EFCC v. A-G BENUE STATE & ORS
(2022)LCN/16417(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Thursday, September 22, 2022
CA/MK/72/2019
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC) APPELANT(S)
And
1. ATTORNEY GENERAL BENUE STATE 2. GOVERNMENT OF BENUE STATE 3. UNITED BANK FOR AFRICA PLC 4. FIDELITY BANK PLC RESPONDENT(S)
RATIO:
JURISDICTION IS THE LIVE WIRE OF ANY LITIGATION
It is long settled that jurisdiction is the live wire of any litigation, without it, a Court cannot hear and determine a matter, such that if a matter is so determined without jurisdiction, the actions of the Court and counsel no matter how beautifully done goes to no issue. See Josiah Cornellius Ltd &Ors v. Ezenwa (1996) LPELR 1632 (SC).
THE AWARD OF DAMAGES IS ON SOUND LEGAL PRINCIPLES DEVOID OF SPECULATIONS OR SENTIMENTS
It is important to point out that the award of damages is not made as a matter of course, but on sound legal principles devoid of speculations or sentiments, it is not awarded at large or out of sympathy, but rather on legal evidence of probative value adduced for the establishment of an actionable wrong. In the instant appeal, I cannot fathom the basis of the learned trial Judge awarding the sum of N50 Million Naira as damages against the Appellant when the Appellant had directed that the accounts of the 2nd Respondent domicile with the 3rd and 4th Respondent should be de-frozen within the time limit of 72 hours permitted by Section 6 (5) (b) of the Money Laundering (Prohibition) Act. The learned trial Judge is not permitted to embark upon his own assessment of damages using his own conceived perimeter in place of evidence. The damages awarded against the Appellant in the circumstance of this case had no basis and it is hereby set aside.
THE PROVISION OF A LAW MUST BE READ IN A WHOLE AND IN RELATION TO OTHER RELEVANT SECTIONS AND LAWS
The law is certain that the provision of a law must be read in a whole and in relation to other relevant sections and laws so as to give the complete meaning of the law. The provisions of Section 6 reproduced above is not ambiguous, it is clear as day, the Appellant has the power to place a stop order or freeze an account suspected to be involved in financial crime for 72 hours, without a Court order but upon expiration of the 72 hours and where the Appellant is not done with its activities in respect of the account, a Court order has to be obtained to extend the life of the order freezing the account. Where the required Court order is not made available, the stop order or the order freezing the account lapses and the financial institution is obliged to unfreeze the account. The philosophy behind this novel provision is merely to preserve the property suspected to be proceeds of crime as to avoid dissipation of the monies in the account under investigation. The practice of temporarily depriving a person from dealing with the assets suspected to be proceeds of crime pending the determination of the case against him is not unconstitutional because the right is not absolute. See Section 44 (2) (k) of the Constitution.
MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court sitting at Makurdi, Benue State, delivered by Hon. Justice M. O. Olajuwon in Suit No. FHC/MKD/CS/46/2018, on the 12th day of February, 2019, wherein the trial Court entered judgment for the 1st and 2nd Respondents and awarding general damages of N50,000,000.00 against the Appellant, and N25,000,000.00 each against the 3rd and 4th Respondents for unlawful interference with the 2nd Respondent’s Account.
The Appellant was the 1st Defendant, while the 1st and 2nd Respondents were the Plaintiffs, and the 3rd and 4th Respondents were the 2nd and 3rd Defendants at the trial Court. The Appellant being aggrieved with the decision of the trial Court had appealed against same to this Court vide her Notice of Appeal dated February, 2019 and filed on the 21st of February, 2019. The Notice of Appeal is found at pages 254-258 of the Record.
The Record of Appeal was compiled and transmitted to this Court on the 17th of May, 2019. The Appellant’s brief of argument was filed on the 6th of June,2019, the 1st and 2nd Respondents’ brief of argument was filed on the 30th of July, 2019, but deemed properly filed on the 28th of March, 2022, while the 4th Respondent’s brief of argument was filed on the 28th of March, 2022, but deemed properly filed on the same date. The Appellant did not file any reply brief.
At the hearing of the appeal, counsel adopted their respective briefs, upon which this Honourable Court reserved the appeal for judgment.
The 1st and 2nd Respondents who were Plaintiffs at the trial Court commenced this suit by an originating summons dated 31st of August, 2018, and filed on the same date, on the strength of the questions raised prayed the trial Court for the following reliefs:
1. A DECLARATION that a state government’s account maintained with any bank or financial institution in Nigeria does not fall within the class of bank accounts capable of or liable to be frozen by the Economic and Financial Crimes Commission (EFCC) pursuant to Section 34 of Economic and Financial Crimes Commission Establishment Act, 2004.
2. A DECLARATION that by the mandatory provisions of Section 34 of Economic and Financial Crimes Commission Establishment Act, 2004, the 1st defendant acted against the law when it directed the 2nd and 3rd defendants to freeze the Benue State Government Account Number: 10075400119 maintained with the United Bank for Africa (UBA) and Account Number: 5030058730 maintained with Fidelity Bank and that the 2nd and 3rd defendants also acted contrary to law when they gave effect to the directive from the 1st defendant without an order of a Court of competent jurisdiction first sought and obtained by the 1st defendant.
3. A DECLARATION that the 2nd and 3rd defendants acted outside the purview and contemplation of the law, when pursuant to a purported directive of the 1st defendant, it denied the 2nd plaintiff the right to operate and transact on its account Number: 10075400119 maintained with the 2nd defendant and Account Number: 5030058730 maintained with the 3rd Defendant.
4. A DECLARATION that Benue State Government is legally entitled to damages or monetary compensation for the unwarranted, radical, unlawful and disruptive action of the defendants in freezing its account Number: 10075400119 maintained with the 2nd defendant and Account Number: 5030058730 maintained with the 3rd defendant respectively.
5. The sum of N30,000,000,000.00 (Thirty Billion Naira) only as general damages against the defendants jointly and severally for the loss of lives, business, economic, social and investment opportunities as well as the heightened security challenges experienced by the Plaintiffs during the period the accounts were frozen and by reason of the unlawful acts of the defendants.
6. AN ORDER of perpetual injunction restraining the defendants, their agents, privies, servants and whomsoever from freezing, further freezing or attempting to freeze the 2nd plaintiff’s Account Number: 10075400119 held with the 2nd defendant and Account Number 5030058730 held with the 3rd defendant, or any other bank account belonging with the 2nd plaintiff without a valid order of a Court of competent jurisdictions.
BRIEF STATEMENT OF FACTS
The case of the 1st and 2nd Respondents against the Appellant and the 3rd and 4th Respondents at the trial Court by their affidavit evidence is that on 7/08/2018, the Appellant herein who was the 1st Defendant at the trial Court by her letter man dated the 3rd and 4th Respondents to freeze the 2nd Respondent’s Accounts domiciled with the respective banks.
The 1st and 2nd Respondents’ case is that the Appellant has no such powers to mandate the 2nd Respondent’s accounts with the 3rd and 4th Respondents to be frozen, and likewise the 3rd and 4th Respondents have no basis in complying with the directives of the Appellant to freeze her accounts domiciled with the respective banks same having not been accompanied by a valid Court order.
The 1st and 2nd Respondents’ case is that the actions of the Appellant and the 3rd and 4th Respondents in complying with the directives of the Appellant had denied them access to funds for three days with adverse consequences of frustrating the government action in tackling security issues which led to the death of two persons. Therefore, in consequence of this unlawful breach and denial to her funds, the 2nd Respondent is entitled to damages. See pages 6–9 of the record of appeal.
The Appellant’s case is that sometime in July, 2017, she received intelligence report on suspicious financial transactions concerning thetransaction of Benue State Government which was allegedly dissipated through stealing and money laundering by some State Government Officials. That in furtherance of the investigation, the Appellant had invited government official for investigation and requested the placing of lien on the account of the government in line with Sections 6 (1) (b) and 5 of the Money Laundering (Prohibition) Act in order to restore confidence on the citizen.
The 3rd Respondent on her part who was the 2nd Defendant at the trial Court upon being served with the 1st and 2nd Respondents’ originating summons filed a 13 paragraphed counter affidavit and written address in opposition to the grant of the 1st and 2nd Respondents’ reliefs for damages. The gist of the 3rd Respondent’s counter-affidavit which is found at pages 144–145 of the record is that on 7/8/2018, she received a letter from the Appellant to place the account of the 2nd Respondent on Post No Debit and she simply complied with same.
That after complying with the directive of the Appellant to place the account of the 2nd Respondent on post no debit, she notified the Accountant General of 2nd Respondent of the directive. And on 8/8/2018,she received another correspondence from the Appellant to remove the Post No Debit on the 2nd Respondent’s account, and she removed same immediately. Thus, in the circumstance that she acted only as directed, she is not liable to pay the 2nd Respondent any damages.
The case of the 4th Respondent, in brief, is one of denial that she did not even comply with the directive of the Appellant directing her to freeze the account of the 2nd Respondent on 7/8/2018, as the 2nd Respondent operated her account with the bank on 7/8/2018, and on 8/8/2018 when the bank decided to comply with the order to freeze the 2nd Respondent’s account, she received another letter demanding her to unfreeze the 2nd Respondent’s account. See pages 31–33 of the record.
ISSUES FOR DETERMINATION
The Appellant’s brief of argument distilled four issues for determination before this Court as follows:
1. Whether the learned trial Judge erred in law when he assumed jurisdiction to determine the suit by originating summons in view of the reliefs claimed and the contentious facts put before the Court outside the prior seen of Order 3 Rule 6 of the Federal High Court (Civil Procedure Rule 2009).
2. Whether the learned trial Judge was right when she held that 3rd and 4th Respondents did not act within the ambit of the law when without a Court order froze the account of the 2nd Respondent pursuant to Section 34 of the EFCC Act. (Distilled from grounds 2 of the Notice of Appeal).
3. Whether the award of N50,000,000.00 damages to the 2nd Respondent was right in the absence of evidence in proof. (Distilled from grounds 3 of the Notice of Appeal).
4. Whether the judgment is not against the weight of evidence. (Distilled from ground 4 of the Notice of Appeal).
The 1st and 2nd Respondents equally formulated four issues for determination in their brief of argument as follows:
1. Whether the trial Judge was right to hold that the case was properly commenced by originating summons. (Distilled from Ground 1).
2. Whether the trial Judge was right to hold that a State Government’s account maintained with any bank in Nigeria does not fall within the class of bank accounts capable of or liable to be frozen by the Appellant (EFCC) pursuant to Section 34 (1) of the EFCC Act (2004). (Distilled from Ground 2).
3. Whether the trial Judge erred in law in its interpretation of Section 6 (1) (b) and 5 of the Money Laundering (Prohibition) Act, 2011 (as amended). (Distilled from Ground 4).
4. Whether the trial Court was right when it declined the action of the Appellant unlawful and in consequence, went ahead to award the sum of N50,000,000.00 (Fifty Million Naira) against the Appellant as general damages. (Distilled from Ground 3).
The 4th Respondent formulated a single issue to wit:
Whether the trial Judge was right in disregarding the content of the documentary evidence placed before her and in holding the 4th Respondent liable based on her assumptions.
Taken into consideration the facts and circumstances of this appeal, the judgment of the Federal High Court, sitting at Makurdi, and the submissions of Counsel in their respective briefs. I have looked at the issues proliferated by parties in their various briefs and I believe that this appeal being an issue of determination of the applicability of Section 34 of the EFCC Act, and Money Laundering and Prohibition Act, can be determined by a sole issue which I formulate thus:
Whether the learned trial Judge erred in law when he assumed jurisdiction to determine the suit by originating summons in view of the reliefs claimed and the contentious facts put before the Court wherein she awarded the damages of N50,000,000.00 against the appellant
However, before resolving the appeal, I shall consider the submissions of counsel on the various issues formulated commencing with issue one.
ISSUE ONE
Whether the learned trial Judge erred in law when he assumed jurisdiction to determine the suit by originating summons in view of the reliefs claimed and the contentious facts put before the Court outside the prior seen of Order 3 Rule 6 of the Federal High Court (Civil Procedure Rule) 2009.
APPELLANT’S COUNSEL SUBMISSION
Counsel submitted on this issue that the case commenced before the trial Court ought to be by way of writ of summons as provided for by Order 3 Rule 6 of the Federal High Court Civil Procedure Rules, 2009, as questions 3 and 4 raised by the originating summons are outside the provisions of Order 3 Rule 6, and reliefs2, 3, 4 and 5 are not covered by Order 3 Rule 6. Counsel while relying on the cases of Eze v. Unijos (2017) 17 NWLR Pt. 1593, 1 at 14, para G and Ogah v. Ikpeazu (2017)17 NWLR (Pt. 1594) 299 at 355 paras C–H submitted that the facts of the case are inherently contentious, especially the issue of the security, businesses lost and damages claimed as this has nothing to do with the interpretation of will or Act for same to be determined by affidavit evidence at the trial Court.
Counsel while citing the case of Conoil Plc v. ITF Gov Council (2015) 9 NWLR (Pt. 1464) 399 at 427 paras C–F on when originating summon may be used to commence a suit submitted that a Court must consider the affidavits of the plaintiff and the respondent in an originating summons and where there is conflict in the affidavits, the Court must resort to oral evidence to resolve same. See Okada Airlines Ltd v. F.A.A.N (2015) 1 NWLR (Pt. 1439) 1 at 16 paras C–E.
Counsel contended also that four out of the six reliefs by the 2nd Respondent are declaratory reliefs and that declaratory reliefs are not granted by mere asking but must be in line with the laid down principles governing award of declaratory reliefs, and same are not granted on admission of facts stated. Therefore, it is erroneous for the trial Court to have granted the four reliefs in the absence of oral evidence Counsel referred to the cases of Conoil Plc v. ITF Governing Council (2015) 19 NWLR (Pt. 1464) 399 at 430 paras G–H and Ogolo v. Ogolo (2006) 5 NLR (Pt. 972) 163 at 184 Paras C–E.
Counsel in rounding up his argument submitted that in compliance with the provisions of Order 3 Rule 8 of the Federal High Court, the trial Court ought to have ordered the filing of pleadings or struck out the matter in view of the disputing facts and urged this Court to resolve this issue in appellant’s favor.
1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSION
Counsel submits that the originating summons filed by the 1st and 2nd Respondents revealed that there are four questions bordering on the construction of Section 34 of the EFCC Act and the resultant effect, and by the provisions of Order 3 Rule 6 and 7 of the Federal High Court Rules, 2009, a person who has a question as to the construction arising under an Enactment, will or Deed can commence the action through originating summons.
Counsel submitted that the questions being asked bordered on the construction of Section 34 of the EFCC Act, and the question of infringement of the legal and equitable rights of the 1st and 2nd Respondents by the Appellant and the 3rd and 4th Respondents, therefore, by the combined reading of Order 3 Rules 6 and 7, the Applicant rightly commenced the action by originating summons. That the argument of the Appellant that the action at the trial Court was contentions because of the facts of killing of two persons, loss of business and damages is misconceived.
Counsel contended that by the strength of the authority of Chief Dogogo v. Attorney General of Rivers State (2002) FWLR (Pt. 184) 195, it is the plaintiff and not the respondent that determines whether an action commenced by originating summons is contentious, as the Respondent cannot just swear to facts and contend that the matter is contentious.
Counsel submitted that the trial Court was right to agree with the 1st and 2nd Respondents that the suit was not contentious and same was properly commenced by way of originating summons as the essence of commencing a suit by originating summons is to speed up the trial where facts are not disputed. See Attorney General of Adamawa State & Ors v. Attorney General of Federation & Ors (2005) 18 NWLR (Pt. 958) 581 at 680 paras F–G.
Therefore, counsel urged this Court to discountenance Appellant’s submissions and hold that the suit was properly commenced by originating summons.
ISSUE TWO
Whether the learned trial Judge was right when she held that 3rd and 4th Respondents did not act within the ambit of the law when without a Court order froze the account of the 2nd Respondent pursuant to Section 34 of the EFCC Act. (Distilled from grounds 2 of the Notice of Appeal).
APPELLANT’S COUNSEL SUBMISSION
Counsel on this issue cited the provisions of Section 6 (5) (b) of the Money Laundering Prohibition Act, 2011 which provides that the Commission shall place a stop order on any account not exceeding 72 hours and submitted that the Commission by Section 6 (2) (a)–(f) of the same Money Laundering Prohibition Act is empowered to enforce the provisions of the Money Laundering Act, and in the instant case, the 2nd Respondent’s account was only frozen for 24 hours in line with Section 6 (5) (b) of the Money Laundering Prohibition Act, which according to counsel its interpretation is clear and unambiguous.
Counsel contended that Section 6 (5) (b) of the Money Laundering Act does not require a Court order before the Appellant can order the 3rd and 4th Respondents to place the account of the 2nd Respondent on Post No Debit. That the letter of the Appellant to the banks tagged EXH I to 2nd Respondent’s affidavit is an order as provided by Section 34 (4) (b) of the EFCC Act, and was issued within the provisions of the law. Therefore, since the Appellant received two petitions on suspicious acts on the 2nd Respondent’s account, the action of the commission in requesting the 3rd and 4th Respondents to place the account on hold was in order, and the 3rd and 4th respondents who are only complying with the directives of the appellant as they own the society a duty to so do due to the menace of financial crimes.
Counsel referred to the authority of Dangabar v. F.R.N (2014) 12 NWLR (Pt. 1422) 574 at 611 para C to submit that the 3rd and 4thRespondents were in order to comply with the directives of the Appellant as the failure of the banks to obey the Appellant’s directive attracts penalty ascribed by Section 14 (1) of the EFCC Act.
Counsel submitted that the trial Court erred when it held that the banks ought to know that the order of the Appellant to them is valid as the 3rd and 4th Respondents had no duty inquiring the reason for the placing of the 2nd Respondent’s account on hold by the Appellant as the law does not empower the bank to seek to know the reason for the directive but just to comply.
Counsel urged the Court to resolve this issue in Appellant’s favor as the Appellant was only acting within the law and the 3rd and 4th Respondents only complied with lawful directives.
1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSION
Counsel to 1st and 2nd Respondents argued his issues two and three formulated together even though the said issues are not particularly similar to that of the Appellant.
Counsel urged this Court to hold that the trial Court was right that the state government account maintained with banks in Nigeria does not fall within class of accounts capable of being frozen by the Appellant pursuant to Section 34 (1) of the EFCC Act, as by the clear wording of the EFCC Act in Section 34 (1) and the judgment of the trial Court, the proceeds in a state government account is not capable of being made through commission of a crime.
Counsel submits that Appellant’s submission in his brief that the chairman of EFCC can order the freeze of an account within 72 hours by virtue of the Money Laundering Prohibition Act is clearly misconceived as the said S. 6 (5) (b) that Appellant is relying on when read as a whole is clear. That even if the chairman of the Appellant based on the provisions of Section 6 (5) (b) of the Money Laundering Prohibition Act can place an account on hold for not more than 72 hours, it must be established first that such an account or transaction is suspected to be involved in any crime.
That however, despite the fact that the question that begs for an answer is whether the account of the 2nd Respondent was suspected in any crime and whether the complainant made the complaint from the Appellant to take steps under the Money Laundering and Prohibition Act, the trial Court was right to hold that the account of the 2nd Respondent cannot be a product of crime or be involved in any form of crime and counsel urge this Court to so hold.
Counsel submitted that Appellant’s submissions that she requires no order of Court to act under Section 6 (5) (b) of the Money Laundering Act, and that EXH I sent to the bank is an order, is misconstrued because the order required by Section 34 (1) of the EFCC Act, is a Court order and not Appellant’s order as argued by counsel, because the Appellant lacks the power to make an order as stipulated under Section 34 of the EFCC Act.
Counsel submits also that the act of placing a Post No Debit on account has no place in law, as what the EFCC Act and the Money Laundering Act provides for is a stop order, thus their action has no legal backing or justification at all. Counsel submits that Section 6 (5) (b) of the Money Laundering and Prohibition Act should not be read in isolation but together with Sections 6, 7 and 8, and same will reveal the importance of a Court order and specifically vests the Federal High Court with the powers to block an account. And this order cannot be waived or glossed over as it is done by the Appellant in ordering the freezing of the 2nd Respondent’s account.
Counsel submit that the argument of Appellant on the interpretation of statutes and the constitution is misconstrued as the constitution cannot be read in isolation but in conjunction with all relevant section and other laws. This is so because the EFCC Act and Money Laundering Act provides for stop order to stop a specific transaction suspected to be criminal in nature and not to order a Post No Debit which stops transaction from the account completely.
Counsel submitted in urging this Court to uphold the decision of the trial Court that the appellant ought to follow the provision of the law strintusensu by blocking only transactions that are complained of and same must be from a financial institution or designated non-financial institution.
ISSUE THREE
Whether the award of N50,000,000.00 damages to the 2nd Respondent was right in the absence of evidence in proof. (Distilled from grounds 3 of the Notice of Appeal).
APPELLANT’S COUNSEL SUBMISSION
Counsel contended on this issue that the 2nd Respondent’s affidavit evidence did not provide names of the deceased person who died as a result of insecurity occasioned by their inability to access funds, the nature of business opportunities lost or investors that diverted their investment or any documentary evidence to warrant the grant of the huge damages the Court awarded as in law pleadings on which no evidence is led goes to no issue. See Health Care Product Nig v. Alh Musa Bazza (2004) 3 NWLR (Pt. 861) 582 at 605 paras G–H.
Therefore, according to counsel, the claims of the 2nd Respondent at best is speculative and she did not prove the claim for the Court to have awarded the sum of N50,000,000.00 damages in her favor. See Effiong Ltd v. Ata Isi Supplies and Services Ltd (2011) 6 NWLR (Pt. 1243) 266 at 267 -277 paras H–A.
Counsel contended that the award of damages which is N50,000,000.00 to the Appellant and N25,000,000.00 each against the 3rd and 4th Respondents was clearly without the 2nd Respondent proving her case, and same is excessive in the circumstance. That even though the appellate Court does not make it its business to interfere with the award of general damages by the trial Court, but when the award was based on some wrong principles or so large or so small to make it completely erroneous, the appellate Court may interfere. See Ifeanyi Chukwu Osundu Co. Lt v. Akhigbe (1999) 11 NWLR (Pt. 625) 1 at 25 Paras F; Guardian Newspaper Ltd v. Ajeh (2011) 10 NWLR (Pt. 1256) 574 at 594–595 paras H–A; WPC Ltd v. Fayemi (2017) 13 NWLR (Pt. 1582) 218 at 298 paras A–C.
Counsel submitted that the basis of the Judge arriving at the huge damages of N50,000,000.00 against the Appellant was purely speculative without any basis as the Judge only looked at the daily transactions in the account of the 2nd Respondent and stated that one can only imagine the loss suffered by the government and on that basis awarded damages in favor of the 2nd Respondent and same is wrong.
1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSION
Counsel submitted that the contention of the Appellant that the award of N50,000,000.00 as general damages to the 2nd Respondent is excessive is misconstrued as the claim of the 1st and 2nd Respondents is for general damages and not special damages, so same requires no strict proof. Counsel submit that as it is evident that the 1st and 2nd Respondents suffered injury as the result effect of the acts of the Appellant, damages will naturally be expected to flow as consequence which as accessed and awarded based on what a reasonable man would see as adequate loss or inconvenience. See U.T.C Nig Plc v. Philips (2016) 6 NWLR (Pt. 1295) 136. Therefore, according to counsel, the trial Judge was right when it found and awarded damages to the 1st and 2nd Respondents.
According to counsel, the trial Judge properly arrived at the award of N50,000,000.00 damages against the Appellant as the Court took into consideration the loss which naturally flowed from the Appellant’s wrong doing as the direct and probable consequence of the 2nd Respondent’s complaint as a wrong done to the finances of a state government its massive bearing its effects on the socio-economic wellbeing of the government and the people of the state which runs into billions of Naira.
Counsel submits that the argument of the appellant that the claims of loss of business and death of persons was without documentary proof is mere assertion is misconceived as the assertion alluded to were made under claims of general damages which requires no specific proof. That the award of N50,000,000.00 in favor of the 2nd Respondent who is a state government in the circumstance is moderate and not unreasonable due to the effect of the action of the Appellant against the government.
Counsel on a whole while submitting that damages awarded against a party is to serve generally as deterrent for further acts urged this Court to resolve the issue in favor of the 1st and 2nd Respondents.
ISSUE FOUR
Whether the judgment is not against the weight of evidence (Distilled from ground 4 of the Notice of Appeal).
APPELLANT’S COUNSEL SUBMISSION
On this issue, Counsel contended that the Appellant having challenged the decision of the lower Court on the ground that same is against the weight of evidence, this Court in the circumstance ought to consider the evidence at trial whether it is accepted or should be rejected on the value on it, whether it was properly evaluated and place on the imaginary scale to see which side weighs more as decided in the cases of Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) 325–339 para B; Misr Nig Ltd v. Ibrahim(1975) 5 SC at 62.
Counsel submitted that on the strength of the authority of Ajagbe v. Idowu (2011) 17 NWLR (Pt. 1276) 422 at 448 paras G–H, the trial Court has a duty to appraise every aspect of the case before arriving his decision but it is obvious the trial Court did not do so in arriving its judgment in the light of counsel’s submissions, hence, the judgment is against the weight of evidence adduced by parties.
Counsel therefore urged on this Court on the strength of the authority of Adebayo v. Adusei (Supra) 77 paras E–G and Amadu v. Yantu Maki (supra) 180–181 para H–A to re-evaluate the evidence in the case and resolve the appeal in the Appellant’s favor.
4th RESPONDENT’S COUNSEL SUBMISSION
Counsel on the 4th Respondent’s sole issue submitted that the trial Judge was not right to disregard the documentary evidence of the 4th Respondent in holding the bank liable to pay damages to the 2nd Respondent. According to counsel, the account frozen is the joint account of the 2nd Respondent contrary to the finding of the trial Court and as a joint account, it is not for day to day activities and the account is not an active one.
Counsel submitted that the 4th Respondent being aware of the Appellant’s interest in the 2nd Respondent’s account made panic transactions in same on 6/08/2018 when she learnt of the Appellant’s directive. And despite the actions of the Appellant by her letter, 4th Respondent’s case is that she still allowed the 2nd Respondent to transact in the account on the 7th of August, 2018.
Counsel’s submitted and contended that from the documentary evidence, it was clear that the 4th Respondent did not comply with the directives of the Appellant from the entry in the documentary evidence of the Statement of Account during the pendency of the Appellant’s order. Therefore, if the case of the 2nd Respondent was against freezing its account, then according to counsel, the case against the 4th Respondent is wrong.
Counsel contended that on the strength of the entries and transactions on the account which the Court rightly observed from the statement of account from the 6th to 13th of August, 2018, it was wrong for the Court to conclude the activeness of the account and award the damages of N25,000,000.00 against the 4th Respondent, and it will be in the interest of justice to abate this order as the 4th Respondent did not at any time freeze the account of the 2nd Respondent
Counsel also contended and submitted that the 1st and 2nd Respondents by law has the burden to prove her claims against the 4th Respondent by standard of proof required in civil cases and that the 4th Respondent froze their account and they failed in that regards.
Counsel while rounding up her submission relied on the Appellant’s case that originating summons was not the proper way to commence the suit at the trial Court, as the trial Court wouldn’t have come to the wrongful conclusion against the 4th Respondent if the action was commenced by way of writ of summons.
RESOLUTION OF SOLE ISSUE FOR DETERMINATION
Whether the learned trial Judge erred in law when he assumed jurisdiction to determine the suit by originating summons in view of the reliefs claimed and the contentious facts put before the Court wherein she awarded the damages of N50,000,000.00 against the appellant.
In order to determine this appeal as to whether the trial Court has jurisdiction to determine this matter by originating summons and whether the award of damages in the sum of N50,000,000.00 consequent upon the determination of the right of parties was excessive, I have to determine when an action may be commenced by originating summons and the import of Section 34 of the EFCC Act, and Section 6 of the Money Laundering and Prohibition Act.
It is long settled that jurisdiction is the live wire of any litigation, without it, a Court cannot hear and determine a matter, such that if a matter is so determined without jurisdiction, the actions of the Court and counsel no matter how beautifully done goes to no issue. See Josiah Cornellius Ltd & Ors v. Ezenwa (1996) LPELR 1632 (SC).
In order to determine whether the action of the 1st and 2nd Respondents was rightly commenced by originating summons and the Court had jurisdiction to so determine same bearing in mind the contesting facts Appellant is contesting, we have to look at the provisions of the Federal High Court Civil Procedure Rules as regards modes of commencement of actions vis-a-vis the position of the law. Order 3 of the Federal High Court Civil Procedure Rules, 2009 which is the current Rules applicable to the Court provides for the form and commencement of actions at the Federal High Court. Order 3 Rules 6 and 7 which deals with the commencement of an action by way of Originating summons clearly provides as follows:
“6. A person who claims to be interested under a deed, will, enactment, or other written instrument may apply by originating summons for the determination of any question arising under the instrument and for a declaration of the right of the person interested
7. A person who claims any legal or equitable right in a case where the determination of the question whether such a person is entitled to the right depends upon a question of construction of an enactment, may apply by originating summons for the determination of such question of construction and for a declaration as to the right claimed.”
The provisions of the rules above clearly provides for commencing an action by way of originating summons when the person claims to be interested under any legal or equitable right is subject to construction of any act or enactment, he may commence same by way of originating summons. The authority of Otuedon v. Olugbor & Ors (2021) LPELR 55211 (CA) Pages 43–45, paragraphs C–A, this Court held as follows as to when a matter may be commenced by means of originating summons:
“An action commenced by originating summons is a procedure which is used in cases where the facts are not in dispute or where there are no likelihood of there being in dispute. Originating summons is also reserved for issues like the determination of short questions of construction and not matters of such controversy that the justice of the case could demand the setting of pleadings. See Din v. Attorney General of the Federation (1986) 2 NWLR (Pt. 17 471; Obasanya v. Babafemi (2000) 15 NWLR (Pt. 689) 1; Nigerian Breweries Plc v. Lagos State Internal Revenue Board (2002) 5 NWLR (Pt. 759) 1…”
The provisions of Section 34 of the EFCC Act which forms the fulcrum of the questions raised and asked for determination by the 1st and 2nd Respondents is vital in determining whether the claims of the 1st and 2nd Respondents by the said questions can be answered without contention and their claims and rights determine, thereby answering the question whether the trial Court had jurisdiction. Section 34 of the EFCC Act provides as follows:
“(1) Notwithstanding anything in any other enactment or law, the Chairman of the commission or any officer authorized by him may, if satisfied that the money in the account of a person is made through the commission of an offence under this Act and/or any of the enactments specified under S. 7 (2) (a) to (f) of this Act, apply to the Court ex parte for power to issue an order as specified in Form B of the schedule to this Act, addressed to the manager of the Bank or any person in control of the financial institution or designated non-financial institution where the account is or believed by him to be or the head office of the bank, other financial institution or designated non-financial institution where the account is or believed by him to be or the head office of the Bank, other financial institution or designated non-financial institution to freeze the account”
(2) The Chairman of the Commission or any other authorized by him may by an order issued under Subsection (1) of this Section, direct the bank, other financial institution or designated non-financial institution to supply any information and produce books and documents relating to the account to stop all outward payment, operations or transactions (including any bill of exchange) in respect of the account of the person.
(3) The manager or any other person in control of the financial institution shall take necessary steps to comply with the requirements of the order made pursuant to Subsection (2) of this Section”.
The provisions of Section 34 of the EFCC Act clearly empowers the Commission through the Chairman or any officer acting on his behalf to request the freezing of an account with any financial institution or non-financial institution where the commission is satisfied that the money in the account so ordered to be frozen is made through the commission of an offence under the Act or other relevant enactments recognized by the Act provided an order of Court is obtained by ex parte enabling the Chairman to issue the directive.
The operation of Section 34 of the EFCC Act clearly does not give the Chairman or any person acting on his behalf the blanket power to just issue a directive to freeze the account of a person, this power is subject to two conditions which must be satisfied and they are
i. That the Chairman is satisfied that the money in the person’s account is made through the commission of crime under the Act or other relevant Act recognized by the Act, and
ii. Upon the obtaining of a Court order by ex parte means which enables the chairman to issue the directives to the bank or non-financial institutions.
I must quickly state that this condition precedent must all exist before the Chairman or any other officer acting through him can issue any directive to the bank or non-financial institutions to freeze the account of any person, else, it cannot have the backing of the law.
The germane question to ask here is, was the request of the Appellant herein in EXH EFCC 5b and EXH EFCC 5d found at pages 124 and 126 of the record respectively brought under Section 34 of the Economic and Financial Crimes Commission (Establishment) Act 2004. The request in the said EXH EFFC 5b and EXH EFCC 5d is very clear, the request was made pursuant to Section 38 (1) of the Economic and Financial Crimes Commission (Establishment) Act 2004and Section 21 of the Money Laundering (Prohibition) Act 2011 (as amended). The said Section 38 (1) provides: ‘’The commission shall seek and receive information from any person, authority, corporation or company without let or hindrance in respect of offences it is empowered to enforce under this Act.’’
(2) A person who-
(a) willfully obstructs the commission or any authorized officer of the Commission in the exercise of any of the powers conferred on the Commission by this Act; or
(b) fails to comply with any lawful enquiry or requirements made by any authorized officer in accordance with the provisions of this Act, commits an offence under this Act and is liable on conviction to imprisonment for a term not exceeding five years or to a fine not below the sum of N500,000 or to both such imprisonment and fine.’’
Section 6 (5) (b) of the Money Laundering Prohibition Act, 2011 provides:
‘’Notwithstanding the provisions of paragraph (a) of this subsection, the Chairman of the Economic and Financial Crimes Commission or his authorized representative shall place a stop order not exceeding 72 hours on any account or transaction if it is discovered in the course of their duties that such account or transaction is suspected to be involved in any crime.’’
By virtue of Section 38 (1) of the Economic and Financial Crimes Commission (Establishment) 2004 gives the Economic and Financial Crimes Commission power to receive information on offences it is empowered to enforce which includes Money Laundering and Section 39 (1) of the Economic and Financial Crimes Commission (Establishment) Act forbid the disclosure of the source of information.
Section 44 (2) (k) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that nothing in sub-section (1) of Section 44 of the Constitution shall be construed as affecting any general law relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry.
By the combine effect of the provisions of Sections 44 (2) (k) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Sections 38 (1) and 39 (1) of the EFCC Act and Section 6 (5) (b) of the Money Laundering (Prohibition) Act 2011, it is not in doubt that the Appellant has the powers to place a stop order or freeze any account suspected to be involved in any financial crime for 72 hours, without a Court order, however, upon the expiration of the 72 hours and where the commission is not done with its activities in respect of the account, a Court order has to be obtained to extend the life of the order freezing the account. Where the required Court order is not made available, the stop order or the order freezing the account lapses and the financial institution is obliged to unfreeze the account. In the instant case, a perusal of Exhibits EFCC 5 (a-d) contained in pages 123–126 of the record of appeal shows that the account of the 2nd Respondent was frozen barely less than 72 hours in line with Section 6 (5) (b) of the provisions of the Money Laundering Prohibition Act 2011. For instance, in Exhibit EFCC 5b, the Appellant requested the 3rd Respondent to Post No Debit on the account of the 2nd Respondent by a letter dated 7th August, 2018 received on same date and on the following day by a letter dated 8th August 2018 received on the same date, the Appellant requested the 2nd Respondent to remove the caution placed on the account and allow the customer to resume normal banking transactions. See Exhibit EFCC 5a, also by Exhibit EFCC 5d, the Appellant requested the 4th Respondent to place a Post No Debit on account of the 2nd Respondent domicile with it by a letter dated 6th August 2018 and the Appellant by another letter in Exhibit EFCC 5c dated 8th August, 2018 requested the 4th Respondent to lift the restriction and allow the 2nd Respondent to continue normal transactions.
However, before I conclude on this issue, it is pertinent to look at the questions cum reliefs claim by the 1st and 2nd Respondents which formed the fulcrum of his case to determine whether same was contentious and ought not to be commenced and determined by originating summons. The question formulated for determination by the 1st and 3rd Respondents are:
1. Whether a state government’s account maintained with any bank or financial institution in Nigeria falls within the class of bank accounts capable of or liable to be frozen by the Economic and Financial Crimes Commission (EFCC) pursuant to S. 34 of the Economic and Financial Crimes Commission Act, 2004.
2. Whether having regards to the mandatory provisions of Section 34 of the Economic and Financial Crimes Commission Act, 2004, the defendants acted within the law to have directed and to have acted upon a directive to freeze the Benue State Government Account Number: 10075400119 maintained with the United Bank for Africa (UBA) and Account Number: 5030058730 maintained with Fidelity Bank without an order of a Court of competent jurisdiction first sought and obtained by the Economic and Financial Crimes Commission (EFCC).
3. Whether the United Bank for Africa (UBA) Plc and the Fidelity Bank Plc acted within the law when pursuant to a purported directive of the Economic and Financial Crimes Commission (EFCC), they respectively denied the Benue State Government the right to operate and transact on its Account Number: 10075400119 domiciled with the United Bank for Africa (UBA) and Account Number: 5030058730 domiciled with Fidelity bank.
4. Whether the Benue State Government is not entitled to damages or monetary compensation on account of the radical unwarranted, disruptive and unlawful actions of the defendants in freezing the Benue State Government’s Accounts afore-mentioned.”
It was consequent upon these questions formulated which stemmed from the action of the Appellant pursuant to Section 38 of the EFCC Act and Section 21 of the Money Laundering Prohibition Act, 2004, that 2nd Respondent’s reliefs were formulated. The questions asked by the 1st and 2nd Respondents are clearly questions relating to the interpretation of Section 34 of the EFCC Act, and Section 6 (5) (b) of the Money Laundering (Prohibition) Act 2011 as to whether in the first place the Appellant has the power to issue out a directive for the Account of the Benue State Government to be frozen and if the 3rd and 4th Respondents bank ought to comply with the order. And consequently, whether the action of the Appellant which is done pursuant to its powers from the EFCC Act is lawful and if not, whether the 1st and 2nd Respondent is entitled to damages.
In my humble view, I say those are the pertinent question in summary from the questions raised for determination by the trial Court. These questions are clearly related to the action of the Appellant directing the3rd and 4th Respondents to freeze the account of the 2nd Respondent, and whether in law by the provisions of Section 34 of the EFCC Act and Section 6 (5) (b) of the Money Laundering (Prohibition) Act 2011 which authorize the Appellant to direct a financial or non-financial institution to freeze an account.
The Appellant had by this appeal contended that the issues canvassed based on her counter affidavit is contentious and the trial Court ought not to hear same and determine it by originating summons, thereby robbing the Court of jurisdiction. Appellant further contended that her action is backed by Section 6 (5) of the Money Laundering and Prohibition Act wherein she can freeze any account for 72 hours and thus, the matter ought to be determined by writ and not originating summon.
I have considered the argument of counsel on this issue and one thing that remains for me is that the question to be determined by the trial Court is as to the interpretation of Section 34 of the EFCC Act, and Section 6 of the Money Laundering Act. Even though, the Commission can order the freezing of an account pursuant to other relevant laws as stated in Section 34, thequestion for determination which also include Section 6 of the Money Laundering Act, this is because the Appellant made the request to Post No Debit on the account of the 2nd Respondent domicile with the 3rd and 4th Respondents pursuant to the provisions of the Money Laundering (Prohibition) Act. See Exhibits EFCC 5 (a-d) contained in pages 123-126 of the record.
The action of the Appellant can equally be determined as to the claims of the 1st and 2nd Respondents from the interpretation of the said Section 6 of the Money Laundering Act, to see whether the Appellant act within the law by directing the 3rd and 4th Respondents to freeze the account of the 2nd Respondent with them, and that will not make the question to be determined contentious that would require the issuance of writ of summons.
I agree with the 1st and 2nd Respondents’ counsel that the Appellant cannot by his defence determine the issues to be determined in the application so as to render same contentious. It is only the trial Judge and not even the 1st and 2nd Respondents who are plaintiffs at the trial Court that can determine whether the application of the 1st and 2ndRespondents is contentious and I so hold. See the authority of Chief Dagogo v. Attorney General of River State (2002) FWLR (Pt. 184) 195 cited by 1st and 2nd Respondents’ counsel.
I therefore hold that the trial Court righty had the requisite jurisdiction to entertain the case by originating summon as the Court rightly did and the issues before the Court as I clearly x-rayed above is not contentious but clearly as to the interpretation of an enactment which by the provisions of Order 3 Rules 6 of the Federal High Court Civil Procedure Rules, 2009, can be determined by way of originating summon.
As to Appellant’s contention that the 3rd and 4th Respondents were duty bound to obey the directives of the Appellant as same is the Court order, I hold that the directives of the Appellant in EXH EFCC 5b and EXH EFCC 5d are clearly not Court orders, but correspondences from the Appellant to the two respective banks which have to be complied with for only 72 hours in line with the provisions of Section 6 (5) (b) of the Money Laundering (Prohibition) Act 2011 after which the directives lapse in absence of a Court order.
I have considered the submission of counsel that by the Money Laundering Act, the commission can order a freeze for 72 hours without a Court order. This will bring to bear the findings of the trial Court on whether the Appellant as it were, can rely on Section 6 of the Money Laundering Prohibition Act which gives the EFCC power to place a stop order on an account for 72 hours. Before I digest the findings of the trial Court on the provision of the law, I will like to again reproduce the provision of Section 6 of Money Laundering and Prohibition Act which provides as follows:
“6 (1) Where a transaction-
(a) involves a frequency which is unjustifiable or unreasonable;
(b) is surrounded by conditions of unusual or unjustified complexity
(c) appears to have no economic justification or lawful objective; or
(d) in the opinion of the financial institution or designated Non-financial institution involves terrorist financing or is inconsistent with the known transaction pattern of the account or business relationship, that transaction shall be deemed to be suspicious and the financial institution involved in such transaction shall seek information from the customer as to the origin and destination of the fund, the aim of the transaction and the identity of the beneficiary
(2) A financial institution or designated Non-financial institution shall immediately report any suspicion transaction to the Economic and Financial Crimes Commission (EFCC);
(a) draw up a written report containing all relevant information on the matters mentioned in Sub-section (1) of this Section together with the identity of the principal and, where applicable, of the beneficiary or beneficiaries;
(b) take appropriate action to prevent the laundering of the proceeds of a crime or an illegal act; and
(c) send a copy of the report and action taken to the commission
(3) The provisions of Sub-section (1) and (2) of this Section shall apply whether the transaction is completed or not.
(4) The Economic and Financial Crimes Commission (EFCC) shall acknowledge receipt of any disclosure, report or information received under this Section and may demand such additional information as it may deem necessary.
(5) (a) The acknowledgement of receipt shall be sent to the Financial institution or designated Non-Financialinstitution within the time allowed for the transaction to be undertaken and it may be accompanied by a notice deferring the transaction for a period not exceeding 72 hours,
(b) Notwithstanding the provisions of Paragraph (a) of this Sub-section, the chairman of the Economic and Financial Crimes Commission or his authorized representative shall place a stop order not exceeding 72 hours, on any account or transaction if it is discovered in the course of their duties that such account or transaction is suspected to be involved in any crime.
(6) If the acknowledgement of receipt is not accompanied by a stop notice or where the stop notice has expired and the order specified in Subsection (7) of this Section to block the transaction has not reached the Financial institution or designated Non-Financial institution, it may carry out the transaction,
(7) Where it is not possible to ascertain the origin of the funds within the period of stoppage of the transaction, the Federal High Court may, at the request of the commission, or other persons or authority duly authorized in that behalf, order that the funds, accounts or securities referred to in thereport be blocked.
(8) An order made by the Federal High Court under Subsection (7) of this section shall be enforced forthwith.
(9) A financial institution or designated Non-financial institution which fails to comply with the provisions of Subsections (1) and (2) of this Section commits an offence and is liable on conviction to a fine of N1,000,000 for each day during which the offence continues.
(10) The directors, officers and employees of financial institutions and designated Non-financial institutions who carry out their duties under this Act in good faith shall not be liable to any civil or criminal liability or have any criminal or civil proceedings brought against them by their customers.”
I have taken time to reproduce the provision of the law so that parties will appreciate the decision of this Court. The law is certain that the provision of a law must be read in a whole and in relation to other relevant sections and laws so as to give the complete meaning of the law. The provisions of Section 6 reproduced above is not ambiguous, it is clear as day, the Appellant has the power to place a stop order or freeze an account suspected to be involved in financial crime for 72 hours, without a Court order but upon expiration of the 72 hours and where the Appellant is not done with its activities in respect of the account, a Court order has to be obtained to extend the life of the order freezing the account. Where the required Court order is not made available, the stop order or the order freezing the account lapses and the financial institution is obliged to unfreeze the account. The philosophy behind this novel provision is merely to preserve the property suspected to be proceeds of crime as to avoid dissipation of the monies in the account under investigation. The practice of temporarily depriving a person from dealing with the assets suspected to be proceeds of crime pending the determination of the case against him is not unconstitutional because the right is not absolute. See Section 44 (2) (k) of the Constitution.
The learned trial Judge totally misconstrued the provisions of Section 6 of the Money Laundering Prohibition Act when he stated that by the provision of the Money Laundering Act, the report must come from the financial institution or designated non-financial institution, involved in the suspicious transaction to the EFCC for EFCC to take steps under the Act.
The affidavit evidence of the Appellant at the lower Court is that it received an intelligence report on suspicious transactions concerning the finances of Benue State Government which were allegedly being dissipated/depleted through stealing and money laundering by some state government officials, that in June 2016 it received a petition from one Abubakar B. Tsav NPM, an elder statement and former commissioner of Police, Public Complaints Commission and another petition in July 2018 from Concerned Citizens of Benue State Transparency Anti-Corruption Group, Gboko Benue State complaining of alleged fraudulent transactions involving some officials of the State Government. That in furtherance of investigation activities, some of the officials of Benue State Government whose offices and duties are relevant to furnishing information, explanations and throwing more light to the intelligence and petitions received by the Appellant were invited. That in carrying out its onerous duties, the Appellant employed the best international practices of putting the two accountsin line with Sections 6 (1) (b) and 5 of the Money Laundering (Prohibition) Act, (MLA) 2004 and same accounts were lifted within 72 hours in line with the enabling Act under Sections 6 (1) (b) and 5 of MLA. See pages 50-62 of the record of appeal. These allegations are weighty that requires investigation, as I stated earlier,Section 38 (1) of the Economic and Financial Crimes Commission (Establishment) Act gives the EFCC power to receive information on offences it is empowered to enforce which includes Money Laundering and Section 39 (1) of the EFCC Act forbid the disclosure of the source of information, the information in Exhibits EFCC 1 and EFCC 2 can validly be given to EFCC under the above provisions these two provisions must be read together with Section 6 of the Money Laundering (Prohibition) Act and not in isolation, the learned trial Judge gave a narrow interpretation of Section 6 of the Money Laundering Act without taken into consideration the provisions of Sections 38 and 39 of the Economic and Financial Crime Commission Act (EFCC Act) When he said at page 223 of the records that Public complaint commission and the group called Concerned Citizens ofBenue State Transparency Ant-Corruption Group, Gboko Benue State do not fall into the categories of institutions where the EFCC would receive its report from to act under the Money Laundering Act (MLA). Even going by his narrow interpretation of categories of institution that can report to EFCC to act under the MLA, I am of the view that the petitioners particularly the Public Complaints Commission Exhibit EFCC 1 is also captured under Section 25 of the Money Laundering Act as other appropriate body contrary the position of learned trial Judge and time does not run against investigation, the fact that the Appellant acted on Exhibit EFCC 1 after two years does not preclude them from investigating the allegations in Exhibit EFCC 1. Furthermore, Exhibit EFCC 2 was received by the Appellant in 2018 which prompted them to investigate the allegations of financial crime against the 2nd Respondent. In the circumstance, the petition received in 2016 and 2018 by the Appellant qualify as a report pertaining to a transaction which falls within the definition of Section 6 of the Money Laundering Prohibition Act to qualify the Appellant to issue a stop order for 72 hours on theaccount of the 2nd Respondent for purpose of investigation. See also Section 44 (2) (k) of the Constitution of the Federal Republic of Nigeria and Sections 38 and 39 of the EFCC Act.
The learned trial Judge at page 226 of the record is of the view that there was no money laundering from the definition of money laundering that the 2nd Plaintiff’s account was not then being used to clean dirty money for the 1st Defendant to place a stop order on the account or any transaction.
The learned trial Judge failed to appreciate the fact that at this stage, the Appellant was conducting an investigation on the accounts of the 2nd Respondent, it is the outcome of the investigation that would establish whether there is a case of money laundering. The words “any account’’ and ‘’any crime’’ mentioned in Section 6 (5) (b) of the Money Laundering Act is not limited to only cases of Money Laundering as wrongly interpreted by the learned trial Judge, it covers all cases in which the Appellant have powers to enforce under Section 6 of the Economic and Financial Crimes Commission (Establishment) Act 2004. The Apex Court faced withthe definition of the word ‘’any’’ where it appears in a statute Per Ejiwunmi, JSC (as he then was) in Chief Sergeant Chidi Awuse v. Dr. Peter Odili&Ors (2003) LPELR-666 (SC) page 44, paragraphs D-F. Stated: ‘’Though the word ‘’any’’ when used as an adjective is defined in Longman Dictionary of the English Language thus: ‘’one or some indiscriminately, whichever is chosen’’. It would appear that the word ‘’any’’ qualifying ‘’question’’ was deliberately used by the lawmakers to indicate that an appeal to the Court of Appeal was not limited only to hearing appeals only to whether any person has been validly elected to the office of Governor.’’
From the foregoing, I am unable to agree with the findings of the learned trial Judge that based on the circumstances of this case, the petition received in 2016 and 2018 by the Appellant do not qualify as a report pertaining to a transaction which falls within the definition of Section 6 of the Money Laundering (Prohibition) Act to qualify the Appellant to issue a stoporder. I equally did not agree with the holding of the lower Court that aside from the fact that it is clear by Section 6 of the Money Laundering Act, that a Court order is needed to freeze an account suspected of criminal activities, the account of a state government which belongs to the people does not fall within the classes of account liable to be frozen by the Appellant pursuant to Section 34 of the EFCC Act or S.6 of the Money Laundering and Prohibition Act.
I am of the view that the trial Court had jurisdiction to determine the action which was commenced by originating summons and the 3rd to 4th Respondents were right to have complied with the Appellant’s directive which in any case is limited to 72 hours and upon expiration of 72 hours and where the Appellant is not done with its activities in respect of the account, a Court order has to be obtained to extend the life of the order freezing the account.
The 4th Respondent had formulated a single issue for determination and relied on the case of the Appellant. The 4th Respondent in this appeal can only formulate issue and answer the appeal of the Appellant if he has any defence, or at bestalign herself with the case of the Appellant, but she cannot as a Respondent formulate an issue which has no foundation in the grounds of appeal filed before this Court.
From the argument of the 4th Respondent, it is clear that she is asking this Court to hold that looking at the documentary evidence she frontloaded before the trial Court, the trial Judge was wrong to have held that she froze the account of the 2nd Respondent. This issue would be resolved in the separate appeal filed by the 4th Respondent.
On the issue of damages awarded contested by Appellant in the sum of N50,000,000.00 and N25,000,000.00 each against 3rd and 4th Respondents, this brings to fur the guiding principle for the award of general damages which is clearly to compensate the aggrieved party and not to necessarily punish the wrong party. Even though the successful party ought not to prove general damages, same must be given with a mind to reward the discomfort suffered by an aggrieved party.
It is important to point out that the award of damages is not made as a matter of course, but on sound legal principles devoid of speculations or sentiments, it is not awarded at largeor out of sympathy, but rather on legal evidence of probative value adduced for the establishment of an actionable wrong. In the instant appeal, I cannot fathom the basis of the learned trial Judge awarding the sum of N50 Million Naira as damages against the Appellant when the Appellant had directed that the accounts of the 2nd Respondent domicile with the 3rd and 4th Respondent should be de-frozen within the time limit of 72 hours permitted by Section 6 (5) (b) of the Money Laundering (Prohibition) Act. The learned trial Judge is not permitted to embark upon his own assessment of damages using his own conceived perimeter in place of evidence. The damages awarded against the Appellant in the circumstance of this case had no basis and it is hereby set aside.
On the damages awarded against the 3rd and 4th Respondents since they have filed an appeal against the Judgment of the lower Court and issues have been joined by both parties I will reframe from making any pronouncement in order not the prejudice the appeal.
In conclusion, I hold that the Plaintiffs’ suit at the lower Court was properly commenced by the use of an Originating Summons. I am aware there aresister appeals against the judgment of the lower Court, so the Judgment of the lower Court Coram. M.O. OLAJUWON, J. delivered on the 12th day of February 2019 in suit No. FHC/MKD/CS/46/18 as it affects the Appellant is HEREBY SET ASIDE.
Accordingly, I hereby declare as follows:
1. that the Plaintiffs’ suit was properly commenced by the use of an Originating Summons.
2. that a State Government Account and in the instant suit, the Account of Benue State Government, maintained with any bank or financial institution in Nigeria, fall within the class of bank accounts capable of or liable to be frozen by the Economic and Financial Crimes Commission (EFCC) in accordance with due process of law.
3. that the Appellant acted in accordance with the law when it directed the 2nd and 3rd Defendants to freeze the Benue State Government Account Number: 10075400119, maintained with the United Bank for Africa (UBA) and Account Number: 5030058730, maintained with Fidelity Bank.
4. that the sum of N50,000,000 (Fifty Million Naira) awarded as damages against the Appellant is hereby set aside for reasons given in this judgment.
5. that the order of perpetual injunction made against the Appellant by the lower Court is hereby set aside.
Parties to bear cost.
IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading the draft judgment of my learned brother HON. JUSTICE MUSLIM SULE HASSAN, JCA, I have nothing to add to the well-researched judgment which I adopt as mine.
I hold that the Plaintiffs’ suit at the lower Court was properly commenced by the use of an Originating Summons. The judgment of the lower Court Coram. M.O. Olajuwon, J. delivered on the 12th day of February 2019 in suit No. FHC/MKD/CS/46/18 is hereby set aside.
I also abide by the consequential order as to costs.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft, the leading judgment delivered by my learned brother HON. JUSTICE MUSLIM SULE HASSAN, JCA. My learned brother has elaborately dealt with all the issues relevant to the determination of the appeal. I agree with him that the appeal has merit and should be allowed.
The said appeal is thus allowed while the judgment of the lower Court delivered by Hon. Justice M. O. OLAJUWON J. and dated the 12the day of February,2019 is set aside.
Appearances:
G.G. CHIA-YAKUA, Esq. with him, M. YUSUF, Esq. For Appellant(s)
OKON N. EFUT, SAN, with him, W.O. OTUAGOMA, Esq. J.B BANKONG, Esq. for the 1st & 2nd Respondents.
D.A. DALONG, Esq. for the 3rd Respondent
M.M. TULEH, Esq. with him, O.D. EJE, for the 4th Respondent For Respondent(s)
