PRINCE SEGUN SERIKI & ORS v. THE CHAIRMAN, THE ECONOMIC AND FINANCIAL CRIMES COMMISSION & ANOR
(2019)LCN/12866(CA)
In The Court of Appeal of Nigeria
On Monday, the 18th day of March, 2019
CA/L/1304/2016
RATIO
FUNDAMENTAL RIGHT: WHETHER THE RIGHT TO LIBERTY CAN BE RESTRICTED
“The Courts are enjoined to defend and resist even mere threats to infringe upon any of such rights. See the cases of RANSOME KUTI V A.G. FED (2001) FWLR (PT 80) 1637 at 167, UZOUKWE V EZEONU ll (1990) NWLR (PT 2000 708 at 784. The same Constitution also recognizes instances where the right to liberty of a person may be restricted legally. See DOKUBO ASARI V FGN 2007 LPELR 955 (SC)…A person’s liberty, as in this case, can also be curtailed in order to prevent him from committing further offence(s). It is my belief as well that if every person accused of a 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.” See also HASSAN V EFCC 2014 1 NWLR (PT 1389) PG607 at 637, NZEWI V COP (2000) 2 HRRLA 156.”
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
1. PRINCE SEGUN SERIKI
2. SODIPO SEMIU
3. MRS. BISOLA CLARK
4. HON. TITI OSENI Appellant(s)
AND
1. THE CHAIRMAN, THE ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC)
2. THE MINISTER OF JUSTICE AND ATTORNEY GENERAL OF THE FEDERATION Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment):
This appeal flows from the judgment of the Federal High Court, Lagos division, per IDRIS, J (as he then was) delivered on 17th October, 2016 refusing to grant the reliefs sought by the Appellants and being dissatisfied the Appellants filed a Notice of Appeal dated and filed 18th October, 2016.
The summary of the facts is that the Appellants are and were at all material times to the action members of the Peoples Democratic Party (PDP) in Ogun State and were involved in the activities and campaign of the party in Ogun State at the last general elections in 2015. The 1st Appellant was the Ogun State coordinator of the Jonathan/Sambo Campaign Organization for the 2015 elections, the 2nd Appellant is the State Secretary of the PDP in Ogun State while the 3rd Appellant was candidate for Ogun central senatorial seat.
The Appellants soon after the elections and the swearing in of the new administration were inundated with telephone calls from officers of the 1st and 2nd Respondents threatening to arrest and detain them indefinitely unless they refunded the sum of 500 million naira which they claimed the Appellants collected from the Federal Government coffers. Appellants alleged that despite letters explaining their role in the campaign the officers continued their threats hence they filed an action in enforcing their fundamental rights which were likely to be contravened and infringed upon.
The Appellants brief was filed on 30/10/17 and the Reply brief was filed 2/5/18 but deemed 7/2/19. Brief was settled by R. A. Oluyede; Ifeoma Esom; Mobolaji Akintunde of TRLPLAW. An issue was distilled thus:
Whether the lower Court was right when it held that there was only one telephone call made by the Respondents to Appellants and refused to restrain the Respondent from infringing the fundamental rights of the Appellants as sought in reliefs 1 and 2 of the appellant?s motion on notice before the lower Court.
The 1st Respondent’s brief of argument was dated 29/3/18 and filed 16/4/18 but deemed 7/2/19 and it was settled by Modupe O. Akinkoye of Ayanfe Ogunsina, Esq wherein an issue was also distilled:
Whether the refusal of the lower Court to restrain the 1st Respondent has occasioned any miscarriage of justice?
In my view the issue of the 1st Respondent which embraces that of the Appellants shall form the issue for resolution while taking the issue of the Appellants into consideration.
COUNSELS SUBMISSIONS
Appellants counsel referred to page 258 of the record of appeal and submitted that the lower Court?s finding was predicated upon the erroneous premise that the Respondents made only one telephone call to the Appellants inviting them for interview in respect of some allegations. That paragraphs 30 – 38 and 50 – 55 of the affidavit in support of the fundamental rights application show that the Appellants had been receiving constant telephone calls from officers of the 1st Respondent.
Counsel submitted that the 1st Appellant also deposed to the facts that he has been receiving visits in his house, gave details of at least two telephone calls from one Mr Olusa; in paragraph 36 of his affidavit before he wrote to the Commission to explain his part in campaign. He relied on KAYODE V FRN (2017) LPELR ? 41865 (CA) PG 23, OMATSEYE V FRN (2017) LPELR ? 42719 (CA), SOGBAMU V ODUNAIYA (2013) ALL FWLR (PT700) 1247 at 1307, OBAJIMI V ADEOBI (2008) 3 NWLR (PT 1075), CDC (NIG) LTD V SCOA (NIG) (2007) 6 NWLR (PT 1030) 300.
He submitted that the Court stated at page 259 of the record that:
The reliefs sought in my view are too wide and generally unrelated to the issue of fundamental rights enforcement
Constant and repeated calls and invitation by the security agency over the same allegation can amount to an infringement of liberty as guaranteed under constitution.”
The Appellants counsel also submitted that it was a case where the Appellants were seeking protection from the improper use of power by the Respondents. He then relied on LUNA V COMMISSIONER OF POLICE RIVERS STATE POLICE COMMAND & ORS (2010) LPELR – 8642 (CA) PG 16-17 PARA F ?A, ANOGWIE & ORS V ODOM & ORS (2016) LPELR ? 40214 (CA) AT 17 – 18. He referred to paragraph 21 of the further affidavit in response to the 1st Respondent counter affidavit and submitted that the lower Court ought to have granted the application.
The 1st Respondent’s counsel on the other hand referred to Sections 5, 6, 7, 8 and 41 of the EFCC Act, 2004 and submitted that it?s in furtherance of its duty that 1st Respondent invited the Appellants via phone call which they did not honour. While the investigation was going on the Appellants approached the lower Court seeking to enforce an alleged breach of their fundamental rights.
Counsel submitted that the Appellants failed to prove that the 1st Respondent made constant and repeated calls to the irritation and harassment of Appellants to say the least they refused to put forward any shred of evidence, call logs or whatever to tilt the balance in their favour before the lower Court. He referred to ADEKUNLE V AG OF OGUN STATE (2014) LPLER-22569 (CA), DERIBA V STATE (2016) LPELR ? 40345.
He submitted that the Appellants failed to show that the conclusion reached by the lower Court is perverse, which is the only reason why an Appeal Court will be able to interfere with the decision. He distinguished the cases cited by Appellants and further submitted that granting of an injunction against the Commission would amount to interfering with the roles and or duties of the Commission by the judiciary.
He submits that the 1st Respondent must be allowed to conduct their investigations to enable them determine whether a crime has been committed. He referred to PETER V OKOYE (2002) 3 NWLR (PT 755) 529 AT 537. He submitted that an injunction would amount to interfering with the findings of facts by the lower Court and unnecessarily restraining the 1st Respondent from performing its constitutional statutory function of investigating the complaint of economic and financial crimes submitted to the commission for investigation. And does not qualify under Section 46 of the 1999 Constitution (as amended). He referred to UZUOKWU & ORS V EZEONU ll & ORS (1991) 6 NWLR PT 200 PG 708 AT 784 PARA C-E, SEA TRUCK NIG LTD V ANIGBORO (2001) 2 NWLR (PT 696) 19 to the effect that the reliefs dictate the claim of the applicant.
1st Respondent counsel also submitted that Section 46(1) of the 1999 Constitution (as amended) provides for three closely but distinct factors for the enforcement of fundamental right:
1) When the fundamental right has been contravened;
2) When the fundamental right is being contravened; and
3) When the fundamental right is likely to be contravened.
He referred to Section 35(1) (c) of the 1999 Constitution (as amended), in conjunction with Sections 6 – 7 of EFCC Act, 2004, that Section 45 (1) permits a derogation of the fundamental rights, and that all freedoms are limited by state policy. He referred to BADEJO VS MINISTER OF EDUCATION (1996) 8 NWLR (PT 464) 15 AT 19, FAWEHINMI VS IGP (2000) 7 NWLR (P 665)489, RVS COMMISSIONER OF POLICE, EX PARTE BLACKBURN (1968) 2 QB 118 AT 136, AG ANAMBRA STATE VS CHRIS UBA (2005) 15 NWLR (PT 947) 44 AT 50-53, NZEWI VS COP (2000) 2 HRLRA 156, that no Court of law can make an order capable of turning a citizen into an outlaw.
Finally he cited OKANU VS COP (2001) 1 CHR (CASE ON HUMAN RIGHTS) at 412.
In the reply, the Appellants counsel submitted that 1st Respondent?s submission is erroneous and not supported by law. That the appellate Court can re-evaluate evidence. He referred to EZEUDU V JOHN (2012) 7 NWLR (PT 1298) 1, 15, NWOKO V AZEKWO (2012) 12 NWLR (PT 1313) 151, 179, DURU V NWOKE (2015) 15 NWLR (PT 1483) 417 481, ALELU V EZE (2015) 3 NWLR 9 (PT 14750) 74 116- 117, DURUAKU V NWOKE (Supra).
Counsel urged the Court to follow the decision of FRN V IFEGWU (2003) 15 NWLR (PT 842) 113 AT 184, OBIEGUE V AG FEDERATION & ORS (2014) 5 NWLR (PT 1399) 171.
Appellants counsel contended that they do not want interference in the functions of the 1st Respondent but that their constitutionally guaranteed rights be enforced. He relied on RANSOME KUTI V AG FED (2001) FWLR (PT 80) 1637 at 1677, FBN PLC V AG FEDERATION (2014) 12 NWLR (PT 1422) 470, EZEADUKWA VS MADUKA (1997) 8 NWLR (PT 518) 635 at 660 – 661 PAR A.
RESOLUTION
This is an enforcement of fundamental human rights appeal for certain reliefs herein reproduced:
1. A DECLARATION that the harassment and threats by the 1st Respondent, to arrest and detain the Applicants (based on the false allegation of knowingly receiving government funds for Political Party electoral purposes as made against them by the 1st & 2nd Respondents) are ultra vires, wrongful, oppressive, unconstitutional and constitute a breach or likely breach of the Applicant?s Fundamental Rights to freedom of movement, liberty and to be presumed innocent until proven guilty as guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 and the African Charter of human and People Rights.
2. AN ORDER of injunction restraining the Respondents, by themselves, their Agents or servants from further harassing, arresting, inviting and or preventing the Applicants from enjoying their fundamental Rights (to freedom of movement, liberty and to be presumed innocent until proven guilty as guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 and the African Charter of human and Peoples Rights) on the basis of the false allegation of knowingly receiving government funds for Political Party electoral purposes or any other imagined offence predicated on this false allegation.
3. AN ORDER directing the 1st and 2nd Respondents by themselves or through their agents, privies or associates to hold the 3rd Respondent and his allies accountable for any breach of law in the way and manner the funds for the 2015 Presidential Campaign were raised, rather than the Applicants who did not participate in any fund raising/sourcing nor were informed of any criminal circumstances regarding the funds used to campaign for the 2015 Presidential elections for the PDP.
4. A DECLARATION, that the Applicants having to the best of their knowledge and ability, fulfilled the instruction of Mr. Peter Obi, then the Deputy Director General of the Presidential Campaign Organisation (PCO) Jonathan/Sambo 2015, without involvement in any alleged criminal sourcing of the said funds, could ONLY have civil matters with Mr. Peter Obi, and not any criminal matter as being portrayed by the 1st and 2nd Respondents.
Clearly the main claim determines the cause of action of an application. In this case the first relief is couched in terms of Chapter 4 of the 1999 Constitution (as amended). In EMEKA V OKOROAFOR & ORS (2017) LPELR – 41738 (SC) on the issue whether the enforcement of fundamental right should be the main claim in an application brought under the Fundamental Rights Enforcement Rules:
“When the main or principal relief or redress cannot be raised or enforced under the FREPR; it is immaterial that in the course of committing the cause of action for the main complaint some ancillary breaches of fundamental rights were committed. See TUKUR v. GOVT. OF TARABA STATE (1997) 6 NWLR (pt.510) 549; UNIVERSITY OF ILORlN & ANOR. v. OLUWADARE (2006) 6 – 7 SC. 154; JACK v. UNIVERSITY OF AGRICULTURE, MAKURDI (2004) 1 SC (Pt.2)100 – all binding decisions of this Court, applied by the Court below particularly at page 778 of the Records.”
The first point of call herein is whether the issue on harassment/threats by the 1st Respondent to arrest and detain the Appellants have been proved and if so whether they are within the statutory duties of the 1st Respondent?
In paragraphs 18, 19, 20, 21, 22 and 23 of the grounds in support of the application upon which the reliefs were sought, and paragraphs 30, 31, 32, 33, 34, 35 and 36 of the supporting affidavit are depositions of alleged harassment catalogued by the 1st Appellant. They are reproduced below:
GROUNDS UPON WHICH RELIEFS ARE SOUGHT:
18. The Respondents (particularly the 3rd Respondent) are very much aware that the Applicants have committed no offence but nevertheless are intent on allowing the arrest, detention, persecution and humiliation of the Applicants by junior officers of the 1st respondent as a means of extorting 500 million Naira from the Applicants for no justifiable reason.
19. The Applicants have received calls from persons who claim to represent the 1st and 2nd Respondents enquiring about funds they allegedly received from Fidelity Bank Plc as part of a bribery project.
20. The Applicants have been threatened with summary arrests and detention, if they do not ?cooperate” and give up themselves and effect immediate refund of Federal Government funds that they took from the former National Security Adviser, Col. Sambo Dasuki.
21. The Applicants have indicated to these persons that they are not aware that any funds were allocated to the Party or its members for a bribery project and that even if it were so they certainly did not participate in any such bribery project.
22. Threats have been made in the course of these telephone discussions that unless the Applicants ?refund? the total sums received by them to the 1st Respondent within the next 7 days they would be arrested and detained indefinitely.
23. Mr. Olusa of the Procurement Fraud Section (PFS) of the 1st Respondent, called the 1st Applicant with GSM No: 0705 421 7128, asking questions concerning ?the money collected from Fidelity Bank and monies paid to INEC, and despite the denial by the 1st Applicant of the allegations of Mr. Olusa, the 1st Applicant was invited to the 1st Respondent Office at No: 15A, Awolowo Road, Ikoyi, Lagos where he would be detained until he refunded the sums collected by him from Fidelity Bank Plc. He was the only person among those that have issued these threats that civilly disclosed his identity.
SUPPORTING AFFIDAVIT
30. Notwithstanding the above facts that are well known to the Respondents, the 2nd and 3rd Applicants and I have been besieged by telephone calls threatening to arrest and detain us indefinitely unless we refund the 500 million Naira that the 3rd Respondent made available as narrated above, for the presidential elections activities of our Party and Presidential Campaign Organization.
31. That persons who claimed to be operatives and officers of the 1st Respondents visited my home when I was out of my home, and demanded fiercely to see me, and stayed on my premises for hours in my house, insisting to wait until I return home.
32. That another set of persons, who said they were officers of the 1st Respondents came to my home again, and left a strongly worded message that unless I came to their office to tell them the whereabouts of the monies that I collected from the Federal Government of Nigeria, through INEC and Fidelity Bank, the same horrible fate that others on their list is facing is what I will also face.
33. That I have received unidentified calls from unknown phone lines that tried to seek information about my location, and that ended up to threaten my life and liberty, if I do not yield myself up immediately.
34. That I believe verily that all these calls are from agents of the 1st Respondents, because they all speak of the same subject matter and all required me to report to their office.
35. That calls threats and direct invitations have been issued at various times other Applicants.
36. That I was subsequently called by one Mr. Olusa, an agent of the 1st Respondent, who told me the allegations were brought against me by the Federal Government of Nigeria.
On the part of the 1st Respondent, at page 83 of the record, one Mr Olusaan investigating officer mentioned in the affidavit of the 1st Appellant deposed to a counter affidavit and held in paragraphs 5, 6, 7, 8, 9, 10, 11 & 14 that the intelligence report was the reason for the contact to the 1st Appellant and that it was federal government funds traced to them which had to be recovered but even at that, a single phone invitation followed up by messages were made. He specifically stated that none of his team members made follow up calls nor visited. The paragraphs stated are herein reproduced:
5. That the Commission received an intelligence report from the Federal Government sometime in April, 2016 disclosing that several monies that had been paid into Fidelity Bank for the Jonathan/Sambo Campaign Organisation were monies belonging to the Federal Republic of Nigeria.
6. This raised great concern and the Commission swung into action by setting up a special task force to investigate and verify the claims made in the intelligence report.
7. In the course of investigation, we discovered that some monies were collected by the Applicants at different times amounting to the sum of N500,00.00 (Five Hundred Million Naira).
8. that based on the investigation being conducted and considering the weighty allegations levelled against the Applicants, the Applicants were invited by the Operatives of the 1st Respondent with a view to obtaining their own reactions to the allegation.
9. Specifically the invitation of the Applicants was done vide a phone call on the 10th May, 2015 and a follow up …on the same day. The Applicants did not honour the invitation extended to them.
10. That the Applicants were invited to assist in the investigation into the allegation of money laundering and stealing and in view of the fact that the investigation is on-going.
11. That the Applicants were not molested, harassed, threatened or even arrested.
14. That paragraphs 30, 31, 32, 33, 34 and 35 of the Applicants affidavit are not true but an outright falsehood and figment of the Applicants imagination aimed at misleading this Honourable Court as the 1st Respondent categorically state that apart from the phone call made on 10th May, 2016 no other calls have been placed to the
Applicants and neither me nor other member of my team have visited the 1st Applicant?s house at any time nor threatened him.
The 2nd Respondent filed a 46 paragraphs counter affidavit deposed to by Felicia Des Boardes, litigation clerk in the office of Attorney General of the Federation along the same lines as the 1st Respondent denying any harassment and paragraphs 7, 8, 13 & 14 are to the effect that they were not aware of any harassment, invitation and that its speculation.
7. That I am unaware of any invitation, manhunt or warrant of arrest issued against the Applicants by any of the 1st and 2nd respondents as averred in their Affidavits particularly in paragraph 55 of their affidavit and even if there is any, the 1st Respondent reserve the Constitutional right to extend such invitation to any citizen including the Applicants in the course of any investigation as that will not be an violation of the right of that person.
8. That the averments in paragraphs 51-57 of the affidavit are unfounded as the alleged harassment of the Applicants by the 1st and 2nd Respondents are not substantiated by any concrete proof and such is not exhibited in the Applicant’s originating processes.
13. That paragraph 56 of the Applicants? Affidavit is questionable as the 1st Applicant in his 58 paragraph affidavit never mentioned that he was earlier arrested by the agents of the 1st and 2nd Respondents and should be struck out for offending the provision of the Evidence Act.
14. That I know that if the reliefs of the Applicants are granted, then the 1st and 2nd Respondents will be constrained from performing their constitutional duties of investigating suspicious of criminal offences.
The 2nd Respondent even stated that a grant of the application would amount to constraining the 1st Respondent from performing their duty of investigation of suspicions movement of government funds.
There was no further affidavit made refuting this deposition. It is trite that he who asserts must prove. The 1st Appellant said unknown numbers called to make threats and visited and left threatening messages for him, but did not attach any transcript of such calls nor what exactly was left as a message; if written or oral and neither the recipients of these messages deposed to an affidavit. The 1st Appellant also did not mention names, places and time of occurrence in other to verify the authenticity of the harassment. See ADENIJI V ONAGORUWA (2000) NWLR PT 639 at 1.
I therefore agree with the lower Court that one single phone call does not amount to harassment or breach of fundamental right.
The EFCC operates like the Police. Its either a policeman comes physically to invite you or an invite is sent or even a phone call is made to the citizen drawing his attention to an issue requiring his physical presence and if such attends he is either allowed to go and come back or detained and if beyond 24hours an order is obtained from a Court for this. Therefore the modus of the 1st Appellant is in order.
The 1st Appellant has deposed in ground 24 and paragraph 55, 56, & 57 of the affidavit of facts:
24. it is in fear of the threats and recognition that in recent times the 1st and 2nd respondents have been acting as if they are above the law that the Applicants seek refuge in this honourable Court to protect them against the intended abuse of office by the 1st and 2nd respondents aided by 3rd respondent and the consequent breach of their fundamental rights to freedom of movement, liberty and to be presumed innocent until proved guilty as guaranteed by Constitution of the Federal Republic of Nigeria and the African charter of Human and peoples rights.
53. …I perpetually live in fear of what could happen to me as I am also aware, that I am not likely to be fairly treated if I should report in the office of the 1st respondent.
54. The other Appellants told me and I verily believe that they have similar fears and anxieties.
56 … That our freedom of movement, liberty dignity and right to be presumed innocent until proved guilty are likely to be trodden upon if the 1st and 2nd respondent are allowed to carry out their threats to re arrest me and other applicants without any lawful justification.
The above extracts are the reason for this application to the Court; it is covered by Section 46(1) of the Constitution (as amended) which recognizes a fear of a breach of fundamental human rights. This is understandable, it is the ‘fear of the unknown’, the ‘fear of it happened to someone.’ Since the Constitution has recognized it which I also take judicial notice of breaches here and there in Nigeria.
The Courts are enjoined to defend and resist even mere threats to infringe upon any of such rights. See the cases of RANSOME KUTI V A.G. FED (2001) FWLR (PT 80) 1637 at 167, UZOUKWE V EZEONU ll (1990) NWLR (PT 2000 708 at 784. The same Constitution also recognizes instances where the right to liberty of a person may be restricted legally. See DOKUBO ASARI V FGN 2007 LPELR 955 (SC) where it was held thus:
“Now, let me turn to the provisions of Section 35 of the Constitution. These provisions in the first place are not absolute. The relevant provisions of the section are as follows: “35(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law –
(c) For the purpose of bringing him before a Court in execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence;
(4) Any person who is arrested or detained in accordance with Subsection (1)(c) of this section shall be brought before a Court of law within a reasonable time, and if he is not tried within a period of:
(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail; or
(b) three months from the date of his arrest or detention in the case of a person who has been released on bail. he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.
(7) Nothing in this section shall be construed –
(a) in relation to Subsection (4) of this section, as applying in the case of a person arrested or detained upon reasonable suspicion of having committed a capital offence; and
(b) as invalidating any law by reason only that it authorises the detention for a period not exceeding three months of a member of the armed forces of the Federation, or a member of the Nigeria Police Force in execution of a sentence imposed by an officer of the Armed Forces of the Federation or of the Nigeria Police Force, in respect of an offence punishable by such detention of which he has been found guilty.” (italics supplied for emphasis).
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 and by virtue of Subsection (1)(c) thereof which permits restriction on individual liberty in the course of judicial inquiry or where, lightly 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 my belief as well that if every person accused of a 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.” See also HASSAN V EFCC 2014 1 NWLR (PT 1389) PG607 at 637, NZEWI V COP (2000) 2 HRRLA 156.
Therefore the umbrella provided in Section 35 is qualified and not absolute. The case here falls under the exceptions in Section 35(c) of the Constitution, in that there is an anti-corruption drive. Certain monies to the tune of 500 million naira were traced to the Appellants and invitations made to them which they refused to report voluntarily or honour the invitation even in the presence of their lawyers. The Appellants stated that they wrote a letter explaining their role. The interesting issue here is they have not seen the intelligence report or evidence against them to aptly answer the allegations.
Its pertinent to note that, it is after due investigation that roles in an alleged crime would be identified and if found culpable then the next step will be taken. But even at that there is provision for administrative bail if the detention is over 24hours or for a Court order to detain for a longer period.
At this stage I am afraid there has been no breach of the Appellants’ fundamental rights. Instead it is the Appellants who are in disobedience of a lawful invitation which if not obeyed could result in arrest and detention or denial of bail. See the case of ORJI UZOR KALU V FRN & ORS (2012) LPLER 9287.
This brings me to an important point the 3rd relief sought for in application. This relief cannot be acceded to by this Court for the simple reason that the 1st Respondent were merely carrying out their duties and it will amount to limiting/stopping the 1st Respondent from performing their duties and would negate the anticorruption in the polity in political class. The system of future election has to be sanitised for the sake of true democratic process. See also Section 45 of the Constitution (as amended):
NOTHING in Section 37, 38, 39, 40, & 41 of this Constitution shall invalidate any law that is reasonably justified in a democratic society
a.) in the interest of defence, public safety, public order, public morality or public health or
b) For the purpose of protecting the rights and freedom or other persons.
Section 6 (1) of the EFCC Act:
The Commission shall be responsible for:
The determination of the extent of financial loss and such other losses by government, private individuals or organization.
The allegation herein in my humble view is tending towards a criminal allegation, an economic crime and until investigated it cannot be wished away.
More importantly the dictum of KATSINA ALU in ATTORNEY GENERAL OF ONDO STATE V ATTORNEY GENERAL OF THE FEDERATION 2002 FWLR 772 P22 AT 364 PARA G-H & FAWEHINMI V IGP (2002) 7 NWLR (PT 767) 606 captures it beautifully:
Corrupt practices and abuse of power spread across and eat into every segment of the society. These vices are not limited to certain
Finally one must not close its eyes to the voiced out fear of the Appellants and I reiterate the lower Court’s caveat that the 1st Respondent shall not harass, intimidate, restrain the Appellants in the enjoyment of their legal rights guaranteed under the Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples Right. (Ratification and Enforcement) Act UNLESS in accordance with due process and procedure laid down by the Constitution itself.
The perception of the Appellants and other citizenry should be taken into consideration by the 1st Respondent to present a professional human face to strengthen its image and not that of a vendetta.
On the whole the appeal fails and it is accordingly dismissed. The judgment of the Federal High Court, Lagos delivered on 17th October, 2016 is hereby upheld. There shall be no order as to cost.
JOSEPH SHAGBAOR IKYEGH J.C.A.: I agree with the succinct judgment prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, J.C.A., which I had the benefit of reading in draft.
TIJJANI ABUBAKAR. J.C.A.: My learned brother Obaseki-Adejumo JCA granted me the privilege of reading in draft the leading Judgment just delivered. I am in full agreement with the reasoning and conclusion and endorse the Judgment as my own, I have nothing extra to add.
Appearances:
Mobolaji AkintundeFor Appellant(s)
A.B.C Ozioku with him, J. J. Amatuam for 1st RespondentFor Respondent(s)
