CHIEF KENNETH C. AJOKU v. ECONOMIC AND FINANCIAL CRIMES COMMISSION & ORS
(2018)LCN/12208(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of November, 2018
CA/L/1365/2017
RATIO
FUNDAMENTAL RIGHT: IT IS THE DUTY OF THE COURT TO ENTRENCH FUNDAMENTAL HUMAN RIGHT
“Therefore, the Courts do not shirk their responsibilities in ensuring that the human rights of the citizens are not compromised and on no account should such rights be swept under the carpet or capriciously tampered with by any person, government or any governmental agency under any guise, without a lawful justification. In Black’s Law Dictionary, 8th Edition, at page 697, the phrase: ‘fundamental right’ is defined as: ‘1. A right derived from natural or fundamental law. 2. Constitutional law. A significant component of liberty, encroachments of which are vigorously tested by Courts to ascertain the soundness of purported governmental justifications.'” PER TOM SHAIBU YAKUBU, 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
CHIEF KENNETH C. AJOKU Appellant(s)
AND
1. ECONOMIC AND FINANCIAL CRIMES COMM.
2. MR. TAIWO KUPOLATI
3. FOLORUNSHO SHOLANKE
4. JIDE OLAYEMI
5. HON. ABRAHAM OGUNLEYE
6. LOLADE AKINWUNMI
7. DR. ISHAKU DANLADI MSHELIZA Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment):
The appellant had filed an Originating Motion on Notice at the Federal High Court, at the Lagos Division, holding in Lagos, wherein he sought the enforcement of his fundamental rights, against the respondents. The parties filed and exchanged their respective affidavit evidence and written addresses with respect to the appellant’s application aforementioned. In his judgment, which was delivered on 30th June, 2017, the appellant’s application was found unworthy of being granted and so, it was consequently dismissed. And not unnaturally, the appellant, distraught with the decision against him, approached this Court for a reversal of that decision. The appeal was anchored on six grounds.
In order to effectively prosecute the appeal, the appellant’s brief of argument, dated 27th February, 2018, was filed on 1st March, 2018. On their parts, the 1st respondent filed its brief of argument, dated 10th April, 2018, on 12th April, 2018. The same was deemed filed on 12th April, 2018; whilst the 3rd -7th respondents’ brief of argument, was dated and filed on 3rd April, 2018.
Thereafter, the appellant’s reply brief to the 1st respondent’s brief of argument, was dated 20th April, 2018 and filed on 26th April, 2018; whilst the appellant’s reply brief to the 3rd – 7th respondent’s brief of argument was dated and filed on 23rd April, 2018.
Olukoya Ogungbeje, Esq., and S. A. Olaleye, Esq., who settled the appellant’s brief of argument, formulated six issues for the determination of the appeal, namely:
1. Whether the learned trial Judge was right when he dismissed the appellant fundamental right suit for lacking in merits. (Ground One)
2. Whether the learned trial Judge was right when he held that the 1st respondent acted within its powers in meddling on an issue that has been judicially adjudicated upon by a court of law and without any complaint from the donor of the appellant power of power. (Ground Two.)
3. Whether the learned trial Judge was right when he considered and relied on the incompetent Court processes filed by all the respondents. (Ground Three.)
4. Whether the learned trial Judge was right when he failed to take cognizance and rely on the valid and subsisting Court judgments in favour of the appellant and against the respondents (Ground Four).
5. Whether the judgment of the learned trial judge was not perverse and against the weight of evidence. (Ground Five)
6. Whether the learned trial Judge was right when he continued to adjudicate and hear the appellant case despite raising suo motu the issue of likelihood of bias against himself. (Ground Six).
Babatunde Sonoiki, Ayanfe Ogunshina, Esq., Ola – Sesan Tony, Banjo James, Esq., and S. O. Daji, who prepared the 1st respondent’s brief of argument, nominated two issues for the determination of the appeal, as follows:
1. Whether the 1st Respondent has the mandate to investigate the allegations against the appellant. (This issue is based on grounds one, two, three and four of the notice of appeal).
2. Whether the Appellant’s fundamental human right under the 1999 Constitution of the Federal Republic of Nigeria was breached by the 1st Respondent. (This issue is based on grounds 5 and 6 of the notice of appeal) or whether the lower Court was wrong to have dismissed the Appellant’s Originating Motion for the enforcement of the appellant’s Fundamental Human Right.
For the 3rd – 7th Respondents, Taiwo Kupolati, Esq., with him, Mrs. Adeola Abiola, who prepared the brief of argument, suggested a sole issue therein for the resolution of the appeal, to wit:
Whether the trial Court rightly dismissed the appellant’s application for failure to prove by credible evidence that any of his fundamental rights was infringed by the respondents.
Having perused all the processes filed and exchanged by the parties at the Court below, the judgment of the learned trial judge, the grounds of appeal against that judgment and the issues formulated by each counsel for the parties respectively, I have exercised my discretion by reframing and condensing the issues to a sole issue, for the resolution of the appeal. Labiyi v. Anretiola (1992) 8 NWLR (pt. 258) 139 @ 159; Shell Petroleum Dev. Co. Nig. V. Goodluck (2008) 14 NWLR (pt. 1107) 294 @ 307-308; Agbareh v. Mimra (2008) 2 SCNJ 409.
Therefore, the sole issue in my consideration and resolution of the appeal is:
Whether the learned trial judge was in error for dismissing the appellant’s application for the enforcement of his fundamental rights against the respondents.
In order to appreciate the real issue involved in this matter, a brief rehash of the summary of the facts of it, as recounted by each of the parties herein, is imperative. For the appellant, he said being a legal practitioner, he was donated with a Power of Attorney by the Federal Mortgage Finance Ltd, sometimes in February, 2008 and it was on that basis, that he initiated recovery of premises and possession proceedings against the 3rd – 7th Respondents, who were represented in that proceedings by the 2nd respondent. At the end of the said proceedings, judgment was entered in favour of the appellant, on 22nd April, 2015.
The 2nd – 7th respondents, appealed against that judgment, to the High Court of Lagos State and on the 20th September, 2016, the said appeal was dismissed. Thereafter, on 23rd January, 2017, the judgment against the 3rd – 7th respondents was executed. And that it was consequent upon the execution of the said judgment against the aforementioned respondents, who were embittered evicted occupiers by the action of the appellant, that a petition was written against him to the 1st respondent who, armed with her security operatives, stormed the appellant’s office, forcefully seized and confiscated some vital landed property documents and also padlocked his office, all at the instigation of the 2nd – 7th respondents. That was what led to the initiation of the enforcement of his fundamental right action against the respondents.
On the part of the respondents, it was stated that by a letter dated 2nd May, 2017, the 3rd -7th respondents along with some other occupants of Block 1, T Close, 3rd Avenue, Festac Town, Lagos State, who were not parties to instant matter, wrote to the Head of Operations, of the 1st respondent and expressed their grievances with respect to the unlawful seizure of the Federal Mortgage Bank of Nigeria’s property at Block1, T Close, 3rd Avenue, Festac Town, Lagos State. In that letter, it was alleged that the aforementioned property was unlawfully seized vide a false/forged Power of Attorney while their pensions and gratuities were held up following the liquidation of the Federal Mortgage Finance Ltd, in 2003.
That upon receipt of the petition, on 4 May, 2017, the 1st respondent mandated its Land and Property Fraud Section, Team A to carry out an investigation into the matter to confirm the veracity of the allegations by the petitioners. Hence, the security operatives of the 1st respondent went to the appellant’s office. He was not seen. The appellant’s secretary – one Mrs. Chidinma Ozurumba was arrested. She volunteered a statement. Thereafter, she was released on bail to her husband. The appellant was neither arrested, harassed, embarrassed, invaded nor handcuffed. That the investigation by the 1st respondent was still ongoing when the appellant, filed the fundamental right enforcement action against the respondents at the Court below, which was dismissed by the learned trial judge.
I have perused the appellant’s contentions which are largely to the effect that since the donor of the Power of Attorney, that is, the Federal Mortgage Finance Ltd., is not complaining about the issuance of the said Power of Attorney, it does not lie in the mouths of the 2nd – 7th respondents, to question the authenticity of the said document nor does the 1st respondent, have the power to investigate the complaint by the 2nd – 7th respondents, with respect to the same document. He insisted that since he had obtained two Court judgments which are at pages 11 – 78 and 178 – 246 of the record of appeal and that the said judgments were duly executed and enforced as evidenced at pages 326 – 339 of the record of appeal, the 1st respondent had no power to investigate anything more in respect of this matter, otherwise, the latter would be seen to be acting ultra vires by contemptuously flouting the two valid and subsisting Court judgments in his favour, which is tantamount to a violation of his fundamental rights, by the 1st respondent.
Arguing per contra, a resume of the submissions of the 1st respondent’s counsel, is that the 1st respondent by virtue of its powers pursuant to Sections 6, 7 (1) (a) (b) and 3 (f) of the Economic and Financial Crimes Commission (Establishment) Act, 2004, could investigate any person, corporate body or organization that has been alleged to have committed any economic or financial crime. Furthermore, he submitted to the effect that in the circumstances of the instant matter, it is not the function of the Courts to shield any person who is being investigated by an agency such as the 1st respondent or the police, because such a person runs to Court in order to prevent his being arrested and investigated of an alleged crime. On their part, the 3rd – 7th respondents’ learned counsel, arguing in the same vein like the 1st respondent’s counsel, submitted to the effect that since the 3rd ? 7th respondents became aware of the fact that the Power of Attorney, which the appellant had procured and was used by him to get them evicted from their accommodations, was a forged document, they had to petition to the 1st respondent.
Furthermore, it is their contention that after their eviction from the aforementioned property at the instance of the appellant’s Power of Attorney, the latter, sold off their apartments in the same property, in order to benefit himself, economically and financially, but illegally.
He placed heavy reliance on Section 6 of the Economic and Financial Crimes Commission (Establishment) Act, 2004, to the effect that the 1st respondent has powers to investigate allegations of financial crimes against any person or organizations in Nigeria. And that since the vexed Power of Attorney in question, was procured by the appellant in order to feather his economic gains illegally, the 1st respondent has the power to investigate him and that the Courts are not safe havens where persons who are suspected of any crime can run to, in order to be shielded from being arrested or investigated.
Resolution:
The entrenchment of fundamental rights and the mode of enforcement of their breaches in the Nigerian Constitutions over the years, undoubtedly underscores its importance and the need to zealously protect the sanctity of human life and the liberty of every Nigerian citizen, as guaranteed under Section 35 of the Constitution of the Federal Republic of Nigeria, 1999, as amended. Therefore, the Courts do not shirk their responsibilities in ensuring that the human rights of the citizens are not compromised and on no account should such rights be swept under the carpet or capriciously tampered with by any person, government or any governmental agency under any guise, without a lawful justification. In Black’s Law Dictionary, 8th Edition, at page 697, the phrase: “fundamental right” is defined as:
“1. A right derived from natural or fundamental law.
2. Constitutional law. A significant component of liberty, encroachments of which are vigorously tested by Courts to ascertain the soundness of purported governmental justifications.”
The Supreme Court, in espousing the ideals and quite essence of fundamental rights in Ransome – Kuti & Ors v. Attorney General of the Federation & Ors (1985) LPELR – 2940 ( SC) @ pages 333-34, per his Lordship, Eso, JSC., succinctly stated thus:
“What is the nature of a fundamental right? It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence and what has been done by our Constitution, since independence, starting with the Independence Constitution, that is, the Nigeria (Constitution) Order in Council 1960 up to the present Constitution, that is, the Constitution of the Federal Republic of Nigeria, 1979 (the latter does not in fact apply to this case: it is the 1963 Constitution that applies) is to have these rights enshrined in the Constitution so that the rights could be “immutable” to the extent of the “non-immutability” of the Constitution itself. It is not in all countries that the Fundamental Rights guaranteed to the citizen are written into the Constitution.
For instance, in England, where there is no written Constitution, it stands to reason that a written code of fundamental rights could not be expected. But notwithstanding, there are fundamental rights. The guarantee against inhuman treatment, as specified in Section 19 of the 1963 Constitution, would, for instance, appear to be the same as some of the fundamental rights guaranteed in England, contained in the Magna Carter 1215 – Articles 19 and 40 which provide – “no freeman may be taken or imprisoned, or disused of his freehold or liabilities in free customs or be outlawed or exiled or in any way molested nor judged or condemned except by lawful judgment or in accordance with the law of the land And the crown or its ministers may not imprison or coerce the subject in an arbitrary manner.”
Further see: H.R.H. Eze Sir. J.E. Ukaobasi v. Berthram Ezimora & Ors (2016) LPELR – 40174 (CA).
Unarguably, by virtue of the provision of Section 35 (1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save for the purpose of bringing him before a Court in execution of order of the Court or upon reasonable suspicion of his having committed a criminal offence; or to such extent as may be reasonably necessary to his committing a criminal offence. It is glaring to me that the above provision of Section 35 (1) of the Constitution, does not suggest or guarantee absolute liberty to any person. This has been the position of this Court which was reiterated in Dokubo – Asari v. Federal Republic of Nigeria (2007) 12 NWLR (pt.1045) 320 @ 360, that:
“The above provisions of Section 35 of the Constitution leave no one in doubt that the section is not absolute. Personal liberty of an individual within the contemplation of Section 35(1) of the Constitution is a qualified right in the con of this particular case by virtue of Subsection (1) (c), thereof which permits restriction on individual liberty in the course of judicial inquiry on where, rightly as in this case, the appellant was arrested and put under detention upon reasonable suspicion of having committed a felony. A person’s liberty, as in this case, can also be curtailed in order to prevent him from committing further offence(s).
It is any belief as well that if every person accused if felony can hide under the canopy of Section 35 of the Constitution to escape lawful detention, then an escape route to freedom is easily and richly made available to persons suspected to have committed serious crimes and that will not augur well for the peace, progress, prosperity and tranquility of the society. I find support in so saying from Irikefe’s JSC (as he then was) earlier pronounced in the case of Echeazu v. Commissioner of Police (1974) NMLR 308 at page 314.”
In the instant case, it is as clear as crystal, from the appellant’s own showing that the 3rd-7th respondents were evicted from their apartments at Block 1, T Close, 3rd Avenue, Festac Town, Lagos State, by the instrumentality of a Power of Attorney which he had procured from the Federal Mortgage Finance Ltd and upon which he initiated the recovery of possession of the said apartments from the 3rd – 7th respondents as shown at pages 11-78 and 178-246 of the record of appeal. And the judgments were duly executed against the 3rd -7th respondents as shown at pages 326-339 of the record of appeal.
On the other hand, the 3rd – 7th respondents, who were former employees of the Federal Mortgage Bank, after their eviction from the apartments aforementioned, became suspicious of the authenticity of the Power of Attorney which had been procured by the appellant and upon which the latter acted by instituting the legal action against them, which invariably culminated in their evictions from their apartments. They allege that the appellant, after their evictions, began to sell the said apartments for his personal economic and financial gains. That was why they had to petition against the appellant, to the 1st respondent, who had to invite the latter to offer some explanation with respect to the authenticity of the Power of Attorney which the 3rd-7th respondents, allege that it was fraudulently procured. In the circumstances, can it be said that the 1st respondent was on a wild goose chase of the appellant? I do not think so.
Was it not up to the appellant to simply honour the invitation by the 1st respondent and demonstrate to it that the allegation of a fraudulent procurement of the Power of Attorney, in question, is a ruse. After all, it is said that “a clear conscience fears no accusation”, which has remained an unassailable truism.
I think that it is expedient to examine again the powers of the 1st respondent as donated to it in Section 6 of the Economic and Financial Crimes (Establishment) Act, 2004, which provides, inter alia:
“The Commission shall be responsible for:
a) the enforcement and the due administration of the provisions of this Act.
b) the investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc.
c) the co-ordination and enforcement of all economic and financial crimes laws and enforcement of all functions conferred on any other person or authority;
d) the adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorist activities, economic and financial crime related offences or the properties the value of which corresponds to such proceeds;
e) the adoption of measures to eradicate the commission of economic and financial crimes;
f) the adoption of measures which include coordinated preventive and regulatory actions, introduction and maintenance of investigative and control techniques on the prevention of economic and financial related crimes;
g) The facilitation of rapid exchange of scientific and technical information and the conduct of joint operations geared towards the eradication of economic and financial crimes.”
I have had cause to comment on the functions and enormous powers of the 1st respondent inRev. Fr. (Dr.) E. C. S. Obiorah v. Federal Republic of Nigeria (2016) 6 C.A.R. 219 (CA); (2016) LPELR – 40965 (CA) @ 28 – 33, thus:
“I have deeply considered the appellant’s contention to the effect that by virtue of the interpretation of “economic and financial crimes” in Section 46 of the Economic and Financial Crimes Commission (Establishment) Act, 2004, the fraud and other crimes enumerated in the said Section 46 which pertain to “economic activities and its administration”, should be the concern of the EFCC and not to meddle into offences that may be committed and affect the economic activities of private individuals. I think the simple answer to the appellant’s contention is at Section 2(c) of the Economic and Financial Crimes Commission (Establishment) Act, 2004 which provides, thus: “2. The Commission -(C). is the designated Financial Intelligence Unit (FIU) in Nigeria, which is charged with the responsibility of coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with economic and financial crimes in Nigeria.”
The Advance Fee Fraud and Other Fraud Related Offences Act, 2006 and the offences created by and under it, to my mind, constitute economic and financial crimes in Nigeria. Those offences such as obtaining property by false pretences, no doubt, impact very negatively on the economic and financial fortunes and credibility of Nigeria. Therefore, they do not necessarily need to relate to the economic activities of government and its administration alone, for perpetrators of such criminal offences, to be investigated and prosecuted at the instance of the EFCC.”
I am in agreement with the finding by the learned trial judge to the effect that the appellant filed the pseudo application for the enforcement of his fundamental rights to pull the wool on the face of the Court and use the same as a shield from being investigated by the 1st respondent. That is certainly, unacceptable. In Attor. General, Anambra State v. Chief Chris Uba (2005) 15 NWLR (pt.947) 44 @ 67 this Court, per my Lord, Z. A. Bulkachuwa, JCA., (as he then was, Now P.C.A.) succinctly and forcefully cautioned that:
“For a person, therefore, to go to Court to be shielded against a criminal investigation and prosecution is an interference of powers given by the Constitution to law officers in the control of criminal investigation. The plaintiff has no recognizable right to which the Court can come to his aid. His claim is not one that the Court can take cognizance of for it has disclosed no cause of action. The plaintiff cannot expect a judicial fiat preventing a law official in the exercise of his constitutional power.”
Furthermore, in Ekwenugo v. Federal Republic of Nigeria (2001) 6 NWLR (pt. 708 ) 171 @ 186-187, his Lordship, J. A. Fabiyi, JCA (as he then was, Now Rtd. JSC) bemoaned the sordid Nigerian level of corruptive decadence and admonished us, thus:
“Nigerian Judges do not operate in Utopia. We operate in Nigeria. And no Nigerian Judge can rightly claim he has not heard that Transparency International rates our national state as the most corrupt in the whole universe in the year 2000. This is ear-aching. Should Judges in the prevailing circumstances, pat Advance Fee Fraud accused person at the back, under the cloak of human right? I think not. I have always held the view and which I shall continue to show that in reality Judges should strive to operate the law for the attainment of social engineering and by so doing that our desire to attain national rebirth and regeneration can become concretized. The national psyche can then start to develop positively once again and lesser mortals in other lands will stop looking at our undoubtedly respectable citizens with utter disdain on presentation of our green passport as “Exhibits before them.”
My Lords, that admonition in 2001, almost two decades ago, still resonates today. Hence, I cannot agree with it, any less. Let us draw the curtain on this appeal with our recent decision in Mallam Abdullahi Hassan & 4 Ors v. Economic and Financial Crimes Commission & 2 Ors (2014 ) 1NWLR ( pt. 389) 616, to the effect that:
“No Court has the power to stop the investigative powers of the police or EFCC or any agency established under our laws to investigate crime where there is reasonable suspicion of commission of crime or ample evidence of commission of an offence by a suspect.”
For all I have discussed above, I resolve the sole issue in this appeal, against the appellant.
The appeal, is consequently dismissed.
In sum, the well-considered judgment, delivered by I. N. Buba, J., at the Federal High Court, Lagos Division, Ikoyi, Lagos in re – Suit NO: FHC/L/CS/736/2017, on 30 June, 2017, is hereby affirmed. The appellant shall pay costs of N300, 000, 00 to the 2nd – 7th Respondents, jointly.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead Judgment of my learned brother TOM SHAIBU YAKUBU, JCA just delivered with which I agree and adopt as mine. I have nothing more to add.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read in draft the judgment of my learned brother, TOM SHAIBU YAKUBU, JCA just delivered and I agree with him. The circumstances of this case show that it would have been considered remiss on the part of the learned trial judge to have attempted to interfere with the lawful exercise of the statutory duties of the Respondent. The law as I understand it is that no Court of law can issue a judicial fiat or make any order or entertain any proceedings geared towards preventing the law enforcement agencies from the exercise of their statutory powers, to wit, investigation of crime. See DOSOMAH v COP, EDO STATE (2014) LPELR- 24497 (CA); OGUEJIOFOR & ORS v IBEABUCHI (2017) LPELR – 43590 (CA).
The case of the Appellant is undoubtedly geared towards making the Court to interfere with the investigatory and prosecutorial power of the 1st Respondent. This will not be allowed. It is for this reason and the more elaborate reasons set out in the leading judgment by my learned brother that I find the Appeal to be without merit. It is accordingly dismissed. I abide by the consequential order(s) made in the leading judgment.
Appearances:
O.E. Ogunbeje, Esq.For Appellant(s)
For Respondent(s)
