BABALOLA & ANOR v. JUDE – BELA EJE & ORS
(2022)LCN/16330(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/MK/132/2019(1)
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
1. MR. JOHNSON BABALOLA 2. ECONOMIC AND FINANCIAL CRIMESCOMMISSION (EFCC) APPELANT(S)
And
1. ERIBA JUDE – BELA EJE 2. POLARIS BANK LTD 3. UNITED BANK FOR AFRICA PLC RESPONDENT(S)
RATIO
WHETHER OR NOT EFCC HAS THE POWER TO GIVE DIRECTIONS TO THE BANK TO FREEZE A CUSTOMER’S ACCOUNT
This Court in GUARANTY TRUST BANK PLC V. MR AKINSIKU ADEDAMOLA & ORS (2019 LPELR-47310 (CA) Pages 21-24 Per Abubakar, JCA (as he then was now JSC) has this to say:
‘’………The Economic and Financial Crimes Commission has no power to give direct instructions to Bank to freeze the Account of a Customer, without an order of Court, so doing constitutes a flagrant disregard and violation of the rights of a Customer. I must add that, the judiciary has the onerous duty of preserving and protecting the rule of law, the principles of rule of law are that, both the governor and the governed are subject to rule of law. The Courts must rise to the occasion speak and frown against arrogant display of powers by an arm of Government. It is in the interest of both Government and citizens that laws are respected, as respect for the rule of law promotes order, peace and decency in all societies, we are not an exception. Our Financial institutions must not be complacent and appear toothless in the face of brazen and reckless violence to the rights of their customers. Whenever there is a specific provision regulating the procedure of doing a particular act, that procedure must be followed.’’ PER HASSAN, J.C.A.
MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment): This is a cross-appeal against the decision of the Federal High Court sitting at Makurdi delivered by Hon. Justice M. O. Olajuwon in Suit No. FHC/MKD/CS/28/2019, on the 13th day of June, 2019, wherein the trial Court entered judgment for the 1st Respondent against the Cross-Appellants, and the 2nd, and 3rd Respondents by awarding damages of N5,000,000.00 (Five Million Naira) Only jointly and severally for freezing the Account of the 1st Respondent.
The Cross-Appellants were the 1st and 2nd Respondents at the trial Court, while the 3rd Respondent was the 5th Respondent at the trial Court. The Cross-Appellants being aggrieved with the decision of the trial Court had appealed against same to this Court vide an Amended Notice of Appeal dated 19th day of July, 2019, but deemed proper before this Court on the 4th of April, 2022. The Cross-Appellants’ amended Notice of Appeal contains 5 Grounds of Appeal challenging the decision of the trial Court.
The Record of Appeal was compiled and transmitted to this Court on the 22nd of August, 2019. The amended Cross Appellants’ brief of argument was filed on the 16th of June, 2021, while the 1st Respondent’s brief of argument was filed on the 16th of June, 2021. The 2nd Respondent did not file any process in the cross-appeal.
At the hearing of the appeal, counsel to Cross-Appellants, and the 1st Respondent adopted their respective briefs. Upon which this Court reserved the appeal for judgment.
The 1st Respondent who was Applicant at the trial Court commenced this suit by an application for the enforcement of his fundamental right via a motion dated 26th of March, 2016, and filed on the same date. The motion was accompanied by affidavit and statement in support of the application. The 1st Respondent amended his application and the reliefs sought by his amended application against the Cross-Appellants, and the 2nd Respondent on the face of his motion paper found at pages 102 to 104 of the Record of Appeal, and by the statement accompanying the application at pages 113 to 114 are as follows:
1. A DECLARATION that the arrest and detention of the Applicant for days without being informed about the reason for his detention is a gross violation of his fundamental right to liberty.
2. A DECLARATION that the manhunt, threats, intimidation from the 1st and 2nd Respondents against the Applicant is illegal, wrongful, unwarranted and unjustifiable and a violation of his fundamental rights to dignity, liberty and freedom of movement.
3. A DECLARATION that being a human being and citizen of the Federal Republic of Nigeria the Applicant is entitled to the enjoyment, protection and enforcement of his fundamental rights as enshrined in Section 33, 34, 35, 36, 37, 38, 39, 41 and 44 of the 1999 Constitution of the Federal Republic of Nigeria (CFRN) (as amended).
4. A DECLARATION that it is wrongful in law and a gross violation of the Applicants’ Fundamental Right as approved by Section 35 of the CFRN 1999 for the 1st and 2nd Respondents to influence, initiate or order the arrest and detention of the Applicant for 4 days, without disclosing his offence or arraigning him in a Court of competent jurisdiction.
5. A DECLARATION that the arrest of the Applicant and impounding his car which is not a proceed of crime by the 1st and 2nd Respondents with the use of powers apparatus and facility and the intimidation terrifying harassment, terrorization, overawe, unnerve and incarceration which has made him apprehensive and in a state of fear for his life, is a direct breach of Section 33, 35 and 37 of the 1999 Constitution and a breach of the constitutional right of the applicant.
6. A DECLARATION that the illegal and unlawful freezing of the account of the Applicant by the Respondents is gross violation of his fundamental rights as enshrined in Section 44 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
7. AN ORDER restraining the 1st to 2nd Respondents, either by themselves, agents, servants, privies, assigns from further harassing, intimidating, arresting, detaining or influencing his arrest or prosecution over a baseless assumption that his partnership with YouTube is illegal.
8. AN ORDER of perpetual injunction restraining the 1st and 2nd Respondents by themselves, agents, servants, privies or howsoever from hunting, intimidating, threatening and/or arresting and detaining the applicant because of his partnership with an internet based program known as YouTube or for an undisclosed offense.
9. AN ORDER of mandatory injunction compelling the Defendants jointly and severally to release the car of the Applicant, LEXUS RX330 2005 MODEL GREY COLOR WITH CHASIS NUMBER JTJHA31U75009714 in their custody or in the alternative, payment of the sum of N5,000,000 (Five Million Naira Only) the current market value of the car, where respondents refuse to release same.
10. AN ORDER of mandatory injunction compelling the respondents to unfreeze his accounts both in his name and his business name to wit:
a. First Bank Account No, 3042882004
b. Polaris Bank Account No. 1130315012
c. Uba Plc (Domiciliary) Account No. 3002302596
d. U.B. A Plc (Domiciliary) Bank Account No. 3002639416
e. U.B.A PLC Account Number 210022674
f. U.B.A PLC Account Number 2102403248
11. AN ORDER of Court directing the respondents jointly and severally to pay the applicant the sum of N100,000,000.00 only as damages as compensation for the breach of his fundamental rights.
The Cross-Appellants, and the 2nd Respondent upon receipt of the 1st Respondent’s application, filed their respective counter-affidavits and joined issues with the 1st Respondent/Applicant in urging the Court to dismiss the application for enforcement of fundamental rights.
BRIEF STATEMENT OF FACTS
The case of the 1st Respondent against the Cross-Appellants is that he maintained Accounts Numbers 3002302596, 3002639416 (Domiciliary Account) and Account Numbers 210022674 and 2102403248 with the 2nd Respondent as her customer. That the Cross-Appellants ordered the freezing of his accounts with the 2nd Respondent, and the 3rd to 5th Respondents listed on his application for fundamental Rights at the trial Court.
The 1st Respondent’s case is that he came to be aware of the freezing of his Account on the 8th of March, 2019, when he went to make withdrawals with his ATM and it was not working. He went into the bank and they informed him that he cannot make withdrawals on the ground that EFCC gave an order that his accounts should be frozen. This according to the 1st Respondent made him to visit the office of the 2nd Cross-Appellant on the 11th of March, 2019, to find out why his accounts were frozen and he was informed without more that the money in his account are proceeds of crime.
The 1st Respondent’s case is that he arrived the 2nd Cross Appellant’s office early and explained to the officers of the 2nd Cross-Appellant that he owns a YouTube Channel but the 2nd Cross-Appellant insisted on conducting search at his house and immediately impounded his vehicle. That upon the conclusion of the search and nothing incriminating was found in his house, his lawyer applied for his bail but same was turned down by the Cross-Appellants on the basis that they were not done with investigation.
It is 1st Respondent’s case that even though he was willing to provide reasonable surety, the 2nd Cross-Appellant denied him bail and detained him from the 11th of March, 2019, to the 14th of March, 2019, at the directive of the 1st Cross-Appellant. That he is not a criminal and even after the granting of bail, his accounts remained frozen. That the actions of the 2nd Cross-Appellant are all geared towards intimidating him and the freezing of his account unleashed fear in him to get funds to take care of his pregnant wife, plus same brought his business to a halt. Hence, the application for the reliefs set out on the statement supporting his application for enforcement of his fundamental human rights against the Cross-Appellants, and the 2nd Respondent respectively. See pages 113–114 of the Record of Appeal.
The Cross-Appellants by her counter-affidavit found at pages 47 to 50 of the Record of Appeal stated that sometimes in February, 2019, received an intelligence report of suspicious transactions involving the Appellant bank US Dollar account in the name of the 1st Respondent in the sum of over two hundred thousand US Dollars.
That the intelligence of the 2nd Cross-Appellant shows that the 1st Respondent is a student with no justifiable means of income and receives and withdraws the monies immediately which is inconsistent with the known pattern of transactions in an account, 1st Respondent’s lifestyle and his source of income. That base on this intelligence report, there was a need to take steps to prevent the possible laundering of suspicious proceeds or illegal activities.
The case of the Cross-Appellants was that contrary to 1st Respondent’s case that he was not granted bail, the commission granted him bail on the 11th of March, 2019, and he was promptly informed of the crime against him and given the opportunity to make a statement and he was not illegally detained by the Cross-Appellants. That the Cross-Appellants have the powers to identify, trace and freeze proceeds of criminal activities and investigate and prosecute financial crimes in Nigeria, therefore, the prayers of the 1st Respondent are baseless as his fundamental rights were not violated. See pages 47 to 50 of the record of appeal.
The 2nd Respondent’s case at the trial Court was simply that she acted based on the lawful directives of the Cross-Appellants to freeze the account of the 1st Respondent, therefore, she is not liable to the claims of the 1st Respondent.
After the exchange of affidavits and counter-affidavits and further affidavits, and adoption of addresses filed by parties by their respective counsel, the trial Court in her considered judgment found at pages 181–226 of the record entered judgment in favor of the Applicant/1st Respondent and ordered the Cross-Appellants to release the vehicle of 1st Respondent to him, the 2nd Respondent to unfreeze the accounts of 1st Respondent domiciled with her and pay damages of N5,000,000,00 jointly and severally for breach of 1st Respondent’s fundamental rights, hence this appeal by the Cross-Appellants.
ISSUES FOR DETERMINATION
The Cross-Appellants in their brief of argument formulated two issues for the determination by this Court as follows:
Whether the 1st Respondent was indeed unlawfully detained by the Cross-Appellants for three days to cloth the lower Court with jurisdiction to enter judgment against them. (Distilled from ground 1) of the Cross-Appellants’ notice of cross-appeal vis-a-vis (exhibit EFCC2 at page 52 of the Record of appeal).
Whether in the eyes of the law the Cross-Appellants were in a position to freeze the account of the 2nd Respondent. (Distilled from Grounds 4 and 5).
The 1st Respondent adopted the two issues formulated by the Cross-Appellants and render argument on same. The 2nd and 3rd Respondents however did not file any process in this cross-appeal.
I have considered the facts and circumstances of this appeal, the judgment of the Federal High Court, sitting at Makurdi, and the submissions of Counsel in their respective briefs, and since the Cross Appellants and 1st Respondent are at idem on the issues arising for determination, I shall adopt the two issues distilled in the Cross Appellants’ brief as the proper issues arising for the just determination of this appeal. On that note, I shall proceed to consider and resolve the cross-appeal starting from issue one
ISSUE FOR DETERMINATION
ISSUE ONE:
Whether the 1st Respondent was indeed unlawfully detained by the Cross-Appellants for three days to cloth the lower Court with jurisdiction to enter judgment against them. (Distilled from ground 1) of the Cross-Appellants’ notice of cross-appeal vis-a-vis (exhibit EFCC2 at page 52 of the Record of appeal).
CROSS-APPELLANTS’ COUNSEL SUBMISSION
On issue one formulated by the 2nd and 3rd Respondent, Counsel submitted that although it is the duty of a Respondent in a matter to support the decision of the trial Court, but where a Respondent files a cross-appeal, the Respondent can argue the appeal on that note. That this Court on the 9th of June, 2020 granted their motion to cross-appeal. And since jurisdiction is the life wire of a case, it cannot be conferred on a Court by agreement of parties. That the trial Court acted in the instant case without jurisdiction and its action cannot be validated.
Counsel submitted that the 2nd and 3rd Respondent have demonstrated throughout the entire case that there was no cause of action against them as the 2nd and 3rd Respondents did not freeze the account of the 1st Respondent, nor did they detain him unlawfully. That the assertion by the 1st Respondent that his account was frozen by a letter written by the 2nd and 3rd Respondent was not correct as the letter relied upon by the 1st Respondent had been discredited by another document, but yet the trial Court believed the 1st Respondent and entered judgment in his favor.
Counsel contended that the 2nd and 3rd Respondents wrote a letter to the Appellant to freeze the account of the 1st Respondent and the Appellant froze the account for only 72 hours which the Appellant specifically stated in her letter in response to the 2nd and 3rd Respondents’ request. Therefore, according to counsel, by virtue of Appellant’s letter confirming that she placed the account on freeze for only 72 hours, that means after 72 hours, in the eye of the law, the account of the 1st Respondent was unfrozen and the 2nd and 3rd Respondents ought not to be held liable as no one can punish an act done pursuant to the law.
Counsel went ahead to state the distinction between a PND and freezing of an account by saying that PND mean to restrict payment out of the account but payments of taxes and credit into the account is allowed while freezing an account means monies cannot go in or out of the account. That the trial Court was clearly wrong to hold that 2nd and 3rd Respondent froze the account of 1st Respondent without credible evidence where there was no freezing in the first place.
Counsel submitted that by virtue of S. 136 (1) of the Evidence Act, 2011, the burden of proving a particular fact lies on the person who wishes the Court to believe in its existence, and the Court of law can only decide cases based on pleaded facts and evidence led thereon coupled with applicable laws to the fact as law does not apply in vacuum That EXH EFCC 1 completely excused the 2nd and 3rd Respondent from any liability and the trial Court’s decision occasioned miscarriage of justice to the 2nd and 3rd Respondents.
Counsel submitted that the 1st Respondent suppressed facts and led the lower Court to believe him more than the hard evidence before it and exercised its discretion against the 2nd and 3rd Respondents. That where a Judge in the consideration of a matter before him consider matters that are not before him in exercising his discretion, it is wrong and fails to exercise his discretion judicially.
The 2nd and 3rd Respondent on issue two formulated by them only submitted that the 1st Respondent was not detained unlawfully having been granted bail on the same day he was apprehended, therefore, there was no need for the trial Court to enter judgment against the 2nd and 3rd Respondent.
1ST RESPONDENT’S COUNSEL SUBMISSION
Counsel to the 1st Respondent urged this Court to hold that the trial Court had jurisdiction to hear the 1st Respondent’s case as Chapter 4 of the Constitution guarantees the fundamental rights of all individuals. That the principal relief sought by the 1st Respondent by his amended motion is for the enforcement of his fundamental right which has been infringed upon. Counsel submitted that the Court had jurisdiction as the issue of the freezing of the 1st Respondent’s account is a fall out from the breach of his fundamental rights.
Counsel submitted that whenever a matter is before a Court, it behooves on the Court to critically look at the processes and once the facts relied on discloses infringement of fundamental rights of the client, then the claim is clearly for enforcement of fundamental human rights. Counsel referred the Court to the case ofIgwe v. Ezeanochie (2010) 7 NWLR (Pt. 1192) 61, Adekunle v. A. G Ogun State (2014) LPELR 22569; Jimoh v. Jimoh (2018) LPELR 43793; and Princess v. Governor of Ogun State (2018) LPELR 44986.
See also Francis Igwe v. Goddy Ezeanochie & Or (2009) LPELR 11885 (CA) 26–29 paras G–A where the Court of Appeal held that where the facts relied on discloses infringement of fundamental rights of applicant as the main basis of the claim then it is clear for the enforcement of such rights through the fundamental rights (Enforcement Procedure) Rules.
Counsel submitted that the issue that is central in this appeal is narrow, that is, whether the Appellant as a banker committed breach of the 1st Respondent’s fundamental rights by freezing his account. According to Counsel the facts leading to the restriction of the 1st Respondent’s account was that she received an instruction from the 3rd Respondent to place the account under restriction and the Appellant has not shown to this Court any legal cause why the 1st Respondent was denied access to his account. That Appellant’s argument that she placed the account of the 1st Respondent on the instruction of the 3rd Respondent does not excuse her breach of 1st Respondent’s fundamental rights neither does it deny the lower Court of jurisdiction to entertain same.
Counsel submits that Appellant’s counsel submission that 1st Respondent’s claim against her does not fall under Chapter 4 of the Constitution is misconceived as S. 44 of the Constitution deals with moveable and immovable property and the money under the account of the 1st Respondent with the Appellant comes under movable property and the rights are guaranteed that a human being may not be prohibited or prevented from enjoying the use of his money in his account. See UBA v. Osok (2016) LPELR 40 110 (CA) where the Court referred to money in the account of a customer as property of the customer and unless placed under restriction by a Court order, a restriction placed by the bank on the account on basis of unproven allegations would amount to a derogation of the right to property which is entrenched in United Nations Declarations of Human Rights. See Article 17.
Counsel submitted while relying on the authority of Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 122) 517 that 1st Respondent’s primary duty was to establish that his fundamental right was violated and he has done that by his affidavit evidence before the Court. Counsel referred the Court to the case of GTB Plc v. Adedamola (2019) 5 NWLR (Pt. 1664) 30 at 43 paras E–F and Magaji & Ors v. Board of Custom and Exercise & ANOR (1982) 3 NCLR 552 AT 562 where the Court held that even though the Appellant is bound to comply with the order of the 1st and 2nd Respondent, but same is not automatic, but is dependent on an order of Court.
Counsel while relying on the authority of Fidelity Bank Plc v. Bayuja Ventures Ltd & Bashir Jimoh (2012) All FWLR (Pt. 646) CA 456; (2011) CA 12 LEDLR where the Court held that a bank has no right to freeze a customer’s account without a proper Court order submitted that the trial Court has jurisdiction to entertain the 1st Respondent’s application for the enforcement of his fundamental rights as the act of the Appellant freezing his account is a breach of 1st Respondent’s fundamental rights.
RESOLUTION OF THE TWO ISSUES
The case of the Cross-Appellants is that they received an intelligence report that the 1st Respondent’s bank account was involved in suspicious transactions in US Dollars, they started investigating a case of financial crime against the 1st Respondent and there was a need to take appropriate steps to prevent possible laundering of the suspicious proceeds or illegal activity and upon attendance of the 1st Respondent in their office, the 1st Respondent was confronted with the allegations, he made a statement, he was granted administrative bail See Exhibit EFCC 2 and a remand order was also obtained against the 1st Respondent See Exhibit EFCC 5.
A close examination of Exhibits EFCC 2 and 5 shows contradiction in Exhibit EFCC 2 the 1st Respondent was granted bail and at the same time a remand order was obtained by Exhibit EFCC 5 and as rightly pointed out by the learned trial Judge if a person is deemed qualified to be granted bail and he is granted bail, he is to provide surety(ies) to stand for him and if further questions require answers by him, he could be called upon to come back for such answers. There could not have been any need for any remand application to remand the Applicant, for further questioning, when administrative bail was supposedly in force. I therefore cannot reconcile the two contradictory positions put forward by the 1st and 2nd Respondents (Cross-Appellants) in respect of the detention of the Applicant (1st Respondent) for 3 days and I cannot pick or choose either. See pages 208-209 of the records.
I have taken a close look at Exhibit EFCC 5 the remand order does not show the case number, is not dated, no return date on the face of the order, a remand order cannot be granted at large, there is no evidence that the 1st Respondent was taken before any Court where the remand order was said to have been obtained and neither was the 1st Respondent taken to the Federal prison as stated on the remand order but he was in custody of the Cross-Appellant.
From the foregoing, I am constrained to reach the irresistible conclusion that the 1st Respondent was detained for extra two days beyond the guaranteed Constitutional period of 24 hours. The Cross-Appellant infringed the provisions of Section 35 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) by detaining the 1st Respondent for over 24 hours without charging him to Court.
On the issue of freezing the account of the 1st Respondent. By virtue of the provisions of Section 6 of the EFCC (Establishment) Act, 2004, the Cross-Appellants were within their powers, upon receiving the intelligence report, to investigate the reported case of financial crimes against the 1st Respondent and taking into consideration the inflow into the bank account of the 1st Respondent, which jumped from $500 to $27,000.00 as shown in Exhibit EFCC 1. See pages 51-57 of the records, the Cross-Appellants were right to have reasonably suspected the commission of financial crimes that require investigation. In the cause of investigation the Cross-Appellant wrote a letter to the 2nd and 3rd Respondents to place a Post No Debit (PND) on the 1st Respondent’s account and according to the Cross Appellant the 2nd and 3rd Respondents replied the letter and said: ‘’Please note that the subject accounts have been placed on a Post No Debit (PND) status as requested, we would therefore appreciate it if a Court order is received within 72 hours in line with Section 6 (5) (b) and 6 (7) of the Money Laundering Prohibition Act (2011), falling which the PND will be lifted in line with Section 6 (6) of the same Act, as the Bank will have no legal bases to retain the PND in the absence of a legal baking.’’ See Exhibit EFCC 1 at page 51 of the records. The question that begs for an answer is that, the Appellant being aware of the provisions of the Money Laundering Act will still continue to freeze the account of the 1st Respondent after 72 hours without a Court order and as rightly pointed out by the learned trial Judge at page 216 of the records that the 2nd and 3rd Respondents admitted freezing the account of the 1st Respondent but stated that the account was and is still frozen upon the orders and directives given to the bank by the Cross-Appellant. The Respondents stated that for fear of being molested/harassed for aiding and/or disrupting an investigation, the Bank complied with the order of the Cross-Appellant. The 2nd and 3rd Respondents choose to obey the order of the Cross Appellant as opposed to the clear provisions of Section 6 (6) of the Money Laundering Act 2011.
The 2nd and 3rd Respondents in my humble view having stated their position in their replied letter to EFCC quoted above which is quite legitimate ought to have unfreeze the account of the 1st Respondent after 72 hours without the Court order under the provisions of Section 6 (6) of the Money Laundering Act 2011.
Section 6 (5) (b) of the Money Laundering Act provides:
‘’Notwithstanding the provisions of paragraph (a) of this sub-section, the Chairman of the Economic and Financial Crimes Commission or his authorized representative shall place a stop order not exceeding 72 hours on any account or transaction if it is discovered in the course of their duties that such account or transaction is suspected to be involved in any crime.’’
Section 6 (6) further provides that:
‘’If the acknowledgment of receipt is not accompanied by a stop notice, or where the stop notice has expired and the order specified in subsection (7) of this Section to block the transaction has not reached the Financial Institution or Designated Non-Financial Institution, it may carry out the transaction.’’
Section 6 (7) provides that:
‘’Where it is not possible to ascertain the origin of the funds within the period of stoppage of the transaction, the Federal High Court may, at the request of the commission, or other persons or authority duly authorized in that behalf, order that the funds, accounts or securities referred to in the report be blocked.’’
Section 6 (8) states that:
‘’An order made by the Federal High Court under sub-section (7) of this section shall be enforced forthwith.’’
By virtue of these provisions, it is not in doubt that the Cross Appellant has the powers to place a stop order or freeze an account suspected to be involved in financial crime for 72 hours, without a Court order. Upon the expiration of the 72 hours and where the commission is not done with its activities in respect of the account, a Court order has to be obtained to extend the life of the order freezing the account. Where the required Court order is not made available, the stop order or the order freezing the account lapses and the financial institution must unfreeze the account.
From the available evidence from the records the 1st Respondent’s account domiciled with the 2nd and 3rd Respondents have been frozen by the banks since the 8th of March 2019. The 72 hours have long lapsed and the accounts are still frozen without a Court order.
This Court in GUARANTY TRUST BANK PLC V. MR AKINSIKU ADEDAMOLA & ORS (2019 LPELR-47310 (CA) Pages 21-24 Per Abubakar, JCA (as he then was now JSC) has this to say:
“………The Economic and Financial Crimes Commission has no power to give direct instructions to Bank to freeze the Account of a Customer, without an order of Court, so doing constitutes a flagrant disregard and violation of the rights of a Customer. I must add that, the judiciary has the onerous duty of preserving and protecting the rule of law, the principles of rule of law are that, both the governor and the governed are subject to rule of law. The Courts must rise to the occasion speak and frown against arrogant display of powers by an arm of Government. It is in the interest of both Government and citizens that laws are respected, as respect for the rule of law promotes order, peace and decency in all societies, we are not an exception. Our Financial institutions must not be complacent and appear toothless in the face of brazen and reckless violence to the rights of their customers. Whenever there is a specific provision regulating the procedure of doing a particular act, that procedure must be followed.’’
The point to be emphasized here is that the 2nd and 3rd Respondents ought to have unfrozen the account of the 1st Respondent after the expiration of 72 hours without a Court order the reasons given that the account remain frozen because of the fear of being molested/harassed for aiding and/or disrupting an investigation is not tenable in law and as rightly pointed out by the learned trial Judge at page 217 of the records that the banks that is 2nd and 3rd Respondents would rather disobey the law that governs the operations of the 2nd Cross-Appellant rather than disobey the 2nd Cross-Appellant.
Having regard to the foregoing and as rightly pointed out by the learned trial Judge that the 2nd and 3rd Respondent choose to disobey the law that governs the operation of the 2nd Cross-Appellant and having stated the position of the law in their letter of 11th of March 2019 in Exhibit EFCC 1 at page 51 of the record that they will unfreeze the account after 72 hours and having failed to do so in my humble view the 2nd and 3rd Respondents are on their own and the Cross Appellant cannot be held responsible for freezing the 1st Respondent accounts illegally.
On the award of damages in the sum of N5,000.000.00 (N5 Million Naira) against the Cross-Appellants jointly and severally whether it is commensurate in the circumstances. The learned trial Judge in assessing the award of damages relied on the submission of learned counsel for the 1st Respondent that due to the freezing of his account he has not been able to take care of his pregnant wife due to lack of access to his money and his business has been grounded to a halt as he could not get money to run it. While I agree with the learned trial Judge that once an infringement is proved, compensation follows, the Applicant needs not prove any loss or damages suffered. See Attah v IGP & Ors (2015) LPELR-24565 (CA) but my point of disagreement is that the amount of damages awarded is not commensurate taking into account the facts of this case.
This Court in Attah v. IGP & Ors (Supra) at page 46 paragraphs D-F per Augie, JCA, (as she then was now JSC) has this to say:
“In the well-known case of Ajayi v. A.G. Fed. (1998) 1 HRLRA 373, the Court observed that in fixing an amount for the infringement of fundamental rights, the following factors, amongst others, will be taken into consideration…(a) The frequency of the type of violation in recent times; (b) The continually deprecating value of the Naira; (c) The motivation for the violation; (d) The Status of the Applicant; (e) The undeserved embarrassment meted out to the Applicant including pecuniary losses; and (f) The conduct of the parties generally, particularly the Respondent.’’
While the above factors are not mutually exclusive from the evidence and the facts of this case the 1st Respondent was detained by the Cross Appellant for extra two days beyond the Constitutional period of 24 hours the amount of Five Million Naira awarded as compensation against the Cross-Appellants jointly and severally in my humble view is manifestly too high in the circumstances the learned trial Judge with respect acted on wrong principles of law as there was no evidence presented before him in assessing the damages claimed.
In conclusion, this cross-appeal succeeds in parts the order of the lower Court that the Cross-Appellants release to the 1st Respondent forthwith his car, laptops, cheque books and land documents presently in their custody is hereby affirmed, the order that the Cross-Appellants, jointly and severally, pay the 1st Respondent the sum of N5,000,000.00 (Five Million Naira) as compensation for the breach of his fundamental rights is hereby set aside. Alternatively, the sum of N200,000.00 (Two Hundred Thousand Naira) is awarded as damages against the Cross-Appellants in favour of the 1st Respondent for his unlawful detention for two days. The Cross-Appellant is not liable for the unlawful freezing of the account of the 1st Respondent for the reasons given in this judgment.
IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in advance, the judgment just delivered by my learned brother, HON. JUSTICE MUSLIM SULE HASSAN, JCA, and I am in total agreement with his reasoning and conclusion on all the issues distilled for determination.
On the whole, I adopt them as mine to also hold that the Appellant’s cross-appeal succeeds in part.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft, the leading judgment delivered by my learned brother HON. JUSTICE MUSLIM SULE HASSAN JCA, I agree entirely with the reasoning and conclusion reached therein. My learned brother has properly and elaborately treated all the issues relevant for the determination of the cross-appeal. I agree with him that the cross-appeal succeeds in part. I abide by the consequential orders made in the leading judgment.
Appearances:
M.A. EJEH, Esq. For Appellant(s)
D.A. DALONG, Esq., with him G.G. CHIA, Esq. For Respondent(s)
