating that the respondent was guilty of fraud are an afterthought as the petition upon which the respondent was arrested had not alleged fraud or a criminal offence and that the Court below considered the counter affidavit in part of its judgment contained in
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pages 167 — 170 of the record but found that the transaction was contractual and rightly held that the appellant had infringed the fundamental right of the respondent vide Jim Jaja v. C.O.P. (2011) 2 NWLR (pt. 1231) 37, Mclaren v. Jennings (2003) 3 NWLR (pt. 808) 470, lgwe v. Eze (2010) 7 NWLR (pt. 1192) 61, Arab Contractors Nig. Ltd. v. Gillian Umanah (2013) ALL FWLR (pt. 683) 1977, Ogbonna v. Ogbonna (2014) LPELR – 22308, Diamond Bank Plc v. Opara and Ors. (2018) LPELR – 43907, EFCC v. Diamond Bank and Ors. (2018) LPELR — 4421750; upon which the respondent urged that the appeal should be dismissed and the decision of the Court below affirmed.
The materials at the disposal of the appellant before it took the decision to arrest the respondent are the materials relevant to look at to ascertain whether the arrest was based on reasonable suspicion of the respondent for having committed an economic and financial crime or any offence. The arrest was made on 02.06.2016 in circumstances the respondent described in paragraph 30 of the affidavit in support of the application contained in page 9 of the record as “most traumatic, dramatic and
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dehumanising” and in a crowded hotel lobby. The materials at the disposal of the appellant before the arrest of the respondent were copies of the sales invoice of the commercial transaction between the respondent’s company and Coppens International BV attached to the counter affidavit of the appellant in pages 58 — 71 of the record and the petition contained in pages 126 — 128 of the record. What the appellant, therefore, gathered after the arrest of the respondent did not form part of the materials it relied upon to arrest the respondent.
The face of the first page of the petition has an endorsement that the “O/C EIFS, TB investigate and report.” The instruction to investigate and report (supra) further directed that the complainant should be contacted. The report of the investigation was not attached nor was the statement of the complainant attached to the counter affidavit to show that an investigation of the petition was done before the respondent was arrested by the appellant.
The arrest of the respondent by the appellant therefore was not based on any investigation of the petition by the appellant. An investigation of a
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complaint had to be done by the appellant to ascertain whether the complaint contained in the petition disclosed reasonable grounds of the suspect having committed an offence before the decision to arrest the suspect would be taken. It is not the law that the suspect has to be arrested before investigation of the complaint is made; or that the suspect would be arrested to extract information from him to flesh up the complaint.
On the state of the evidence available in this case, the appellant, therefore, jumped the stiles (so to speak) by arresting the respondent before embarking on the investigation of the petition. The Supreme Court held in that regard in the fairly recent case of EFCC v. Diamond Bank Plc (2018) 8 NWLR (pt. 1620) 61 at 79 per the lead judgment prepared by His Lordship, Bage, J.S.C., now His Royal Highness, The Emir of Lafia) that the appellant (EFCC) has an inherent duty to scrutinize all complaints that it receives carefully, no matter how carefully crafted.
To scrutinise something is to examine it in detail or to observe it carefully vide Webster Comprehensive Dictionary (International Edition) page 1132. The evidence in the
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record does not disclose that the appellant examined the petition in detail and/or observed it by way of investigation to ascertain whether it disclosed any reasonable ground that the respondent had committed an offence before the appellant arrested the respondent. Thus, in Isheno v. Julius Berger (Nig.) Plc (2008) 6 NWLR (pt. 1084) 582 read with Duruaku and Anor. v. Nwoke and Ors. (2015) 15 NWLR (pt. 1483) 417 at 474 and 476 following Ogor v. Roland (1983) 1 NCR 343 and Fawehinmi v. I.G.P. (2002) 7 NWLR (pt. 767) 606 the Court (Owerri Division) held inter alia that an arrest before or pending investigation is unconstitutional because the investigation of the allegation to establish a prima facie case of reasonable suspicion of the suspect having committed an offence must precede or be done before the person is arrested.
The petition itself and the sales invoice disclosed at a glance that the relationship between the respondent and the petitioner, Coppens International BV, was contractual and all that Coppens International BV wanted the appellant to do for her was stated in the concluding part of the petition contained in page 128 of the record thus-
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“It is in the light of the above that this petition is being written to appeal to you sir to use your good offices to help our client doing legitimate business to recover the outstanding balance of £2244, 901.98 from Consecrated Farms Ltd. and its alter ego, Mr. Segun Agbeluyi.”
The petition in question was, therefore, unquestionably made for the purpose of recovery of debt that arose from contractual obligation of the respondent’s company to Coppen International BV, not an appeal for criminal justice but the accomplishment of a purely civil transaction, in my modest opinion. See the incisive judgment prepared by His Lordship, Eko, J.C.A., (now J.S.C.) in the case Jim Jaja v. C.O.P. (2011) 2 NWLR (pt. 1231) 37 and affirmed by the Supreme Court in (2013) 6 NWLR (pt. 1350) 225 to the effect that a transaction such as the one in this case which was purely a civil contract did not constitute the offence of obtaining by false pretence and that law enforcement agents should be wary of petition or letters designed to mislead them or which are a mere pretext on which to act; and that failure to pay back a debt is a civil obligation so the fact
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that the complainant in that case raised a bogus criminal allegation to induce the law enforcement agents to act as his debt collector was not within Section 35(1) (c) of the 1999 Constitution and that debt collection is outside the statutory powers of law enforcement agents.
Furthermore, the Supreme Court reiterated in the cases of Diamond Bank Plc v. Opara (2018) 7 NWLR (pt. 1617) 92 and EFCC v. Diamond Bank Plc. (2018) 8 NWLR (pt. 1620) 61 that the statutory powers conferred on the EFCC, the appellant in this case, to receive complaints and prevent and/or fight economic and financial crimes did not extend to the investigation and/or resolution of disputes arising or resulting from simple contracts or civil transactions. See also the decision of the Court (Kaduna Division) in Mclaren v. Jennings (2003) NWLR (pt. 808) 470 and the other cases (supra) cited by the respondent.
Accordingly, the Court below was right to hold that the appellant was wrong in arresting the respondent in the circumstances of the case and that the said arrest violated the respondent’s fundamental right to personal liberty.
Consequently, I find no merit in the appeal and
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hereby dismiss it and affirm the well-considered judgment of the Court below (Onigbanjo, J) with N300,000 costs against the appellant in favour of the respondent.
BALKISU BELLO ALIYU, J.C.A.: I have been privileged to read in draft the judgment prepared by my learned brother JOSEPH SHAGBAOR IKYEGH JCA just delivered. I completely agree with his reasoning and conclusions reached therein.
Clearly, recovery of debt arising from a civil contract between two individuals is not an economic crime within the purview of the EFCC Act. It was therefore wrongful for the Appellant to allow itself be used as debt collector and in the process ran afoul of the law and infringed the Respondent’s fundamental right to liberty.
I too find no merit in the Appeal and I dismiss it. I affirm the decision of the trial judge and I abide by the order of cost made in the lead judgment.
EBIOWEI TOBI, J.C.A.: I have been afforded in advance the privilege of reading in draft the leading judgment of my learned brother, Joseph Shagbaor Ikyegh, JCA, and I am in agreement with the resolution of the sole issue thrown up for resolution by this Honourable Court. My learned brother has resolved that the transaction that led to the arrest and detention of the Respondent was founded on Civil contract and as such, debt
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collection is outside the statutory powers of the law enforcement agents, thus rendering the detention of the Respondent by the officers of the Appellant illegal and a violation of the constitutional right of the Respondent. I cannot see any other way this appeal would have been resolved, more so, in favour of the Appellant.
For this reason and the fuller reason given by my learned brother, Joseph Shagbaor Ikyegh, JCA, I find that this appeal lacks merit and same is hereby dismissed. I also abide by the order of cost.
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Appearances:
Appellant was served hearing notice but was unrepresented. For Appellant(s)
Mr. Adepoju for the Respondent. For Respondent(s)
