MR. EBERE MATTHEW DIMNWOBI & ANOR v. ECONOMIC AND FINANCIAL CRIMES COMMISSION & ANOR In The Court of Appeal of Nigeria
(2018)LCN/12218(CA)
On Friday, the 30th day of November, 2018
CA/L/136/2018
RATIO
GOVERNMENT AGENCY: THE POWER OF ECONOMIC AND FINANCIAL CRIMES COMMISSION
“The powers of the 1st respondent with respect to its investigative activities are donated to it by virtue of Section 6 (b) of The Economic and Financial Crimes Commission (Establishment) Act No1, 2004, which provides, inter alia: “The investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, future market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc.” I have had cause to comment on the functions and enormous powers of the 1st respondent in Rev. Fr. (Dr.) E. C. S. Obiorah v. Federal Republic of Nigeria (2016) 6 C.A.R. 219 (CA); (2016) LPELR – 40965 (CA) @ 28 – 33..” 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
1. MR. EBERE MATTHEW DIMNWOBI
2. AUTO MARINE LIMITED Appellant(s)
AND
1. ECONOMIC AND FINANCIAL CRIMES COMM.
2. PARETO FUNDS & SECURITIES LTD. Respondent(s)
TOM SHAIBU YAKUBU, J.C.A.(Delivering the Leading Judgment):
The Investment and Allied Assurance Plc., had petitioned the 1st respondent, alleging some fraudulent dealings in respect of an investment deal with the 2nd respondent vis-a-vis the appellants. In the course of investigating the petition aforesaid by the 1st respondent, the appellants and the 2nd respondent were invited by the 1st respondent, for questioning. There were attempts for an amicable settlement of the controversy that was generated amongst the parties which failed and it appeared to the appellants that they were being harassed and intimated by the 1st respondent in respect of a matter which the appellants thought was purely a business investment between the parties. The 1st respondent thought otherwise.
The appellants had to approach the Federal High Court, sitting at Lagos, with an Originating Motion on Notice, dated and filed on 12 April, 2017, praying for the enforcement of an alleged breach of their fundamental rights. Their complaint, was sequel to a directive by the 1st respondent to them, to the effect that they should deposit with the 1st respondent, for and on behalf of the 2nd respondent, the interest on the return on an investment from the profit sharing investment yield charge in favour of the 2nd respondent and that if that was not done, the 1st appellant would be arrested and detained by the 1st respondent. The 2nd respondent resisted the appellants’ application. Both parties filed and exchanged affidavit evidence with their respective written addresses. The learned trial judge, after hearing the application, in his ruling, delivered on 27th October, 2017, dismissed the application. The appellants, irked with the decision against them, appealed to this Court. The appeal which was dated 15 January, 2018 and filed on 16 January, 2018, was anchored on four grounds of appeal, but with leave of this Court, sought and obtained, an amended notice of appeal, containing six grounds of appeal, dated 20th April,2018, was filed on 26th April,2018.
The appellants, in recounting the brief facts of the case had the followings to say:
“That the Investment and Allied Assurance Plc (IAA) had petitioned the 1st Respondent, alleging that its Port Harcourt Branch Manager acted ultra vires his powers and/or without the consent and authority of the head office when he issued insurance credit bonds to the 2nd Appellant in favour of the 2nd Respondent upon receipt of valuable consideration.
The terms of the bond included the clause that in the event that the 2nd Appellant defaults to make its return on investment, then the 2nd Respondent shall have the option to request the insurance company to pay accordingly.
That following the Appellants’ proposals to the 2nd Respondent for interest waiver and rescheduling of the outstanding sum, coupled with the attendant default to remit the agreed monthly returns on investment, the 2nd Respondent demanded from the Investment and Allied Assurance Plc., the value of the said insurance credit bonds which triggered off the said petition to the 1st Respondent.
In the course of the investigation of the IAA petition by the 1st Respondent, it invited the Appellants and the 2nd Respondent for questioning which the Appellants duly honoured and visited the 1st Respondent’s office severally.
On one of such visits and precisely on the 27th of March, 2017, the 1st Respondent through its official, Madam Oluwakemi, directed the Appellants to thenceforth deposit with the 1st Respondent for and on behalf of the 2nd Respondent, the interest on the return on investment from the profit sharing investment yield charge (return on investment) in favour of the 2nd Respondent with a threat to arrest and detain the 1st Appellant in the event of default.
The Appellants dissatisfied with the directive of the 1st Respondent commenced this action before the Federal High Court by way of Originating Motion to challenge the powers of the 1st Respondent to issue such directive, which did not flow from the petition represented by IAA to the 1st Respondent which touches and concerns the bond.
On the other hand, the 2nd respondent’s summary of the facts of the case are the 2nd Respondent’s investor invested One Hundred Million Naira only (N100 Million) in the business of Mr. John Nnaamaka Dimnwobi and Joexpora Nigeria Limited for the purchase of a land in Lekki, Lagos. Copies of ten cheques of N10 Million each [totaling N100 Million] issued in this connection are contained at pages 134 to 142 of the Record and marked exhibits 14, 14A, 14B, 14C and 14D respectively.
The application for the fund is at page 108 of the Record of Appeal.
The collateral for the investment are the land via deposit of original title documents thereof with the 2nd Respondent; personal and corporate guarantees of the Appellants and those of Mr. John Nnaamaka Dimnwobi and Joexpora Nigeria Limited; and Credit Bond Insurance issued by Investment and Allied Assurance Plc [IAA].
It transpired however that after the release of the N100 Million, IAA lodged a complaint of fraud with the 1st Respondent regarding the Credit Bond Insurance Policy with Mr. John Nnaamaka Dimnwobi and Joexpora Nigeria Limited, Appellants; and 2nd Respondent as suspects.
In the course of the investigation of the complaint of IAA that borders on contract scam, it was discovered that Mr. John Nnaamaka Dimnwobi and Joexpora Nigeria Limited in concert with the Appellants had surreptitiously sold the collateral land to a third party without the prior knowledge or authority of the 2nd Respondent and IAA. Accordingly, by letter captioned: ?PETITION ON FRAUDULENT SALE OF PROPERTY UNDER INVESTIGATION BY EFCC? dated March 14, 2017 and received by the 1st Respondent on March 15, 2017, the 2nd Respondent lodged a petition of advance fee fraud against the Appellants and their cohorts, namely Mr. John Nnaamaka Dimnwobi, a brother of the 1st Appellant, and Joexpora Nigeria Limited. Rather than make themselves available to the 1st Respondent for investigation of the complaint of the 2nd Respondent; the Appellants rushed to the lower Court in their bid to use the judiciary to stultify their investigation and prosecution for crime.
The appellants, in activating the prosecution of the appeal, filed the appellants’ brief of argument on 5 May, 2018. The 2nd respondent’s brief of argument, dated 20 June, 2018; was filed and deemed filed on 21 June, 2018. The 1st respondent, did not file any brief of argument. In the appellants’ brief of argument, settled by I.A. Ovbagbedia, he nominated two issues for the determination of the appeal, to wit:
1. Whether the learned trial judge was right in holding that the claim before his Lordship is an attempt to shield the appellants against investigation when the course (sic) (cause) of action before the trial Court had nothing to do with the investigative powers of the 1st Respondent. (Distilled from grounds 2,5 and 6 of the Amended Notice of Appeal).
2. Whether the learned trial Court was right in its conclusion that the appellants failed to place any material to enable the Court exercise any discretion in their favour in respect of their claim. (Distilled from the grounds 1,3 and 4 of the Amended Notice of Appeal).
H.A. Bello, Esq., KSM, with M.E. Nwosuegbe,Esq., & K.P. Luke, Esq., who settled the 2nd respondent’s brief of argument, also suggested two issues therein, for the resolution of the appeal, namely:
1. Whether the claim before the lower Court is an attempt to shield the appellants from investigation. (Distilled from grounds 2, 5 and 6 of the Amended Notice of Appeal).
2. Whether the Appellants placed materials before the Lower Court for the exercise of the discretion of the Lower Court in their favour. (Distilled from grounds 1, 3 and 4 of the Amended Notice of Appeal).
Upon my perusal of all the processes filed and exchanged between the parties, the ruling of the learned trial judge, the amended notice and grounds of appeal and the respective issues nominated by both counsel herein, it is glaring that the two set of issues, reproduced above are virtually, the same, except for semantics. However, I adopt the two issues nominated by the 2nd respondent’s counsel, which are more precise, in my consideration and determination of the appeal. The two issues shall be resolved together.
Appellants’ Arguments:
The gravamen of the appellants’ contentions, is that none of the declarations and reliefs sought by them, touch and concerns the 1st respondent’s powers in investigating any matter and that in any case, there is evidence in this matter to the effect that they had submitted themselves to the 1st respondent for investigation in respect of the alleged wrongful encashment of a negotiable instrument, as alleged by the Investment and Allied Assurance Plc (IAA) vide Exhibit C. The appellants’ grouse against the 1st respondent, is in respect of the directive by the latter’s official – one Madam Oluwakemi, on 27th March, 2017, to the effect that payments in respect of the contract between the 2nd appellant and the 2nd respondent be made through the 1st respondent’s office, as if the latter is a debt collector, which is not its statutory function.
Reliance was placed heavily by the appellants on the Supreme Court decision in Diamond Bank Plc v. HRH Eze Dr. Peter Opara (2018) LPELR -43907 (SC).
Arguing their issue 2, the appellants contended to the effect that a perusal of paragraphs 18,19, 20, 21 and 23 of the 1st appellant’s affidavit at pages 19-21 of the record of appeal along with Exhibit A at pages 22-32 of the record of appeal will reveal that enough materials were placed before the Court below to justify a grant of their application against the 1st respondent. The appellants, insisted that since they were not parties to the Suit NO: FHC/L/CS/570/2017 vis–vis Exhibit 17, they were not obliged to explain any transaction under the said Exhibit 17, as erroneously held by the learned trial judge, who according to them, did not understand their case.
2nd Respondent’s Arguments:
It was submitted for the 2nd respondent, relying on Exhibit G at page 51 of the record of appeal, to the effect that the 2nd respondent was emphatic that the 1st respondent is not a debt recovery agency, hence it was argued that there was no directive by the latter to the appellants to pay any money in respect of the contract between the 2nd respondent and the 2nd appellant through the 1st respondent, as alleged by the appellants. Paragraphs 13, 17, 18, 19, 20, 21 and 22 of the 2nd respondent’s counter affidavit at pages 90 and 91 of the record of appeal, were referred to.
Learned 2nd respondent’s counsel, insisted that the appellants’ application, was targeted against the 1st respondent, to prevent their being investigated in respect of their role in the contract scam, in question. The 2nd respondent’s learned counsel, referred Wachukwu v. Owunwanne (2011) 14 NWLR (pt.1266) 1 @ 37 to the effect that the findings by the learned trial judge at pages 196 and 197 of the record of appeal, which flowed from the unchallenged affidavit evidence of the 2nd respondent at pages 87-155 of the record of appeal, are not perverse, hence, according to him, those findings should not be disturbed by us.
Resolution:
The appellants’ application for an order for the enforcement of their fundamental Human Rights, the grounds for the reliefs sought and the affidavit by the 1st appellant, in support of the application, are at pages 7 – 21 of the record of appeal.
They are germane and so for ease of appreciation of this matter, they are reproduced inter alia:
RELIEFS SOUGHT AGAINST THE 1ST & 2ND RESPONDENTS JOINTLY AND SEVERALLY:-
1. A DECLARATION that the 1st Respondent?s directive on 27/3/2017 at its Lagos office at No. 15A Awolowo Road, lkoyi, Lagos, within the jurisdiction of this Honourabie Court, to the Applicants and in particular the 1st Applicant to henceforth deposit with the 1st Respondent, on behalf of the 2nd Respondent, the return on investment (interest) of the profit sharing investment yield charge (Return on Investment) in respect of the contractual agreement between the 2nd Applicant and the 2nd Respondent with threats of arrest and detention of the 1st Applicant, in default, thereto, is illegal, unlawful, wrongful, ultra ? vires, unconstitutional and thereof, a violation of the Applicants’ rights to personal liberty, freedom of movement and dignity of the human person, as enshrined in the Constitution of the Federal Republic of Nigeria, 1999, as amended.
2. A DECLARATION that the execution of the offers of credit facilities and rollover of the same to outstanding sum, whenever accorded the Applicants by the 2nd Respondent and or return on investment from the profit sharing investment yield charge (Return on Investment), are purely civil transactions and or contractual agreements between the said parties and thereof does not violate or vitiate the petition of the Investment and Allied Assurance Plc (IAA) to the 1st Respondent, against its Port Harcourt branch Manager, which is to the effect, that said branch Manager, does not have its mandate and authority to execute on its behalf, the credit Insurance Bonds with the 2 Applicant, in favour of the 2 Respondent.
3. AN ORDER of Court setting aside the 1st Respondent’s directive to the Applicants to deposit with the 1st Respondent on behalf of the 2nd Respondent, the said returns on investment (interest) and the threats of arrest and detention of the 1st Applicant for being unlawful, illegal, wrongful, irregular, ultra – vires, unconstitutional and derogation of the Applicants Fundamental Human Rights as enshrined in the 1999 Constitution of the Federal Republic of Nigeria, as amended.
4. N15, 000, 000.00 (Fifteen Million Naira) exemplary damages against the Respondents, jointly and severally, for the aforesaid infringement of the Applicants’ Fundamental Human Rights, as enshrined in the Constitution of the Federal Republic of Nigeria, 1999, as amended and an unreserved written apology to the Applicants.
5. AN ORDER of perpetual injunction restraining the Respondents, whether by themselves and or by their agents, privies, servants and howsoever named, from further inviting, arresting, detaining, harassing, intimidating and restricting the movement of the Applicants, over and in respect of the same subject matter.
6. For such further order(s) as this Honourable Court may deem fit to make in the circumstances.
GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT.
(i) The 1st Applicant is the Managing Director and Chief Executive officer of the 2 Applicant of No. 13 Sangana Street, Diobu, Port Harcourt, Rivers State.
(ii) The 2nd Applicant, is a private limited liability company incorporated in Nigeria with its principal office at No. 13 Sangana Street, Mile Diobu, Port Harcourt, Rivers State
(iii) The 1st Respondent is a creation of statute with powers to investigate and prosecute economic and financial crimes, with Lagos office at No. 15 Awolowo Road, Ikoyi – Lagos, Nigeria.
(iv) The 2nd Respondent is a private limited liability company with its principal or registered office at PAN AFRICAN BANK BUILDING (3rd Floor, Suite 316) 3 Azikiwe Road, Port Harcourt, Rivers State, Nigeria and an agent to Pareto Industries limited (investor) of the same address in respect of the contractual credit facilities or agreements between the Applicants and the 2nd Respondent.
(v) The Applicants at their request for credit facilities to inject/invest into their business to the 2nd Respondent as agent to the investor ? Pareto Industries Limited, was accorded the said credit facilities on different occasions and the same offer is usually rollover to the outstanding sum, in what is known as profit sharing investment yield charge (return on investment).
(vi) The said parties, thereafter, executed the relevant documents, i.e, offer to rollover, acceptance of offer, personal guarantee, etc. The Applicants also deposited with the 2nd Respondent, the relevant documents for sightseeing and confirmation of the utilization of the said credit facilities and or as collateral security, inclusive of the Investment and Allied Assurance Plc’s (IAA), credit bonds as requested by the 2nd Respondent.
(vii)That pursuant to the terms of repayment of the return on investment of the profit sharing investment yield charge, (Return on Investment) the Applicants, complied promptly and diligently with the payments, until some couple of years ago when the business was no longer flourishing because of the economic recession in the country and made proposals to the 2nd Respondent for interest waiver and to restructure downwards the monthly payments, which said proposals were rejected by the 2nd Respondent and thereof, made the Applicants to fall into arrears of the said monthly returns on investment.
(viii) That sometime in June and November, 2015, the 1st Applicant was served with the 1st Respondent’s letters of invitation, dated 30/06/2015, Ref. CR:3000/EFCC/LS/CTGI/TAJVQL. 4/277 and 06/11/2015, CR:3000/EFCC/LS/CTGIITA/VQL. 7/352, with a directive for an interview with Aminu Ado Aliyu, for head of operations, through O/C CTGI Team A, at the 1st Respondent’s aforesaid Lagos office on Monday, 16th November, 2015 at 10 am, pertinent to the petition of Investment and Allied Assurance, Plc (IAA) to the 1st Respondent.
(ix) The summary or gist in the said petition by investment and Allied Assurance, Plc (IAA), to the 1st Respondent, shown and read over to the 1st applicant is that the Port Harcourt Branch Manager of the said insurance company, was alleged to have acted without lawful mandate and authority to issue the said credit bonds dated 10/10/2013 and 11/09/2014, to the 2 Applicant, in favour of the 2nd Respondent.
(x) The 1st Applicant thereafter on the said 16/11/2015, made his hand written statement under caution to the 1st Respondent and was admitted to bail.
(xi) The 1st Applicant in the said statement to the 1st Respondent, denied the said allegation of conspiracy to issue or obtain the said insurance bonds or to defraud the said insurance company, but however admitted the contractual agreement about the issue of return on investment in favour of the 2nd Respondent, with an assurance to commence payment if the proposal on the interest charge is reviewed and the agreed monthly repayment reviewed downwards, because of the economic recession in the country which also affected their business.
(xii) Thereafter, the 1st Applicant, the representatives of the 2nd Respondent and that of the Investment and Allied Assurance, Plc (IAA), had an interview with the 1st Respondents O/C, CTGI Team A, pursuant to which, the 1st Applicant was directed to Haze with the Managing Director of the 2nd Respondent (MR. PASMORE IDEOZU) who was unavoidably absent with a view to an amicable resolution of the Applicants’ proposals aforementioned and a further directive to the said parties to report back to the 1st Respondent within four (4) weeks.
(xiii) The 1st Applicant in compliance with the 1st Respondent’s aforesaid directive for dialogue with the 2nd Respondent, met with the 2nd Respondent’s Managing Director, who for his personal reasons, evaded the 2nd Applicant’s requests, pursuant to which the Applicants made their request by their letter dated 07/12/15 to the 2nd Respondent, wherein, they further stated their proposals for interest waiver and the monthly payments.
(xiv) In response thereto, the 2nd Respondent by its letter of 15/12/2015, rejected the said proposals on the grounds that the said parties cannot vary the contractual agreement and the credit bond with Insurance and Allied Assurance Plc (IAA) and that there is no query from the 1st Respondent that the said credit bond was not legitimately issued by IAA and that the matter is with EFCC and NAICOM, as any private transaction between the parties on the matter will legally be prejudicial to the parties.
(xv) The 2nd Respondent by its letter of 17th February, 2016, whilst responding to the 2nd Applicant’s letter of 5th February, 2016, stated clearly that the 1st Respondent is not a debt recovery agency and were not involved on interest charges and credit facility on these matters (unfounded allegations by IAA), since they are not criminal in nature and is a clear departure, from the transaction entered into by the parties.
(xvi) However, the 2nd Respondent has since reneged on its earlier position that the 1st Respondent is not a debt collector and that there is nothing criminal about M’s petition aforesaid, but now instigate the 1st Respondent to demand from the Applicants the said return on investment on its behalf and treat the contractual agreement between the Applicants and the 2 Respondent, as criminal in nature.
(xvii) The Investment and Allied Assurance Plc’s (IAA) petition was thereafter transferred from the 1st Respondent’s CTGI Team A to CTGI Team B, with Madam Oluwakemi, as the head of the investigating team and that on about two (2) occasions, the 1st Applicant, the representatives of the 2nd Respondent and Investment and Allied Assurance, Plc’s,(IAA) met sometime in 2016 with the OIC CTGI Team B and Madam Oluwakemi, pursuant to which the 1st Applicant was further directed to continue with his dialogue with the Managing Director of the 2nd Respondent for their said proposals.
(xviii) Thereafter, sometime in 2016 at the invitation of Madam Oluwakemi, the 1st Applicant and the representatives of the 2nd Respondent met with her, to the exclusion of the Investment and Allied Assurance Plc’s (IAA) representatives and at the conclusion of the said meeting, she directed the 1st Applicant to pay to the 2nd Respondent, their return on investment and in default, the 1st Applicant may be arrested and detained for non-compliance.
(xix) That the main issue and or the final outcome of the 1st Respondents investigation of the Investment and Allied Assurance Plc’s (IAA) petition was jettisoned and made irrelevant in place of the recovery of the 2nd Respondent’s return on investment from the Applicants.
(xx) That the 1st Applicant at the invitation of Madam Oluwakemi, was in her office, on Monday the 27th day of March, 2017, at 10 am, with his solicitor, brother and his accountant. She then informed the 1st Applicant that the presence of Investment and Allied Assurance Plc’s (IAA), representatives, was not necessary for the meeting and that the representatives of the 2nd Respondent, are being expected: as they left Port Harcourt with the 1st flight to Lagos.
(xxi) The 1st Applicant then requested from her to have his breakfast at the 1st Respondent’s canteen within the 1st Respondent’s premises. whilst, awaiting the arrival of the 2nd Respondent’s representatives, pursuant to which Madam Oluwakemi, directed an operative in her office to accompany the 1st Applicant and his team to the canteen and ensure that he comes back with them, which said instruction was duly complied with accordingly, with the intention of coercing, intimidating, threatening and frightening the 1st Applicant into submission to comply with her subsequent directive that the Applicants should deposit with the 1st Respondent on behalf of the 2nd Respondent, the return on investment (interest) as per the contractual agreements between the said parties.
(xxii) That when the directive of Madam Oluwakemi that an operative should escort the 1st Applicant to the canteen was issued, the 1st Applicant was shocked, embarrassed and traumatized by the said directive restricting his movement within the 1st Respondents premises and thus breaching the right of the 1st Applicant to his freedom of movement. That he was later directed to report on the 24th of April, 2017.
(xxiii) That on arrival of the said 2nd Respondent’s representatives, they produced from their custody, photocopies of some documents relating to a parcel of rand at Ojomu Chieftaincy Family Land, along Lagos/Epe Expressway, Onigbongbo Town, Eti Osa, Local Government Area of Lagos State, purchased by Joexpora Nigeria Limited, which said company belongs, to Mr. John Nnamaka Dimnwobi, who is the 1st Applicant’s brother, with part of the credit facility accorded them by the 2nd Respondent to open a branch of their business in Lagos, which said documents apart from being shown to the 1st Applicant’s brother for citing, the 1st and 2nd Respondent refused to avail them with the same to enable him make his comprehensive statement, thereafter.
(xxiv) That Madam Oluwakemi, thereafter, directed that the 1st Applicant must reach out to the Managing Director of the 2nd Respondent in Port Harcourt on modalities for payment of the return on investment and that, henceforth, all payments of the return on investment, must be deposited by the Applicants with the 1st Respondent, on behalf of the 2nd Respondent.
(xxv) That the 1st and 2nd Applicants who reside and do business in Port Harcourt, are compelled to come to the Lagos office of the 1st Respondent, whenever they are invited, at huge cost and expense, with the attendant risk to the life of 1st Applicant and his said team.
(xxvi) That the Applicants’ transactions with the 2nd Respondent, amounts to a civil transaction and or contractual agreement and not proceeds from any crime or illegality and in consequence, thereof, the 1st Respondent is not entitled to direct the Applicants to deposit the said return on investment with the 1st Respondent, on behalf of the 2nd Respondent, the 1st Respondent, not being a debt collector and or that the said returns on investment are not proceeds from crime or illegal acts as contemplated by the EFCC’s Act.
(xxvii) That The Applicants forwarded to the 1st Respondent their correspondence with the 2nd Respondent. inclusive of phone calls to Madam Oluwakemi, from the inception of the invitation with Team A, about her directives for dialogue, inclusive of the meeting proposed by her and scheduled for Thursday 30th of March, 2017, wherein, the said Managing Director of the Respondent tacitly avoided the Applicants, probably on the premise that the 2nd Respondent’s return on investment from the Applicants, will be deposited through the 1st Respondent on their behalf.
(xxviii) That from the foregoing, the Applicants’ Fundamental Human Rights have been or about to be derogated upon as enshrined in the Constitution of the Federal Republic of Nigeria, 1999, as amended and in the premises, this application ought to be granted in the interest of justice. interest of justice.
AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE:
“I, MR. EBERE MATTHEW DIMNWOBI, Male, Christian, Adult Nigerian Citizen, Company Director of the 2 Applicant of No. 13 Sangana Street, Diobu, Port Harcourt, do hereby make Oath and state as follows:
1. That I am the 1st Applicant on record in this suit and thereof conversant with the facts of this case and that I have the consent and authority of the 2nd Applicant to depose to this affidavit.
2. That I am the Managing Director/CEO of the 2nd Applicant, a private limited liability company, incorporated in Nigeria with its corporate office at No. 13 Sangana Street, Mile 1, Diobu, Port Harcourt, and carries the business of supermarket or retail outlets at No. 1 Obi Wali Road, Rumuigbo, Port Harcourt, of some assorted goods/merchandise.
3. 1st Respondent is a creation of statute with powers to investigate and prosecute economic and financial crimes, with its Lagos office at No. 15A Awolowo Road, Ikoyi – Lagos, Nigeria, within the jurisdiction of this Honourable Court.
4. The 2nd Respondent is a private limited liability company with its principal or registered office at PAN AFRICAN BANK BUILDING (3rd floor, Suite 316) 3 Azikiwe Road, Port Harcourt, Rivers State, Nigeria and an agent to Pareto Industries invest) of the same address, in respect of the contractual credit facilities/agreements between Applicants and the 2nd Respondent.
5. That at the request of the Applicants for credit facilities to finance their aforesaid business, the 2nd Respondent as an agent to the investor – Pareto Industries Limited, made available such funds on different occasions which same were rollover to the outstanding sum as return on investment of the profit sharing investment yield charge (return on investment), pertinent to the license granted the 2 Respondent by the Securities and Exchange Commission (S.E.C) and the most recent credit facilities accorded the Applicants by the 2 Respondent, with attendant 2 Respondent?s offers of rollover, dated 10/10/2013 and 11/09/2014 of the said investment are hereto annexed and marked as Exhibit “A”.
6. The 2nd Respondent, in addition to the receipt of my personal guarantee and deposit of the 2nd Applicant’s relevant documents for sightseeing/collateral security, subsequently requested from the Applicants to provide insurance credit bond for the credit facilities accorded it, in the likelihood of the 2nd Applicant’s default to pay the ad investment to the investor – Pareto Industries Limited, which said insurance bond, is meant to satisfy and or discharge the 2nd Applicant’s liabilities up to the amount of the bond. The said insurance credit bonds taking by the Applicants, dated, 10/10/2013 – 11/09/2014 are hereto annexed and marked as Exhibit ‘B’.
7. That pursuant to the terms of repayment of the return on investment & profit sharing investment yield charge, (Return on Investment) the 2nd Applicant complied promptly and diligently with the payment on return on investment, until some couple of years ago when its business was no longer flourishing because of the economic recession in the country, following which the Applicants made proposals to the 2nd Respondent for interest waiver and to restructure downwards the monthly payments, which said proposals were by the 2nd Respondent, with no affirmative answer, thereto.
8. That sometime in June and November, 2015, I was served with the 1st Respondent’s letters of invitation, dated 30/06/2015, Ref. CR3OOO/EFCC/LS/CTGI/TA/VOL.4/277 and 06/11/2015, CR:3000/EFCC/LS/CTGI/TA/VOL.7/352, respectively, with a directive for an interview with Aminu Ado Aliyu, for head of operations through O/C CTGI Team A, at the 1st Respondent’s aforesaid Lagos office on Monday, 16th November, 2015 at 10 am, pertinent to the petition of investment and Allied Assurance Plc (IAA) to the 1st Respondent.
The said 1st Respondent’s letters on, are hereto annexed and marked as Exhibit ‘C’.
9. That from the contents of the petition which same was shown to me and I read, the Investment and Allied Assurance Plc (IAA), a public limited liability company incorporated in Nigeria and license to carry on insurance business, with its corporate office at No. 55 Bishop Oluwole Street, Victoria Island, Lagos, with a branch office in Port Harcourt, inter alia, claimed or alleged that, its Port Harcourt Branch Manager was alleged to have acted without mandate and authority of the head office in Lagos to transact and issue the said credit bonds with the 2nd Applicant, in favour of the 2nd Respondent.
10. That I thereafter on the said 16/11/2015, made my hand written statement under caution to the 1st Respondent and was admitted to bail, wherein, the Applicants, denied the said allegation of conspiracy to issue or obtain the said insurance bonds with intent to defraud IAA, but however admitted the issue of outstanding return on investment in favour of the 2nd Respondent, with an assurance to commence payment, if the proposals for interest charges are waived and the agreed monthly repayment reviewed downwards, because of the economic recession in the country, which also affected the 2nd Applicant.
11. Thereafter, the representatives of the 2nd Respondent, Investment Allied Assurance Plc (IAA) and myself, had an interview with the Respondents O/C, CTGI Team A, pursuant to which. I was directed to liaise with the Managing Director of the 2nd Respondent PASMORE IDEOZU) who was unavoidably absent, with a view to mutually agree in respect of the Applicants aforesaid proposals with a further directive by the O/C, CTGI Team A, to the said parties ant back to the 1st Respondent within four (4) weeks, the outcome of their meeting.
12. That the Applicants complied with the 1st Respondent’s aforesaid for dialogue in respect of the Applicant’s aforesaid proposals with the 2nd Respondent’s Managing Director, which same he declined any commitment, pursuant to which the Applicants sent a letter dated 07/12/15, to the 2nd Respondent, wherein, they stated their proposals for interest waiver and the monthly payments. The 2nd Applicant’s letter is hereto annexed and marked as Exhibit ‘D’.
13. In response thereto, the 2nd Respondent by its letter of 15/12/2015, rejected the said proposals on the grounds that the said credit the contractual agreement and the credit bond with IAA and that there is no query from the 1st e Respondent that the said credit bond was not legitimately issued by IAA and that the matter is with EFCC and NAICOM, as any private transaction between the parties on the matter will legally be prejudicial to the parties. The said 2nd Respondent’s letter is hereto annexed and marked as Exhibit ‘E’.
14. The 2nd Respondent by its further letter also of 17th February, 2016, whilst, responding to Applicants letter of 5th February, 2016, stated clearly that the 1st Respondent is not a debt recovery agency and were not involved on interest charges and credit facility on these matters (unfounded allegations by IAA), since these are not criminal in nature and is a clear departure from the transaction entered into by the parties. The Applicants’ aforesaid letter and that of the 2nd Respondent are hereto annexed and marked as Exhibits ‘F’ & ‘G’.
15.That the 2nd Respondent, reneged on its earlier position, by instigating the 1st Respondent to act as debt collector on its behalf and treat the contractual agreement between 2nd Applicant and the 2nd Respondent, as criminal in nature.
16. That the Investment and Allied Assurance Plc?s (IAA) petition, was thereafter transferred from the 1st Respondent’s CTGI Team A to DTGI Team B, with Madam Oluwakemi as the head of the investigating team and on about two (2) occasions, the representatives of the Respondent, Investment and Allied Assurance Plc’s, (IAA) and myself, met sometime in 2016, with the D O/C CTGI Team B and Madam Oluwakemi, pursuant to which I was Per directed to continue with the dialogue with the Managing ‘rector of the 2nd Respondent, which same I complied with thereof, :… all to no avail.
17. Thereafter, at another invitation of Madam Oluwakemi, the representatives of the 2nd Respondent and myself met with her on three (3) different occasions, to the exclusion of the representatives of the Insurance and Allied Assurance Plc (IAA) and at the conclusion of the said meetings, she directed that the Applicants should henceforth pay to the 2nd Respondent the said on investment, without a corresponding resolution of the said Applicants proposals and in default thereto, that I might be arrested and detained.
18. That the issue or final outcome of the 1st Respondent’s investigation of the insurance and Allied Assurance Plc’s (IAA) petition has been jettisoned and made irrelevant in place of the 1st Respondent’s directive to the effect that the Applicants should deposit with the 1st Respondent the return on behalf of the 2nd Respondent.
19. That pursuant to my further invitation by Madam Oluwakemi, to report to her office, on Monday the 27th day of March, 2017, at 10 am, I complied accordingly in company of my solicitor, brother and his accountant. She then informed me that the presence of the representatives of the Insurance and Allied Assurance Plc’s (IAA), were not necessary for the meeting and that the representatives of the 2nd Respondent, are being expected as they left Port Harcourt with the first flight to Lagos on the same day.
20. That I then requested from her to have my breakfast at the 1st Respondent’s canteen within its premises, whilst awaiting the arrival of the 2nd Respondent’s representatives, pursuant to which Madam Oluwakemi, directed an operative in her office to accompany me and my team to the canteen and ensure that he comes back with us, which said instruction was duly complied with accordingly, with the likely intention to coerce, intimidate, threaten and frighten me into submission to comply with her later directive for the Applicants to deposit with the 1st Respondent on behalf of the 2nd Respondent, the urn on investment.
21.That when the directive of Madam Oluwakemi that an operative should escort me to the canteen was issued having voluntarily honoured the 1st Respondent’s invitation, I was shocked, embarrassed and traumatized by the said directive restricting my movement within the 1st Respondent’s premises and thus breaching my right to freedom of movement. That I was later directed to report on the 24th of April, 2017.
22. That on arrival of the said 2nd Respondent’s representatives, they produced from their custody, photocopies of some documents relating to a parcel of land at Ojomu Chieftaincy Family Land, along Lagos/Epe Expressway, Onigbongbo Town, Eti Osa, Local Government Area of Lagos State, purchased by Joexpora Nigeria Limited which said company belongs to Mr. John Nnamaka Dimnwobi who is the 1st Applicant’s brother, with part of the credit facility accorded them by the 2nd Respondent to open a branch in Lagos, which said documents apart from being shown to the 1st Applicant’s brother for citing, the 1st and 2nd Respondent refused to avail them with the same to enable him make his comprehensive statement, thereafter.
23. The said Oluwakemi, thereafter, directed that I must reach out to the Managing Director of the 2nd Respondent in Port Harcourt on modalities for repayment of the returns on investment and that henceforth all payments must be deposited by the Applicants with the 1st Respondent on behalf of the 2nd Respondent.
24.That the Applicants reside and do business in Port Harcourt and that my invitations to the 1st Respondent’s office in Lagos without a resolution of the Investment and Allied Assurance Plc’s (IAA) aforesaid petition, is at huge cost/expense, loss of income/man hour with the attendant risk of traveling to and from Lagos.
25. That the 2nd Applicant’s transactions with the 2nd Respondent, arose from the facilities accorded the 2nd Applicant by the 2nd Respondent, through the investor – Pareto Industries Limited and thereof amounts to a civil transaction and or contractual agreement and not proceeds from any crime or unlawful acts, inclusive of the fact that the 1st Respondent is not a debt collector.
26.That the Respondents will not be prejudiced or embarrassed by the grant of this application and that the Applicants by their deposition herein, adopts the facts contained in the accompanying statement to this application.
27. That from the foregoing, the Applicants Fundamental Human Rights have been or about to be derogated upon as enshrined in the Constitution of the Federal Republic of Nigeria, 1999, as amended, the premises, this application ought to be granted, in the interest of justice.
28.That I swear to this affidavit in good faith and in accordance with the Oaths Act?.
On its own part, the 2nd Respondent through one of its officials – Stephen Owuogba, deposed to a Counter Affidavit at pages 87- 92 of the record of appeal, thus:
“I, Stephen Owuogba, male, Christian, Nigerian and Senior Manager of the 2nd Respondent of 3, Azikiwe Road, old G.R.A., Port Harcourt, Rivers State, hereby make Oath and state as follows:
1. That as the Senior Manager of the 2nd Respondent, I am well acquainted with the facts and circumstances of this case by personal knowledge and documents available to me that I have carefully perused.
2. That I have the authority of the 2nd Respondent to swear to this Counter Affidavit.
3. That the Application of the Applicants was served on the 2nd respondent on May 12, 2017.
4. That I have carefully read the affidavit of the 1st Applicant in support of the Application sworn to on April 12, 2017. I will subsequently refer to it as the affidavit.
5. That paragraphs 1, 2, 3, 6, 8, 9 and 13 of the affidavit are correct. I verily believe that other paragraphs of the affidavit contain misleading information.
6. That contrary to paragraphs 4, 5, 7, 10, 12, 22 and 25 of the affidavit; the 2nd Respondent did not advance credit facility to the Applicants in Suit No. FHC/L/CS/570/2017 – Mr. John Nnaamaka Dimnwobi and Joexpora Nigeria Limited vs. EFCC and Pareto Funds & Securities Limited, in that:
[a] At clause 10 of the recital of the Agreement entered into between the parties; their guarantors; and the 2nd Respondent in 2013, it was clearly stated:
WHEREAS:
10. The fund sourced is not a loan but an investment that will attract Profit Sharing Investment Yield Charge [Rate of return].
[b].A copy of the Agreement is annexed hereto as Exhibit ‘1’.
[c].In an affidavit of indebtedness/repayment sworn to by the 1st Applicant in Suit No. FHC/L/ /570/2017 at the High Court Registry, Port Harcourt on September 3, 2013, he clearly stated:
“That JOEXPORA NIGERIA LIMITED and/or MR. JOHN NNAAMAKA DIMNWOBI is aware that this fund sourcing by Pareto Funds and Securities Limited is not a loan rather an investment and that Pareto Funds and Securities Limited does not charge interest rate rather profit sharing investment yield charge [Rate of Return on Investment].”
[d]. A copy of the affidavit of September 3, 2013 of the 1st Applicant in Suit No. FHC/L/CS/570/2017 is attached as Exhibit ‘2’.
7. That the correct and simple facts and circumstances of this matter that the Applicants in. Suit No. FHC/L/CS/570/2017 approached the 2nd Respondent for an investment of N100, 000, 000.00 [One Hundred Million Naira only] for purchase of d property along Lekki/Epe Express Way in Lagos.
The relevant documents are attached as follows:
a. Extracts of Board of Directors meeting of Joexpora Nigeria Limited held on 29th August 2013 Exhibit ‘3’.
b. Board resolution on fund sourcing for Joexpora Nigeria Limited dated 29th August, 2013 Exhibit ‘4’
c. Application of Joexpora Nigeria Limited dated 30th August, 2013 Exhibit ‘5’.
d. Offer dated 30th August, 2013 Exhibit ‘6’
e. Acceptance dated 3rd September, 2013 Exhibit ‘7’.
f. Analysis of usage of investment made by 1st Respondent on 3rd September, 2013 Exhibit ‘8’
8. That the investment of 100 million was secured by the following collateral:
a. Personal guarantee of 1st Applicant in Suit No. FHC/L/CS/570/2017Exhibit ‘9’
b. Corporate guarantee of 2nd Applicant in Suit No. FHC/L/CS/570/2017 Exhibit ’10’
c. Personal guarantee of the 1st Applicant Exhibit ’11’
d. Corporate guarantee of the 2rd Applicant
e. Credit Bond Insurance Policy No. Exhibit ’12’ IAA/CB/PH/0099 issued by Investment & Allied Assurance Plc on 30th August, 2013 Exhibit ’13’
9. That the said investment of N100 Million was released to the 1st Applicant in Suit No. FHC/L/CS/570/2017 on September 3, 2013 x ten [10] cheques drawn on First City Monument Bank Plc for N10 Million each, dated September 2, 2013 with numbers 347790, 04347791, 04347792, 04347793, 04347794, 04347795, 04347796, 04347797, 04347798 and 04347799 respectively. Copies of the said cheques (two per page) are attached and marked Exhibits ’14’, ’14A’, ’14B’, ’14C’ and ’14D.’
10. That part of the requirements of the Credit Bond Insurance was that investor (2nd Respondent) will obtain and secure a title and/or equipment purchased and relinquish same only after full repayment of the investment. Thus, upon purchase of two plots of land at Onigbongbo Village Excision, Lele Expressway, Lagos the investment, the 1st Applicant in Suit No. FHC/L/CS/570/2017 deposited the original Deed of Assignment of the land with the 2nd Respondent. The said original Deed of Assignment is with the 2nd Respondent till today. A copy of that Deed of Assignment is annexed as Exhibit ’15’.
11. That following a petition to the 1st Respondent by Investment and Allied Assurance Plc that the Credit Bond Insurance was fraudulently issued, the 1st Respondent by letter dated 30th June, 2015 invited the 2nd Respondent for an interview on July 9, 2015. A copy of the letter of invitation is attached as Exhibit ’16’.
12. That the 1st Respondent is strictly investigating the allegation of commission of financial crime made by Investment and Allied Assurance Plc. The 1st Respondent has never ever directed the Applicants to negotiate with the 2nd Respondent or make payment to it whether directly or through the 1st Respondent.
13. That the officers of the 1st Respondent have been highly professional in the discharge of their duties of investigating the complaint of investment and Allied Assurance Plc and have never jettisoned the said investigation, which the Applicants want to truncate with this case.
14. That in response to paragraphs 19, 20, 21, 22, 23, 25, 26 and 27 of the affidavit, sadly it transpired that upon a visit to the land purchased by the Applicants in Suit No. FHC/L/CS/570/2017 with funds invested by the 2nd Respondent’s investor and used to secure e Credit Bond Insurance under investigation by the 1st Respondent, by the investigation/investment recovery officer of the Respondent, it was discovered that the collateral land had been sold by the Applicants in Suit No. FHC/L/CS/570/2017 in collaboration with the Applicants herein.
15. That because the sale of the collateral land was done surreptitiously without the prior consent or even knowledge of the 2nd Respondent investment and Allied Assurance Plc and especially whilst the matter is under investigations by the 1st Respondent, it dawned on 2nd Respondent that the Applicants in Suit No. L/CS/570/2017 and their cohort, who are the Applicants in this case, obtained the investment 16 100 million from it by the perpetration of advance fee fraud.
16. That accordingly, by letter dated March 4, 2017 and delivered to the 1st Respondent on March 15, 2017, the 2nd Respondent lodged a complaint against the Applicants in Suit No. FHC/L/CS/570/2017 and the Applicants in this case, which is now being investigated. A copy of the letter is attached as Exhibit ’17’.
17.That the 1st Respondent is investigating a complaint of contract scam made by Investment and Allied Assurance Plc with the Applicants, the Applicants in Suit No. FHC/L/CS/570/2017 and 2nd Respondent as the suspects and a complaint of advance fee fraud made by the 2nd Respondent with the Applicants in Suit No. FHC/L/CS/570/2017 and their collaborators, who are the Applicants in this case, as suspects.
18.That I verily believe that the Applicants are using this case to shield themselves from investigation.
19. That the 2nd Respondent has submitted itself to investigation by the 1st Respondent as a law abiding corporate entity without any blemish.
20.That I have attended all interviews of the 1st Respondent. I know that the 1st Respondent never directed the Applicants or the Applicants in Suit No. FHC/L/CS/570/2017 to pay to the 2nd Respondent the return on investment as alleged at paragraph 17 of the affidavit and the 1st Respondent did not issue any directive to the Applicants or the Applicants in Suit No. FHC/L/CS/570/2017 to deposit with the 1st Respondent the return on investment for and on behalf of the 2nd Respondent. I verily believe that the Applicants? allegations are absolutely false.
21. That I know that the 1st Respondent is not involved in debt recovery in any manner whatsoever regarding the investigation of the two complaints of financial crimes made in this matter.
22. That I verily believe that the application of the Applicants is made in utter bad faith and that it is calculated to use this Honourable Court to preclude the 1st Respondent from carrying out its statutory of investigating economic and financial crimes and prosecuting suspects like the Applicants that have cases to answer.
23. That I verily believe that it is in the interest of justice for this Honourable Court to dismiss the application of the Applicants and condemn their antics in costs.
24. That I make this Oath in utmost good faith knowing same to be true and correct and in accordance with the provisions of the Oaths Act, 2004?.
The 1st appellant, in response to 2nd Respondent’s the counter affidavit above, filed a FURTHER AND BETTER AFFIDAVIT at pages 173 -176 of the record of appeal, inter alia:
I, MR.DIMNWOBI EBERE MATTHEW, Male, Christian, Adult Nigerian Company Director of Auto Marine Limited of No. 13 Sangana Street, Mile Port Harcourt, do hereby make Oath and state as follows:
1. That I am the 1st Applicant on record in this suit and the Managing Director the 2nd Applicant and having attended all the meetings/interviews held at the 1st Respondent’s office in Lagos, I am conversant with the facts of this case.
2. That I have the consent and authority of the 2nd Applicant to depose to this affidavit.
3. I have perused the 2nd Respondent’s Counter – Affidavit filed on the day of June, 2017 and deny some of the depositions therein, as being and or misleading.
4. That the financial transactions between Mr. John Nnaamaka Dimnwobi and his company – Joexpora Nigeria Limited vs. Pareto Funds & Securities is the subject matter in suit No FHC/L/CS1570/2017 – Mr. John Dimnwobi & Anor vs. EFCC & Anor, pending before Hon. Justice C. A. Obiozor, Judge, of the Federal High Court, sitting in Ikoyi – Lagos.
5. That I was informed by Mr. John Dimnwobi on 27/06/2017 in his office at Port Harcourt and I verily believe that the Applicants in the said suit No. FHC/L/CS/570/2017 will file their Further and Better Affidavit, in response to the 2nd Respondent’s claims/allegations contained in paragraphs 6, 7, 8, 9, 10, 11, 12, 15, 16 & 17 of the Counter – Affidavit in this suit, as the contractual transactions therein, are personal to the said Applicants.
6. That I am not aware of the purported 2nd Respondent’s letter of complaint, dated 14th March, 2017 to the 1st Respondent as no letter of invitation was sent to me nor was I shown the said petition or complaint on the 27/03/2017 when we last appeared before the 1st Respondent, pertinent to the Investment & Allied Assurance Plc’s petition.
7. That the said letter dated 14/03/17 was not a petition against the 2nd Applicant and/or myself.
8. In further answer to the foregoing paragraph, the Applicants were compelled the 2nd Respondent in addition to their personal and corporate guarantees, amongst others, to have an insurance bond for the credit facilities accorded them and in furtherance to the said demand for insurance bond, introduced the said Investment & Allied Assurance Plc, through the Broker – Mr. Ezenta Chima.
9. That the Managing Director of the 2nd Respondent – Mr. Pasmore ldeozu, raised a cheque on the Applicants’ behalf for the premium and the rollover to the outstanding facility.
Thereafter the insurance bond was issued the 2nd Respondent’s office and delivered to the Applicant in the same office.
10. The cheque raised and issued by the 2nd Respondent to the insurance company on our behalf was paid directly to the company, for which the Applicants’ account with the 2nd Respondent was debited and thereof, not a contract scam in any material particular.
11. The 1st Respondent’s letter of invitation to the Applicants, dated 30/6/2015 and 06/11/20l5, are to the effect that the Commission (1st Respondent) is investigating a case involving the alleged issuance of credit bond insurance by the Investment & Allied Assurance Plc, to the Applicants, in which they need to get certain clarifications from Applicants.
12. The Applicants honoured the said invitation and were availed the petition of Investment & Allied Assurance Plc, which is to the effect that their Port Harcourt Branch office, does not have the authority and mandate of the Head office to execute the said insurance bond, taking into consideration that the company is going into liquidation.
13. That the alleged bond, the subject matter of the investigation by the 1st Respondent had lapsed since the 10th day of September, 2015 as shown in Exhibit B, without it being called by the 2nd Respondent and there is nothing for the 1st Respondent to investigate in relation to the said bond.
14. That the complaint of Investment and Allied Assurance Plc to the 1st Respondent was apparently lodged to forestall the 2nd Respondent from relying on the bond which the Investment and Allied Assurance Plc. validly issued and received premium on.
15. That the Investment and Allied Assurance Plc., the complainant before the Respondent, has not shown any further interest in the matter since September 2015 when the bond lapsed and became ineffective because they there is no further substance in their complaint.
16. That the Applicants have paid to the 2nd Respondent, the total sum of N481,239,845.00 from 28th day of September, 2005 to 3rd day of November, 2015 from the total sum of N442,000,000.00 (Four Hundred and Forty Two Million Naira).
17. That it is not true as alleged by the 2nd Respondent, that, the Applicants are with the application delaying or frustrating the investigation that borders on the capacity and authority of the Port Harcourt branch of the Investment Allied Assurance Plc, as there is nothing further to be investigated in relation to that bond, having lapsed.
18. That the alleged wrongful and unlawful acts of the Respondents have eroded Applicants fundamental Rights and or that the same is about to be breached as guaranteed by Chapter IV of the 1999 Constitution of Nigeria.
19.That I swear to this affidavit in good faith in accordance with the Oaths Act, 2004.
My Lords, from a dispassionate perusal of the processes filed by both parties, as reproduced above, it is manifest that the investigations being carried out by the 1st respondent, in response to the petition which was activated by the Investment and Allied Assurance Plc, was firstly, in respect of an alleged issuance of Credit Bond Insurance policies to the 2nd appellant, by the former. Exhibits C and D attached to the appellants’ affidavit at pages 40 and 41 read together with Exhibit 16 attached to the 2nd respondent’s counter affidavit at page 152 of the record of appeal, are apt.
It is evident by the deposition at paragraph 10 of the 2nd respondent’s counter affidavit at page 89 of the record of appeal and Exhibits 15 and 17 attached to the said counter affidavit at pages 144-150 and 154 respectively of the record of appeal, that another fraud was perpetrated by one Mr.John Nnamaka Dimnwobi with respect to a sale of a landed property located at Lekki in Ajah Community at Eti- Osa Local Government Area of Lagos, which is connected to the subject matter of the 1st respondent’s investigation.
The appellants are said to have a hand in that fraudulent sale of the said land by Mr. John Nnamaka Dimnwobi, who was also under investigation by the 1st respondent, in connection with the petition by the Investment and Allied Assurance Plc. The appellants in paragraphs 5, 7 and 7 of their Further and Better Affidavit at pages pages 173 -175 of the record of appeal denied any knowledge of the letter of 14th March, 2017 referred in paragraph 10 of the 2nd respondent’s counter affidavit, aforesaid. However, a perusal of paragraphs 15, 16 and 17 of the 2nd respondent’s counter-affidavit at pages 90 and 91 of the record of appeal, read together with Exhibit 3 made on 29th August, 2013 at the instance of JOEXPORA NIGERIA LIMITED, with Mr. John Nnamaka Dimnwobi, as the Chairman/Managing Director at page 101 of the record of appeal and also Exhibit 4 made on the same 29th August, 2013, at the instance of AUTOMARINE LTD, with the 1st appellant, as the Chairman/ Managing Director at page 105 of the record of appeal, it is as clear as crystal, that the 2nd appellant stood as the Guarantor to JOEXPORA Nigeria Ltd “for the fund sourced for JOEXPORA NIGERIA LIMITED by Pareto Funds and Securities Limited.”
And at paragraph (b) of Exhibit 3 and also paragraphs (f) & (q) of Exhibit 4, there was clear mention of an additional fund of N100,000.00 (One Hundred Million Naira) to be made available to JOEXPORA Nigeria Ltd for “purchase of landed property at Onigbongbo Village, along Lekki – pe Express Way, Eti – Osa Area, Lagos State—-“. It is clear to me that the deposition at paragraph 10 of the 2nd respondent’s counter affidavit, which referred to Exhibits 15 and 17 aforesaid, is with respect to the alleged fraudulent sale of a landed property at Lekki in Eti- Osa Local Govt. Area, Lagos State, by Mr. John Nnamaka Dimnwobi, the Chairman/ Managing Director of JOEXPORA Nig. Ltd. And that the appellants, have a hand in that sale or disposal of the land in question, which was presumably purchased with the sum of N100,000,000 as the additional fund mentioned in Exhibits 3 and 4, aforementioned.
In the circumstances, to my mind, I do not think that the appellants, can in good conscience, feign ignorance of the alleged fraudulent dealing with the use of the additional fund of N100, 000, 000 or the purchase and later disposal of the landed property at Lekki, Eti-Osa, Local Govt Area of Lagos State. Therefore, the bare denials of the depositions at paragraphs 6, 7, 8, 9, 10, 11, 12, 15, 16 & 17 of the 2nd respondent’s counter affidavit, appears very weak and it is through an investigation by the 1st respondent of those allegations against the appellants and any other suspect, that the truth in this matter will be unraveled.
It used to be said and I think that it is a truism that “a good conscience, fears no accusation”. The powers of the 1st respondent with respect to its investigative activities are donated to it by virtue of Section 6 (b) of The Economic and Financial Crimes Commission (Establishment) Act No1, 2004, which provides, inter alia:
“The investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, future market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc.”
I have had cause to comment on the functions and enormous powers of the 1st respondent in Rev. 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. However, what becomes worrisome is when operatives of EFCC dabble into recovery of debt on behalf of private individuals or getting involved in land disputes by individuals.
In Economic and Financial Crimes Commission & 3 Ors v. Philip Odigie (2013) All FWLR (Pt.692) 1797; (2013) 17 NWLR (Pt.1384) 607; the facts therein are that:
The respondent along with his company – Philovia & Jason Engineering Co. Ltd., had filed an action against Nassertex Brothers and Sons Ltd. and another for trespass on the former’s plot of land at Abuja, at the Federal Capital Territory High Court Abuja. Another company Gastex Enterprises Ltd. was joined later as a party in the said action. However, while the suit was pending at the trial Court, the appellants, at the instance of Gatex Enterprises Ltd, arrested the respondent and detained him in Benin City from 24th November 2004 to 25th November 2004 before taking him to Abuja where he continued in the detention cell of the appellants up to 8th December 2004 when he was released from the cell by the appellants.
Consequently, the respondent filed an application at the Federal High Court, Benin City, alleging a breach of his fundamental rights in respect of his arrest in Benin City on 24th November 2004 in his residence at 10.30pm and also his detention in appellants’ cell at Aso Villa, Abuja from 25th November 2004 to 8th December 2005.
He claimed that the arrest and detention infringed on his right to personal liberty and freedom of movement guaranteed under Section 35(1) and 41 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He also claimed the sum of N1,000,000.00 only as general, special and exemplary damages for the infraction of his constitutionally guaranteed rights. The trial Court, after hearing both parties, entered judgment for the respondent and awarded the sum of N1,000,000.00 only to the respondent as general, special and exemplary damages for the violation of his constitutional right.
The Court further ordered that neither the respondent nor any member of his family and staff should be arrested again by the appellants, in respect of the matter, pending the determination of the civil land matter at the Federal Capital Territory, High Court, Abuja. The appeal by the appellants, to this Court, was unanimously dismissed. At page 633 of the report, I did say: “I should make a footnote on this appeal because the application of the respondent at the Court below, manifestly exposed the over-zealousness of some officers of the Economic and Financial Crimes Commission (EFCC). The dreadedness of the name or acronym – EFCC is in respect of its onslaught on the hydra-headed evil called corruption and those who feed fat on it. That should and ought to remain the main focus of the commission. Therefore, where some overzealous officers of the commission veer into matters which do not attack and bite those who are financially corrupt, the integrity and credibility of the commission, is called to question as demonstrated in this matter where through judicial intervention, the commission is enjoined/admonished to re-direct its focus on its main brief.”
It is the facts of that case and the ignoble involvement of some operatives of the EFCC in a land matter which had nothing to do with any crime, which gave rise to that comment. However, the facts of that case are not apposite with those of the instant matter. Nevertheless, the admonition by the Apex Court in Ajao v. Ashiru (1973) N. S. C. C. 525 at 533 is instructive, to wit:
“It cannot be over-emphasized to both high and low that every person resident in this country has a right to go about his or her lawful business unmolested or unhampered by anyone else, be it a Government functionary or a private individual. The Court will frown upon any manifestation of arbitrary power assumed by anyone over the life or the property of another even if that other is suspected of having breached some law or regulation. People must not take the law into their own hands by attempting to enforce what they consider to be their right or entitlement…. Police officers must, therefore, be wary of being inveigled into a situation in which they find themselves becoming partisan agents of wrong-doers in the pursuit of a private vendetta. This kind of a show of power which is becoming too frequent in our society today must be discouraged by all those who set any store by civilized values?”
Then there is the more recent Supreme Court decision in Diamond Bank Plc v. H.R.H. Eze Dr. Peter Opara (2018) LPELR -4390 (SC) per his Lordship, Sidi Bage, JSC., at page 27 that:
“It is important for me to pause and say here that the powers conferred on the 3rd Respondent, i.e the EFCC to receive complaints and prevent and or fight the commission of Financial Crimes in Nigeria pursuant to Section 6 (b) of the EFCC Act (supra) does not extend to the investigation and/or resolution of disputes arising or resulting from simple contracts or civil transactions in this case. The EFCC has an inherent duty to scrutinize all complaints that it receives carefully, no matter how carefully crafted by the complaining party, and be bold enough to counsel such complainant to seek appropriate/lawful means to resolve their dispute.”
His Lordship, furthermore succinctly stated at pages 29-30, that:
“What is even more disturbing in recent times is the way and manner the Police and some other security agencies, rather than focus squarely on their statutory functions of investigation, preventing and prosecuting crimes, allow themselves to be used by overzealous and unscrupulous characters for the recovery of debts arising from contracts, loans or purely civil transactions. Our security agencies, particularly the Police, must know that the citizenry’s confidence in them ought to first be ensured by the agencies themselves by jealously guarding the integrity of the uniform and the powers conferred on them. The beauty of salt is in its taste. Once salt loses its own taste, its value is irredeemably lost. I say this now and again, our security agencies, particularly the Police, are not debt recovery agencies. The agencies themselves need to first come to this realization, shun all entreaties in this regard and they will see confidence gradually restored in them. Where we are now in this country is that place where our ‘Men in black and blue’ command almost no respect from the citizenry because of how low we have sunk. But it is my belief which belief, I must say I hold very dearly, that all hope is not lost. Many women and men of deep integrity are in our security agencies, and they only need to rise now to the occasion.”
My Lords, I must say that the facts and circumstances in Rev.Fr. (Dr.) Obiorah v. FRN, supra; Odigie v. EFCC, supra and also Diamond v. Opara, supra, are not the same with the facts in the instant case. I do not agree with the appellants’ counsel when he contended to the effect that the 1st respondent is pursuing the appellants as a debt collector, in the circumstances of this matter. On the other hand, I am in agreement with the finding by the learned trial judge to the effect that the appellants filed the pseudo application for the enforcement of their 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. 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 two issues in this appeal, against the appellants.
The appeal is consequently dismissed.
In effect, the ruling rendered by I.N. Buba, J., at the Federal High Court, Lagos Division, Lagos, in re – Suit NO: FHC/CS/583/2017, on 27th October, 2017, is hereby affirmed. Costs of N200, 000, 00 is awarded to the 2nd respondent against the appellants.
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 had the opportunity of reading in draft the judgment of my learned brother TOM SHAIBU YAKUBU, JCA just delivered. I am in agreement with the reasoning and conclusion therein. The appeal lacks merit and it is accordingly dismissed. The Ruling delivered by BUBA, J in suit No: FHC/CS/583/2017 is accordingly affirmed. I also abide by the order as to costs and all other consequential Orders in the lead judgment.
Appearances:
Mrs. O.O. Odubela For Appellant(s)
H. A. Bello, Esq. with him, Mrs. A. E. Olufemi & Miss Amina Marafa for 2nd Respondent For Respondent(s)
