NWAFOR v. EFCC (2021)

NWAFOR v. EFCC

(2021)LCN/14981(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, February 19, 2021

CA/A/302/2016

RATIO

APPEAL: EFFECT OF FAILURE OF THE RESPONDENT TO MAKE ANY COUNTER SUBMISSION

Ordinarily, in law the failure of the Respondent to make any counter submission in this Appeal would simply amount to a concession. This is so because where one party is duly served with the arguments of the adverse party and he fails or neglects or refuses to respond to the said arguments as proffered by the adverse, it would be taken that he has conceded to the arguments of the adverse. See Dr. Arthur Nwankwo & Ors V. Alhaji Umaru Yar’Adua & Ors (2010) 12 NWLR (Pt. 1209) 518, where the Supreme Court per Onnoghen JSC., (as he then was but later CJN) had held inter alia thus:
“It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue is not so contested and is deemed conceded by the defaulting party.”
See also Ahmed V. Ahmed (2013) 41 WRN 1; Dairo V. Aderinoye (2013) 50 WRN 111.
However, notwithstanding the above position of the law, I am aware that it is also the law that where an issue raised by one party is not countered by the adverse party, it does not automatically follow that such arguments are to be taken hook, line and sinker as correct by the Court. Thus the failure of one party to counter the arguments of the other party alone does not ipso facto without more confer merit on the arguments of the party as the Court is still under a duty to consider the arguments on their own merit. See Adah V. NYSC(2004) 13 NWLR (Pt. 891) 639. See also Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80; Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80; Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450; Elelu Habeeb V. AG. Fed. (2012) 13 NWLR (Pt. 1318) 423; Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

CONSTITUTIONAL LAW: RIGHT TO PERSONAL LIBERTY

The law is that an infringement or threatened or likely infringement of the right to personal liberty of the citizen, unless lawfully justified, is not only enforceable but would if proved amount to an unconstitutional act or omission for which a citizen whose right to personal liberty is so infringed upon or threatened to be infringed or is likely to be infringed is entitled to the protection of the law by way of a grant of his reliefs claimed for such actions or omissions against the offending party. See Fawehinmi V. IGP (2002) 7 NWLR (Pt. 767) 606.
However, the right to personal liberty, like it is with every other rights including the right to life, the most sacrosanct right of all to the human being, is not absolute and can as permitted by law be derogated from. Thus, in all or any of the circumstances spelt out in Subsection (C) of Section 35(1) of the Constitution of Nigeria 1999 (as amended), the right to personal liberty of the citizen may justifiably and lawfully be derogated from. See Alhaji Aliyu N. Salihu V. Suleiman Umar Gana & Ors (2014) LPELR – 203069 (CA). PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

AGENCY: POWERS AND RESPONSIBILTY OF EFCC

My Lords, by Section 6(b) of the EFCC Act 2004, it is provided that the EFCC shall be responsible for:
“The investigation of all financial crimes, including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, future market fraud, fraudulent computer credit card fraud and contract scam, etc.”
And by Section 6(h) of the EFCC Act 2004, it is further provided as follows:
“The examination and investigation of all reported cases of economic and financial crimes with a view of identifying individuals, corporate bodies or groups involved.”
Now, these are no doubt very enormous powers conferred upon the EFCC by law with the discretion to use same in the performance of its duties, which includes the power to arrest and detain in the course of investigation or to prevent and detect crime and truly the Courts are wary of interfering with the lawful exercise of these functions, duties and powers of the EFCC except in clear cases of infringement on the rights of citizen as enshrined in Chapter IV of the Constitution of Nigeria 1999 (as amended). See Fawehinmi V. IGP (2005) 1 NCC 415; Aigbadion V. The State (2000) 7 NWLR (Pt 666) 686.
Thus, constitutionally, the EFCC has the power to arrest a person upon reasonable suspicion of his having committed a criminal offence or to prevent him from committing one or where an officer of the law enforcement agency reasonably believes that such a person has committed a criminal fence. In all such cases however, the test of reasonable suspicion is objective and not subjective. See COP V. Obolo (1989) 5 NWLR (Pt. 120)130; Jackson V. Omonikuna (1981) NLR 283.
However, it must be pointed out at once that the discretionary powers of the EFCC to arrest and detain a Citizen is neither left at large nor a carte blank cheque for indiscriminate and unwarranted arrest and detention of the citizen without any reasonable grounds for suspecting that the Citizen had or was about to commit an offence known to law and thus these powers are clearly circumscribed by the provisions of Section 35 of the Constitution of Nigeria 1999 (as amended) and all such other laws providing for the protection of the rights of the Citizens to their personal liberty and dignity of the human person amongst other fundamental rights of the Citizen.

It is true that notwithstanding enormous powers and duties conferred by law on the EFCC, the Respondent, under the EFCC Act 2004 and all such other laws enabling it in that behalf, the EFCC is not saddled with the authority to interfere with and meddle into disputes of purely civil nature between Citizens in contracts of which the law Courts are best suited and appropriately empowered by the Constitution of Nigeria 1999 (as amended) to deal with as they are presented before the Courts by such parties. In other words, and simply put, it is neither the duty nor the power or function of the EFCC to serve as agents of any person, be it an individual or a corporate citizen or even of Government at either the Federal or State or Local Government level, to collect debts from debtors, under any guise or pretext of investigating a crime in a purely civil dispute without any tinge of criminality. See Jim – Jaja V. Commissioner of Police (2011) 2 N.W.L.R (Pt. 1231) 375. See also Omman V. Ekpe (2000) 1 NWLR (Pt. 641) 365; Jim Jaja V. COP & Ors (2013) 6 NWLR (Pt. 1350) 225; Arab Contractors Nigeria Ltd V. Gillian Umanah (2013) All FWLR (Pt. 683) 1977 @ p. 1990; Igwe V. Ezeanochie (2010) 7 NWLR (Pt. 1192) 61; Agbai V. Okogbue (1991) 7 NWLR (Pt. 204) 391; Oteri V. Okorodudu (1970) All NLR 199; Mclaren V. Jennings (2003) 3 NWLR (Pt. 808) 470; Afribank Nig Plc V. Onyima (2004) 2 NWLR (Pt. 858) 654; Anogwie & Ors V. Odom & Ors (2016) LPELR – 40214(CA). PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

KEN NWAFOR APPELANT(S)

And

ECONOMIC AND FINANCIAL CRIMES COMMISSION RESPONDENT(S)

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja, Coram; J., M. B. Idris J., (as he then was) in Suit No. FCT/HC/CV/2243/2015: Ken Nwafor V. Economic and Financial Crimes Commission delivered on 28/10/2015, in which the claims of the Appellant as Applicant against the Respondent were dismissed for lacking in merit.

The Appellant was dissatisfied with the said judgment of the Court below and had promptly appealed against it vide a Notice of Appeal filed on 10/11/2015 on two Grounds of Appeal. The Record of Appeal was duly transmitted to this Court on 3/5/2016. The Appellant’s brief was filed on 22/1/2018 but was deemed as properly filed on 11/4/2018. The Respondent, though duly served with all the processes, did not file any Respondent’s brief.

At the hearing of the Appeal on 21/1/2021, Ernest Nwoye Esq., learned counsel for the Appellant appearing with Mrs. Mercy Omanijo, adopted the Appellant’s brief as their arguments and urged the Court to allow the Appeal, set aside the judgment of the Court below and grant

the reliefs sought by the Appellant. The Respondent did not file any Respondent’s brief and though duly served with hearing notice on 15/1/2021 did not also participate at the hearing of this Appeal.

By an originating Motion on Notice filed on 25/6/2015, the Appellant as Applicant sought to enforce his fundamental rights against the Respondent claiming the following reliefs namely:
1. A declaration that the arrest and detention of the Applicant by the Respondent for failure to pay up/refund some money owed to one Mr. Femi between 10am of 9/4/2015 to 3pm of 10/4/2015 was illegal and unconstitutional as it violates the Applicant’s rights to personal liberty and freedom of movement under Sections 35 and 41 respectively of the 1999 Constitution (as amended), Articles 6 and12 of the African Charter on Human And Peoples Rights (Ratification and Enforcement) Act, Cap. A9, Laws of the Federation of Nigeria, 2004.
2. A declaration that the further frequent threats of arrest and detention of the Applicant by the Respondent for failure to pay up/refund some money owed to one Mr. Femi is illegal and unconstitutional as it violates the Applicant’s

rights to personal liberty and freedom of movement under Sections 35 and 41 respectively of the 1999 Constitution (as amended) Articles 6 and 12 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap. A9, Laws of the Federation of Nigeria, 2004.
3. A declaration that the Respondent, not being a debt collector abused its office and acted contrary to the provisions of Sections 35(5), (6) and 41(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the extant EFCC Act by unlawfully, unconstitutionally and illegally arresting and detaining the Applicant for more than a day in a bid to recover a debt or refund of money owed to some persons.
4. An order restraining the Respondent from further arresting, harassing, intimidating, detaining the Applicant either by themselves or by their officers or howsoever called in respect of the matter that gave rise to this action without an order of a Court of competent jurisdiction.
5. Cost of this action.
6. And for such further or other orders as this Hon Court may deem fit to make in the circumstance. See pages 1 – 5 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The gist of the case of the Appellant, as Applicant before the Court below, as can be gleaned from his affidavit evidence in the Record of Appeal, was that he entered into a business transaction for the purchase of contracts with one Mr. Femi Gbadamosi on or about 9/4/14 but the said business turned sour in that the contract sale could not materialize. Consequently, Mr. Femi Gbadamosi petitioned the Respondent against the Appellant alleging that he was cheated and sought the Respondent’s assistance to recover his money. The Respondent then invited the Appellant, who narrated the true facts relating to the business transaction to the effect that it was a purely civil and contractual transaction which did not succeed for no fault of his. However, despite the Appellant’s explanation, the Respondent arrested and detained him and turned themselves into debt collectors by continuing to threaten to re-arrest and detain the Appellant despite his being on bail. The Appellant sensing that his fundamental right has been violated and is likely to be contravened again with the incessant harassment and threat from the Respondent

requiring him to pay the Petitioner, the Appellant filed the application before the Court below for the enforcement of his fundamental rights. See pages 1 – 19 of the Record of Appeal.

On its part, the gist of the case of the Respondent as can be gleaned from its counter affidavit as in the Record of Appeal, was that the Respondent had received a petition written by one Gbadamosi Tajudeen Femi on 2/3/2015 wherein allegations of fraud, forgery, obtaining money under false pretenses and issuance of dud cheque were made against the Applicants. Upon the receipt of the said petition, the Respondent conducted preliminary investigation into the allegations made against the Appellant and which preliminary investigation revealed that the Appellant collected some money from the petitioner to enable him get some contracts from some MDGs but which he failed to do but had in turn given to the Petitioner an alleged forged document of award. In the course of the investigation, it was found out that the Appellant issued a cheque to the Petitioner which cheque had been returned unpaid due to insufficient funds. As a result of these findings, the Appellant was invited to

state his own side of the story which he did and he was granted bail.

However, the Appellant could not meet his bail conditions but was released the next day after meeting the bail conditions for his release and has since neither been invited nor threatened to be invited again, whilst discreet investigation is ongoing and putting documents together to enable the Respondent prosecute the Appellant for the alleged offences of forgery, obtaining under false pretenses and issuance of dud cheque. The Respondent is by law entitled to investigate and prosecute the offence of forgery, obtaining under false pretenses and issuance of dud cheque and was only carrying out its legal duty of investigating the alleged offences reported by the Petitioner against the Appellant and has therefore, not breached any of the fundamental rights of the Appellant by merely inviting him to answer to the allegations made against him by the Petitioner. See pages 27 – 30 of the Record of Appeal.

In support of the Motion on Notice, the Appellant filed an affidavit of 42 paragraphs deposed to by the Appellant, annexed to which are some documentary Exhibits A, B and C.

In response, the Respondent filed a counter affidavit of 8 paragraphs deposed to by one Hamidu Waziri, an Operative with the Respondent, annexed to which are some documentary Exhibits EFCC 1 and EFCC 2. The matter proceeded to hearing on the affidavit and counter affidavit evidence and written addresses of the parties and on 28/10/2015, the Court below delivered its judgment in which all the claims of the Appellant against the Respondent were dismissed, hence this Appeal. See pages 42 – 49 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, two issues were distilled as arising for determination from the two Grounds of Appeal, namely:
1. Whether a citizen can be rejected and discriminated against as a surety on the condition of her marriage status and sex? (Distilled from Ground 1)
2. Whether or not having regard to the provision of Section 46(1) of the 1999 Constitution, (as amended), Order Il Rule I of the FREP Rules 2009, the Appellant is entitled to the reliefs sought when his right was likely to be contravened? (Distilled from Ground 2)

I have given adequate consideration to the claims of the Appellant

as Applicant in his originating application for the enforcement of his fundamental rights against the Respondent, the depositions in the affidavit and counter affidavit of the parties. I have also considered the submissions of counsel to the Appellant in the light of the issues as joined by the parties and the findings in the judgment of the Court below and it does appear to me that the crux of this appeal is clearly within a very narrow confine, namely: Whether the Appellant proved by credible evidence any breach of any of his Constitutionally guaranteed fundamental rights against the Respondent and was therefore, entitled to the grant of all or any of the reliefs sought against the Respondent? It is my humble but firm view that the two issues as distilled in the Appellant’s brief could be conveniently considered and resolved under this broad sole issue for determination.
SOLE ISSUE
Whether the Appellant proved by credible evidence any breach of any of his constitutionally guaranteed fundamental rights against the Respondents and was therefore, entitled to the grant of all or any of the reliefs sought against the Respondent?<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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APPELLANTS’ COUNSEL SUBMISSIONS
On his issue one, whether a citizen can be rejected and discriminated against as a surety on the condition of her marriage status and sex, learned counsel for the Appellant had submitted that the Constitution of the Federal Republic of Nigeria 1999 (as amended) protects the rights of all citizens without regards to gender and thereby prohibits any discrimination based on gender to any form of disabilities or restrictions to which citizens of Nigeria of other sex are not made subject and contended that the refusal to allow his wife, a staff of the Federal Medical Centre Jabi, Abuja, to stand in as one of the sureties to the Appellant on account only of her being a female was unconstitutional and amounted to a breach of the Appellant’s right to freedom from unlawful detention and urged the Court to hold that the refusal to release him until the next day from 10am on 9/4/2015 – 3pm on 10/4/2015 on account of one of his sureties being a female was unconstitutional and urged the Court to hold that the Court below was wrong to have held to the contrary and erroneously dismissing the Appellant’s claims against

the Respondent and to allow the appeal and set aside the judgment of the Court below. Counsel referred to Section 42 of the Constitution of Nigeria 1999 (as amended) and Sections 30 and 31(1) of the Administration of Criminal Justice Act 2015.

It was also submitted that under our law, bail is as a right to every citizen without any discrimination with regards to the gender or sex of the sureties and contended that had the Respondent not discriminated against the wife of the Appellant to continue to stand in as his surety, his bail would not have been subsequently cancelled and he would not have been re – arrested and detained by the Respondent from 10am on 9/5/15 to 3pm on 10/5/15 when he was released and urged the Court to hold that by reason of the discrimination meted out to the Appellant’s wife as his surety he was detained beyond the statutory twenty four hours by the Respondent and thereby breaching his fundamental right to personal liberty and freedom of movement and to allow the appeal and set aside the perverse judgment of the Court below. Counsel referred to Sections 35 and 41 of the Constitution of Nigeria 1999 (as amended).

It was further submitted that the facts deposed and relied upon by the Appellant in paragraphs 25 – 32 of his Affidavit in support were neither challenged nor contradicted by the Respondent and contended that in law unchallenged and uncontroverted affidavit evidence are good evidence on which the Court should rely to make appropriate findings of facts and urged the Court to so hold and to allow the appeal and set aside the perverse judgment of the Court below and grant the reliefs claimed by the Appellant against the Respondent. Counsel relied on Okafor V. UBN (2007) All FWLR (Pt. 347) 752.

On his issue two, whether or not having regard to the provision of Section 46(1) of the Constitution of Nigeria 1999 (as amended) and Order II Rule I of the FREP Rules 2009, the Appellant is entitled to the reliefs sought against the Respondent when his right is likely to be contravened, learned counsel for the Appellant had submitted that the Appellant did not only allege that his rights were contravened by the Respondent by revoking his bail because one of the sureties was his wife and arresting and detaining him but the Appellant also alleged that his rights are likely to

be contravened by the Respondent judging from the incessant calls, harassment and threat of revocation of his bail and further arrest and detention if he does not pay the debt he owed to Mr. Femi Gbadamosi – the Petitioner and contended that in law these facts constitute a threatened breach of the fundamental rights of the Appellant to his personal liberty and freedom of movement for which he is entitled to the protection of the law and urged the Court to hold that the Court below failed to properly evaluate the entirety of the evidence led by the Appellant as to the crucial difference between actual breach and threatened or likely breach of the Appellant’s right and to allow the appeal, set aside the judgment of the Court below and to grant the relief sought by the Appellant against the Respondent. Counsel referred to Section 46 (1) of the Constitution of Nigeria 1999 (as amended) and Order II Rule 1 of the Fundamental Rights Enforcement (Civil Procedure) Rules 2009.

RESOLUTION OF THE SOLE ISSUE
My Lords, the crux of this appeal is three folds, namely, a: when can a law enforcement agency intervene in matters arising from an initial civil

transaction between individuals, b; when can the fundamental rights of the citizen be legitimately abrogated or curtailed by the State acting through its law enforcement agencies and c; whether on the facts and circumstances of this case the Court below was wrong or right when it refused to grant any or all of the reliefs claimed by the Appellant against the Respondent?

I am aware that the Respondent, though duly served with all the processes in this appeal, including hearing notice of the hearing of this appeal, neither filed any Respondent’s brief nor participated at the hearing of this appeal. Ordinarily, in law the failure of the Respondent to make any counter submission in this Appeal would simply amount to a concession. This is so because where one party is duly served with the arguments of the adverse party and he fails or neglects or refuses to respond to the said arguments as proffered by the adverse, it would be taken that he has conceded to the arguments of the adverse. See Dr. Arthur Nwankwo & Ors V. Alhaji Umaru Yar’Adua & Ors (2010) 12 NWLR (Pt. 1209) 518, where the Supreme Court per Onnoghen JSC., (as he then was but later

CJN) had held inter alia thus:
“It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue is not so contested and is deemed conceded by the defaulting party.”
See also Ahmed V. Ahmed (2013) 41 WRN 1; Dairo V. Aderinoye (2013) 50 WRN 111.
However, notwithstanding the above position of the law, I am aware that it is also the law that where an issue raised by one party is not countered by the adverse party, it does not automatically follow that such arguments are to be taken hook, line and sinker as correct by the Court. Thus the failure of one party to counter the arguments of the other party alone does not ipso facto without more confer merit on the arguments of the party as the Court is still under a duty to consider the arguments on their own merit. See Adah V. NYSC(2004) 13 NWLR (Pt. 891) 639. See also Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80; Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80; Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450; Elelu Habeeb V. AG. Fed. (2012) 13 NWLR (Pt. 1318) 423; Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121.

It is thus in deference to the above latter position of the law and the overriding need to do substantial justice to the parties in this Appeal that I intend to proceed to consider and resolve the sole issue, encompassing the two issues as distilled in the Appellant’s brief, arising for determination in this Appeal on the merit. See Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR-45528(CA), per Georgewill JCA.

The Appellant had approached the Court below seeking the enforcement of his right to personal liberty and freedom of movement against the Respondent, a law enforcement agency in this Country. In doing so he had relied on several grounds including; that the complaint from which the Respondent caused the arrest and detention the Appellant and from which he is being intimidated, harassed, threatened and being compelled to pay and or refund some money to the Petitioner was purely based on civil contractual transaction and or relationship devoid of any criminality to warrant the intervention of the Respondent to enforce the right of the Petitioner to repayment and or refund from the Appellant;

that there was no justification whatsoever for the arrest and detention of the Appellant by the Respondent contrary to the laws of the land since the Respondent has no statutory power, authority or function to demand for and recover any debt and or money on behalf of any person arising from a purely civil contractual business relationship, which does not fall within the mandate and purview of the powers of the Respondent under the EFCC Act; that the Appellant was not charged to any Court of law for any known offences and having been merely unlawfully arrested and detained, he was therefore, entitled to compensation and public apology from the Respondent. See pages 1 – 6 of the Record of Appeal.

Now, in the supporting affidavit, the Appellant had deposed to the following facts inter alia thus:
2. That sometime last year (April/May); a family friend by name Miss Bimpe with phone number 08062342402, approached me and said that some of her brothers/friends in Lagos (Mr. Femi Gbadamosi and Mr. Ben with phone numbers 08067619919 and 08033247813 respectively) would like to meet me to help them secure contracts in Abuja, using my contacts.

That few weeks later, they arrived at Abuja and called me for a meeting. They told me that Mr. Ben’s elder brother in USA asked them to look for projects he could finance in Nigeria. I gave them a few proposal based on my areas of familiarity. However, they did not pick interest in the ones I suggested but they rather said I should look for MDGS contracts.
4. That I told them I was not familiar with MDGS but I would try. I made a few push through my contacts and I could not make a head way. So I informed them that there was nothing we could do there and they said when I find something in that direction I should let them know.
5. That a couple of months later, one of my lawyers, Barr. Ehime Akhigbemen, who I informed about it called me to say that he had a strong link in MDGS Office, Abuja that could facilitate contracts.
6. That I asked how sure and genuine that said link was and he said it was an Officer in the Department of State Security (DSSS) by name Mr. Suleiman Mohammed with phone numbers 08060446132 and 09096939939, that introduced him to one Mr. Samson with phone numbers 0809 4997504 and 08034223/79 whom the said DSS officer said was an MDGS

procurement Officer, working under the Director of Procurement MDGS.
7. That the said DSS man, Mr. Suleiman Mohammed presented his staff I.D card to convince us that he would not involve himself in anything that is not genuine since that would jeopardize his job by so doing. That I then informed Mr. Femi Mr. Ben and Miss Bimpe of the positive development and what they need. That Mr. Femi sent N1. 5M into my Zenith bank account to cover the processing, facilitating and consultancy charges as presented by Barr. Ehime Akhigbemen.
8. That on the 20/8/2014, Barr. Ehime Akhigbemen as we agreed that he facilitate the project wrote an undertaking. A copy is attached as Exhibit A.
9. That after this Barr Ehime Akhigbemen called me to say that the initial documents were out, id est, BOQ, Treasury receipt etc. The said Barr Ehime Akhigbemen then said we should expect the award letter in a couple of weeks. However, week after week passed and month after month passed, yet we did not see or get any letter of award.
10. That sometime in August 2014, the said Barr. Ehime Akhigbemen called me to say that the award letters were ready, that I should ask my

people to come and pay the agreed facilitation fee before they could release the contract award letter.
11. That first, I told him that they did not mention this to me initially that I thought everyone involved will share in the fee when the job is executed, but Mr. Suleiman and Mr. Samson explained that the people who facilitated the contract award would not wait till that time: moreover, that many contractors do disappoint them in such occasions.
12. That I asked to see the evidence before informing my people. So they brought the original copy and showed me. Then l asked them to give me a photocopy to show to my people in Lagos, but they refused and only allowed me to take a camera shot of the award letter with my phone, which I forwarded by email to Mr. Femi Gbadamosi and also explained the facilitators stand to him.
13. That after reviewing it, Mr. Femi Gbadamosi was satisfied and then sent the sum of about N3.8m to my Zenith Bank account on 20th August, 2014, to pay the facilitators percentage. That Barr. Ehime Akhigbemen and Mr. Suleiman said I should change the money to US Dollars and bring it to Barr. Ehime’s office at Area 11, Garki,

Abuja. That at the time the whole process was going on l decided to include my own company Dirubies Industrial Services Nig. Ltd.
14. That in addition to the money that Mr. Femi Gbadamasi sent to me, I also added an extra sum for my own company and changed them to US Dollar amounting to 25,000USD. Then I paid additional N850.000.00 into Bar. Ehime’s GTB account by electronic transfer (attached). I took the USD 25,000 to Barr. Ehime’s office at Area 11, Garki, Abja, where Mr. Suleiman was waiting That I got to Barr, Ehime’s office and paid the money to Barr Ehime.
15. That the said Mr. Suleiman left and later came back with 2 award letters in his hand one to Hessnest Logistics Ltd represented by Mr. Fermi; and the other to Dirubies industrial Services Nig. Ltd, which is my own company.
16. That the next day being 21st August, 2014, I sent that of Mr. Femi Gbadamosi to him and look mine to MDGS office to open file and submit my acceptance letter as well as commence other processes for mobilization to site.
17. That on getting there, I was detained in the office of the Director of Procurement (MDGS), Abuja, the Director said that the

document in my possession was forged, though it carried his signature. I protested that it was from a lawyer and an SSS person. After much argument and showing them the proof of the monies I paid, they realized that I was defrauded, so they left me to go.
18. That on 21st August, 2014, I immediately went to FCT Police Command, Abuja and petitioned to the Commissioner of Police (A copy is attached as Exhibit B). The Police arrested the said Barr Ehime Akhigbemen, Mr. Suleiman and Mr. Samson and they wrote their statements. That Mr. Suleiman and Mr. Samson acknowledged receiving the money from me, but claimed that they had given it to their main boss whom they called Chief Leo; that they gave the phone number of the said Chief Leo to the police, but the police were not able the reach the man, even till date.
19. That later the Directorate of State Security Services (DSSS) called me that MDGS Wrote a petition involving my company (Dirubies). I went and wrote my statement and left same day on bail, that the DSSS then invited Barr. Ehime Akhigbemen and later went after Mr. Suleiman and Mr. Samson who at this time were at large. I was also informed by

DSSS that they got more members of their gang.
20. That the DSSS office discovered that the DSSS person Mr. Suleiman was their former staff. He was dismissed from DSSS some years ago, but was still parading himself everywhere with the DSSS I.D card and deceiving and defrauding innocent persons.
21. That at all these happenings, I have been making effort for them to refund the money I paid them, but to no avail. The said Mr. Suleiman at one time gave a piece of land located along Kubwa Expressway opposite NNPC filling station to Barr. Ehime Akhigbemen to sell and refund me all the money I paid to them; that in the process of selling the land. Barr. Ehime discovered that the piece of land belonged to someone else and not to Mr. Suleiman. The bonafide owner had only given Mr. Suleiman a Power of Attorney to sell and no more.
22. That later on, Mr. Femi Gbadamosi, Mr. Ben and Miss Bimpe became very impatient and started mounting overwhelming pressure on me to refund them their money. I explained the situation to them but they could not accept. I promised to refund them their money as I have now become a victim of circumstances due to the failed

contract resulting from the fraud done on me by Barr. Ehime Akhigbemen, Mr. Suleiman and Mr. Samson; that Mr. Femi called to threaten me several times and even sent a threat message to my wife’s phone. They later on started mounting more pressure and demanded that I must issue a post-dated cheque to Mr. Femi Gbadamosi or face any consequences.
23. That they would keep the post-dated cheque until the account is funded. I told them that I would not be sure of the date the account would be funded; that I told them that I would write the cheque with a view to refunding the money without a date, and then inform them as soon as it is funded. They accepted it and I wrote a text message and sent to Mr. Femi for his record that the cheque was issued without a date. I then gave the cheque to Miss Bimpe to pass on to him.
24. That to my amazement, Mr. Femi Gbadamosi proceeded to put a date on the cheque without informing me and went to present it at the bank which dishonored it. Then he went to EFCC and petitioned me for issuing a dishonored cheque after obtaining money from him.
25 That EFCC invited me on Wednesday 8/4/2015 and I went and explained to

them what had transpired in the whole transaction. EFCC said I should write a statement, which I did.
26. That I did not obtain any money from Mr. Femi Gbadamosi or any other person by false pretenses/trick and did not issue a dated cheque that was dishonored by any bank to Mr. Femi Gbadamosi; that the cheque I gave to Miss Bimpe to hand over to Mr. Femi Gbadamosi was not dated and was to be presented on my instruction when the account is funded (that I wrote clearly at the back of the cheque)
27. That EFCC asked me to get 2 civil servants to take me on bail, so I called my wife who works with Federal Staff Hospital as a medical doctor and one Engr. Chris to bail me. They however said I should bring a reliable surety (2 digit level civil servant) the next day to replace my wife, but that even if I could not get one that I should still endeavor to report back at their Office by 10am the following day. I left that evening and reported back the next morning at 10am being the 9/4/2015.
28. That I explained to them that the people I have called to surety me traveled for general election of 11/4/2015. and that I did not have sufficient time between

the previous evening and that morning to make alternative arrangement, but that I would do that between that day and the next day.
29. That when the EFCC officers took me to see their OC (one Mr. Akan Egima), he got angry and said he was cancelling my bail, that they should go and process me and keep me in detention until I have brought another person to replace my wife and also pay a substantial amount of the money that Mr. Femi Gbadamosi sent to me. The said OC (one Mr. Akan Egima), began to harass and intimidate me and accuse me that I was the one that forged the documents and gave to Mr. Femi Gbadamosi to defraud him.
30. That I tried to explain what transpired but he refused to hear me out. He also refused to accept the documents I brought as evidence and would not allow his officers to make a copy for the file. He insisted that I must pay a substantial amount of the said Mr. Femi’s money before he would let me go. He also said that he was leaving office by 3pm and would not be coming back, so that I should act fast if I wanted to leave that day. That I was detained from 10am on 9/4/2015 to 3pm of the 10/4/2015. My surety later came at about

4pm when the said OC had gone. That the other EFCC officers thereat said they cannot verify my proposed surety because it was late and that the said OC was not even on sit to sign any document again.
31. That I had protested to the said OC (Mr. Akan Egima) that I would come of anytime I am needed at their office. Just as I did that morning, so he should allow me to go and come the next morning with the replacement surety, seeing that it was already getting late, but he refused.
32. That I slept in detention that night and by the following day my surety returned and they verified her and approved my bail around 3pm. However, the said Mr. Akan still insisted that I must deposit a substantial amount of money before leaving the EFCC’s office. I pleaded and a lawyer who came for me also went in to plead with him but he refused and said I should send my wife to go and bring some money before he would allow me to go.
33. That finally his officers prevailed on him and he signed the bail and let me go on the condition that I must bring substantial deposit by the next Monday 13/4/2015, because this was already Friday evening. Even when I protested that

it was not practicable, rather he should give me till 30/4/2015, he still refused and said unless I wanted the option of sleeping in the cell again until a substantial amount is paid by me or on my behalf. So I was forced to accept so I could go home to be with my family.
34. That subsequently and repeatedly, the EFCC’s officers have been harassing me, intimidating me of arrest and detention over their quest to getting my payment of some money to the said Mr. Fermi or that I will be detained indefinitely despite my explanation of the facts and circumstance of the matter.
35. That I have been repeatedly invited, interrogated and requested for my payment of some money to Mr. Femi Gbadamosi by EFCC Officers
36. That I have instituted a Court action against Barr. Ehiemen Akhigbemen in the High Court of Federal Capital Territory in suit No: CV/2215/15. A copy of the writ is attached as Exhibit C.
37. That the EFCC has not charged me of any offence and has not taken me to any Court of law for prosecution.
38. That the Respondent’s further frequent invitations, threat to arrest and detain or harassment to pay some money give me

reasonable believe that they are taking steps to violate my fundamental rights.
39. That there is real threat to the violation of my fundamental rights by the Respondent. See pages 6 – 11 of the Record of Appeal.

In response, the Respondent denied the depositions in paragraphs 26, 29, 30, 31, 32, 33, 34, 35, 37, 38, 39, 40 and 41 of the Appellant’s Affidavit in support in its Counter Affidavit deposed to by one of its Operatives, Mr. Hamidu Waziri, stating inter alia thus:
8. That contrary to the above paragraphs stated above, I state as follows:
a. That the Respondent received a petition written by one Gbadamosi Tajudeen Femi (petitioner) against the Applicant on 2/3/2015 wherein allegations of fraud, forgery, obtaining money under false pretense and issuance of dud cheque against the Applicants were alleged. A copy of the Petition is herewith attached and marked as Exhibit EFCC 1.
b. That following the receipt of the petition, the Respondent conducted preliminary investigation into the allegation of forgery, obtaining money under false pretense and issuance of dud cheque.
c. That the preliminary investigation revealed

that the Applicant collected some money from the petitioner to enable him get MDG contract which he failed to do and in turn gave him an alleged forged document of award.
d. That during the course of investigation, it was shown that the Applicant issued a cheque to the petitioner which returned unpaid due to insufficient funds. A photocopy of the cheque is hereby attached and marked as Exhibit EFCC 2.
e. That it was as a result of the findings from the Respondent that the Applicant was invited to state his own side of the story which he did and was released on bail.
f. That contrary to the claims of the Applicant, which I know as a fact that after the Applicant was released, he could not meet his bail conditions but he left the next day.
g. That contrary to the claims of the Applicant that I know as a fact that the Respondent has not invited the Applicant after he was released on bail nor threatened to invite him but is carrying on a discreet investigation and putting documents together to enable him prosecute the Applicant on the alleged offence of forgery obtaining under false pretense and issuance of dud cheque.

That contrary to the claims of the Applicant, that I know of a fact that the Respondent has the legal right to investigate and prosecute the offence of forgery, obtaining under false pretense and issuance of dud cheque.
i. That contrary to the claims of the Applicant, the Respondent is only carrying out its legal duty of investigating the alleged offence by the Petitioner against the Applicant.
j. That the Respondent has not breached the fundamental rights of the Applicant by merely inviting him to answer the allegations involving him.
k. That there is no breach or threat of breach or likelihood of breach of the Applicants fundamental rights in this case.
l. That it will be in the interest of justice to dismiss/the application of the Plaintiff as it is lacking in merit. See pages 27 – 30 of the Record of Appeal.

My Lords, since it does appear that both parties are ad idem that what triggered the chain of actions leading to the arrest, detention and release of the Appellant by the Respondent was the Petition written to the Respondent by one Gbadamosi Tajudeen Femi For Hessnest Logistics Ltd against the Appellant, it may well be

necessary, for proper analysis and possible re – evaluation of the evidence of the parties as carried out by the Court below if need be, that the contents of this Petition as in Exhibit EFCC 1, is reproduced inter alia thus:
“…I hereby write this petition against one Dr. Nwafor Kenneth (A Medical Practitioner) and Mr. Kenneth (surname not known) of 22, Lateef Jakande Street, Apo quarters, Zone E, Abuja in the case of fraud, forgery and perjury, obtaining money by false pretence and issuance of dud cheques using Millennium Development Goals (MDGS) office in the office of the President of the Federal Republic of Nigeria. Sequel to his approach to me that he has some contracts up to for transfer in MDG office by his Client because his Client could not finance the project with a promise that once N1.5 million bidding fee is returned to his Client, a change of name of the contractor will be done and on the 12th of June, 2014, I transferred the sum of N1.5 Million into the Nwafor Chidi Kenneth current account with Zenith Bank in Abuja with A/C No 6510216639 issued a receipt (Attached within and noted Exhibit. A). After two weeks, he called and

forwarded to my mobile phone the copy of the contract letter and a condition that 15% of the contract sum needed to be paid for it to be released because it is now for sale and not for transfer again and this took some weeks before my financer could grant me the loan of N3, 870, 000 being 15% of the contract sum. On the 19th of August, I transferred the sum N3,870,000 to Dr. Nwafor Chidi Kenneth Zenith Bank A/C No-6510216639 and boarded a flight to Abuja to pick the contract letter and on getting to Abuja, he asked me to raise a bond of 1% of contract sum amounting to N250,000 that morning. Surprisingly, on my arrival, he handed over another contract letter entirely different from the one sent to my mobile phone and told me that because of delay in the payment of 15% of the old contract, it was allocated to another contractor and this new one issued to me (Copy attached as Exhibit B). I collected it and travelled back to Lagos. But calling the phone numbers on the letter head of MDG contract letter to ascertain the authenticity of the letter, they were fictitious and that made me to confront him that he gave me a forged contract letter which he never denied

but begged me that he will refund all the money with the accrued interest running into over N1Million already as at December 2014 and gave a cheque of N5,980,000 on 22/12/2014 which was paid into the bank and returned with inscription (DAR)- (attached within Exhibit C). Sir, I plead to you to use your good office to help the Office of the President has been used to perpetrate their evil machination and to help me compel Dr. Nwafor Chidi Kenneth with telephone number 07062178427/08092494641 to pay back as agreed so that I will not lose my whole life savings and my job as I try to follow him up. Thanks for your extended Courtesies. Yours faithfully, Gbadamosi Tajudeen Femi For Hessnest Logistics Ltd.” See pages 38 – 39 of the Record of Appeal.

Attached to the above letter is a copy of the Cheque issued by the Appellant to the Petitioner, which same cheque was also attached as Exhibit EFCC 2 by the Respondent. It is a Keystone Bank Account for the sum of N5, 980, 000 made payable to Hessnest Logistics Ltd and is dated 22/12/2020. See page 40 of the Record of Appeal.

It was on the strength of the above pieces of affidavit and documentary

evidence of the parties that the Court below had, in its judgment delivered on 28/10/2015, whilst dismissing the claims of the Appellant against the Respondent in its entirety, held inter alia thus:
“…From the averments in the above paragraphs, I only found one thing, the Respondent had granted bail to the Applicant on the 9/4/2015 and he could not meet the bail terms/condition. If I will ask whose fault will that be? My answer to this poser is: “Certainly that of the Applicant”. Therefore, it cannot be said that the Respondent had detained the Applicant for a period longer than that which the Constitution stipulates. On the issue of arrest, it is trite that right to personal liberty is not absolute, the right can be curtailed, where there is ground, by the appropriate authority. In paragraph 24 of the affidavit, the Applicant avers that Mr. Femi wrote a Petition against him to the Respondent in respect of a post – dated cheque he issued him which was dishonored by his bankers… Therefore the arrest of the Applicant is in conformity with the provision of the Constitution… Consequent upon the above consideration, this Application lacks merit

and it is accordingly dismissed.” See pages 43 – 49; See pages of the Record of Appeal.

My Lords, I had taken time to reproduce extensively the facts as relied upon by the parties since the issue in contention between the parties was purely founded on the facts as relied upon by them in their respective affidavit and counter affidavit in the light of the provisions of the Chapter IV of the Constitution of Nigeria 1999 (as amended) to see whether or not the Court below was correct or wrong when it reached the conclusion that based on the affidavit and counter affidavit evidence of the parties before it, the Appellant as Applicant failed to make out any actual breach or threatened breach or likely breach of his right to personal liberty and freedom of movement against the Respondent.

The thrust of the Appellant’s case are two fold, namely: that the transaction between him and the Petitioner was purely civil in nature devoid of any criminality; that the Respondent denied him of his right to personal liberty by detaining him beyond the statutory period of 24 hours merely on account of its rejection of one of his sureties, is wife, on

grounds of her gender, being a female.

Now, by Section 35(1)(C) of the Constitution of Nigeria 1999 (as amended), it is provided thus:
“35 (1): 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 a procedure permitted by law: –
(C) for the purpose of bringing him before a Court in execution of the Order of Court or upon reasonable suspicions of his having committed a Criminal Offence or to such extent as may be reasonably necessary to prevent his committing a Criminal Offence.”
However, by Section 35(4) and (5) of the Constitution of Nigeria 1999 (as amended), it is provided thus:
35(4): Any person who is arrested or detained in accordance with Subsection 1 (C) of this Section shall be brought before a Court of Law within a reasonable time…
35(5): In Subsection 4 of this Section, the expression ‘a reasonable time’ means –
a. In the case of an arrest or detention in any place where there is a Court of competent jurisdiction within a radius of 40 Kilometres, a period of one day, and<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In any other case, a period of two days or such longer period as in the circumstances may be considered by the Court to be reasonable.
In relation to bail conditions, by Section 31(1) of the Administration of Criminal Justice Act 2015, it is provided thus:
“Where a Suspect is taken into custody, and it appears to the officer that the enquiry into the case cannot be completed forthwith, he may discharge the Suspect on his entering into recognizance, with or without sureties for a reasonable amount, to appear at the Police Station and at such times as are named in the recognizance.”
In order to ensure the efficacy of and facilitate the enforcement of these provisions safeguarding the right of the citizen to liberty and freedom from unlawful and unwarranted arrest and detention beyond the lawful period, by Section 46(1) of the Constitution of Nigeria 1999 (as amended), it is provides thus:
“Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress.”
The above was further reinforced by the

provision of Order II Rule 1 of the Fundamental Rights Enforcement (Civil Procedure) Rules 2009, which provides thus:
“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 is likely to occur, for redress.”
The law is that an infringement or threatened or likely infringement of the right to personal liberty of the citizen, unless lawfully justified, is not only enforceable but would if proved amount to an unconstitutional act or omission for which a citizen whose right to personal liberty is so infringed upon or threatened to be infringed or is likely to be infringed is entitled to the protection of the law by way of a grant of his reliefs claimed for such actions or omissions against the offending party. See Fawehinmi V. IGP (2002) 7 NWLR (Pt. 767) 606.
However, the right to personal liberty, like it is with every other rights including the right to life, the most sacrosanct right of

all to the human being, is not absolute and can as permitted by law be derogated from. Thus, in all or any of the circumstances spelt out in Subsection (C) of Section 35(1) of the Constitution of Nigeria 1999 (as amended), the right to personal liberty of the citizen may justifiably and lawfully be derogated from. See Alhaji Aliyu N. Salihu V. Suleiman Umar Gana & Ors (2014) LPELR – 203069 (CA).

Having reiterated as above the position of the law in relation to the right to personal liberty of the citizen, including the Appellant did the Appellant prove as alleged the breach or threatened or likely breach of his right to personal liberty against the Respondent on the evidence as put forward by him before the Court below as in the Record of Appeal? In other words, was the Court below wrong when it held that on the totality of the evidence put forward by the parties, the Appellant failed to prove any breach or likely breach of his right to personal liberty against the Respondent and thereby dismissing his claims?

Was the case put forward by the Appellant one of simple civil transaction devoid of any criminality to warrant the intervention of the

Respondent as vehemently contended by the Appellant or was the case of the Appellant shown on the evidence of the Respondent to be a product of criminality warranting the due intervention of the Respondent in the due discharge of its lawful duties as vehemently contended by the Respondent before the Court below?

crime and truly the Courts are wary of interfering with the lawful exercise of these functions, duties and powers of the EFCC except in clear cases of infringement on the rights of citizen as enshrined in Chapter IV of the Constitution of Nigeria 1999 (as amended). See Fawehinmi V. IGP (2005) 1 NCC 415; Aigbadion V. The State (2000) 7 NWLR (Pt 666) 686.
Thus, constitutionally, the EFCC has the power to arrest a person upon reasonable suspicion of his having committed a criminal offence or to prevent him from committing one or where an officer of the law enforcement agency reasonably believes that such a person has committed a criminal fence. In all such cases however, the test of reasonable suspicion is objective and not subjective. See COP V. Obolo (1989) 5 NWLR (Pt. 120)130; Jackson V. Omonikuna (1981) NLR 283.
However, it must be pointed out at once that the discretionary powers of the EFCC to arrest and detain a Citizen is neither left at large nor a carte blank cheque for indiscriminate and unwarranted arrest and detention of the citizen without any reasonable grounds for suspecting that the Citizen had or was about to commit an offence known to

law and thus these powers are clearly circumscribed by the provisions of Section 35 of the Constitution of Nigeria 1999 (as amended) and all such other laws providing for the protection of the rights of the Citizens to their personal liberty and dignity of the human person amongst other fundamental rights of the Citizen.

purely civil dispute without any tinge of criminality. See Jim – Jaja V. Commissioner of Police (2011) 2 N.W.L.R (Pt. 1231) 375. See also Omman V. Ekpe (2000) 1 NWLR (Pt. 641) 365; Jim Jaja V. COP & Ors (2013) 6 NWLR (Pt. 1350) 225; Arab Contractors Nigeria Ltd V. Gillian Umanah (2013) All FWLR (Pt. 683) 1977 @ p. 1990; Igwe V. Ezeanochie (2010) 7 NWLR (Pt. 1192) 61; Agbai V. Okogbue (1991) 7 NWLR (Pt. 204) 391; Oteri V. Okorodudu (1970) All NLR 199; Mclaren V. Jennings (2003) 3 NWLR (Pt. 808) 470; Afribank Nig Plc V. Onyima (2004) 2 NWLR (Pt. 858) 654; Anogwie & Ors V. Odom & Ors (2016) LPELR – 40214(CA).

So is the case as revealed on the Appellant’s own showing from the depositions in his affidavit in support one of pure civil transaction between the Appellant and his Petitioner? Is the issue of issuance of dud cheque as even admitted to exist by the Appellant made less a criminal offences merely because of the explanations sought to be offered by the Appellant? Who in law is authorized to investigate such an allegation to determine if it indeed it amounted to an offence or not and whether or not to charge and prosecute such a conduct or not?

It would appear and I so hold that even on the showing of the Appellant, the initial seemingly civil transaction of buying contracts if that would even be termed legal, had dovetailed into series of likely criminalities, including but not limited to the issuance of dud cheque, which is in the nature of a very serious financial crime. Thus, all I can see in the copious explanations being offered by the Appellant in his affidavit evidence are at best possible strong defenses which does not in any way remove the ting of criminality in the otherwise alleged civil transaction for which the Respondent, having been formally so invited by reason of the Petition of the Petitioner, was lawfully under a duty to intervene to investigate these allegations. It does not lie in the mouth of the Appellant to determine which kind of criminal allegations the Respondent should intervene to investigate merely because he has some explanations to make.
Indeed, all such explanations can only be made by the Appellant to the Respondent upon their intervention. I therefore, do not find anything untoward in the actions of the Respondent in acting upon the

Petition against the Appellant and following due process to invite him for the purposes of investigating the allegations made against him and hearing from him his own side of the story to enable it determine if indeed any of the alleged offences has been committed or not and to take a further step to prosecute if any known offence had been committed.
My Lords, I find the contents of the Petition against the Appellant and the preliminary results of the investigation by the Respondent as being capable of and indeed raised reasonable suspicion of the commission of the criminal offences as were alleged against the Appellant for which the Respondent was justified in law to derogate from the Appellant’s right to personal liberty. On the proved evidence therefore, there was probable cause for the intervention of the Respondent.
The Appellant has no immunity in law from being investigated for allegation of committing any criminal offence. His right to personal liberty was therefore, as rightly found by the Court below not breached or threatened or likely to be breached merely by reason of his invitation, arrest and investigation for the criminal

offences alleged against him by his business associates. Indeed, the Respondent has the undoubted powers to intervene and carry out its investigation as it did and therefore, it committed no wrong by so doing in the circumstances of this case. The Court below was therefore, right when it so held and it is not the business of, as it is also not the habit of, this Court to interfere with and disturb the correct findings of the Court below. See Section 35(1)(C) of the Constitution of Nigeria 1999 (as amended). See also Alhaji Aliyu N. Salihu V. Suleiman Umar Gana & Ors (2014) LPELR – 203069 (CA).

My Lords, having found and so held firmly that the Appellant was lawfully arrested and investigated for the criminal offences alleged against him, the only issue left is whether the Appellant proved that his detention from 10.00am on 9/4/2015 to 3.00pm on 10/4/2015 was wrongful on account of the rejection of his wife as one of his two sureties by the Respondent and amounting in law to discrimination on ground of sex as prohibited by Section 42(1)(a) of the Constitution of Nigeria 1999 (as amended).
A consideration of the above issue would have a two – pronged

approach, namely: Was the detention of the Appellant from 9/4/2015 to 10/4/2015 in breach of the provision of Section 35(1)(a) of the Constitution of Nigeria 1999 (as amended), requiring that the Appellant should either be admitted to bail or be charged to Court within a reasonable time of one day, and was the Appellant, or rather his wife, discriminated against by the Respondent and rejected as one of the two sureties for the Appellant merely on account of her sex in breach of the provision of Section 42(1)(a) of the Constitution of Nigeria 1999 (as amended)?

Let me address the first arm of this issue dealing with the alleged rejection of the Appellant’s wife as one of his two sureties by the Respondent. In law, there is and should be no discrimination between the male and female sexes as to the legal capacity to stand and act as surety to a suspect or an Accused person granted bail either by the law enforcement agencies or by the Court. Thus, any proven act of discrimination by way of rejection of a surety merely on account of her sex, being a female, will be unconstitutional and such rejection must be set aside while any such act of

discrimination should be shut down and condemned. This is so because there is no legal basis for denying a female, on account of her being a female only, from standing or acting as a surety to a Suspect under detention by any law enforcement agencies or an Accused person under trial in Nigeria and any such practice is illegal and unconstitutional. It has no place in our laws! See Section 42 (1) (a) of the Constitution of Nigeria 1999 (as amended), which provides as follows:
“42(1): A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person –
a. Be subjected either expressly by, or in the practical application of, any law in force ion Nigeria or any executive or administrative action of the Government, to disabilities or restrictions to which citizen of Nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinions are not made subject.”

However, since it was the Appellant who alleged that his wife was rejected from being one of his two sureties by the Respondent, an allegation which the

Respondent had vehemently denied, the onus was on the Appellant to prove this allegation as made by him against the Respondent. In law, proof can be used in either of two senses, namely; the establishment and refutation of an alleged fact by evidence and also as evidence that determines the decision of a Court. It is he who asserts that must prove. Thus, it is the party that asserts the existence of a particular fact that must prove it, and if he fails to prove that fact, his case will collapse. See Blacks Law Dictionary, 2nd Edition. See also Section 131 (1) of the Evidence Act. See further IGN (Nig.) Ltd & Anor V. Pedmar (Nig.) Ltd & Anor (2013) LPELR – 41064(CA).
Having reiterated as above, did the Appellant prove as alleged by him that the Respondent discriminated against his wife by rejecting her as one of his two sureties for his bail and thereby continued to detain him beyond the statutory one day before his eventual release from its detention? Now, in order to succeed on this ground, the Appellant was under a duty to furnish by way of documentary evidence showing the rejection of his wife as surety by the Respondent by producing the bail

papers as was duly signed by her or the Appellant could have also obtained an affidavit to that effect from his wife, who was primarily the subject of the alleged discrimination by the Respondent. In law, a fact capable of being proved by documentary evidence should be so proved and also where documentary evidence supports oral or affidavit evidence, such oral or affidavit evidence, particularly where denied by the adverse party, becomes more credible, since in law documentary evidence whenever available is used as a hanger from which oral evidence is assessed. See Ndayako V. Mohammed (2006) 17 NWLR (Pt. 1009) 655. See also Kimdey V. Military Gov. of Gongola State (1988) 2 NWLR (Pt. 77) 445.
Indeed, where are the duly completed bail papers filled by the wife of the Appellant as one of his two sureties that was rejected by the Respondent? Where is the direct evidence of the wife of the Appellant who was allegedly rejected as a surety merely on account of her sex – being a female? All these are crucial facts which were positively alleged by the Appellant and the onus, of which by law, rest squarely on him to prove by credible evidence. So did the Appellant

succeed in placing credible and sufficient evidence, as required of him by law, in support of these allegations? I think not.
Now, save the bare assertions, unsupported by the very vital bail papers, which rendered these crucial allegations, the proof on which the success of this aspect of the Appellant’s case depends, unproved and thus falling like a pack of cards. Thus, on the Appellant’s own showing and in the absence of any bail bond showing the conditions of the bail granted to him by the Respondent coupled with no credible evidence in support of this grave allegation of discrimination against his wife from standing as one of his two sureties, I am unable to find as urged upon us by the Appellant that his detention from 9/4/2015 to 10/4/2015 was merely on account of the rejection of one of his two sureties being a female, his wife.

My Lords, I now come to the issue of the period of the Appellant’s detention by the Respondent alleged by the Appellant to have been above the statutory one day required by law. In my view, the Appellant was under a duty to furnish the relevant particulars from which such an inference can be drawn or

such a finding of fact can be arrived at. This is so because, in law, the requirement that a suspect shall be charged to Court within a reasonable time, such as one day, is clearly circumscribed to cases in which an arrest or detention is made in any place where there is a Court of competent jurisdiction within a radius of 40 Kilometers. Thus, the onus was on the Appellant who alleged a breach thereof to supply these vital facts. Regrettably, none of these vital facts were supplied by the Appellant in his affidavit evidence as in the Record of Appeal. See Section 35(4) and (5)(a) of the Constitution of Nigeria 1999 (as amended).
In law, when a person is arrested by a law enforcement agency, the granting of bail may be with or without sureties. Thus, where a suspect is taken into custody, and it appears to the officer that the enquiry into the case cannot be completed forthwith, he may discharge the Suspect on his entering into recognizance, with or without sureties for a reasonable amount, to appear at the Police Station and at such times as are named in the recognizance. It follows therefore, where a Suspect, such as the Appellant, though entitled to

bail, is granted bail and the bail conditions include the production of sureties, failure by him to meet or perfect the bail condition for his release from detention, would not ipso facto render such a detention illegal and unconstitutional.
In my view, such a failure by a Suspect to meet and or perfect the conditions of his bail resulting in his continued detention cannot be regarded or treated as an act or fault attributable to the arresting authority unless it is shown that the bail conditions were unreasonable and merely intended to punish the Suspect and to continuously keep him in detention. In other words, so long as the conditions for bail is not unreasonable and the Suspect fails to meet or perfect the bail conditions, his continued detention awaiting when he meets and perfects the bail conditions or when he is charged to Court, cannot ipso facto render such a detention unlawful.
The Court below found as fact, and which finding is correct, that it was the inability of the Appellant to meet up with the conditions for his bail that led to his detention on 9/4/2015 and his release on the next day of 10/4/2015. Worse still, in the absence of

any particulars as to the availability of a Court of competent jurisdiction within a 40 Kilometer radius from the place where the Appellant was detained, which fact cannot be presumed by this Court, I am also unable to find that the place of his detention was within 40 Kilometers radius to a Court of competent and that he ought to have been charged within one day of his arrest and detention. At any rate, from 9/4/2015 – 10/4/2015 is just about a day! See Section 31(1) of the Administration of Criminal Justice Act 2015.

My Lords, in the circumstances of this Appeal, it may be apt to point it out at once here and now that whilst performing its legitimate duties, no Court of law has the power to stop the EFCC from investigating a crime and therefore, no person against whom there is a reasonable suspicion of having committed an offence or likely to commit an offence would be granted any relief capable of shielding him against criminal investigation and prosecution since no citizen has any right to be an outlaw under the laws of this country. See Atakpa V. Ebetor (2015) 3 NWLR (Pt. 1447) 549 55@ p. 8. See also IGP V. Ubah (2015) 11 NWLR (Pt. 1472) 405 @

413; Nzewi V. COP (2000) 2 HRLR 156 @ p. 159; Badejo V. Minister of Education (1996) 8 NWLR (Pt. 464) 15 @ P. 19; Hassan V. EFCC (2014) 1 NWLR (Pt. 1389) 607 @ P. 613; Gani Fawehinmi V. IGP (2002) 7 NWLR (Pt. 767) 606; AG. Anambra State V. Uba (2005) 15 NWLR (Pt. 947) 44; Christlieb Plc V. Majekodunmi (2008) 16 NWLR (Pt. 1113) 324; Onah V. Okenwa (2010) 7 NWLR (Pt. 1194) 512; Amaechi V. INEC (2008) 5 NWLR (pt. 1080) 227 @ p. 252.
However, it must also be pointed out at once here and now that in deserving cases, the Court is under a duty to protect the citizen if so moved in a proper proceeding from the brazen breach of their fundamental rights and from unwarranted and unconstitutional interferences by law enforcement agencies of the Government. This is so because the rule of law is sacrosanct and paramount in every civilized democracies of the world, including Nigeria. The powers of the EFCC is undoubtedly quite enormous, making the responsible exercise of it all the more a sine quo non on the operative of the EFCC, and which powers must be exercised legitimately at all times within the ambit of the rule of law as enabled by the EFCC Act and all other

relevant and applicable laws of the land. In Faith Okafor V. Lagos State Government & Anor (2016) LPELR – 41066 (CA) @ pp. 44 – 50, I had opined inter alia thus:
“In my view… Those who govern must do so in compliance with the due process of law… To observe the laws in breach is to do havoc to the letter and spirit of the laws of the land… It is my view that democracy thrives more on obeying the rule of law rather than the whims and caprices of the leaders against the led… The culture of impunity… in the land which have been tolerated for far too long in this Country and has indeed run its full course must be stopped now.”
See also Raymond Temisan Omatseye V. FRN (2017) LPELR – 42719 (CA) @ pp. 65 – 67 per Georgewill JCA.

Be the above as it may, in this Appeal I find nothing untoward in the conduct of the Respondent for timely intervening to investigate the facts of this case which is far steep in criminalities – wanton criminality disguised as civil transactions for the purchase and re – sale of none exiting contracts, and or even exiting contracts by unqualified persons who have no intention at all of executing

any such contracts, from the MDAs and using that as a means of livelihood? So Sad!

On the whole therefore, and based on the findings above, I hold that the arrest and detention of the Appellant on the face of the grave allegations made against him bordering on several criminal offences, including the menace of issuance of dude cheque, was not unconstitutional and or unlawful. There was also no proved act or omission bordering on any form of discrimination against the Appellant by the Respondent and or his wife.

Thus, the sole issue for determination is hereby resolved against the Appellant in favour of the Respondent. In the circumstances, this appeal which is bereft of any iota of merit is liable to be dismissed in its entirety. Accordingly, this Appeal is hereby dismissed for lacking in merit.

In the result, the Judgment of the Federal Capital Territory High Court, Coram; M. B. Idris J., (as he then was) in Suit No. FCT/HC/CV/2243/2015: Ken Nwafor V. Economic and Financial Crimes Commission delivered on 28/10/2015, in which the claims of the Appellant as Applicant against the Respondent were dismissed for lacking in merit is hereby affirmed.
There shall be no Order as to cost.

STEPHEN JONAH ADAH, J.C.A.: I have had a preview in draft, the judgment just delivered by my learned brother, B.A. Georgewill, JCA.

I concur with his reasoning and conclusion that this appeal is lacking in merit. Our country is governed by laws. Any of the citizens that run foul of the law must bear full responsibilities for his actions. The Respondent under the EFCC Act Section 7(1) has power to:
(a) cause investigations to be conducted as to whether any person, corporate body or organisation has committed an offence under this Act or other law relating to economic and financial crimes;
(b) cause investigations to be conducted into the properties of any person if it appears to the Commission that the person’s lifestyle and extent of the properties are not justified by his source of income.
The Respondent under Section 6(b), (c), (d) of the Act is charged further with the responsibility of:
(b) the investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable

instruments, computer credit card fraud, contract scam, etc.;
(c) the co-ordination and enforcement of all economic and financial crimes laws and enforcement functions conferred on any other person or authority;
(d) the adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorist activities, economic and financial crimes related offences or the properties the value of which corresponds to such Proceeds.
No one is in doubt about the enormous responsibilities on the Respondent to investigate financial crimes under the law but in doing that, efforts must be geared towards avoiding corroding the fundamental rights of the citizens.

In the instant case, the Respondent strictly investigated the allegations against the appellant and nothing extra could be traced to the Respondent in this case. I agree fully with my learned brother in the lead judgment that the appeal is lacking in merit. I accordingly dismiss the appeal and l abide by the consequential order as made in the lead judgment.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother, BIOBELE

ABRAHAM GEORGEWILL, JCA just delivered. I am in complete agreement with his Lordship that the sole issue for determination be resolved against the Appellant in favour of the Respondent. I also dismissed the Appeal for lacking in merit.

Appearances:

Ernest Nwoye, Esq., with him, Mrs. Mercy Omanijo For Appellant(s)

The Respondent, though duly served with hearing notice on 15/1/2021, did not participate at the hearing of this Appeal For Respondent(s)