CHIEF NELSON O. IMOH & ANOR v. ECONOMIC AND FINANCIAL CRIMES COMMISSION & ORS
(2018)LCN/12125(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of November, 2018
CA/L/1319/2017
RATIO
APPEAL: INTERFERENCE WITH FINDING OF FACT
“…an appellate Court has no duty interfering with the correct findings of a trial Court even where the reason adduced and relied upon by the trial Court to arrive at the correct findings turns out to be wrong. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie, JSC., had pronounced with finality on this issue, thus: “An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere….” See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.” PER BIOBELE ABRAHAM GEORGEWILL J.C.A.
FUNDAMENTAL RIGHT; RIGHT TO PERSONAL LIBERTY
“…Now by S. 35 of the Constitution of Nigeria 1999 as amended, the EFCC or indeed the Police and or Law Enforcement Agencies, have 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. In the exercise of these functions, powers and duties as assigned constitutionally to the EFCC under the EFCC Act 2004 and all such other laws enabling the EFCC in that behalf authorizing it to carry out these functions, duties and powers, of which I have taken time to painstakingly scrutinized and read through these laws, I agree with the submission of the learned counsel for the Appellants that the EFCC is not saddled with the authority to interfere 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, simply 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 agents 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…” PER PER BIOBELE ABRAHAM GEORGEWILL J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
1. CHIEF NELSON O. IMOH
2. KINI INEMKPO MARCUS
(Practicing under the name and style of Nelson & Nelson Chambers) Appellant(s)
AND
1. ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC)
2. UNION BANK NIGERIA PLC
3. FRANCIS CHUKA AGBU (SAN)
(Practicing under the name and style of Lexavier Partners) Respondent(s)
BIOBELE ABRAHAM GEORGEWILL J.C.A.(Delivering the Leading Judgment):
This is an appeal against the Judgment of the Federal High Court, Lagos Judicial Division, Coram: R. M. Aikawa J., in Suit No. FHC/L/CS/1160/2016: Chief Nelson O. Imoh & Anor V. Economic and Financial Crimes Commission & Ors., delivered on 31/5/2017, in which the Application of the Appellants for the enforcement of their Fundamental Human Rights against the Respondents was dismissed for lacking in merit.
The Appellants were dissatisfied with the said judgment of the Court below and had promptly appealed against it vide a notice of appeal filed on 6/7/2017 on five grounds at pages 439 – 450 of the record of appeal. The record of appeal was transmitted to this Court on 9/11/2017 but was deemed on 18/1/2018. The Appellants’ brief was settled by Chief Nelson O. Imoh and filed on 17/1/2018 but deemed properly filed on 18/1/2018. The 1st Respondent’s brief was settled by Joy Amahian Esq., and filed on 2/5/2018 but was deemed properly filed on 18/10/2018. The 2nd – 3rd Respondents’ brief was settled by Segun Olarinde Esq., and filed on 21/2/2018 but deemed properly filed on 19/4/2018. The Appellants’ Reply brief to the 1st Respondent’s brief was settled by CHIEF Nelson O. Imoh and filed on 6/6/2018 but was deemed on 18/10/2018. The Appellants’ Reply brief to the 2nd – 3rd Respondents? brief was settled by Chief Nelson O. Imoh and filed on 26/2/1018 but was deemed on 19/4/2018.
At the hearing of the Appeal on 18/10/2018, U. Onwukwe Esq., learned counsel for the Appellants adopted the Appellants’ brief and Reply briefs 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 Appellants. On his part, S. B. Olamide Esq., learned counsel for the 2nd – 3rd Respondents adopted the 2nd – 3rd Respondents’ brief as his arguments and urged the Court to dismiss the appeal for lacking in merit and to affirm the judgment of the Court below. The 1st Respondent, though duly served with hearing notice on 3/10/2018, did not attend the Court and was also not represented by counsel but its brief was deemed as having been argued.
By a motion on notice dated the 26/8/2016, the Appellants as Applicants sought to enforce their fundamental rights against the Respondents, claiming the following reliefs against the Respondents, namely:
A. A Declaration that the forceful, illegal, unlawful and uncivilized arrest without warrant, detention and humiliation of the 1st and 2nd Applicants by the officers, operatives and men under the Command and directives of the respondent at the criminal and unwarranted mastermind and fiendish instigation of the 2nd and 3rd Respondents, notwithstanding the pendency of several Courts cases in respect of the self-same matter including but not limited to cases at the Lagos State High Court, the Ondo State High Court, Okitipupa Judicial Division and most importantly the Court of Appeal, Lagos Judicial Division is a gross, violent, barbaric, brute, flagrant and unmitigated violation of the Applicants rights to dignity of human person, personal liberty, fair hearing and freedom of movement guaranteed and safeguarded under Sections 34, 35,36 and 41 of the Constitution of the Federal Republic of Nigeria, 1999 and under Articles 3,4,5,6, 7 and 12 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. CAP. A9, Laws of the Federation of Nigeria 2004.
B. A Declaration that the forceful, illegal and unwarranted arrest without warrant and unlawful detention of the 1st and 2nd Applicants on the 28th day or June, 2016 to the day of June, 2016 and the subsequent threat of further arrest and detention by the men, operatives and officers under the command of the 1st Respondent at the continued, selfish and unceasing instigation and promptings’ of the 2nd and 3rd Respondents without any formal charge against them and notwithstanding the pendency of several Courts cases in respect of the self-same matter including but not limited to cases at the Lagos State High Court, the Ondo State High Court, Okitipupa Judicial Division and most importantly the Court of Appeal, Lagos Judicial Division amounts to a gross violation of the Applicants’ rights to fair hearing as guaranteed under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, and Articles 7 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. CAP. A9, Laws of the Federation of Nigeria 2004.
C. A Declaration that the continued and unabated harassment, intimidation and threat of further arrest and illegal detention of the 1st and 2nd Applicants by the men, operatives and officers under the command/ commission of the 1st Respondent, on a matter that is currently pending in several Courts including but not limited to the Lagos State High Court, the Ondo State High Court, Okitipupa Judicial Division and most importantly the Court of Appeal, Lagos Judicial Division at the continued instigation and sustained mastermind of the 2nd and 3rd Respondents officials amounts to a gross violation of the Applicants? right personal liberty, fair hearing and freedom of movement as guaranteed under Sections 34,35,36, and 41 of the Constitution of the Federal Republic Nigeria 1999, and under Articles 3, 7 and 12 of the African Charter on Human and Peoples? Rights (Ratification and Enforcement) Act. CAP. A9, Laws of the Federation of Nigeria 2004.
D. A Declaration that the continued and unabated harassment, intimidation and threat of further arrest and illegal detention of the 1st and 2nd Applicants by the men, operatives and officers under the commission/commission of the 1st Respondent, on a matter that is currently pending in several Courts including but not limited to the Lagos State High Court, Ondo State High Court, Okitipupa Division and most importantly the Court of Appeal, Lagos Judicial Division and in respect of the due execution of a valid judgment of a competent Court of law at the continued instigation and sustained mastermind of the 2nd and 3rd Respondents officials amounts to a gross violation of the Applicants’ right to personal liberty, fair hearing and freedom of movement as guaranteed under Sections 34,35,36, and 41 of the Constitution of the Federal Republic of Nigeria 1999, and under Articles 3, 7 and 12 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. CAP. A9, Laws of the Federation of Nigeria 2004.
E. A Declaration that the illegal invasion, unwarranted entry into, arrest and detention without an order of any Court of the Applicants on the 28/6/16, by the men, operatives and officers under the command of the 1st Respondent at the continued, selfish and unceasing instigation and promptings of the 2nd and 3rd Respondents when SUIT Nos. N0K1612013 – ORS BULU HANNAH IYABO & ORS VS. OKITIPUPA OIL PALM PLC ATTER TO SET ASIDE GARNISHEE ORDER ABSOLUTE); -IO67NRJ/2015 – MRS. BULU HANNAH YABO & ORS. VS. OKITIPUPA OIL PALM PLC & UNION BANK OF (NIG) PLC; APPEAL IN SUIT NO. LD/067NR/12015 – MRS. BULU HANNAH IYABO & ORS. VS. UNION BANK OF (NIG) PLC & ANOR; APPEAL IN SUIT NO. LD/OS/NR/I2OI5 – MRS. BULU HANNAH IYABO & ORS. VS. UNION LD/067NRJ/2015 on the same subject matter are pending both before the Lagos State High Court, the Ondo State High Court and the Court of appeal, amounts to a gross violation of the Applicants? rights to fair hearing, donated them and as guaranteed under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, and Articles 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act. CAP. A9. Laws of the Federation of Nigeria 2004.
F. The sum of N100, 000, 000, 000. 00 being exemplary damages against the Respondents jointly and severally for the unlawful arrest, detention, humiliation and continued threat of arrest of the Applicants.
G. An Order of Perpetual Injunction restraining the Respondents, & agents, privies, men, operatives, officers, officials, anybody acting for or of their behalf howsoever in their authority, command, or office from further arresting, harassing, intimidating, humiliating and detaining, continuing in the infringement of the guaranteed rights of the Applicants.
H. An Order or such further Orders as this Hon Court may deem it to make in the circumstances.
I. Cost of this action.
See pages 1 – 3 of the record of appeal.
BRIEF STATEMENT OF FACTS
The gist of the case of the Appellants, as Applicants before the Court below, as can be gleaned from their various affidavits and documentary evidence as in the printed records, was that the Appellants, who are Legal Practitioners practicing under the name and style of Nelson & Nelson Chambers with their office in Lagos, were instructed by their Clients, Okitipupa Oil Palm Dealers Association, to institute an action in a representative capacity for the recovery of monies had and obtained from them for a consideration that failed by the Okitipupa Oil Palm Plc. The Appellants? law firm instituted an action before the Ondo State High Court Okitipupa Division, which they prosecuted diligently and got Judgment entered in favour of their Clients on 5/6/2014 in the sum of N34, 441, 528.00 including cost and 10% post judgment interest.
However, the Judgment debtor company severally refused to liquidate the judgment debt and upon a further instruction from their clients, the Appellants filed a Motion Ex – parte on 7/11/2014 and obtained an Order Garnishee Nisi against all the named Garnishees, including but not limited to the 2nd Respondent. Subsequently, the Appellants filed the Motion on Notice with the Garnishee Order Nisi attached and served same on all the Garnishees on 17/11/2014 through one Sina Akinboyewa, a bailiff of the High Court of Ondo State, Okitipupa Judicial Division. The copy for service on the 2nd Respondent was received for the 2nd Respondent/Garnishee by one Siyan Adegoke (BDM) at the 2nd Respondent’s Akure Banking Hall. Upon being satisfied with the affidavit of service duly deposed to by the Bailiff of Court evidencing the service of the Order Nisi, with the Motion on Notice for Garnishee Order Absolute and upon the failure of the 2nd Respondent to appear to show cause, the Court per B. F Adeyeye J., made the Order Garnishee nisi of 5/11/14 absolute against the 2nd Respondent.
On 3/12/2015, the Appellants applied and registered the judgment of the High Court of Ondo State dated 5/6/14 and 27/11/14 respectively at the High Court of Lagos and by a Motion Ex – parte dated 3/12/15, the Appellants applied to the said Court for an Order directing the Deputy Sheriff of the said Court to enforce the Judgments against the 2nd Respondent, pursuant to Section 86 of the Sheriff And Civil Process Act, for the consistent failure of the 2nd Respondent to appear to show cause why the entire judgment debt should not be paid by it.
On 15/2/2016, the High Court of Lagos State per Candide Johnson J., granted the prayers of the Appellants and accordingly ordered the execution of the Judgment against the 2nd Respondent by the Office of the Deputy Sheriff of the Lagos State High Court. On 14/4/2016, the said Judgments were peacefully executed against the 2nd Respondent after due confirmation and logistic support by the Office of the AIG Zone Two, Police Command, by the Officials of the Office of the Deputy Sheriff of the High Court of Lagos State led by one Mrs Keji Abatan (Mrs.) and the 2nd Respondent paid the balance of the judgment sum with the accrued interest and cost vide their drafts issued in the name of the Appellants’ Law Firm as directed by Court and received by the said Mrs. Keji Abatan of the Deputy Sheriffs Office.
However, but strangely and having fully satisfied the terms of the Order of Court by paying the Judgment sum, the 2nd Respondent resorted to blackmail and an orchestrated campaign of calumny against the Office and persons of the Appellants. It filed an application before the High Court of Lagos State to set aside the execution validly carried out against it and also mischievously retained the services of the 3rd Respondent, who despite being the Counsel on record on the pending civil applications to set aside the execution and other pending cases filed by him, masterminded the 1st Respondent to arrest the Appellants and caused them to be detained on a spurious petition that the Judgment sum paid through a validly executed Judgment was obtained by false pretence, criminal misrepresentation, perjury, fraud and extortion.
That it was for the unlawful and nefariously orchestrated arrest, torture and detention of the Appellants from 28/6/16 – 29/6/16, despite the fact that the entire process involved in the subject matter were purely civil issues arising from a duly sanctioned judicial activities of Courts of law and for which several appeals are pending at the Court of Appeal, that the Appellants by their Motion on Notice dated the 26/8/2016 brought an application for the enforcement of their Fundamental Human Rights against the Respondents. See pages 1-120, 252 – 315 and 314 – 384 of the record of appeal.
On the other hand, the gist of the case of the 1st Respondent as can be gleaned from their various affidavits and documentary evidence as in the printed records, was that the Appellants were on the Petition of the 2nd Respondent written to the 1st Respondent alleged to have been involved in a fraudulently obtained judgment of the High Court of Lagos State per Candide – Johnson J., delivered on 31/5/2016, which judgment was dramatically revered by the said Court on the grounds that the earlier order was obtained through misrepresentation and suppressing of material facts, that is obtaining by fraudulent misrepresentation in that the Appellants fraudulently made the 2nd Respondent as Garnishee to pay over to them the sum of N38, 574, 206. 20 as due to the Appellants’ Clint which had only N4, 128. 18 in its account with the 2nd Respondent.
Upon the facts of the said Petition, the 1st Respondent officer went to the Chambers of the Appellants and invited the 1st Appellant but he refused to honour the invitation until he was arrested by Officers of the 1st Respondent acting within its statutory powers and he made his voluntary statement and was granted administrative bail by the 1st Respondent while investigation into the allegations against the 1st Appellant continued. The 1st Respondent maintained that it did not embark on a frolic of its own when it embarked on the investigation and invitation of the Appellants while investigating an allegation of obtaining by false pretence and stealing made against the Appellants by the 2nd and 3rd Respondents. The Appellants disillusioned themselves by trivializing the Petition as in Exhibit EFCC1 as frivolous and unfounded in their own estimation believing that the 1st Respondent is not empowered to invite, arrest and interview them as part of an ongoing investigation of the criminal allegations made against them. See pages 75 – 77, 159 and 183 of the record of appeal.
On their part, the gist of the case of the 2nd – 3rd Respondents as can be gleaned from their counter affidavit and documentary Exhibits relied upon as in the printed record, was that on 14/4/2016, the Appellants caused to be issued a Writ of Attachment from the High Court of Lagos State for the purpose of executing a Garnishee Order Absolute purportedly obtained at the High Court of Ondo State against the 2nd Respondent. Upon the conclusion of the execution exercise by the Appellants, the 2nd Respondent conducted searches at the Registries of the High Courts of Ondo State and Lagos State respectively and based on the resultant discoveries, the 2nd Respondent was convinced that not only was the Writ of Attachment illegally obtained from the High Court of Lagos State but also that the 1st Appellant had engaged in underhand criminal conduct in the obtaining of the Writ of Attachment, including series of false and fraudulent misrepresentations.
Consequently, the 2nd Respondent retained the services of the 3rd Respondent to commence civil proceedings against the 1st Appellant to set aside the wrongful execution and also further instructed the 3rd Respondent, as its Counsel, to report the suspected criminal conduct of the 1st Appellant to the appropriate law enforcement agency, based on which said instruction, the 3rd Respondent filed an application to set aside the Writ of Attachment which was issued by the High Court of Lagos State per Candide – Johnson J., which Court having perused all the facts and documents placed before it, found that the Writ of Attachment was wrongfully obtained and executed and consequently set same aside, while ordering the Appellants to return the wrongfully obtained sum to the 2nd Respondent, an Order which the Appellants are yet to comply with.
However, in respect of the suspected criminal conduct of the Appellants, the 3rd Respondent filed a petition at the 1st Respondent reporting the suspected criminal acts of the Appellants and requesting the commission to investigate same and the 1st Respondent conducted an independent investigation and found that the 1st Appellant had fraudulently misrepresented facts knowing them to be false and with the sole intention of fraudulently obtaining proceeds thereby and by the said false misrepresentations, the Appellants illegally obtained proceeds which they quickly proceeded to transfer to several accounts in a hurried bid to hide the funds and render same untraceable. See pages 161 – 163, 130 – 181 and 215 – 351 of the Record.
The parties filed and exchanged their affidavit, counter affidavits, further affidavit and further counter affidavit together with several documentary Exhibits relied upon by the parties. The application was duly heard by the Court below, which on 31/5/2017 in its judgment dismissed the Appellant’s application for the enforcement of their fundamental human rights against the Respondents for lacking in merit, hence the appeal by the Appellants to this Court. . See pages 420 – 438 of the record of appeal.
ISSUES FOR DETERMINATION
In the Appellants’ brief, three issues were distilled as arising for determination from the five grounds of appeal, namely:
1. Whether, and having regards to the state of the law the facts and particular circumstances of the Appellants’ case the Court below was right when it dismissed the Application of the Appellants to enforce their Fundamental Human Rights when the issues leading to the arrest and detention of the Appellants were not within the statutory mandate and investigatory powers of the 1st Respondent?
2. Whether, and having regards to the facts and particular circumstances of the Appellants case and the evidence adduced thereon, the Court below was right when it dismissed the Application of the Appellants to enforce their Fundamental Human Rights, thereby exonerating the Respondents from liability of the infringement of the Appellants’ Rights thereon?
3. Whether the Judgment of the Court below dismissing the Application of the Appellants to enforce their Fundamental Human Rights was not tainted and occasioned serious miscarriage of justice against the Appellants same having been delivered against the letter and spirits of Section 294 (5) of the 1999 Constitution of Nigeria?
In the 1st Respondents’ brief, a sole issue was distilled as arising for determination in this appeal, namely:
‘Whether and having regards to the state of the law, the facts and particular circumstances of the Appellants’ case, the Court below was right when it dismissed the application of the Appellants to enforce their fundamental human rights.’
In the 2nd – 3rd Respondents? brief, two issues were distilled as arising for determination in this appeal, namely:
1. Having regards to: a. the fact that the proceedings before the Court below was for the enforcement of fundamental rights and b. the averments and exhibits before the Court below, whether the Court below was right when it found that there was no breach of the Appellants? fundamental rights?
2. Whether the non-compliance with the provisions of Section 294(1) of the 1999 Constitution (as amended) has occasioned a miscarriage of justice as to render the judgment of the Court below a nullity and liable being set aside?
I have given adequate consideration to the claims of the Appellant as Applicants in their originating application for the enforcement of their fundamental rights against the Respondents, the depositions in the affidavit and counter affidavit of the parties and scrutinized the several documentary Exhibits relied upon by them as in the records of appeal. I have also considered the submissions of counsel to parties in their respective briefs 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 issues two and three as distilled in the Appellants? brief are the apt issues and are hereby set down as issues one and two for determination in this appeal. It is my view a consideration of these two issues would invariably involve the consideration of all the issues as distilled by the parties in their respective briefs. I shall therefore, proceed anon to consider and resolve these two issues ad seriatim, commencing with issue one.
ISSUE ONE
“Having regards to the facts and circumstances of the Appellants and the evidence adduced by the parties, whether the Court below was right when it dismissed the Application of the Appellants to enforce their Fundamental Human Rights and thereby exonerating the Respondents from any liability to the Appellants?”
APPELLANTS’ COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Appellants had submitted that the Court below was wrong in his Judgment when it dismissed the Application of the Appellants to enforce their Fundamental Human Rights, given that the issues leading to the petition of the 2nd & 3rd Respondents, the arrest and unlawful detention of the Appellants were not within the statutory mandate and investigatory powers of the EFCC 1st Respondent and contended that the reasoning behind the decision was perverse and incoherent and was not supported by law and urged the Court to hold that the actions of the 1st Respondent based on the frivolous petition of the 2nd and 3rd Respondents amounted to gross violations of the constitutionally guaranteed fundamental human rights of the Appellants, who had acted only as Legal Practitioners and to allow the appeal and set aside the perverse decision of the Court below.
It was further submitted that the contents of Exhibits EFCC1 and the execution of judgment complained of therein do not and cannot in law constitute an economic crime or any crime at all referable and amenable to the investigatory mandate or powers of the 1st Respondent under the EFCC Act and or any other such Statute and or Legislation known to law and contended that going by the undisputed facts of the case and the role played by the Appellants as counsel for the Clients/Judgement Creditors, the Petition by the 2nd and 3rd Respondents to the 1st Respondent was worthless and urged the Court to hold that the execution of the judgment was legitimately carried out against the 2nd Respondent and therefore, the 1st Respondent, not being an appellate tribunal or Court, lacked the powers to assist the 2nd Respondent to either review the legitimate execution of judgment or act as its debt recovery agent and to allow the appeal and set aside the perverse judgment of the Court below. Counsel referred to Section 6 of the Economic and Financial Crimes Commission (Establishment, etc) Act CAP E1 Laws of the Federation of Nigeria 2004 and relied on Ojukwu V. Yar?Adua & Ors (2009) 4 -5 SC (Pt.1); Ehuwa V. OSIEC (2006) 18 NWLR (Pt. 102) 544 @ pp. 568 – 569; Buhari V. Dikko Yusuf (2003) 14 NWLR (Pt. 841) 446.
It was also submitted that in the absence of any basis for the Petition over the legitimate execution of a valid judgment of the Court by the Sheriff of the High Court of Lagos State, on a matter the Appellants appeared as Legal Practitioners only, there was no basis in law for the activation of the investigatory and prosecutorial powers of the 1st Respondent and contended that in the circumstances therefore, the Respondents acted without the requisite powers in relation to their arrest and detention of the Appellants and urged the Court to hold that the Court below had thereby acted without jurisdiction when he acted on the unlawful coercive endeavours of the Respondent by dismissing the Application of the Appellants to enforce their Fundamental Human Rights. Counsel referred to Section 36 (12) of the Constitution of Nigeria 1999 (as amended) and relied on Madukolu V. Nkemdilim (1962) 2 SCNLR 341; Odofin V. Agu (1992) 3 NWLR (Pt. 229) 350 @ p. 356; AG. Federation V. Sode (1990) 1 NWLR (Pt. 128) 500; Osafile V. Odi (No. 1) (1990) 3 NWLR (Pt. 137) 130.
It was also further submitted that the 1st Respondent as well as all other law enforcement agencies in the performance of their duties to maintain law and order, to investigate allegations of crime and to arrest, and in the exercise of some measure of discretion available to them, are obligated to do so in line with constitutional provisions and other laws of the land and contended that to do otherwise as was done by the 1st Respondent in the instant case would amount to an unwarranted arrogation of excessive and arbitrary powers, contrary to and at variance with its operational statutes and urged the Court to hold that the 1st Respondent has no statutory powers to arrest, detain, investigate and or prosecute any citizen of this Country for an offence not known to law and to allow the appeal and set aside the perverse judgment of the Court below. Counsel relied on R. V. Commissioner of Police, Ex – parte Blackburn (1968) 7 QB 118; Fawehinmi V IGP (2002) FWLR (Pt. 108) 1355 @ pp. 1376 – 1377; Olieh V. FRN (2005) All FWLR (Pt. 281) 1746 @ p. 1765; FRN V. Ifegwu (2003) 15 NWLR (Pt. 842) 113; Aoko V. Fagbemi (1961) 1 All NLR 4000; Tofi V. Uba (1987) 2 NWLR (Pt. 62) 707; Ogbomor V. The State (1985) 1 NWLR (Pt. 2) 223.
It was further submitted that the proprietary or alleged irregularity in the execution of a validly issued Judgment of a Court of competent Jurisdiction is not one embroiled with any criminal intent or elements and contended that in law where the Judgment and or its execution is said to have been vitiated by fraud, it is still a Court that has the power, upon the application of the aggrieved party, to set aside such a Judgment, said to have been obtained by fraud, or if the Judgment is a nullity and urged the Court to hold that the invitation of the 1st Respondent by the 2nd and 3rd Respondents and the consequent arrest and detention of the Appellants were unwarranted and therefore, unconstitutional and to allow the appeal and set aside the judgment of the Court below and enforce the rights of the Appellants by granting the reliefs claimed. Counsel relied on Vulcan Gases Limited V. GFIG (2001) FWLR (Pt. 53) 1 @ p. 31; Sea Trucks (Nig) Ltd V. Anigboro (2001) 10 WRN 78 @ p. 94; EFCC V. Odigie (2013) 17 NWLR (Pt. 1384) 607 @ p. 633; Mclaren V. Jennings (2003) FWLR (Pt. 154) 528 @ pp. 537 – 538; FBN Plc V. AG. Federation (2014) 12 NWLR (Pt. 1422) 470; Nyame V. FRN (2010) 7 NWLR (Pt. 1193) 344 @ p. 403; Ibori V. FRN (2009) All FWLR (Pt. 488) 285 @ p. 292; Egharevba V. Osagie (2010) All FWLR (Pt. 513) 1255 @ p. 1262; Ugbodume V. Abiegbe (1991) 8 NWLR (Pt. 209) 261; Igwe V. Ezeanochie (2010) 7 NWLR (Pt. 1192) 61 @ pp. 85 – 86.
On his issue two, learned counsel for the Appellants had submitted that the Court below was wrong when it dismissed the application of the Appellants to enforce their Fundamental Human Rights against the Respondents and thereby exonerating the Respondent from the commensurate liability thereto and contended that the reasoning for the perverse decision was itself very strange merely to justify the unlawful arrest and detention of the Appellants by the 1st Respondent at the instigation of the 2nd and 3rd Respondents and urged the Court to hold that the Court below failed woefully to consider the unchallenged evidence of the case of the Appellant while paying undue attention to the case of the Respondents and to allow the appeal and set aside the incoherent decision of the Court below. Counsel relied on Ajomale V. Yaduat (No. 2) (1991) 5 NWLR (Pt. 191) 266; Long – John V. Blakk (1998) 6 NWLR (Pt. 555) 524 @ p. 547; Obiegue V. AG. Federation (2014) 5 NWLR (Pt. 1399) 171 @ p. 207; Egbuna V. Egbuna (1989) 2 NWLR (Pt. 106) 773; Bossa V. Julius Berger Plc (2005) 15 NWLR (Pt. 948) 409; Unibiz Ltd. V. CBL (2005) 14 NWLR (Pt. 944) 47; The Honda Place Ltd v. Globe Motors Ltd. (2005) 4 NWLR (Pt. 945) 273.
It was further submitted that from the totality of the averments in the Appellants’ affidavit which remained not contradicted it was wrong for the Court below to hold that the Appellants admitted the facts of their refusal to honour the invitation of the 1st Respondent, which necessitated their unlawful arrest and contended that in law facts not disputed or challenged are taken as admitted and established, and therefore would require no further proof and urged the Court to hold that the Respondents who arrested and detained the Appellants unjustly, and without any warrant of arrest did and having not deny or reacted to the Appellants position that they were arrested immediately after their appearances in Court in one of the matter that is connected to the 2nd Respondent’s Petition, and before the time agreed for their appearance at the 1st Respondent?s office, the Respondents were deemed to have admitted the Appellants’ depositions regarding their unlawful arrest and detention by the 1st Respondent. Counsel relied on Ogaji V. Igonikon Digbani (2010) 10 NWLR (Pt. 1202) 289 @ p. 306; Cardoso V. Daniel (1986) 2 NWLR (Pt. 20) 1; Igwe V. Ezeanochie (2010) 7 NWLR (Pt. 1192) 61 @ p. 95.
It was also submitted that by its inviolable nature, the fundamental rights of the Appellants are sacrosanct and as such the Respondents cannot continue to infringe at will such entrenched rights without any reasonable cause or lawful justification for so doing and contended that the evidential onus of proffering instances of lawful justification for the continued infringement of the Appellants? fundamental human rights by the Respondents in a purely civil action, which lies on the Respondents, has not been in any lawful manner discharged by the Respondents to justify the dismissal of the Appellants’ application by the Court below and urged the Court to set aside the perverse judgment of the Court below and allow the appeal and grant the reliefs sought to by the Appellants against the Respondents. Counsel referred to Sections 34, 35, 36 and 41 of the Constitution of Nigeria 1999 (as amended) and relied on Fajemirokun V. Credit Lyonnais (2002) 10 NWLR (Pt. 774) 95; Iyere V. Duru (1986) 5 NWLR (Pt. 44) 665; Bolakale V State (2006) All FWLR (Pt. 312) 2168 at p. 2177; Fawehinmi V. Babangida (2000) 2 HRLR (Vol. 2) 144 at pp. 153 – 155; State Civil Service V. Buzugbe (1984) 7 SC 19; Federal Civil Service V. Laoye (1989) 2 NWLR (Pt. 106) 652; Hart V. Military Governor, Rivers State (1976) 11 SC 211; University of Nigeria Teaching Hospital V. Nnoli (1994) 8 NWLR (Pt. 363) 376; Wilson V. AG. Bendel State (1985) 2 SC 19; Adigun V. AG. Oyo State (1987) 1 NWLR (Pt. 53) 678; Jim – Jaja V. COP (2011) 2 NWLR (Pt. 1231) 375 @ pp. 392 – 394; Balogun V. Amubikahun (1989) 3 NWLR (Pt. 107) 18; Onah V. Okenwa (2010) 7 NWLR (Pt. 1194) 512 @ p. 537.
It was also further submitted that the Petition of the 2nd – 3rd Respondents against the Appellants, who are Legal Practitioners, was done in provocative bad faith with the sole intention of instigating their arrest and unlawful detention by the 1st Respondent when it was to the knowledge of the 2nd – 3rd Respondents that the subject matter upon which the Petition was predicated arose from, and were strictly of a civil nature without any criminal contents and during the pendency of civil matters in Court and contended that facts were merely fabricated by the Respondents to justify the unlawful arrest and detention of the Appellants as was erroneously sanctioned by the judgement of the Court below and urged the Court to allow the appeal and set aside the judgment of the Court below. Counsel relied on Igwe V. Ezeanochie (Supra) @ p. 94; Jim – Jaja V. COP (Supra) @ pp. 391- 392; Olujinle V. Adeagbo (1988) 2 NWLR (Pt. 75) 238; Anisiubu V. Emodi (1975) 2 SC 9; Demuren V. Asuni (1967) 1 All NLR 94; Solanke V. Ajibola (1968) 1 All NLR 46; Re: Ejide (1990) 3 NWLR (Pt. 141) 758; Azeez V. State (1986) 2 NWLR (Pt. 23) 541; Anyaegbunam V. Osaka (1993) 5 NWLR (Pt. 294) 449.
1ST RESPONDENT’S COUNSEL SUBMISSION
On his sole issue, learned counsel for the 1st Respondent had submitted that the crux of the Appellants’ claim was based on the fraudulently obtained judgment of Candide – Johnson J., of the High Court of Lagos State delivered on 31/5/2016, which same Court had reversed itself on the grounds that the earlier order it made was obtained by fraudulent misrepresentation and contended that on the facts and circumstances of this case, the 1st Respondent merely carried out the performance of its statutory duties when upon the Petition of the 2nd – 3rd Respondents it investigated the case of obtaining by false pretence and Stealing alleged against the Appellants by the 1st Respondent and urged the Court to hold that the Court below was right when it held that there was no breach of the fundamental rights of the Appellants by the due exercise of the statutory powers and duties of the 1st Respondent and to dismiss the appeal for lacking in merit. Counsel referred to Sections 6, 7 and 41 of the Economic and Financial Crimes Commission Act 2004 and relied on Nnamdi Azikiwe University V. Nwafor (1999) 1 NWLR (Pt. 585) 116 @ p. 136.
It was further submitted that the operatives of the 1st Respondent do by law retain very considerable freedom to formulate and implement general policies and to decide what to do in a particular case without incurring the risk of judicial reprimand and contended that in the performance of its statutory duty by the 1st Respondent in trying to discover whether or by whom an offence has been committed is entitled to question any person whether suspected or not from whom it think and believe that useful information may be obtained since no liberty is absolute but can be lawfully derogated there from and urged the Court to hold that the offence of money laundering alleged against the Appellants by the 2nd Respondent in its Petition Exhibit EFCC1 falls within the purview and powers of the 1st Respondent to investigate and to affirm the judgment of the Court below and dismiss the appeal for lacking in merit. Counsel referred to Sections 35(1)(c)and 36(1) of the Constitution of Nigeria 1999 (as amended) and relied on Fawehinmi V. IGP (2002)7 NWLR (Pt. 767)519; Mallam Abdullahi & Ors V. EFCC & 3 Ors (2014) 1 NWLR (Pt. 1389) 607; Emeka Ekwenugo V. FRN (2001) 6 NWLR (Pt. 708) 17 @ p. 185;
It was also submitted that the facts as presented by the Appellants were highly misplaced and basically untrue with the ultimate aim of misleading the Court in that the Appellants owed a duty to the Court to bring the true facts properly before it as they are and contended that the invitation, arrest and detention of the Appellants by the 1st Respondent, which was extended due to the Appellants’ failure to meet the bail conditions within twenty-four hours does not in any way whatsoever amount to an infringement or infraction of the Appellants fundamental rights of dignity and personal liberty and urged the Court to so hold and to affirm the judgment of the Court below and dismiss the appeal for lacking in merit.
It was also further submitted that the relief of perpetual injunction claimed by the Appellants against the 1st Respondent will not lie in law against the 1st Respondent to restrain it from carrying out its statutory duties and contended that mere speculative assertions of infringement of the fundamental rights of the Appellants without more as by way of credible evidence in support thereof, cannot ground an action under the Fundamental Rights Enforcement Procedure Rule and urged the Court to so hold and to dismiss the appeal founded on misguided application by the Appellants. Counsel referred to Section 46 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and relied on Uzuokwu & Ors V. Ezeonu II & Ors (1991) 6 NWLR (Pt. 200) 708 @ p. 784; Sea Trucks Nig. Ltd V. Anigboro (2001) 2 NWLR (Pt. 696) 159.
It was further submitted that by law derogation from fundamental rights are permitted in the interest of defense, public safety, public order, public morality or public health and for the purpose of protecting the rights and freedom of other persons and contended that the rights of an individual cannot stop the law enforcement agents from effecting lawful arrest, proving the commission of crime or inviting criminal suspects for statements and answering questions for purposes of investigation and prosecution and urged the Court to hold that all freedoms are limited by State policy and no fundamental right stands above the Country, the State and the People and to dismiss the appeal for lacking in merit. Counsel referred to the Book: Introduction to the Constitution of the Federal Republic of Nigeria 1999 by Professor Jadesola Akande @ p. 78; Section 45(1) of the Constitution of Nigeria 1999 (as amended) and relied on Badejo V. Minister of Education (1996) 8 NWLR (Pt. 464) 15 @ p. 19 Fawehinmi V. IGP (2000) 7 NWLR (Pt. 665) 481 @ p. 523; R V. Commissioner of Police, Ex – Parte Blackburn (1968) 2 QB 118 @ p. 136; AG. Anambra State V. Chris Uba (2005) 15 NWLR (Pt. 947) 44 @ pp. 50 – 53; Nzewi V. COP (2000) 2 HRLRA 156 @ p. 158; AG. Federation V. Dawodu (1995) 2 NWLR (Pt. 380) 712 @ p. 714.
2ND – 3RD RESPONDENTS? COUNSEL SUBMISSIONS
On his issue one, learned counsel for the 2nd – 3rd Respondents had submitted that the issue before this Court is not whether the Appellants are guilty of a crime or not but whether at any time from the filing of a Petition at the 1st Respondent’s office to the commencement of the proceedings before the Court below, there was anything done or left undone by the 2nd and 3rd Respondents which amounted to a denial or an infringement of the Appellants’ constitutional rights and contended that a perusal of the Appellants’ processes would reveal that the only fact upon which the Appellants based their case against the 2nd and 3rd Respondents is that the 3rd Respondent on the instruction of the 2nd Respondent wrote a Petition to the 1st Respondent against the 1st Appellant, reporting a suspicion of crime and urged the Court to hold that in law the mere writing of a Petition to the 1st Respondent without anything more does not amount to an infringement of the Appellants’ rights.
It was further submitted that the pertinent question is whether the 2nd Respondent is entitled in law to report a suspicion of crime to the 1st Respondent, an agency of the Federal Government statutorily charged with the power to receive allegations of crimes from all persons without let or hindrance and to investigate same as it may deem fit and contended that in law the 2nd Respondent acting through its Counsel cannot incur or be said to have infringed on the Appellants’ fundamental rights merely by reason of the Petition it wrote to the 1st Respondent and urged the Court to hold that the 3rd Respondent, a legal practitioner is entitled and indeed obligated to accept any brief in so far it is within the bounds of law and to dismiss the appeal for lacking in merit and affirm the judgment of the Court below. Counsel referred to Section 38 of the Economic and Financial Crimes Commission (Establishment) Act and of Rule 24(1) Rules of Professional Conduct 2007 and relied on Fajemirokun V. Commercial Bank (Credit Lyonnais) Nig Ltd (2009) 5 NWLR (Pt. 1135) 558 @ p. 600;
It was also submitted that on the clear facts of this case both the 2nd Respondent and the 3rd Respondent acted within the bounds of law and are therefore, justified at law and in fact sending the Petition to the 1st Respondent against the 1st Appellant and contended that beyond the performance of the said duty to report suspicion of crime, there was no scintilla of evidence before the Court below which suggested that the 3rd Respondent advised, solicited, procured or effected the arrest and/or detention of the Appellants and urged the Court to hold that the allegations by the Appellants were ridiculous, outrageous and unfounded and should be discountenanced and the appeal dismissed for lacking in merit and to affirm the judgment of the Court below.
It was also further submitted that whilst the alleged arrest and detention of the Appellants was entirely at the discretion of the 1st Respondent without any input and or intervention whatsoever by the 2nd Respondent, other than the statutory and civil duty of reporting the suspicion of crime, or the 3rd Respondent, the arrest and detention of a person, such as the Appellants, without more does not automatically amount to a violation of the person’s constitutional rights since in law the rights constitutional rights guaranteed are never absolute and urged the Court to hold that the Appellants failed to show the alleged breach of their rights under the Constitution as required of them by law to show how their arrest and detention contravened the provisions of the Constitution. Counsel referred to Section 35 (1) of the Constitution of Nigeria 1999 (as amended) and relied on Luna V. Commissioner of Police & Ors (2010) LPELR 8642(CA); Fawehinmi V. IGP (2002) FWLR (Pt. 108) 1355 @ pp. 1376 – 1377.
APPELLANTS’ COUNSEL REPLY TO 1ST RESPONDENT BRIEF
In his reply to the 1st Respondent’s counsel submissions, learned counsel for the Appellants reiterated his earlier submissions in the Appellants’ brief, which is really not the purpose of a reply brief, and had submitted that the sole issue as distilled in the 1st Respondent’s brief was irrelevant as not arising from the grounds of appeal and contended that that there was never a time in the Ruling of Candide – Johnson J., of the High Court of Lagos State delivered on 31/5/2016, wherein that Court adjudged or alluded to the fact that its earlier order of 15/2/2016 and the execution of same was obtained by the Appellants through fraud and urged the Court to hold that it amounted to gross misconception for the 1st Respondent to assume that the Appellants fraudulently misrepresented facts before Candide – Johnson J., in their Motion ex parte dated 3/12/15, seeking the order of that Court to enforce the Judgment of the High Court of Ondo State against the 2nd Respondent. Counsel relied on Kotoye V. Saraki (1991) 8 NWLR (Pt. 211) 638; Sanusi V. Ayoola (1992) 9 NWLR (Pt. 265) 275; Owoh V. Asuk (2008) 16 NWLR (Pt. 1112) 113.
It was also submitted that in law for misrepresentation to be said to be fraudulent, the maker must intend his assertion to induce a third party to manifest his assent and contended that on the affidavit evidence and the applicable principles of law the Appellants cannot be said, as erroneously argued by the 1st Respondent, to have obtained and executed any judgment against the 2nd Respondent by fraud, not in any way admitted by the Appellants, and urged the Court to so hold and to discountenance the submissions of the 1st Respondent and to allow the appeal and set aside the judgment of the Court below. Counsel relied on Ikpa v. State (2018) 4 NWLR (Pt. 1609) 175 @ p. 208; Hassan V. Ishaku (2016) 10 NWLR (Pt. 1520) 230 @ pp. 298 – 299.
APPELLANTS? COUNSEL REPLY TO 2ND – 3RD RESPONDENTS’ BRIEF
In his reply to the 2nd – 3rd Respondents’ counsel submissions, learned counsel for the Appellants reiterated his earlier submissions in the Appellants’ brief, which is really not the purpose of a reply brief, and had submitted that the arrest and detention of the Appellants was the product of express malice and vindictiveness of the 2nd and 3rd Respondents’ instigation of the 1st Respondent and thereby mastermind the illegal arrest and unwarranted detention of the Appellants on a matter on appeal and which is yet to be determined and urged the Court to deprecate in the strongest terms possible, the ignoble activities of the 3rd Respondent conscious of the pendency of a civil matter before a competent Court of jurisdiction and yet resorting to an underhand and coercive employment of security agencies to harass and intimidate his colleagues and to allow the appeal in order to affirm the constitutional right of appeal of the Appellants and their clients which should not be restrained by the insensitive deployment of coercive mechanization of the 1st Respondent on the instigation of the 2nd and 3rd Respondents.
RESOLUTION OF ISSUE ONE
My lords, the crux of issue one is twofold, namely: when can the fundamental rights of the citizen be legitimately abrogated or curtailed by the State acting through its law enforcement agencies and whether on the facts and circumstances of this case was the Court below right when it dismissed and thereby refused to grant all or any of the reliefs claimed by the Appellants against all or any of the Respondents’ Now, to resolve these two crucial issues would require a consideration of how the Court below reviewed the facts and evidence as placed before it by the parties and the findings and conclusions reached thereon to see if they are correct an accord with the dictates of justice and thus be affirmed or wrong and perverse and thus liable to be set aside by this Court.
The Appellants had filed an application against the Respondents, seeking the enforcement of their fundamental rights, which they alleged had been breached by the Respondents. In their 9 paragraph affidavit in support filed on 26/8/2016 and further affidavit in support and deposed to by the 2nd Appellant, with Exhibits A, A1 A3, B, B1 – B2, C, C1 – C2, D, D1 – D2, E, E1 – E3, F, F1 – F3 and a 13 paragraph further affidavit, it was stated inter alia that the Appellants on instruction of their clients applied for and obtained an order Nisi against all the garnishees and in compliance with the law, the Appellants promptly caused to be filed and served on all the garnishees a Motion on Notice, with the Order Nisi attached.
On 27/11/2014, the Court per B. F. Adeyeye, J., being satisfied that there was proof of service on the 2nd Respondent and the said 2nd Respondent having failed to appear and show cause, made the Order absolute in respect of the unpaid Judgment sum against the 2nd Respondent and the order absolute was subsequently served on the 2nd Respondent and the Appellants on the further instructions of their clients registered the said judgments and orders at the Registry of the Lagos State High Court on 3/12/2015.
Pursuant to the registered judgment, the Appellants vide a Motion Ex – parte applied and obtained an order of the Lagos State High Court directing the Deputy Sheriff to enforce the said judgment against the 2nd Respondent, which order was subsequently executed but later set aside by the Court upon the application of the 2nd Respondents. Surprisingly, but on the instigation of the 2nd and 3rd Respondents through their Petition, the 1st Respondent invited and subsequently arrested and detained the Appellants, without any legal justification, over a matter pending in the Courts over the lawful execution of the judgment and orders of a Court, hence their application to the Court below for the enforcement of their fundamental rights against the Respondents. See pages 9 – 17 and 252 – 259 of the record of appeal.
In the 15 paragraph counter affidavit of the 1st Respondent filed on 21/10/2018 and deposed to by one Ibrahim Clever, with Exhibits EFCC1, EFCC2, EFCC3 and EFCC 4, it was stated inter alia that the 1st Respondent received a Petition dated 18/4/2016 from the Law Firm of the 3rd Respondent on behalf of the 2nd Respondent against the 1st Appellant alleging stealing and fraudulent conversion of funds and urging the 1st Respondent to cause investigation to be conducted into its allegations, bordering on suspicion of commission of criminal offences, which by law the 1st Respondent is empowered to investigate.
In the course of the investigation it was found out that the judgment debtor against whom the Appellants had obtained and enforced the entire judgment plus interest totalling the sum of N38, 574, 206, 20 against the 2nd Respondent had only the sum of 4,128.18 in its accounts with the 2nd Respondent, even when the 1st Appellant was informed of this position. However, the purported Order Garnishee nisi and Motion on notice were not even served on the 2nd Respondent as falsely claimed by the Appellants before the garnishee order absolute was obtained. The 1st Appellant thus fraudulently collected the 2nd Respondent’s bank drafts and deposited same on 14/4/2016 into his Chamber?s account with Zenith Bank. The 1st Respondent investigated the allegations contained in the Petition with a view to ascertaining the culpability of the Appellants. The 1st Appellant was invited by the 1st Respondent but he refused to honour the invitation and was subsequently arrested and later released on administrative bail after he volunteered his statement. See pages 182 – 185 of the record of appeal.
In the 20 paragraph counter affidavit of the 2nd Respondent filed on 20/10/2016 and deposed to by one Segun Olarinde Esq., with Exhibits OE1, OE2, OE3, OE4, OE5 and OE6 and 4 paragraph further – counter affidavit, it was stated inter alia that the 2nd Respondent never procured, advised, solicited or effected the arrest or detention of the Appellants or in any manner howsoever infringe on any of their constitutional rights as all it did was to instruct its counsel, the 3rd Respondent, to petition against the 1st Appellant on allegations of suspicion of crime to the 1st Respondent for investigation but never, commissioned and or instructed the 1st Respondent to recover money, debt or property from the Appellants. By series of events orchestrated by the Appellants against the 2nd Respondent, it was made to pay over to the 1st Appellant the sum of N38, 574, 200. 00 in satisfaction of a judgment debt plus accrued interest thereon obtained against a customer of the 2nd Respondent who had only a credit balance of N4, 128. 18 in its account with the 2nd Respondent.
However, the garnishee proceedings were never served on the 2nd Respondent and upon further enquiry it was discovered that the 1st Appellant had fraudulently misrepresented the content of the garnishee order to the Officers of the 2nd Respondent as being in respect of the entire Judgment sum and that it was pursuant to this fraudulent misrepresentation that the 1st Appellant obtained the Writ of Attachment and unlawfully executed same on the 2nd Respondent for the entire judgment sum. Consequently, the 2nd Respondent instructed its Counsel, the 3rd Respondent to apply to set aside the fraudulently obtained Writ of Attachment and also to Petition against the 1st Appellant to the 1st Respondent to report the criminal conduct of fraudulent misrepresentation and obtaining by false pretence committed by the 1st Appellant Applicant for the purpose of undue enrichment, which instruction was complied with and subsequently the unlawful execution was set aside and the 1st Appellant ordered to refund the money obtained from the 2nd Respondent and he was also arrested and detained by the 1st Respondent in the course of its investigation of the Petition against him. See Pages 130 – 139 and 385 – 388 of the record of appeal.
In the 18 paragraph counter affidavit of the of 3rd Respondent filed on 24/10/2016 and deposed to by one Okechukwu Geoffrey Ezeokoli, with Exhibits OE1, OE2 and OE3, it was stated inter alia that the 3rd Respondent never procured, advised, solicited or effected the arrest or detention of the Appellants or in any manner howsoever infringe on any of their constitutional rights since he only acted as counsel to the 2nd Respondent to write a Petition containing allegations of crime made by the 2nd Respondent against the 1st Appellant to the 1st Respondent for investigation. Also at the instruction of his client, the 3rd Respondent instituted and had obtained an order of the Court setting aside the unlawful execution of the judgment against the 2nd Respondent by the Appellants and ordered the 1st Appellant to refund the amount obtained from the 2nd Respond to it. Upon investigation of the allegations made against the 1st Appellant by the 2nd Respondent it was found by the 1st Respondent that the Appellants never served the Garnishee Order Nisi on the 2nd Respondent but instead proceeded furtively to obtain the Garnishee Order Absolute and the Writ of Attachment through false and fraudulent misrepresentations made to the Lagos State High Court by deliberately misstating the express Order of the Court on the Garnishee Order Absolute.
The Appellants also fraudulently misrepresented to the 2nd Respondent the actual Order of Court as to the sum recoverable from the 2nd Respondent and thus by the said series of misrepresentations, the Appellants fraudulently coerced and obtained the sum of N38,574,206.20 and had proceeded to dispatch the said fund to several accounts including the account of his wife, children and the 2nd Appellant all in a desperate bid to hide away the said fund which was a proceed of the crimes of fraudulent misrepresentation and obtaining by false pretences. See pages 215 – 223 of the record of appeal.
My lords, the core of the direct event leading to the application of the Appellant can be traced to the Petition of the 2nd Respondent to the 1st Respondent alleging some criminal activities against the 1st Appellant. I shall therefore, reproduce the relevant parts of the said Petition as in Exhibit EFCC1, inter alia thus:
“…On Thursday 14/4/2016, one Chief Nelson O. Imoh using the instrumentality of armed policemen and Bailiffs/Sheriff of the High Court of Lagos State barricaded the entry and exit points to our Client’s office…When our client confronted Chief lmoh …explained that they were at our client’s office to levy execution of a Writ of attachment and sale of goods issued by the High Court of Lagos State in…against our Client for the sum of N38, 574, 206. 20…that the armed policemen and bailiffs will not be withdrawn, nor the premises reopened unless our client issues to him in his business name…the sum of N38, 574, 206. 20 in satisfaction of the aforementioned Writ of attachment and sale of goods….Our client immediately conducted a check in its records to ascertain whether Okitipupa Oil Palm Plc. had an account…the search revealed that …the said company had only the sum of N4, 128. 18 in its accounts with our client…Chief Imoh was informed of these state of affairs but insisted on the Judgment sum contained in the Writ of Attachment and sale of goods…Our client, in obedience to the Order of the High Court of Lagos State and to avoid further damage to its reputation as a result of the riotous scene created, constrained to issue four separate bank drafts …on 14/4/2016 in the sum of N38, 574, 206. 20 despite the fact that the customer has only N4, 128.18 in its account with our Client in favour of Nelson & Nelson Chambers….Chief lmoh, being the Counsel representing the representatives of all members of the Okitipupa Oil Palm Dealers Association …did not disclose to our Client that the Order absolute which he seeks to enforce was only in respect of the sums in the account of Okitipupa Oil Palm Plc…but represented to our client that the said Order absolute was in respect of the total Judgment sum of N38, 574, 206. 20…It was upon the fraudulent misrepresentation of fact as stated above that our client was forced to part with the sum of N38, 574, 206. 20 instead of the sum of N4, 128. 18 which our client ought to pay as the Judgment sum in the suit….Our client only discovered this enormous illegality after the said Chief Imoh had left our Client’s premises with the officers of the High Court of Lagos State who had held our client to ransom for several hours and created a disgraceful scene before the public and onlookers…In view of the foregoing, our client hereby requests your commission to investigate this complaint and take urgent appropriate action as deemed necessary by your Commission….” See pages 186 – 189 of the record of appeal.
There is also the ruling of the High Court of Lagos State per Candide – Johnson J., as in Exhibit OE2, which is also very crucial to the consideration of issue one in this appeal and which I shall also reproduce parts of its contents inter alia thus:
“…The judgment-creditor obtained a judgment against the judgment – debtor, Okitipupa Oil Palm Plc, at the Ondo State High Court Holden at Okitipupa. The judgment was duly registered in the High Court of Lagos State for the purpose of its enforcement and, thereafter, execution was effected…..What really is baffling beyond belief about this post – execution proceeding is how Union Banks of Nigeria Plc managed to place itself in its present self – induced and/or self-inflected dilemma. In very simple English the complain of Union Bank is that whereas only N4,128.18 was actually in the bank Account of its Customer the judgment/Debtor, Oktipupa Oil Palm Plc, for reasons that only Union Bank can explain, it paid out N38,574,206.20 in satisfaction of the execution levied on it on 14/2016. The judgment/Creditors asserts justification even in those circumstance inter-alia on their interpretation of the Judicial Orders of the Ondo State High Court within the con of their interpretation of Section 86 of the Sheriff and Civil Process Act…The only interpretation ascribable to the Order Garnishee Absolute, in my considered view, on the face of the Order itself, is that it sanctions attaching sum of money in the account of the Judgment ‘Debtor’ with garnishee. In effect, the reliance by the Judgment Creditor on the interpretation and application of Section 86 of the Sheriff and Civil Procedure Act appears misplaced and misconceived in the circumstances of this case in face of the clear wordings of the Order Garnishee Absolute. If it is only N4, 128.18 standing to the credit of the Judgment/Debtor in the account with Union Bank then it is exactly that sum of money that Union Bank ought have offered and given up in satisfaction of the execution levied on 14/4/2 and not N38,574,206.20… The Counsel to the Garnishee/Applicant has applied for a consequential Order arising out of the Court’s Ruling just delivered which is self-explanation its setting aside of the Writ of Attachment and Sale dated 7/4/2016 and all execution thereof. There is well settled power in the Courts to grant consequential Order naturally from its Judgments and/or Orders calculating to give bite carry into effect such decision. Accordingly, having taken contribution from both Counsel which suggest such a consequential Order is really inevitable from today?s Ruling, it is ordered that Nelson & Nelson Chambers and/or Chief Nelson lmoh do forthwith return the sum of N38, 574, 206.20 back to the Union Bank of Nigeria Plc.” See pages Pg. 225 – 231 of the record of appeal.
It was on the strength of the above pieces of evidence, both affidavits, counter affidavits, further affidavits and documentary placed before the Court below, that it had in its judgment delivered on 31/5/2017 dismissed the Appellants’ application for the enforcement of their fundamental human rights against the Respondents for lacking in merit and held inter alia thus:-
‘…I am of the view that the allegations contained in Exhibit EFCC 1 are entirely criminal in nature and therefore within the statutory powers of the 1st Respondent as enshrined in Section 6(1)(a) of the EFCC Act. The Applicants have argued that the circumstances which led to the 2nd Respondent’s petition in the first place had no criminal features in view of the fact that they were premised on alleged wrongful execution of Court judgments. They argued further that the petition was made in violation of the doctrine of lis pendens, that is to say when the subject matter is already a subject of appeal. I think these are issues should be determined at the conclusion of investigations or the trial Court to determine them and not in this fundamental right on. As far as the investigation is concerned, it is my view, and I so hold that the 1st Respondent was acting within its statutory powers…As far as I could peruse, the Applicants in their further affidavit have not directly or impliedly rebutted the allegation of the 1st Respondent that the 1st Applicant impliedly refused to honor an invitation to the 1st Respondent’s office. I therefore deem his non rebuttal as an admission, to that extent, it is my view and I so hold that the arrest of the 1st Applicant was proper, more so when there is no allegation that he was detained beyond the constitutional permissible period. Regarding the 2nd and 3rd Respondents, I agree entirely with their respective Counsel that they, acted within the law and within their rights when they reported the 1st Applicant to the 1st Respondent Their allegations against the Applicants are purely criminal in nature and instead of taking the law into their hands they took the correct step by reporting the matter to the appropriate law enforcement agency. It is up to the 1st Respondent to digest the merit or otherwise of the complaint in the course of investigations. I do not think therefore that the Applicants can sustain any relief against the 2nd – 3rd Respondents. On the whole therefore, it is my view and which I now hold that the Applicants’ suit is devoid of any merit. The 1st Respondent acted within its powers when they invited the 1st Applicant pursuant to the complaint made by the 2nd Respondent against him. To that extent this Court cannot interfere with the 1st Respondent in the exercise of its statutory powers. The suit is accordingly dismissed.” See pages 420 – 437 of the record of appeal.
Now, by Section 6(b) of the EFCC Act 2004, it is provided that the EFCC, the 1st Respondent, 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 amid investigation of all reported cases of economic amid financial crimes with a view of identifying individuals, corporate bodies or groups involved.”
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 Fawehimi V. IGP (2005)1 NCC 415; Aigbadion V. The State (2000) 7 NWLR (Pt 666) 686.
However, it must be pointed out at once that the discretionary powers of the EFCC and indeed all Law Enforcement Agencies in Nigeria, 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.
Now by S. 35 of the Constitution of Nigeria 1999 as amended, the EFCC or indeed the Police and or Law Enforcement Agencies, have 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 objection and not subjective. See COP V. Obolo (1989) 5 NWLR (Pt. 120)130; Jackson V. Omonikuna (1981) NLR 283.
In the exercise of these functions, powers and duties as assigned constitutionally to the EFCC under the EFCC Act 2004 and all such other laws enabling the EFCC in that behalf authorizing it to carry out these functions, duties and powers, of which I have taken time to painstakingly scrutinized and read through these laws, I agree with the submission of the learned counsel for the Appellants that the EFCC is not saddled with the authority to interfere 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, simply 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 agents of Government at either the Federal or State or Local Government level, to collect debts from debtors, under any guise or pre of investigating a crime in a purely civil dispute without any tinge of criminality. See Section 8(2) of the Administration of Criminal Justice Act 2015, wherein it is provided thus:
“A suspect shall not be arrested merely for a civil wrong or breach of contract.”
In Jim – Jaja V. Commissioner of Police (2011) 2 NWLR (Pt. 1231) 375, this Court per Eko JCA., (as he then was, Now JSC) had confronted this monster of pervading reckless breach of the rights of the citizen by law enforcement agencies in purely civil matters acting or purporting to act presumably under the guise of conducting criminal investigation and had forcefully pronounced inter alia thus:
“The transaction was purely a civil contract, which does not constitute the offence of obtaining by false pretences. The letter exhibit ‘ND.1′ was designed to mislead the police officers, or a mere pre on which to act. The 3rd respondent achieved the malicious purpose. The police officers acted on it, and arrested and detained the appellant for failing in his civil obligation to pay back his loan as and when due….The 3rd respondent had merely raised a bogus criminal allegation to induce the 1st and 2nd respondents to act as his debt collectors. Clearly, all these were done to abuse and pervert the process of criminal justice. The 1st, 2nd and 3rd respondents acted in concert to violate the right of the appellant to his personal liberty. The arrest and detention of the appellant for purely a civil dispute over a contractual obligation are not directly or indirectly justified under Section 35(1)(c) of the 1999 Constitution. The three respondents are liable jointly for the arrest and detention of the appellant…..The 1st and 2nd respondents had no plausible justification for the arrest and detention of the appellant based on the 3rd respondent?s complaint which prima facie shows a civil contractual dispute and that they were invited or instigated by an acclaimed money lender to act as his debt collector. Be it reiterated again that once a transaction is in a form of a contract the police are enjoined to exercise restraint. See Omman v. Ekpe (2000) 1 NWLR (Pt. 641) 365. Police duties under the relevant statutes including the Police Act, do not enjoin the police to act as debt collectors. Debt collection is therefore ultra vires their enabling statutes.”
This profound statement of the law as pronounced by this Court has since found favor with the apex Court, which affirmed it in Jim Jaja V. COP & Ors (2013) 6 NWLR (Pt. 1350) 225.
And in Arab Contractors Nigeria Ltd V. Gillian Umanah (2013) All FWLR (Pt. 683) 1977 @ p. 1990, it was held inter alia thus: “A civil arrangement is not a matter for the police. The police is not a debt collecting organization. It is not and should not in any community of civilized people be used as debt or levy collectors, or in the resolution or settlements of civil disputes amongst people. In the instant case, where the plaintiff engaged the police to recover its debt from the defendant, the trial Court rightly held that the act was improper.”
And in Igwe V. Ezeanochie (2010) 7 NWLR (Pt. 1192) 61, this Court had held inter alia thus:
“The Police are not and should not in any Community of civilized people be used as Debt collectors, or in the resolution or settlements of civil disputes amongst people.”
See also 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).
Now, having stated as above in the light of the above consistent pronouncements of the Courts on the extent and limits of the powers of law enforcement agencies when it comes to transactions of purely civil nature between citizens and without any tinge of criminality, it must be pointed out at once that this does not in any way whittle down the enormous powers of the EFCC and all other law enforcement agencies in this country, who by these pronouncement are simply enjoined to abide by the rule of law and their enabling statutes and the constitution in the performance of their duties. Thus, the powers of the state through its law enforcement agencies, including the EFCC, to investigate criminal complaints and prosecute suspected offenders is never in doubt and is always readily protected by the Courts.
The EFCC is no doubt empowered to investigate any criminal allegation or complaint and may take any action it deems fit to take upon investigations, including the arrest, detain and prosecution of alleged offenders. Thus, in the legitimate discharge of their duties, they cannot be sued for breach of fundamental rights since such rights are never absolute and may be legitimately derogated from as permitted by law in the interest of defense, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons. However, to enjoy this protection afforded by the law, the 1st Respondent must be acting in the legitimate discharge of its duties as conferred upon it by law and if it fails to so do the citizen affected by the illegitimate right is at liberty to approach the Courts to enforce his right against them. See Section 45 of the Constitution of Nigeria 1999 (as amended), Section 6 (b) of the EFCC Act 2004, Sections 17 – 20 of the Criminal Procedure Act, Section 35 (1)(c) of the Constitution of Nigeria, 1999 (as amended).
Thus, while 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 reasonable suspicion of having committed an offence or likely to commit an offence would be granted an injunctive order by the Court 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 @ p. 558. See also IGP V. Ubah (2015) 11 NWLR (Pt. 1472) 405 @ p. 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.
Having reviewed the totality of the evidence of the parties as in the printed record in the light of the findings of the Court below and the applicable principles law, the question really is whether the 1st Respondent acted within the confines of its powers when it invited, arrested, detained and released the Appellants on the strength of its investigation carried out pursuant to the Petition of the 2nd Respondent against the 1st Appellant? There is also the question whether the 2nd and 3rd Respondents by writing the said Petition to the 1st Respondent against the 1st Appellant did take any further or active steps to instigate the arrest of the Appellants by the 1st Respondent?
On the evidence, it is clear and I so find that there was no issue of the 2nd and 3rd Respondents inviting the 1st Respondent to recover any debt from the Appellants and indeed there was no evidence of any such action or step taken by the 1st Respondent to recover any debt for and or on behalf of the 2nd Respondent as erroneously alluded to in the submissions of learned counsel for the Appellants as would have brought this matter into the applicability of the principles reiterated in a long line of decided cases, including Jim – Jaja V. Commissioner of Police (2011) 2 N.W.L.R (Pt. 1231) 375; 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).
The facts of this case, despite the avalanche of affidavits and counter affidavits evidence are neither shrouded in any mystery nor in any difficulty but are rather very clear and straight forward. Thus, in law it is not every deposition of facts that can be controverted no matter how verbiage the contrary deposition of facts, where such earlier facts are as crystal clear as the light of the day and unassailably true. So also the failure to controvert deposition of facts which by themselves are palpably false and even run contrary to accepted natural consequences or occurrence would render such palpably false depositions as true because they were not denied. Thus, what is clearly and unassailably true will remain true while what is palpably false will remain false, notwithstanding the avalanche of affidavits, counter affidavits and further affidavits.
In this appeal, having considered the totality of the facts as copiously deposed to by the parties, it does appear that the avalanche or was it tsunami of affidavit evidence of the parties did little or nothing much to disguise the core basic truth in this appeal, which is that the judgment of the High Court of Ondo State sought to be enforced by the Judgment Creditors, through their counsel the Appellants, against the Judgment debtor was not a judgment against the 2nd Respondent, which was just a Garnishee and which in law can only bear liability to the extent of the credit standing of the Judgment Debtor. The 2nd Respondent does not and cannot be made to bear personal responsibility far and above the credit standing of the Judgment Debtor in its account with the 2nd Respondent and thus no amount or quantity of affidavit evidence can change this truth, which is as crystal clear as the light of the day.
Now, the Judgment Debtor has been shown conclusively to be standing in credit in its account with the 2nd Respondent to the meager amount of N4, 218. 18 only, yet with the active connivance of the Appellants, the 2nd Respondent was coerced, deceived and made to pay over to the Judgment Creditors through the Appellants a whooping sum of N38, 574, 206. 20. In my finding, such an act is not only unconscionable but is enough reason, to give rise to reasonable suspicion of criminality against the Appellants by the 2nd Respondent as could reasonably justify its instruction to the 3rd Respondent to Petition the 1st Respondent for proper and thorough investigations into the circumstances surrounding these highly suspicious acts of criminality.
Indeed, I make bold to observe, as have been observed so often in several decided cases, that no fundamental right of the individual can or should or ought to stand above the Country, the State or the people and therefore, no Court of law, except where a breach or threatened breach of the enshrined fundamental rights of the citizen is proved, should allow itself to be used as an instrument or engine or indeed machinery of subversion under the guise of enforcing a fundamental right, for without the Country there would truly be no fundamental rights to be enjoyed and or enforced by the citizenry. The catch word in all these is that all must be done under and in accordance with the rule of law in the Country, such that both the enjoyment of and derogation from the fundamental rights of the citizenry must be in line with the rule of law, which remains sacrosanct and constant for all seasons and purposes under every democratic governance. See Section 35(1) (c) of the Constitution of Nigeria 1999 (as amended), which provides that a person can be deprived of his liberty:
“upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence.”
In Mallam Abdullahi Hassan & Ors V. EFCC & Ors (2014) 1 NWLR (Pt. 1389) @ p. 607, this Court had succinctly reiterated inter alia thus:
“A citizen’s freedom or liberty is not absolute. His right of liberty may be impaired temporarily in order to prevent the citizen from committing an offence or if there is reasonable suspicion that he committed an offence. There is no doubt that the Constitution of the Federal Republic of Nigeria, 1999 jealously guards the personal liberty of every person in the instances articulated in Section 35 (1) (a) – (f) of the 1999 Constitution….Obviously, there is a qualification in the Section. The qualification is that if it is for the purpose of bringing any person before a Court in execution of the order or upon reasonable suspicion of his having committed a criminal offence or as may be reasonably necessary to prevent him from committing a crime, the person?s right to personal liberty may be tampered with.”
See also Emeka Ekwenugo V. FRN (2001) 6 NWLR (Pt. 708) 17; Badejo V. Minister of Education (1996) 8 NWLR (Pt. 464) 15; R V. Commissioner of Police, Ex – Parte Blackburn (1968) 2 QB 118; AG. Anambra State V. Chris Uba (2005) 15 NWLR (Pt. 947) 44; Nzewi V. COP (2000) 2 HRLRA 156; AG. Federation V. Dawodu (1995) 2 NWLR (Pt. 380) 712.
Thus, under and by virtue of the laws of this Country, no person is above the law and or immune from being investigated and if found wanting being prosecuted except those persons for the time being occupy the exalted Offices of President, Vice President, Governor or Deputy Governor, who though it is now settled law can still be investigated but cannot be prosecuted whilst holding such offices. See Section 308 of the Constitution of Nigeria 1999 (as amended), interpreted in Fawehinmi V. IGP (2002)7 NWLR (Pt. 767) 519.
The Appellants who do not fall within these constitutionally excepted categories of persons can be properly investigated and if found culpable be prosecuted according to law. It is within the statutory duties and competence of the 1st Respondent to investigate an alleged commission of a crime upon the complaint of any citizen or as a result of its own discreet investigations. The Appellants, though legal practitioners, are neither above being investigated nor can they merely wish away the statutory powers of investigation of the 1st Respondent merely because they had acted for and on the instruction of their clients. I think the time is coming and now is the time when it should be made clear by the Courts, and I hereby so make it clear, that a legal practitioner has no legal or even moral obligation to carry out an illegal instruction of his client, which instruction is likely to amount to suspicion of commission of a crime. He owes enormous and far higher duty to the Society and the Courts, being an Officer in the hallowed temple of justice, which the Courts are, in the observance of the laws of the land much more than he owes to his client who wishes by his instruction to instruct him to indulge in any act or action likely to give rise or amount to an illegal act or crime.
The 1st Respondent, being a law enforcement agency set up by law is empowered by law and is so entitled, in the performance of its statutory duty in trying to discover whether or by whom an offence has been committed, to invite and question any person whether suspected or not from whom they think and believe that useful information may be obtained. Thus, in the peculiar facts and circumstances of this appeal, to virtually coerce and deceive, yes that is what the Appellants used the instrumentality of the law to do, the 2nd Respondent to pay the humongous sum of N38, 574, 206. 20 to the Appellants? Clients/Judgment Creditors, being merely a Garnishee for a Judgment Debtor which credit standing stood at a miserly N4, 218. 18 in its account with the 2nd Respondent is strange, seemingly suspicious and highly reprehensible for which the law enforcement agencies, such as the 1st Respondent, if petitioned can and did legitimately intervened to investigate no matter whether those reasonably suspected of indulging in these seemingly reprehensible and reasonably suspicious of being fraudulent acts are legal practitioners acting on the instruction of their Clients.
My lords, no wonder then the learned Judge of the High Court of Lagos, Candide – Johnson J., had no option, upon realizing the seeming use of the machinery of the law to perpetuate fraud by the Appellants and their Clients, than to reverse himself and consequentially ordered the Appellants to promptly refund the N38, 576, 206. 20 to the 2nd Respondent, an order which though very simple to be complied with by every conscionable legal practitioner being an order of Court, but it seems obvious the Appellants had not deemed it fit to comply with, but rather the Appellants are in various Courts while keeping the proceeds of the alleged fraudulent criminal misrepresentation to deprive the 2nd Respondent of the use of its funds, belonging as it were to its other viable and more credit worthy customers, while the Appellants move from one Court to the other all in a bid to ensuring that the allegedly illegally obtained funds are not returned to the 2nd Respondent.
It is my view, that the Courts must at all time deprecate the use of its machinery and or orders once it becomes apparent to it that they are being used or were used as engine to perpetuate fraud by any party before it and I hereby so deprecate the attitude and actions of the Appellants, who on the face of the reversal order made by the High Court of Lagos and if they be conscientious and conscionable legal practitioners, ought to have promptly returned the amount obtained from the 2nd Respondent less the sum of N4,218.18 standing to the credit of the Judgment Debtor in its account with the 2nd Respondent. Truly, that ought to have been the most honorable, very simple and lawful thing to do and the only path open to have been towed by the Appellants.
It must be observed, and most pertinently too, that in this appeal emanating from the proceedings before the Court below for the enforcement of the Appellants’ fundamental rights, the Appellants are not on any trial for any criminal offence to require the 1st Respondent or indeed any of the 2nd and 3rd Respondents to prove any criminal offence against the Appellants beyond reasonable doubt before their arrest, detention and investigation for the alleged criminal acts can be legally justified by the Respondents.
Thus, the most crucial question in this appeal is simply whether the Court below was right when it held that the Respondents lawfully justified the invitation, arrest, detention and subsequent release on bail of the Appellants in the course of their being investigated by the 1st Respondent for their alleged criminal acts on the Petition of the 2nd Respondent through the 3rd Respondent? Having considered the totality of the evidence as in the printed record and considered the submissions of counsel for the parties, I am satisfied and I so hold that indeed and in fact there was more than enough reasonable grounds to suspect the alleged commission of crime by the Appellants as would and did reasonably and lawfully justified the invitation, arrest, detention and subsequent release of the Appellants by the 1st Respondent on the Petition of the 2nd Respondent. In law therefore, without any liability established against the 1st Respondent, the law enforcement agency and arresting authority, the question or issue of liability against the 2nd and 3rd Respondents is rendered a none sequitur and thus does not even arise for consideration. The Court below was thus right and on firmer ground when, after finding that the actions of the 1st Respondent against the Appellants were lawfully justified and or excused, it proceeded to dismiss the claims against the 2nd and 3rd Respondents, without much ado, for equally lacking in merit.
In the light of all I have stated and found above, issue one is hereby resolved against the Appellants in favor of the Respondents.
ISSUE TWO
Whether the Judgment of the Court below dismissing the Application of the Appellants to enforce their Fundamental Human Rights was not tainted and occasioned serious miscarriage of justice against the Appellants same having been delivered against the letter and spirits of Section 294 (5) of the 1999 Constitution of Nigeria?
APPELLANTS’ COUNSEL SUBMISSIONS
On his issue three, learned counsel for the Appellants had submitted that by reason of the unexplained delay in delivering a judgment by the Court below, it lost its perception, appreciation and evaluation of the Appellants affidavit evidence which was adversely affected so much that so that from the terse nature of the Judgment, and the inherently erroneous presentation of both the law and factual situations, it can easily be seen that it lost the impression of the nature of the Appellants’ case before it and thereby occasioned a miscarriage of justice and urged the Court to interfere to set aside the judgment of the Court below. Counsel referred to Section 294 (1) and (5) of the Constitution of Nigeria 1999 (as amended) and relied on Nagbu Co. (Nig) Ltd V. Unity Bank Plc (2014) 7 NWLR (Pt. 1405) 42 @ p. 69.
It was further submitted that in law miscarriage of justice unusually depends on the circumstances of the case and thus miscarriage of justice would occur when an error can be seen in the proceedings or judgment and a more favourable decision would have been given to the party that lost had it not been for the error or when the decision given is inconsistent with established rights of the party complaining and contended that in the instant appeal there were apparent instances of the outright refusal of the Court below to do justice to the Appellants as well a failure of justice against the interest of the Appellants and urged the Court to hold that this resulted into an abysmal miscarriage of justice in the sense that the judgment of the Court below was prejudicial, and patently inconsistent with the rights of the parties and urged the Court to allow the appeal and set aside the judgment of the Court below. Counsel relied on Akoma v. Osenwokwu (2014) 11 NWLR (Pt. 1419) 462 @ p. 497; Abubakar V. Nasamu (No.2) (2012) 17 NWLR (Pt. 1330) 523; Emeka V. Okadigbo (2012) 18 NWLR (Pt. 1331) 55; Oto V. Adojo (2003) 7 NWLR (Pt. 820) 636; Jeu V. Dolo (2012) All FWLR (Pt. 641) 1513 @ p. 1526.
It was also submitted that the Court below in its judgment did not carry out any investigation, examination and the expected evaluation of the various set of facts and circumstances presented to him by the Appellants in relation to their application to enforce their fundamental human rights and as such was careless and unfortunately unconcerned about the veracity of the Appellants’ complaint of massive and unabated infringement of their human rights by the Respondents and contended that the judgment of the Court below was an unexplained negation of what a judgment of a Court should constitute and urged the Court to hold that occasioned serious miscarriage of justice to the Appellants and should be set aside and the appeal allowed. Counsel relied on Ogunyade V. Oshunkeye (2007) All FWLR (Pt. 389) 117 @ pp. 1189; Ojogbue V. Nnubia (1992) 1 All FWLR (Pt. 2) 226; AG. Federation V. Abubakar (2007) All FWLR (Pt. 375) 405 @ pp. 457 – 458.
1ST RESPONDENT’S COUNSEL SUBMISSIONS
On part of his issue one dealing with the delivery of judgment beyond the 90 days period after adoption of address, learned Counsel for the 1st Respondent had submitted that a proper calculation of the 90 days excludes public holidays and contended that from the date the written addresses were adopted on 7/2/2016 – to 31/5/2016 when judgment was delivered was a total of 64 days and urged the Court to hold that the judgment was delivered within the 90 days as prescribed by law and therefore unaffected by the provisions of Section 294 (1) and (5) of the Constitution of Nigeria 1999 (as amended)
It was further submitted that it is not the law that once a judgment was delivered outside the 90 days period it is rendered invalid and an appeal against it would succeed and contended that in law such delay merely raises the strong presumption that the trial Court may not have made use of its advantage of seeing and observing the demeanour of the witnesses who testified before him but to succeed an Appellant must go further to show that the delay in the delivery of judgment had occasioned a miscarriage of justice and urged the Court to hold that any miscarriage of justice was occasioned by the purported late delivery of the judgment of the Court below and to dismiss the appeal and affirm the judgment of the Court below. Counsel relied on Dibiamaka & Ors V. Osakwe & Ors (1989) 3 NWLR (Pt. 107) 101 @ pp. 114 – 115; Ogundele V. Fasu (1999) 12 NWLR (Pt.632) 662.
2ND – 3RD RESPONDENTS? COUNSEL SUBMISSIONS
On his issue two, learned counsel for the 2nd – 3rd Respondents had submitted that in law notwithstanding the provisions of Section 294(1) of the Constitution of Nigeria 1999 (as amended), Subsection 5 of the same Section clearly provides that a judgment of a Court will not be nullified or set aside merely on the ground of non-compliance with the provisions of Subsection (1) of the Constitution and contended that the decision by the Court below did not show any loss of grapes of the evidence and applicable law to the case but rather demonstrated findings that accord with the law and justice to the parties and urged the Court to hold that there being no miscarriage of justice, the alleged mere delay in the delivery of the judgment of the Court below does not affect its validity and to dismiss the appeal for lacking in merit. Counsel relied on Cotecna International Limited V. Churchgate Nigeria Limited & Anor (2010) LPELR – 897(SC); Atungwu V. Ochekwu (2004) 17 NWLR (P. 901) 18; Igwe V. Kalu (2002) 5 NWLR (Pt. 761) 678; ACB V. Ajugwo (2011) LPELR-3637, 1; Molegbemi V. Ajayi (2011) LPELR-4501, 1; Unilorin V. Akinola (2014) LPELR – 23275(SC).
APPELLANTS’ COUNSEL REPLY SUBMISSIONS TO 1ST RESPONDENT
In his reply to the 1st Respondent’s counsel submissions, learned counsel or the Appellants had submitted that from the time of the adoption of the final written addresses by the parties to when the judgment of the Court below was eventually delivered was a whooping 120 days, long enough to discombobulate the well articulated and well founded issues, arguments and submissions of the Appellants in the mind of the Court below and contended that the inordinate delay caused miscarriage of justice to the Appellants and urged the Court to allow the appeal and set aside the invalid judgment of the Court below in the interest of justice.
RESOLUTION OF ISSUE TWO
My lords, issue two deals not with the simple issue of delivery of judgment of the Court below outside the 90 days period as prescribed by law but rather with the fundamental issue of whether the delay in the delivery of judgment of the Court below had occasioned a miscarriage of justice to the Appellants and rendered invalid and thus liable to be set aside by this Court in this appeal as urged upon us by the Appellants.
On the facts as in the printed record, the final written addresses of the parties were duly adopted on 6/2/2016 before the Court below.
However, the judgment of the Court below was not delivered until 31/5/2016 when the 90 days as prescribed by law had lapsed on 7/5/2016. There were therefore, about 114 days between the adoption of final written addresses and the date of the delivery of the judgment by the Court below. The judgment was thus delayed by about 24 days. It follows that the contention by the learned counsel for the 1st Respondent that the judgment of the Court below, going by his own calculation of excluding public holidays, was delivered within 64 days, is to say the least very misleading and trivialising an otherwise very serious issue touching on constitutional provisions and I un-hesitantly deprecate it.
‘Be the above as it may, the law is well settled that for judgment of a Court of law established under the Constitution of Nigeria 1999 (as amended) to be rendered invalid pursuant to the provisions of Section 294 (1) of the said Constitution by reason of delay in its delivery outside the prescribed 90 days period, it must be shown by the party complaining, generally the Appellant of course, that the delay had occasioned a miscarriage of justice to him, failing which the judgment stands and remains valid.’
Now, by Section 294 Subsections (1) and (5) of the Constitution of Nigeria 1999 (as amended) it is provided thus:
294(1): Every Court established under the Constitution shall deliver the decision in writing not later than ninety (90) days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
294(5): The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal of review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
In Dennis Akoma & Anor V. Obi Osenwokwo & Ors (2014) LPELR – 22885 (SC) @ pp. 40 – 41, the Supreme Court per Onnoghen JSC (as he then was but now CJN) had pronounced on the legal effect of Section 294 (1) and (5) of the Constitution of Nigeria 1999 (as amended) inter alia thus:
“The question is; what is the consequence(s) of the failure of the lower Court, in the circumstances of this case, to deliver its decision within the ninety days of the final addresses of counsel? The answer is that the judgment/decision/order is valid except an Appellant can satisfy the Court that the non delivery of the judgment within the stipulated time has occasioned a miscarriage of justice to him.” See also Owoyemi V. Adekoya (2003) 18 NWLR (Pt. 852) 307.
Having taken time to consider the totality of the evidence before the Court below and the judgment of the Court below appealed against, it does appear to me that the Appellants were torn between and really not sure whether the decisions was simply not correct or it had indeed occasioned any miscarriage of justice to them or that it was simply too short or terse and therefore, not long enough! This is so because in my view they seem to have equated their complaint of the alleged failure of the Court below to enter judgment, which to them is the only correct option available to the Court below and the issue of miscarriage of justice which may really be irrespective of the correctness of the judgment appealed against. Thus, in law a judgment may be correct on the law but yet turn out to occasion a miscarriage of justice to the complaining party by reason of the long delay in its delivery and the likelihood of the Court not keeping in focus the evidence as led by the parties through their witnesses.
However, in my view, such memory lapses or lack of grapes are more readily susceptible to matters heard and determined on oral evidence of witnesses, wherein demeanour of witnesses is critical but basically not so with matters heard on affidavit evidence in which the issue of demeanour of witnesses does not arise as in the instant appeal.
In my finding therefore, upon an anxious consideration of the totality of the evidence and submissions of the parties in the light of the findings and decisions in the judgement appealed against, I hold that Appellants failed to show, as required of them by law, any miscarriage of justice occasioned to them by the failure of the Court below to deliver its judgment, now appealed against, within the 90 days period as prescribed by law. It is not enough merely to allege a delay and miscarriage of justice, the Appellants must go further to show how the delay had caused them or occasioned a miscarriage of justice to them. See Unilorin V. Akinola (2014) LPELR – 23275(SC), where the Supreme Court succinctly defined what in law amounts to a miscarriage of justice inter alia thus:
“The Law is well settled that what constitutes miscarriage of justice varies from case to case depending on the facts and circumstances. To reach the conclusion that a miscarriage of justice occurred, it does not require a finding that a different result necessarily would have been reached in the proceedings. It is enough if what happened is not justice according to law.”
In law therefore, the mere use of the phrase ‘miscarriage of justice’ alone without proof or more is not a talisman by which a judgment of a Court of law is made or rendered invalid just by the mention of the phrase alone by an Appellant. The law does not work like that as there must be proof of miscarriage of justice to render an otherwise correct judgment of a trial Court on appeal by virtue only of Section 294(1) of the Constitution of Nigeria 1999 (as amended).
See Section 294 (5) of the Constitution of Nigeria 1999 (as amended).
In Dibiamaka & Ors V. Osakwe & Anor (1989) 3 NWLR (PT. 107) 101 @ pp. 114 – 115, the judgment complained of was delivered after a delay of nine months, unlike the delay of mere 24 days in the instant appeal, yet the nine months delay was not by itself alone capable of rendering the affected judgment invalid. The Supreme Court per Oputa JSC., (God bless his soul) had succinctly pronounced inter alia thus:
“The law is that if inordinate delay between the end of the trial and the writing of the judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impressions made on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there, but only there, will an appellate Court intervene. The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge.”
Again, in Ogundele V. Fasu (1999) 12 NWLR (Pt.632) 662, the Supreme Court per Iguh, JSC., had emphatically restated the succinct position of the law inter alia thus:
“It is clear that by the introduction of Sub-section (4) to Section 258 of the 1979 Constitution, (now Section 294 (1) and (5) of the 1999 Constitution (as amended) the non-delivery by all Courts established under the Constitution of their decision in writing within a period of three months after the conclusion of evidence and final addresses in a cause or matter does not per se now render such a decision or judgment invalid and null and void. It shall only be treated as a nullity where an appellate Court in the exercise of its jurisdiction over such a decision is satisfied that the party complaining of such non-compliance has suffered a miscarriage of justice by reason thereof.”
I have already found that there was no miscarriage of justice occasioned by the 24 days delay in the delivery of the judgment of the Court below, which judgment I have also already found to be correct on the facts and applicable principles of law. In the circumstances therefore, issue two is also hereby resolved against the Appellants in favour of the Respondents.
My lords, having therefore found that the Court below was right in its finding that the Appellants’ failed to prove any breach of their fundamental human rights against any or all of the Respondents and thereby correctly dismissing the Appellants? application for the enforcement of their fundamental rights, this Court would have no business interfering with the correct findings and decisions of the Court below. This is so because, an appellate Court has no duty interfering with the correct findings of a trial Court even where the reason adduced and relied upon by the trial Court to arrive at the correct findings turns out to be wrong. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie, JSC., had pronounced with finality on this issue, thus:
“An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere….” See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.
On the whole therefore, having resolved the two issues against the Appellants in favour of the Respondents, I hold that this appeal lacks merit and ought to be dismissed. Consequently, it is hereby so dismissed.
In the result, the judgment of the Federal High Court, Lagos Judicial Division, Coram; R. M. Aikawa J., in Suit No. FHC/L/CS/1160/2016: Chief Nelson O. Imoh & Anor V. Economic and Financial Crimes Commission & Ors., delivered on 31/5/2017, in which the claims of the Appellants as Applicants against the Respondents were dismissed is hereby affirmed.
There shall be no order as to cost.
TOM SHAIBU YAKUBU, J.C.A.: I had a preview of the draft judgment, rendered by my learned brother, BIOBELE ABRAHAM GEORGEWILL, JCA, who meticulously and admirably addressed the issues thrown up in this appeal to my full satisfaction.
The appellants were clearly unconscionable and criminally minded in their action of masterminding the withdrawal of the sum of N38, 574,206 from the 2nd Respondent, in satisfaction of a judgment debt in favour of the Judgment Debtor who had in his account with the 2nd Respondent, only N4, 128.18. I must say that the order made by his Lordship, Candide Johnson J., at pages 225 – 231 of the record of appeal, compelling the appellants to return the sum of N38, 574,206.20 back to the 2nd respondent is commendable. To my mind, the ignoble role played by the appellants, in the circumstances of this matter, opened up themselves to their subsequent arrest and investigation by the 1st respondent. They ought to blame themselves and not the respondents. They were the architects of their own misfortune. Indeed, their arrest, alleged intimidation and harassment, were self-induced. Therefore, the learned trial judge, Aikawa, J., was on firma terra, in his conclusion that the Court cannot interfere with the 1st respondent, in the exercise of its statutory powers – enshrined in Section 6 (b) of the Economic and Financial Crimes Commission Act, 2004.
I too dismiss the appeal, as grossly lacking in merits. The well-considered judgment of R.M. Aikawa, J., of the Federal High Court, Lagos Division, Lagos, in re – Suit No. FHC/L/CS/1160/2016, delivered on 31 May, 2017 is hereby affirmed.
Each side shall bear own costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the advantage of reading in draft the judgment delivered by my learned brother, BIOBELE ABRAHAM GEORGEWILL, JCA in this appeal.
I agree that the appeal lacks merit and I endorse the reasoning and conclusion arrived thereat. I have nothing more to add. For the same reasons, I too dismiss this appeal and abide by the consequential orders in the lead judgment.
Appearances:
U. Onwukwe, Esq.For Appellant(s)
S. B. Olamide, Esq. for the 2nd-3rd Respondents.
The 1st Respondent, though duly served with hearing notice on 3/10/2018, did not attend the Court and was also not represented by counselFor Respondent(s)
