ACCESS BANK PLC v. AGBASIERE
(2022)LCN/15973(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Friday, March 11, 2022
CA/AW/297/2021
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
ACCESS BANK PLC APPELANT(S)
And
BARR. ANTHONY KELELCHI AGBASIE RERESPONDENT(S)
RATIO
WHETHER OR NOT AN ORDER CAN BE MADE AGAINST A NON-JURISTIC PERSON
The trite law is that an order cannot be made against a non juristic person. See AGBONMAGBE BANK LTD VS GEN MANAGER GB OLLIVANT LTD (1961) ANLR 116. PER MAHMOUD, J.C.A.
THE DUTY OF THE POLICE WHERE THERE IS AN ALLEGATION OF CRIME AGAINTS A CUSTOMER OF A BANK
It is also settled law that where there is an allegation of crime against a customer of a bank in relation to the funds in his account. The police is empowered by law to set in motion the process of investigating any such funds perceived to be derived from the proceeds of crime. However, in conducting the investigation the police must in all cases observes due process and satisfy the requirement of the law.
By virtue of the provisions of Article 2:2:1 of the CBN Consumers Protection Frame Work, customers assets and privacy, Customer financial and personal information shall not be released to any third party without the consent of the customer except as required by the law.
Article 2.6 2 (2) provides Financial institutions shall not reveal customers’ information to a third party except in the following
(a) …
(b) ….
(c) Where there is Court Order.”
Like the trial judge rightly found, the powers of the police in the extant law is only for investigation purposes. In other words, the law enjoins them to inspect and if desirable make copies of documents or material pertaining to the subject matter of the investigation. Such power of the Police does not and can never include the power to freeze an account without a Court Order. The “Supreme Magistrate Court of the FCT Dutse” is not a Court known to law. The argument of the appellant that an order of Court subsists until set aside is of no moment when it has not been shown that the order was indeed issued by a Court of competent jurisdiction, as the Court order was signed by a “Supreme Magistrate Court of Federal Capital Territory Dutse” and made against Access Bank, a non legal entity pursuant to a non existing law, the Bankers Order Act, 1847”. PER MAHMOUD, J.C.A.
ATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Anambra State High Court sitting at Awka and delivered on the 19th July, 2021 by Hon. Justice Chukwudi C. Okaa.
The plaintiff/respondent in an action for the Enforcement of his Fundamental Rights claimed against the defendant/appellant the following four reliefs:
a. A declaration that the action of the Respondent freezing and/or placing a hold on the Appellant’s bank account No. 0086239935 with the Respondent [Access Bank Plc (Diamond)] is unlawful, unconstitutional and a veritable contravention of the Applicant’s fundamental right to moveable properties guaranteed by Section 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
b. An order of the Court directing the Respondent to defreeze and/or release forthwith the restriction placed on the Applicant’s Bank Account No. 0086239935 with the Respondent [Access Bank Plc (Diamond].
c. N50,000,000.00 (Fifty Million Naira) general damages against the Respondent for contravening the Applicant’s Fundamental Right as guaranteed under Section 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
d. A perpetual injunction restraining the respondent from unlawfully freezing the Applicant’s Bank Account NO. 0086239935 with the respondent.
The case of the plaintiff/Respondent in the lower Court was that his account with the defendant/appellant with cash credit in it was frozen or restricted by defendant/appellant denying the plaintiff/respondent access to the said cash contrary to Section 44(1) of the 1999 Constitution. The defendant/appellant admitted freezing/restricting the plaintiff/respondent’s account but premised it on Exhibit ‘A’ a letter from the office of the AIG Zone 7, Abuja with a purported Court order from a magistrate Court in September, 2020, seven months earlier.
Parties settled and exchanged their affidavit, counter affidavit and Reply on points of law. At the conclusion of hearing, the trial Court found in favour of the plaintiff/respondent and awarded damages to him in the sum of N3,000,000 as well as cost of N100,000 for breach of his fundamental rights.
Unhappy with this decision, the defendant/appellant by a Notice of Appeal filed on the 16th September, 2021 appealed to this Court on two grounds. The Appellant however filed a second Notice of Appeal on the 20th September 2021. It is perhaps necessary to reaffirm the position of the law whether raised by parties or not that the filing of more than one Notice of Appeal does not in any way affect the validity or competence of the appeal, provided that both notices are filed within the statutory period of appeal. See TUKUR V GOVT GONGOLA STATE (1988) 11 NWLR, PT 68, 39, and SALEH V ABAH & ORS (2017) LPELR – 41914 (SC). As stated earlier, the judgment giving rise to this appeal was delivered on the 19th July, 2021. It is a final judgment and so the appellant is entitled to three months within which to appeal. This means that technically the appellant has up to 15th October, (add or subtract two days) to file his Notice of Appeal. The two Notices of Appeal filed on the 16th and 20th September, 2021 respectively are therefore both valid and competent. Having based his brief on the latter Notice of Appeal of 20th September, 2021, the necessary inference is that the appellant has abandoned the earlier Notice filed on the 16th September, 2021.
The appeal premised on this latter Notice of Appeal contains the following four grounds with their particulars thus:
GROUND 1
The learned trial Judge erred in law when in assuming jurisdiction to entertain this suit he held as follows: –
“from the facts before (sic) the main complaint of the Applicant is not connected to the bankers customer relationship which is contractual. The main complaint is that the applicant’s right to operate his account which has been frozen by the Respondent without an order of a Court amount to breach of his fundamental right to movable property guaranteed by Section 44 (2) (c) of the Constitution of the Federal Republic of Nigeria. I hold therefore that the claim before me is competent and that this Court has jurisdiction”.
Particulars of Error
i. The Respondent brought this suit under Fundamental Rights (Enforcement Procedure) Rules.
ii. Relief (a) in Respondent’s statement in support of the originating motion sought the Court’s declaration that the freezing or replacement of restriction on respondent’s account was in contravention of Respondent’s fundamental Right, as guaranteed under Section 44 of the Constitution of the Federal Republic of Nigeria 1999.
iii. Relief (a) being the Respondent’s principal calm does not qualify as falling under the fundamental rights proceedings as envisaged by Order 1 Rule 2(1) of Fundamental Rights (Enforcement Procedure) Rules 2009 or Section 44 (1) of the Constitution of the Federal Republic of Nigeria.
iv. The learned trial Judge holding that the claim before him is competent and thereby assuming jurisdiction is perverse.
GROUND 2
The learned trial Judge erred in law when he held as follows: –
“Having thoroughly examine (sic) the document upon which the Respondent froze the account of the Applicant. I found that the said document was not addressed to the Respondent. It was rather addressed to ACCESS BANK and I am aware that the Respondent is known and called ACCESS BANK PLC and I have not been told that ACCESS BANK is a body known to law and the so called bankers order was also made against Access bank and not ACCESS BANK PLC.”
Particulars of Error
i. The Respondent instituted this action against the Appellant and described the Appellant as the Bank having its branch at Onitsha/Enugu Expressway, Awka where the Respondent claimed he visited to make enquires about his account allegedly frozen by the Appellant.
ii. The Parties in the suit were never in doubt about the bank described by the Appellant in his suit before the Court, just as the parties were not in doubt the person to whom the Banker’s Order or police directive was meant for.
iii. What determines the jurisdiction of Court on a matter is the claim of the Plaintiff, in this case, the Respondent.
iv. The Respondent did not raise any concern regarding the way or manner the Appellant was described in the document forwarded to the Appellant, by the police.
v. The learned trial judge’s judgment holding that Access Bank is a body unknown to law and that the order was made against Access Bank and not Access Bank Plc, clearly did not emanate from what parties in the case presented before the Court.
GROUND 3
The learned trial erred in law when he held as follows:
“I have extensively researched and I have not seen any existing known law known as Banker’s Order 1847, rather what I found was Banker’s Book Act 1879. That being so I hold that the Bankers Order in issue upon which the Respondent acted was issued pursuant to a non existing law therefore a fortiori, null and void.”
Particulars of Error
i. An order of Court, irrespective of how it was perceived must be obeyed until set aside by a Court of competent jurisdiction.
ii. The Respondent took no steps to approach the Court to set aside the order upon getting wind of same.
iii. The learned trial judge in arriving at his conclusion to the effect that the Bankers Order, on the strength of which the Appellant acted was issued pursuant to a non-existing law, was in total disregard to the Court of Appeal decision in International Bank of West Africa V Kennedy Transport Nigeria Limited (1993) NWLR, on the subject issue.
GROUND 4
The trial judge erred in law when he awarded the sum of N3,000,000.00 (Three Million Naira), as damages and costs in favour of the Respondent against the Appellant.
Particulars of Error
i. Award of exemplary damages and costs in fundamental rights proceedings is made in favour of an Applicant who has proved a breach of his rights by the Respondent.
ii. The Respondent did not prove that the conduct of the Appellant was malafide or caused any harm or damage to him to warrant the award of the sum of N3,000,000.00 (Three Million Naira) or any sum at all to him, by the Court.
In prosecuting the appeal, the appellant settled its brief on the 30th November, 2021 through his counsel, MR. C. P. Oguchienti. In it the appellant formulated a lone issue from the four grounds as follows:
“Whether the trial Court did not act outside the scope of its jurisdiction in holding that the Fundamental Right of the Respondent was breached and awarding damages and costs thereby. Grounds 1, 2, 3 and 4.”
The Respondent on his part had his brief settled by MR. E Ezenwoma of counsel on the 28th February, 2022. The Respondent distilled two issues for determination of the Court thus:
1) Whether the trial Court rightly assumed jurisdiction to entertain the suit under the Fundamental Rights (Enforcement Procedure) Rules, 2009 (Ground 1).
2) Whether the Appellant committed breach of the Fundamental Right of the Respondent by freezing his bank account; and if so whether the judgment of the trial Court is open to censure. (Grounds 2, 3 and 4)
I do not intend to summarize the briefs of both parties. This is principally premised on their failure to comply with ORDER 19 (3) (4) of the Rules of COURT, 2021 requiring them to provide a numbered summary of the arguments in support of the issue(s) raised in their brief. This summary is to serve a dual purpose: firstly it helps to give a bird’s eye view of the case of each party before the Court. Secondly, it relieves the Court of having to go through the unnecessary waste of ample judicial time to summarize the arguments of parties.
The main or rather sole contention of the Appellant as I understand it is that the plaintiff/respondent’s claim was not a proper claim under the Fundamental Rights (Enforcement Procedure) Rules, 1999. The two issues raised by the Respondent not only deal with this issue of whether the action was properly brought under the Fundamental Rights (Enforcement Procedure) Rules but also interrogate the fact as found by the trial Court if indeed the appellant by its action has infringed the respondent’s fundamental right to give rise to this action. This appeal will therefore be determined on the two issues raised by the Respondent.
Issue (1) as submitted by the Respondent is whether the trial Court rightly assumed jurisdiction in this matter considering the contention of the appellant that the claim was premised on a banker/customer relationship. The stance of the Respondent on the other hand is that the Appellant unlawfully and unconstitutionally froze or restricted his bank account with them without explanation and thereby deprived him of access to his money, a movable property, in breach of his fundamental rights contrary to Section 44 of the 1999 Constitution as amended. There is no doubt from the facts in the affidavit in support of the respondent’s application that he maintained an account NO. 0086239935 with the Appellant Bank. That the said account was frozen or placed on hold. The real question is whether the Respondent’s right or cause of action lies in an application for enforcement of fundamental rights under the Fundamental Rights (Enforcement Procedure) Rules or through a regular Writ of Summons. In answering this question, it is important to reproduce the provisions of Section 44 (1) of the 1999 Constitution allegedly breached by the Appellant. It provides follows:
“No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by law…”
In resolving a similar dispute, this Court in the case of OLAGUNJU V EFCC (2019) LPELR – (48461 (CA) in ruling in a preliminary objection held thus:
“In the resolution of issue NO.1, I have held that the freezing of the applicant’s account by the Respondent is unlawful and unconstitutional having been done without a Court order. Furthermore, I hold that the freezing of the Appellant’s account on the order of the Respondent without a Court order amounts to a breach of the Appellant’s fundamental right to moveable property guaranteed by Section 44 (2) (k) of the Constitution of the Federal Republic of Nigeria, 1999 and Section 34 (1) of the EFCC Act.”
This Court also came to the same conclusion in the case of GTB PLC V ADEDAMOLA & ORS (2019) 5 NWLR, PT 1664, 30 (CA) where the appellant contended that the respondent’s suit was not enforceable under the Fundamental Rights (Enforcement Procedure) Rules because like in the instant case the action centered on the restriction of the Respondent’s account as its principal relief. The instant case is on all fours with these two cases cited. I have no reason to depart therefrom. Consequently, I hold that the lower Court acted rightly in the exercise of its jurisdiction when he heard and determined the application. I therefore resolve this issue in favour of the Respondent and against the appellant.
The second issue is whether the action of the Appellant in freezing the account amounted to a breach of the respondent’s fundamental right. As a general rule, a bank can only legally freeze the account of its customer pursuant to a Court order. The contention of the appellant was that they received a letter from the AIG with an attached Court order directing them to freeze the appellant’s account. For the avoidance of doubt, I reproduce the letter from the police which the appellant used as justification to freeze the Respondent’s account:
“INVESTIGATION ACTIVITIES
ACCOUNT NAME KELECHI A. AGBASIERE
ACCOUNT NO. 0086239935
BANK ACCESS
This office is investigating a case of criminal conspiracy, fraud, forgery of title documents and unlawful sale of landed property involving the above mentioned account NO. 0086239935.
2. In view of the above you are kindly requested to furnish this office with the following information:
i.
ii.
iii.
iv. post No debit and Deactivate all Internet/Electronic transactions on the account.
v.
vii.
3. Attached, herewith Bankers Order for necessary action.
Signed:
DCP Abubakar Lawal FDC
For AIG
ZONE 7 HQ Abuja. “
The attached document titled Bankers order dated 1st March, 2020 was addressed to Access Bank and headed as follows:
“IN THE SUPREME/MAGISTRATE COURT FOR FCT DUTSE COURT 4 JUDICIAL DIVISION MAGISTERIAL DISTRICT”
His Lordship of the trial Court rightly found in respect of the documents. His findings represent the sound position of the law. I adopt and reproduce them as the findings of this Court:
“Having thoroughly examine (sic) the document upon which the Respondent froze the account of the Applicant. I found that the said document was not addressed to the Respondent. It was rather addressed to ACCESS BANK and I am aware that the Respondent is known and called ACCESS BANK PLC and I have not been told that ACCESS BANK is a body known to law and the so called bankers orders was also made against Access bank and not ACCESS BANK PLC.
The trite law is that an order cannot be made against a non juristic person. See AGBONMAGBE BANK LTD VS GEN MANAGER GB OLLIVANT LTD (1961) ANLR 116.
It is also settled law that where there is an allegation of crime against a customer of a bank in relation to the funds in his account. The police is empowered by law to set in motion the process of investigating any such funds perceived to be derived from the proceeds of crime. However, in conducting the investigation the police must in all cases observes due process and satisfy the requirement of the law.
By virtue of the provisions of Article 2:2:1 of the CBN Consumers Protection Frame Work, customers assets and privacy, Customer financial and personal information shall not be released to any third party without the consent of the customer except as required by the law.
Article 2.6 2 (2) provides Financial institutions shall not reveal customers’ information to a third party except in the following
(a) …
(b) ….
(c) Where there is Court Order.”
Like the trial judge rightly found, the powers of the police in the extant law is only for investigation purposes. In other words, the law enjoins them to inspect and if desirable make copies of documents or material pertaining to the subject matter of the investigation. Such power of the Police does not and can never include the power to freeze an account without a Court Order. The “Supreme Magistrate Court of the FCT Dutse” is not a Court known to law. The argument of the appellant that an order of Court subsists until set aside is of no moment when it has not been shown that the order was indeed issued by a Court of competent jurisdiction, as the Court order was signed by a “Supreme Magistrate Court of Federal Capital Territory Dutse” and made against Access Bank, a non legal entity pursuant to a non existing law, the Bankers Order Act, 1847”.
It is paramount for all institutions and organisations to cooperate and assist the police in fighting crime in our society in order to ensure law and order for peace and economic growth to thrive. This however has to be premised on due process. This did not happen in the instant case. The trial Judge in my view robustly reviewed the law and came to the right conclusions. I do not see any justification to interfere with his findings. In this regard, the second issue is also resolved in favour of the Respondent. Consequently, this appeal fails. Same is accordingly dismissed.
The well articulated judgment of the lower Court is hereby affirmed. I assess costs at N500,000 in favour of the Respondent.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had the privilege of reading in draft the judgment just rendered by my learned brother, P. A. MAHMOUD, JCA. and I agree entirely with the reasoning contained therein as well as the conclusion which I adopt as mine.
I also dismiss this appeal and endorse the order as to costs made by MAHMOUD, JCA in the leading judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned brother, PATRICIA AJUMA MAHMOUD, JCA and I am in agreement with the reasoning and conclusions reached in dismissing the Appeal as unmeritorious. I abide by the consequential orders made thereto.
Appearances:
Appellant absent and unrepresented but served with ‘H’ notice For Appellant(s)
MR. G. E. EZEUKO, SAN, with him, MESSRS. EZENWOMA, O. B. EIROBU, and T. D. OJIMBA, For Respondent(s)