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BOSE OLAGUNJU v. ECONOMIC AND FINANCIAL CRIME COMMISSION (2019)

BOSE OLAGUNJU v. ECONOMIC AND FINANCIAL CRIME COMMISSION

(2019)LCN/13730(CA)

In The Court of Appeal of Nigeria

On Thursday, the 1st day of August, 2019

CA/IB/447C/2017

 

JUSTICES

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria

Between

BOSE OLAGUNJU Appellant(s)

AND

ECONOMIC AND FINANCIAL CRIME COMMISSION Respondent(s)

RATIO

THE RULE OF INTERPRETATION OF THE PROVISION OF A STATUTE

The law is settled that when it comes to the interpretation of the provision of a statute, such statute must be construed literally and the words therein given their ordinary meaning.
See ABACHA & ORS VS. FAWEHINMI (2000) 6 NWLR (pt. 660) 228, CSS BOOKSHOPS LTD. VS. REGISTERED TRUSTEES OF MUSLIM COMMUNITY RIVERS STATE & ORS (2006) 11 NWLR (pt. 992) 530; UDE VS. NWARA & ANOR (1993) 2 NWLR (pt. 278) 638; OKOTIE ? EBOH VS. MANAGER & ORS (2004) 18 NWLR (pt. 905) 242.
In the case of PROVOST LAGOS STATE COLLEGE OF EDUCATION & ORS VS. EDUN & ORS (2004) 6 NWLR (pt. 870) 476 @ 509 paras D ? F, TOBI JSC held thus:
?What is the effect of non-compliance with the law? It is settled law that expropriatory statutes which encroach on a person?s proprietary rights must be construed fortissimo contra preferates, that is strictly against the acquiring authority but sympathetically in favour of the citizen whose proprietary rights are being deprived. Consequently, as against the acquiring authority, there must be a strict adherence to the formalities prescribed for the acquisition.
See OBIKOYA VS. GOVERNOR OF LAGOS STATE (1987) 1 NWLR (pt. 50) 385; LSDPC VS. FOREIGN FINANCE CORPORATION (1987) 1 NWLR (pt. 50) 413, ATTORNEY GENERAL, BENDEL STATE VS. P.L.A. AIDEYAN (1989) 4 NWLR (pt. 118) 646.”
The provision of Section 34 (1) of the Economic and Financial Crimes Commission Act, encroaches on a person?s proprietary right to monies in his or her bank account. It must therefore be construed strictly using the literal approach. It is trite law that when a legislation prescribes a procedure or method for doing an act, it is only such procedure or method that is permissible and no other. See OYAMA VS. AGIBE (2016) ALL FWLR (pt. 840) 1274 at 1292 paras E-F. It is also the law that where a statute provides unambiguously for an act to be done in a particular manner, failure to perform that act in the prescribed manner amounts to noncompliance and its effect cannot be waived. See NIGER-CARE DEV. CO. LTD. VS. ASWB (2008) ALL FWLR (pt. 422) 1052 and IKPE VS. ELIJAH 2011 LPELR 4516 CA. PER OJO, J.C.A.

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court sitting in Ibadan delivered on 3rd July 2017 in Suit No: FHC/IB/ES/40/2017. The Appellant instituted an action at the lower Court vide a motion on Notice filed on 24th March 2017 for the enforcement of her fundamental rights wherein she sought the following reliefs:
(1) A Declaration that the action of the Respondent freezing the Applicant?s two bank accounts ? 5000356567 and 19119558782 ? at Heritage bank, Oba Adesoji Aderemi House Secretariat Road, Agodi Ibadan is unlawful, unconstitutional, baseless, lawless and a clear violation of the Constitutional rights of the Applicant.
(2) An Order for the Respondent to immediately defreeze the said bank accounts and allow the Appellant to have access to the lawful operation of the bank accounts.
(3) An Order perpetually restraining the Respondent, its officers, agents, servants or any privies from unlawfully freezing of the Applicant?s bank accounts or violating her fundamental rights.
(4) An Order for the payment of compensation

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and exemplary damages of One Hundred Million Naira (N100,000,000.00) to the Applicant for the acts of unlawful arrest and false imprisonment by the Respondent which are clear violations for her fundamental human rights.
(5) And for such Order or further Orders as this Honourable Court may deem fit to make in the circumstances of this matter.

After a consideration of the affidavit evidence and arguments of Counsel, the Court entered judgment against the Appellant dismissing all her claims.

Dissatisfied with the judgment, the Appellant filed a Notice of Appeal on 11th August, 2017. The Notice of Appeal which contains four grounds of Appeal is at pages 187 ? 190 of the Record.

The grounds of Appeal shorn of their particulars are as follows:
GROUND 1
The learned trial judge quoted the provisions of Section 44 (1) K of the Constitution of the Federal Republic of Nigeria 1999 and Sections 34 (1) and 36 (1) of the Economic and Financial Crimes Commissions (Establishment) Act 2004 correctly but misapplied them to the facts and circumstances of the case.
GROUND 2
The learned Trial Judge erred in law and misdirected himself

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when His Lordship refused to countenance and address the points raised in the Appellant?s further affidavit and her Counsel?s reply on points of law when he held as follows: ?The Applicant filed a further affidavit of 10 paragraphs. And Counsel relied on all the averments therein. And the written submission on point of law was really another attempt to reargue the motion on Notice.
GROUND 3
The learned Trial Judge erred in law when His Lordship held as follows:
Conclusively, I hold that the Respondent?s actions against the Appellant do not amount to a violation of Applicant?s Constitutional Right to possess property for which she is entitled to be paid monetary damages by the Respondent.
GROUND 4
The Judgment of the Court is against the weight of evidence.
?
A brief summary of the background facts of this case as can be deciphered from the affidavit evidence before the lower Court is as follows:
A few years ago, the Appellant opened two bank accounts with Account Numbers 5000356567 and 1911958782 with Heritage Bank Plc. situated at Oba Adesoji Aderemi House, Secretariat Road, Agodi, Ibadan which

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she operated until 9th of January 2017 when the bank informed her that they had the instruction of the Respondent to freeze both accounts. She enquired from the bank for the justification of the instruction, but the bank did not know and she herself had no notice of the reasons for the action of the Respondent.

By the action of the Respondent, the Appellant claims she was denied access to her accounts and which action further occasioned financial embarrassment, great suffering, public ridicule, opprobrium, contempt, economic damage and loss to her person.

The Respondent placed a different set of facts before the lower Court. It denied the allegations in the Appellant?s affidavit and stated that its action was consequent upon a Petition dated 12th December, 2016 received from the Asset Management Corporation of Nigeria (AMCON) in which offences of conspiracy, stealing and criminal breach of Trust were alleged against the Appellant. Based on the Petition, the Respondent visited the Appellant who refused to honour the invitation.
A summary of the Respondent?s case is that investigation revealed that the money in the accounts of the

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Appellant are proceeds of crime and that all actions it took were in the course of the performance of its constitutional duties.

The lower Court in its judgment contained at pages 172 ? 186 of the Record held as follows at page 186:
?Conclusively, I hold that the Respondent?s action against the Applicant do not amount to a violation of Applicant?s constitutional right to dignity of human person and right to possess property for which she is entitled to be paid monetary damages by the Respondent. I hereby dismiss all the reliefs sought by the Appellant accordingly. The application is refused. I order that the Applicant complies with the invitation of the Economic and Financial Crimes Commission so as to bring their investigation to a close. I so order.”
The Court went on at page 182 to hold as follows:
?I find therefore, as my firm view that the Constitution which is the grundnorm donate potency by virtue of the first proviso of Section 44 (1) (K) of the Constitution of the Federal Republic of Nigeria 1999 to wit ?except in a manner and for the purpose prescribed by a law that ?while the same

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provision of Section 44 (1) is contig[sic] to the phrase ?among other things. definitely exposes that the word ?may? as used in Section 34 (1) of the Economic and Financial Crime Commission (Establishment) Act 2004 is merely directory and not compulsory. It confers a discretionary power. I find resultantly, that every interpretation of statute shall not defeat the intention of the Constitution otherwise same statute will be null and void. See EMOKPAE Vs. UNIVERSITY OF BENIN (2002) NWLR (pt. 795) 139. I hold that the Respondent can temporarily take possession of property for the purpose of investigation.”

In line with the Rules of this Court, parties filed and exchanged their respective briefs of argument. Appellant?s brief of argument filed on 19th November, 2018, was deemed as properly filed and served on 21st November, 2018. The Respondent?s brief of Argument filed on 19th February, 2019, was deemed as properly filed on 21st February, 2019.
?
The Appellants Reply Brief was filed on 21st September 2019. On 8th May, 2019 when the appeal was heard, learned Counsel representing both parties adopted and

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relied on their respective briefs of argument.

The lone issue formulated for determination by the Appellant is:
?Whether the learned trial judge was right to have dismissed the reliefs sought by the Appellant.”

On his part, the learned Counsel to the Respondent formulated three issues for determination to wit:
1. Whether the learned trial judge was correct when he held that the Appellant should comply with the invitation of the Economic and Financial Crimes Commission so as to bring investigation of the case against the Appellant to a close (Grounds three (3) and four (4) of the Notice of Appeal.
2. Whether the learned trial judge was correct when he held that the Respondent can temporarily take possession of property for the purpose of investigation (Ground one (1) of the notice of Appeal.
3. Whether the first Respondent can conduct investigation into the matters which are already being litigated in Courts of competent jurisdiction (Ground two (2) Notice of Appeal.
APPELLANT?S SOLE ISSUE
1. Whether the Learned Trial Judge was right to have dismissed the reliefs sought by the Appellant.

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Learned Appellant?s Counsel submitted in paragraph 3.01 of the Appellant?s Brief that the main complaint of the Appellant relates to the freezing of her two accounts at Heritage Bank and that in the Originating Motion at page 2 of the Record, the Appellant sought not only a declaration that the freezing is unlawful and unconstitutional, but also an order to defreeze the accounts, restrain the Respondent from unlawfully freezing same and for exemplary damages of One Hundred Million Naira. Learned Counsel further submitted in paragraph 3.02 of the Appellant?s Brief that the lower Court misapplied the provisions of Section 44(1) K of the Constitution of the Federal Republic of Nigeria. He submitted in paragraph 3.04 that implicit in the said provision of the Constitution is that temporary seizure as done by the Respondent, must be prescribed by law and must follow strictly the procedure prescribed by law. Counsel further submitted in paragraph 3.07 that the requirement for the Chairman of the EFCC to apply to Court to freeze an account as in Section 34 (1) of the EFCC Act is compulsory and not directory as held by the lower Court. Counsel further

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submitted in paragraph 3.11 of the Appellant?s Brief that there is nothing in Section 34 (1) & (2) of the EFCC Act that expressly permits the Chairman of the EFCC to act without an Order of Court. Counsel submitted that the use of the word ?may? in Section 34 (1) of the EFCC Act is clearly to be construed as ?shall? and that the decision in ORAKUL RESOURCES LIMITED VS. NIGERIAN COMMUNICATIONS COMMISSION (2007) LPELR ? 8913 clearly supports the Appellant?s position. He went on in paragraph 3.13 of the Appellant?s Brief to say that the literal interpretation of Section 34 (1) and (2) of the EFCC Act is that if the EFCC is investigating a crime, the Chairman may decide whether to freeze the account of the suspect or not. Where he decides to freeze the account, he must resort to the Court for sanction by filing an application ex parte. If he obtains the order, he can utilize it to make appropriate demands to the bank concerned. Counsel relied on the decision in ESAI DANGABAR VS. FEDERAL REPUBLIC OF NIGERIA (2014) 12 NWLR (PT. 1422) 575, 599 PARAS C ? D. Learned Counsel further submitted in paragraph 3.16 of

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the Appellant?s Brief that there is no evidence that the letter of request to Heritage bank to place Appellant?s two accounts in no debit status was authorized by the Chairman of the EFCC. Counsel further submitted in paragraph 3.17 that there is no evidence that an order ex-parte was obtained before and between 4th December, 2016 and 24th March, 2017, and that there is also no evidence that such an ex-parte order was obtained before judgment was delivered on 3rd July, 2017.

Counsel argued further that the main issue is whether in freezing the Appellant?s account, the EFCC has complied with the extant law and has not infringed her fundamental rights as enshrined in the Constitution. He submitted that the lower Court did not address and consider the Appellant?s Further Affidavit at pages 98 ? 150 of the Record which would have laid bare the mischief behind the complaint of the complainant to the EFCC. Learned Counsel also submitted in paragraphs 3.2 – 3.5 of the Appellant?s Brief that there is uncontroverted evidence of the pendency of two suits FHC/IB/CS/57/16 and FHC/IB/CS/58/16 filed by AMCON in which issues of

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Receivership and Assets of the companies in which the Appellant and her deceased husband were directors are in contention.
He further submitted in paragraph 3.26 of the Appellant?s Brief that the petition to EFCC by AMCON is an abuse of Court process designed to make EFCC interfere in pending cases in Court and intimidate one of the parties unconstitutionally.

Counsel submitted further in paragraph 3.34 that once it is found that the accounts of the Appellant were frozen contrary to the procedure laid down by the extant law, she is entitled to a declaration that the freezing is unconstitutional and unlawful. He craved in aid of his submission the cases of OYEBAMIJI VS. FABIYI (2003) 11 NWLR (pt. 834) 497; E.I.B.B.S. LTD VS. ADEBAYO (2003) 11 NWLR (pt. 832) 497. OSUN STATE GOVERNMENT V. DALAMI (NIG.) LTD. (2003) 7 NWLR (pt. 11) 511. He urged us to hold that the Appellant is entitled to an award of damages for the violation of her fundamental rights and allow the appeal.

RESPONDENT?S ISSUE 1
Whether the learned Trial Judge was correct when he held that the Appellant should comply with the invitation of the Economic and Financial

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Crimes Commission so as to bring investigation of the case against the Appellant to a close.

Learned Counsel to the Respondent in paragraph 3.1 of the Respondent?s brief submitted that the combined effect of Sections 6, 7, 13 and 41 of the Economic and Financial Crimes Commission (Establishment) Act No. 1 of 2004, is that the Respondent is empowered to investigate petitions and complaint whether written or otherwise brought to her that bother on economic and financial crimes. He further submitted that by Section 46 of the EFCC Act which defines economic and financial crimes, the Respondent has the statutory duty to investigate such complaint including taking temporary possession of the Appellant?s properties. He went on in paragraph 3.4 to submit that the Constitution does not intend to grant any citizen immunity from investigation and prosecution and that the lower Court was right when it held that the Respondent?s actions against the Appellant do not amount to a violation of her constitutional rights to dignity of human person and right to possess property.

RESPONDENTS ISSUE 2
Whether the learned Trial Judge was correct when

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he held that the Respondent can temporarily take possession of property for the purpose of investigation.

Learned Counsel to the Respondent submitted in paragraph 4.1 of the Respondent?s brief that since in the course of investigation, the Respondent traced the proceeds of the alleged crime to the two accounts of the Appellant at Heritage Bank, it was lawful to take steps to preserve the funds and prevent their being dissipated.

RESPONDENTS ISSUE 3
Whether the Respondent can conduct investigation into matters which are already being litigated in Courts of competent jurisdiction.

Learned Counsel to the Respondent in paragraph 5.1 of the Respondent?s brief submitted that there is nothing in law which precludes the respondent from investigating an allegation of Economic and Financial Crime simply because there is a civil suit in any Court of law. He relied on the provisions of Sections 6 (M) and 46 of the EFCC Act and the case of AMAECHI VS. INEC (2008) 5 NWLR (pt. 1080) 227, 307 paras E ? F.

He further urged us to examine the AMCON Petition at pages 33 ? 60 of the Record which shows that the allegations against

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the Appellant are criminal and not civil in nature as contended by the Appellant and submitted that the Respondent is not precluded under the law from investigating cogent allegations of criminal conduct simply because a related civil suit is pending in a Court of law. He relied in the case of ATTORNEY GENERAL OF THE FEDERATION VS. DAWODU (1995) 2 NWLR (pt. 380) 712.

In the Appellant?s Reply to the Respondent?s brief of Argument, learned Counsel to the Appellant submitted that the issues in this appeal are not whether EFCC has a right to investigate or take possession of property or to freeze account, but it is whether in doing so it followed and complied with the provisions of the law.

He contended that the Respondent failed to address all the points raised in the Appellant?s Brief of argument and urged us to discountenance the arguments of the Respondent?s Counsel.
?
Upon a careful perusal of the issues formulated for the determination of this appeal by Counsel on both sides, the reliefs sought by the Appellant at the lower Court and the judgment appealed against, I am of the view that the following two issues would

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suffice:
1. Whether the Respondent can lawfully take possession of property (temporary or otherwise) for the purpose of investigation without a Court order.
2. Whether the Appellant is entitled to the reliefs sought in this Appeal.

ISSUE 1
Whether the Respondent can lawfully take possession of property (temporary or otherwise) for the purpose of investigation without a Court order.

It is a trite principle of law that in reviewing the proceedings of a trial Court, an appellate Court is expected to take into consideration the entire record placed before it, including the pleadings of the parties, the day to day proceedings and also the judgment of the Court.
See the Supreme Court decision in ADDAH VS. UBANDAWAKI (2015) 7 NWLR (part 1458) 325 at 358.

The reliefs sought by the Appellant before the lower Court, have been set out in the earlier part of this judgment. For ease of reference I shall do so again. They are:
1. A DECLARATION that the actions of the Respondent freezing the Applicant?s two bank Accounts ? 5000356567 and 1911958782 ? at Heritage Bank, Oba Adesoji Aderemi House, Secretariat Road,

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Agodi, Ibadan are unlawful, unconstitutional, baseless, lawless and a clear violation of the Constitutional rights of the Applicant.
2. An order for the Respondent to immediately defreeze the said bank accounts and allow the Applicant to have access to the lawful operation of the bank accounts.
3. An order perpetually restraining the Respondent, its officers, Agents, Servants or any persons from unlawfully freezing the Applicant?s banks accounts or violating her fundamental rights.
4. An order for the payment of compensation and exemplary damages of One Hundred Million Naira (N100,000,000.00) to the Applicant for the acts of unlawful arrest and false imprisonment by the Respondent which are clear violations of her fundamental human rights.
5. And for such further orders or other orders as the Honourable Court may deem fit to make in the circumstance of this matter.

From the affidavit evidence before the lower Court, it is not in dispute that following an instruction from the Respondent, the Appellant?s Accounts with Nos. 5000356567 and 1911958782 maintained at heritage Bank were frozen.
?
The Appellant in paragraph 3 of

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the Affidavit in support of the Originating Motion on notice at page 4 of the Record deposed thus:
?3. That on 9th January 2017, I was called by the bank saying that the Respondent gave an instruction to freeze my said two accounts and that I cannot have access to them anymore pending the time that a contrary order would be made.?

The Respondent, in paragraph 4(a) ? (d) of its counter affidavit at page 26 of the Record deposed thus:
?(a) That contrary to the averments in paragraphs 4 and 6 of the Applicant?s affidavit in support, the Chairman of the Respondent received a Petition dated 12th December, 2016 from Asset Management Corporation of Nigeria (AMCON) alleging inter alia conspiracy, stealing and criminal breach of trust against the Applicant. Attached is a copy of the petition marked ?Exhibit EFCC 1?.
(b) That due to the petition mentioned in paragraph A above, the Applicant was invited to our office in Abuja by sending invitation letters to both her residential and office addresses to come and explain her own side of the matter, but she refused to honour the invitation. Attached are the

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invitation letters marked ?Exhibit EFCC 2?.
(c) That some of the monies allegedly stolen and diverted by the Appellant were traced to her two bank accounts ? 5000356567 and 1911958782 at Heritage Bank.
(d) That as a result of the development and preventive measure to prevent the monies from being dissipated, a letter was written to Heritage Bank of Nigeria to freeze the 2 accounts pending the conclusion of investigation Underlining mine for emphasis

The letter of instruction from the Respondent to Heritage Bank can be found at page 80 of the Record. The said letter at paragraphs 2 and 3 states thus:
?In view of the above, you are kindly requested to place the accounts in a no debit status and deactivate ATM transactions?. This request is made pursuant to Section 38 (1) OF THE Economic and Financial Crimes Commission (Establishment) Act 2011 as amended.”

From the totality of the evidence before the lower Court, it is not in dispute that the Respondent did not obtain a Court order before giving instruction to Heritage bank to freeze the Appellant?s accounts maintained with her.

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The question now is whether the Respondent acted within its powers under the law when it gave the instruction to Heritage Bank to freeze the Appellant?s accounts, which instructions were carried out.
The Respondent?s case is that it received a petition from AMCON wherein criminal offences were alleged against the Appellant and investigation revealed that the Appellant?s accounts with Heritage bank contained monies which are proceeds of crime. Section 38 (1) of the EFCC Act gives powers to the Respondent to receive information without hindrance. Section 34 of the same Act which empowers the Respondent to give instruction to freeze Accounts provides thus:
?Notwithstanding anything contained in any other enactment or law, the Chairman of the Commission or any officer authorized by him may, if satisfied that money in the account of a person is made through the commission of an offence under this Act or any enactments specified under Section 7 (2) (a) to (f) of this Act apply to the Court ex parte for power to issue or instruct a bank manager or such other appropriate regulatory authority to issue an order as specified in form B

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of the schedule to this Act, addressed to the manager of the bank or any person in control of the financial institution where the account is or believed by him to be or the head office of the bank other financial institution or designated non- financial institution to freeze the account.”
The law is settled that when it comes to the interpretation of the provision of a statute, such statute must be construed literally and the words therein given their ordinary meaning.
See ABACHA & ORS VS. FAWEHINMI (2000) 6 NWLR (pt. 660) 228, CSS BOOKSHOPS LTD. VS. REGISTERED TRUSTEES OF MUSLIM COMMUNITY RIVERS STATE & ORS (2006) 11 NWLR (pt. 992) 530; UDE VS. NWARA & ANOR (1993) 2 NWLR (pt. 278) 638; OKOTIE ? EBOH VS. MANAGER & ORS (2004) 18 NWLR (pt. 905) 242.
In the case of PROVOST LAGOS STATE COLLEGE OF EDUCATION & ORS VS. EDUN & ORS (2004) 6 NWLR (pt. 870) 476 @ 509 paras D ? F, TOBI JSC held thus:
?What is the effect of non-compliance with the law? It is settled law that expropriatory statutes which encroach on a person?s proprietary rights must be construed fortissimo contra preferates, that is

20

strictly against the acquiring authority but sympathetically in favour of the citizen whose proprietary rights are being deprived. Consequently, as against the acquiring authority, there must be a strict adherence to the formalities prescribed for the acquisition.
See OBIKOYA VS. GOVERNOR OF LAGOS STATE (1987) 1 NWLR (pt. 50) 385; LSDPC VS. FOREIGN FINANCE CORPORATION (1987) 1 NWLR (pt. 50) 413, ATTORNEY GENERAL, BENDEL STATE VS. P.L.A. AIDEYAN (1989) 4 NWLR (pt. 118) 646.”
The provision of Section 34 (1) of the Economic and Financial Crimes Commission Act, encroaches on a person?s proprietary right to monies in his or her bank account. It must therefore be construed strictly using the literal approach. It is trite law that when a legislation prescribes a procedure or method for doing an act, it is only such procedure or method that is permissible and no other. See OYAMA VS. AGIBE (2016) ALL FWLR (pt. 840) 1274 at 1292 paras E-F. It is also the law that where a statute provides unambiguously for an act to be done in a particular manner, failure to perform that act in the prescribed manner amounts to noncompliance and its effect

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cannot be waived. See NIGER-CARE DEV. CO. LTD. VS. ASWB (2008) ALL FWLR (pt. 422) 1052 and IKPE VS. ELIJAH 2011 LPELR 4516 CA.
My firm view is that the only interpretation that can be extended to the provision of Section 34 (1) of the EFCC Act is that when the Respondent is investigating a Crime, its Chairman may decide whether there is the need to freeze the account involved. This is clearly the discretion of the Chairman. When he however decides that there is the need to freeze such account, he must obtain a Court order before doing so.
A Court Order is therefore a condition precedent for the exercise of the Respondent?s power to freeze an account pursuant to the provisions of Section 34 (1) of the EFCC Act. The Respondent must obtain a Court Order before taking such a step. Anything to the contrary is a flagrant violation of the law and right of the owner of the frozen bank account. The Courts have consistently frowned at such violations. In the very recent case of GT BANK VS. ADEDAMOLA (2019) 5 NWLR (pt. 1664) pg. 30 at 43, my learned brother of this Court Abubakar JCA held as follows:
?Before freezing customer?s

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account or placing any form of restrain on any bank account, the bank must be satisfied that there is an order of Court. By the provisions of Section 34 (1) of the Economic and Financial Crimes Commission Act 2004, the Economic and Financial Crimes Commission has no power to give direct instructions to banks to freeze the account of a customer without an order of the 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; no one is above the law. Whenever there is brazen violation of the rights of a citizen, the Courts in the discharge of their responsibility to the society, must rise the occasion, speak, frown upon and condemn 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, and we are not an exception. Our financial institutions must not be complacent, reticent and

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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 lower Court was clearly in error when it held at page 185 of the Record that the freezing of the Appellant?s account is in tandem with Section 34 (1) of the EFCC Act and Section 44 (1) (K) of the Constitution of the Federal Republic of Nigeria 1999 as amended and I so hold.
Section 44 (1) (k) of the Constitution provides thus:
?(1) No moveable property or any interest in an unmovable properly shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily on any part of Nigeria except in the manner and for the purposes prescribed by law that, among other things:
(a) Requiring the prompt payment of compensation therefore and
(b) Gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a Court of law or tribunal or body having jurisdiction in that part of

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Nigeria.
(2) Nothing is Subsection (1) of this Section shall be construed as affecting any general law?
(k) relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry.”
The above provision does not in any way give the Respondent any discretion to freeze the Appellant?s accounts without a Court order. The provision guards against the compulsory acquisition of property, moveable or unmovable without compliance with extent laws. An example of such laws is Section 34 of the EFCC Act. In other words, a citizen shall not be deprived of his property without due process of law.
It follows therefore that the Respondent cannot lawfully take possession of the Appellant?s property either temporarily or otherwise for the purpose of investigation without a Court order and I so hold. The Respondent by its action, deprived the Appellant access to her money on the two accounts maintained at Heritage Bank and by so doing breached the provisions of Section 44 (1) (K) of the Constitution of the Federal Republic of Nigeria as amended and Section 34 (1) of the EFCC Act. The

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wordings of Section 34 (1) of the EFCC Act in my view are not capable of any interpretation other than that a Court order is a condition precedent for the exercise of the Respondent?s power to freeze an account suspected to harbour proceeds of a crime. Failure of the Respondent to obtain a Court order prior to giving directive to Heritage Bank to freeze the Appellant?s accounts is ultra vires its powers and I so hold.
Issue I is thus resolved in the affirmative and in favour of the Appellant.

ISSUE 2
Whether the Appellant is entitled to the reliefs sought in this Appeal.

In the resolution of Issue No. 1, I have held that the freezing of the Appellant?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 accounts on the orders 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. The Appellant is entitled to a grant

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of Relief No. 1 claimed.

The Appellant is entitled to Relief No. 2 claimed which is for an order that the Respondent immediately defreeze her two accounts at Heritage Bank. Relief No. 3 also succeeds.

The Respondent, its officers, agents, servants or any of its privies are hereby restrained from unlawfully freezing the Appellant?s bank accounts or violating her fundamental human rights.
Relief 4 claimed by the Appellant reads thus:
?(4). An order for the payment of compensation and exemplary damages of One Hundred Million Naira (N100,000,000.00) to the Applicant for the acts of unlawful arrest and false imprisonment by the Respondent which are clear violations of her fundamental rights.”

By her relief Number 4, the Appellant seeks an order of compensation for her unlawful arrest and false imprisonment. The compensation sought is not for the unconstitutional and unlawful freezing of her account.

It is for unlawful arrest and false imprisonment. No issue was formulated on this point and there are no arguments canvassed thereon in the Appellant?s brief and Reply brief.

?This relief is therefore deemed

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abandoned. The compensation sought by the appellant does not include compensation for the unlawful and unconstitutional freezing of her accounts in breach of Section 44 (2) (K) of the Constitution.
The relief sought cannot be linked to any ground of Appeal and no issue is formulated thereon. This Court cannot therefore grant same.

Reliefs 1, 2, 3 are granted while Relief Number 4 is refused.
In conclusion I find the appeal meritorious and it is accordingly allowed.

The judgment of the Federal High Court sitting at Ibadan in Suit No. FHC/IB/CS/40/2017 delivered on the 3rd of July 2017 is hereby set aside. In its place, I grant Reliefs Numbers 1, 2 and 3 of the Appellant?s claims. Relief Number 4 is refused.

HARUNA SIMON TSAMMANI, J.C.A.: I read in advance, the draft of the judgment delivered by my learned brother, Folasade Ayodeji Ojo, JCA.

My learned brother has adequately considered and determined the issues that came up for determination in this appeal. I agree with the determination and conclusion on those issues. Accordingly, I agree that this appeal has merit.  It is hereby

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allowed.  I abide by the consequential orders made therein.

NONYEREM OKORONKWO, J.C.A.: From the earliest times, it was acknowledged that Governments were instituted among men for the purpose of protecting the human subject in his person and in his property and for this natural law axiom modern governments were subjected to law and eschewed from acting arbitrarily. This was the substratum of basic bills of Rights including the Magna Carter 1215.
Basic Rights created by law even by the Constitution are not absolute and for exigencies may be derogated from but always in accordance with due process. It is in this light that the Provisions of Section 34 (1) of the Economic and Financial Crimes Commission (establishment) Act must be construed.
The Section provides:
“34 (1) Notwithstanding anything contained in any other enactment or law, the Chairman of the Commission or any officer authorized by him may, if satisfied that the money in the account of a person is made through the commission of an offence under this Act and or any of the enactments specified under Section 7 (2) (a)-(f) of this Act, apply

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to the Court ex-parte for power to issue or instruct a bank examiner or such other appropriate regulatory authority to issue an order as specified in Form B of the Schedule to this Act, addressed to the manager of the bank or any person in control of the financial institution where the account is or believed by him to be or the head office of the bank, or other financial institution to freeze the account.”
The Section creates due process that must be followed before the Chairman EFCC or anyone acting on his behalf must follow before he can interfere or restrict any person in the operation or enjoyment of his bank account. The word “may” preceding the words “if satisfied” relates to his decision to proceed against such person for investigation or prosecution. The chairman may decide not to proceed with the matter or investigation. The word “may” in the Section does not relate to the mandatory need to seek Court authority at least by an ex parte application which must specify valid ground.  No such unbridled right is ever given in a truly democratic society where constitutionalism is in vogue. As no such ex parte Order was sought and obtained before

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clamping down on a citizens finances, that exercise is a nullity. The EFCC is and should be a useful watchdog and not a monster out to devour or intimidate people.
?
It is for the reasons I have given and the more detailed reason given in the lead judgment of my lord Folasade Ayodeji Ojo, JCA that I agree with the said judgment and orders made.

 

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Appearances:

O.A. Owolabi with him, F.D. OloruntobaFor Appellant(s)

Festus Ojo (Chief Detective Superintendent, EFCC)For Respondent(s)

 

Appearances

O.A. Owolabi with him, F.D. OloruntobaFor Appellant

 

AND

Festus Ojo (Chief Detective Superintendent, EFCC)For Respondent