ECONOMIC FINANCIAL CRIMES COMMISSION v. DR. MARTINS OLUWAFEMI THOMAS
(2018)LCN/12409(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of April, 2018
CA/L/1298/2017
RATIO
CRIMINAL LAW: THE OFFENCE OF MONEY LAUNDERING
“It is settled that money laundering must be accompanied by a predicate offence which is an illegal act that yields the funds sought to be laundered as clean money. It is difficult or near impossible to prove money laundering without a predicate offence, see DAUDU v. F.R.N. (2018) LPELR-43637 (SC). The Appellant is therefore required to name a predicate offence that generated the funds. No predicate offence was alleged in this case. Money Laundering cannot stand/hang on its own without an illegal source (predicate offence).” PER YARGATA BYENCHIT NIMPAR, J.C.A.
JURISDICTION: THE POWER OF JURISDICTION
“Jurisdiction is fundamental and its importance is paramount. It is always a threshold issue in any determination by the Court. It has been described as the life wire and the blood of adjudication; see CHIEF IKEDI OHAKIM v. CHIEF AGBASO & ORS (2010) LPELR-2359 where the Apex Court on jurisdiction said thus:
“It is settled that jurisdiction is the live blood of any adjudication without which no proceeding, however brilliantly conducted by the Court or tribunal can be valid. It is really a threshold matter or sometimes referred to as a periphery matter to be dealt with once raised or challenged in any proceeding. Without jurisdiction, the whole trial or proceeding of the Court is a nullity however well conducted, that is why jurisdiction is very vital and fundamental to administration of justice in any judicial system. See also MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341; IKE v. NZEKWE (1975) 2 S.C. 1” PER YARGATA BYENCHIT NIMPAR, J.C.A.
FUNDAMENTAL RIGHT: WHAT CAN BE BROUGHT UNDER THE FUNDAMENTAL RIGHTS PROCEDURE
“The law is settled on what can be brought under the Fundamental Rights Procedure. They must primarily be reliefs that alleged breach of a fundamental right and this Court in the case of IGWE v. EZEANOCHIE (2009) LPELR-11885 (CA) gave a guide in the following words:
“Whenever the Court is confronted with an application brought under the Fundamental Right (Enforcement Procedure) Rules, it is imperative that the Court should critically examine the reliefs sought by the Applicant, the grounds for seeking the reliefs and the facts contained in the statement accompanying the application and relied on for the reliefs sought. Where the facts relied on disclose infringement of the fundamental right of the applicant as the main or basis of the claim, then it is a clear case for the fundamental Right (Enforcement procedure) Rules.'” PER YARGATA BYENCHIT NIMPAR, J.C.A.
TORT LAW: THE TORTUOUS ACT OF DETINUE
“Detinue is a common law tort and is a continuing cause of action. Detinue is defined by the Black’s law Dictionary and restated in the case of FIDELITY BANK v. KATES ASSOCIATED INDUSTRIES LTD (2012) LPELR-9790 (CA) in the following way: “A common law action to recover personal property wrongfully taken or withheld by another.” A party seeking a claim in detinue is required to show that he has immediate right to the possession of the goods or chattel against a person who is in actual possession of them and who upon proper demand, fails or refuses to deliver up possession without lawful excuse. Fundamentally, the Appellant’s coming into possession of the money was not as a result of any relationship with the Respondent.” PER YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
ECONOMIC FINANCIAL CRIMES COMMISSION Appellant(s)
AND
DR. MARTINS OLUWAFEMI THOMAS Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment):
The Appellant received the sum of $2,198,900.00 cash found in the possession of one Ibiteye John Bamidele from the National Drug Law Enforcement Agency with a covering letter alleging that the said man was arrested at the Local wing of the Murtala Mohammed Airport while attempting to board a flight to Abuja.
On the commencement of investigations, the Respondent appeared to claim the money and said he gave the money to John Bamidele to take same to Abuja. He made a statement and was granted administrative bail and asked to deposit his international passport. He initially reported to the Appellant’s Abuja office. Several days later, the Respondent filed an application before the Federal High Court seeking the following reliefs:
1. A DECLARATION that the seizure and detention of the Applicant’s money in the sum of $2,200,000.00 (Two Million Two Hundred Thousand United States Dollars) and his official International Passport No. F00222 by the Respondent on account of the Applicant’s ownership and movement of the sum of $2,200,000.00 (Two Million Two Hundred Thousand United States Dollars) within the Federal Republic of Nigeria is unlawful, illegal and ultra vires the powers of the Respondent as donated to it by law.
2. A DECLARATION that the Respondent, whether by itself, agents, employees, servants, officers and men under its supervision, direction and/or control are not entitled to howsoever invite, arrest, detain, arraign, harass, intimidate and/or declare the Applicant as a wanted person on account of the Applicant’s ownership and/or movement of the sum of $2,200,000.00 (Two Million Two Hundred Thousand United States Dollars) within the Federal Republic of Nigeria.
3. A DECLARATION that the Respondent whether by itself, staff, agents, employees, servants, officers and men under its supervision, direction and/or control are not entitled to seize, detain, confiscate and/or howsoever continue to seize, detain, confiscate, deny and/or deprive the Applicant of access to, possession of and use of his money in the sum of $2,200,000.00 (Two Million Two Hundred Thousand United States Dollars).
4. A DECLARATION that the Respondent, whether by itself, staff, agents, employees, servants, officers and men under its supervision, direction and/or control are not entitled to seize the Applicant’s official International Passport No. F00222 and/or restrict the Applicant’s right of movement into and out of Nigeria on the basis of the unlawful seizure of the Applicant’s money in the sum of $2,200,000.00 (Two Million Two Hundred Thousand United States Dollars).
5. A DECLARATION that the threat of arrest, detention, arraignment, intimidation and harassment of the Applicant, restriction of the Applicant’s movement, seizure of the Applicant’s official International Passport No. F00222, confiscation, denial and deprivation of the Applicant from access to possession and use of the sum of $2,200,000.00 (Two Million Two Hundred Thousand UNITED STATES DOLLARS) belonging to the Applicant, by the Respondent are in breach of the Applicant’s fundamental rights to personal liberty, freedom of movement and right to own property as enshrined in Sections 35(1) and 44(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Articles 6 and 12 (1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9, LFN 2004.
6. AN ORDER of this Honourable Court directing, mandating and/or compelling the Respondent, its staff, agents, employees, servants, officers and men to forthwith, refund/pay over and/or deliver possession of the sum of $2,200,000.00 (Two Million Two Hundred Thousand United States Dollars) to the Applicant.
7. AN ORDER directing, mandating and/or compelling the Respondent, its staff, agents, employees, servants, officers and men to release and return forthwith, the Applicant’s official International Passport No. F00222, to the Applicant.
8. AN ORDER of perpetual injunction restraining the Respondent, by itself, staff, agents, employees, servants, officers and men from howsoever detaining, harassing, intimidating, arresting and/or further detaining, harassing, intimidating, arresting the Applicant, and/or declaring the Applicant as a wanted person on account of any matter howsoever connected with the Applicant?s ownership and movement of the sum of $2,200,000.00 (Two Million Two Hundred Thousand United States Dollars) within the Federal Republic of Nigeria.
9. AN ORDER of perpetual injunction restraining the Respondent, by itself, staff, agents, employees, servants, officers and men from howsoever confiscating, further confiscating or depriving the Applicant of ownership, possession and use of the sum of $2,200,000.00 (Two Million Two Hundred Thousand United States Dollars) belonging to the Applicant.
10. DAMAGES in the sum of N200,000,000.00 (Two Hundred Million Naira) for the irreparable emotional, psychological and commercial damages and losses of business and integrity that the Applicant has suffered and continues to suffer on account of the illegal and unlawful acts of the Respondent.
The application was opposed by the Appellant and upon due consideration, the trial Court granted 7 reliefs on the face of the Originating motion paper and dissatisfied with the decision, the Appellant filed an amended Notice of Appeal. This appeal is against the judgment of the Federal High Court delivered by HON. JUSTICE M. N. YUNUSA on the 4th November, 2015. The Amended Notice of Appeal is dated 14th November, 2017 filed on the 16th November, 2017 and deemed on 7/12/17. It sets out 6 grounds of Appeal.
The Appellant’s Brief settled by E. E. IHEANACHO, Esq., is dated 5th January, 2018 and filed on the 8th of January, 2018. It distilled 2 issues for determination namely:
i. Whether the lower Court had the jurisdiction to entertain and determine this matter which was brought pursuant to the Fundamental Right Enforcement Procedure Rules when the principal claim is founded on tortuous acts of trespass to chattel/detinue.
ii. Whether the appellant violated the fundamental rights of the respondent while carrying out its lawful duty in investigating a case of money laundering handed over to it by NDLEA which had earlier seized huge cash allegedly belonging to respondent on the suspicion that the money was tainted with criminality.
The Respondent’s Brief settled by CLETUS Z. KATUNG, Esq., is dated 19th January, 2018 and filed on the same date. It formulated 2 issues thus:
a. Whether, taking into account the subject matter, the grounds for the reliefs, the reliefs sought and the facts relied upon, the Respondent’s case before the lower Court is founded on the enforcement of his fundamental rights.
b. Whether there was legal justification for the grant of the reliefs endorsed on the Respondent’s originating Motion at the lower Court.
Having considered the Amended Notice of Appeal, the record of Appeal and Briefs of the parties, the appeal shall be fully resolved upon the two issues donated by the Appellant, to particularly resolve the challenge to jurisdiction. The two issues shall be considered seamlessly to avoid repetition and for expediency.
The Appellant submitted that from the facts of the case and the affidavit evidence, the main claim is one for trespass to property/chattel and the remedy lies in instituting a writ of summons for an action in detinue and not an action for the enforcement of his fundamental human rights, referred to ELIAS v. PASMORE (1934) 2 K.B. 164, ABDULHAMID v. AKAR (2006) 13 NWLR (Pt. 996) 127. Therefore the Appellant submitted that the action was not initiated by due process of law and the lower Court had no jurisdiction to entertain the application under the Fundamental Rights (Enforcement) procedure Rules, referred to MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587, N.U.R.T.W. & ANOR v. RTEAN & 5 ORS (2012) 1 SC (Pt. II) 119, EGBUONU v. BRTC (1997) 12 NWLR (Pt. 531) 29.
On issue 2, the Appellant argued that pursuant to Section 6 of the Economic and Financial Crimes Commission (Establishment) Act, 2004, the Appellant had a statutory responsibility to look into the allegation of crime and carry out its investigations, referred toKALU v. F.R.N. (2016) 9 NWLR (Pt. 1516) 1, AHMED v. F.R.N. (2009) 13 NWLR (Pt. 1159) 536, DANIEL v. E.F.C.C. (2016) LPELR-41173 (CA), HASSAN v. E.F.C.C. (2014) 1 NWLR (Pt. 1389) 607, ATAKPA v. EBETOR (2015) 3 NWLR (Pt. 1447) 549 @ 575. It argued that the lower Court failed to take into consideration the investigations carried on by the Appellant in ascertaining the offence of money laundering which involves disguising or concealing illicit origin of wealth. Further, the Appellant argued that there was no breach of the Respondent’s fundamental right and that having not made an issue out with the seizure by the NDLEA, the lower Court ought not to have come to conclusions that the Appellant failed to obtain any Court order sanctioning the said seizure of funds.
The Appellant also argued that there is a prima facie case that the Respondent gave the cash to the said Bamidele without passing same through a financial institution contrary to Section 1 of the Money Laundering (Prohibition) Act, 2011. It also argued that Section 44 (1) of the 1999 Constitution guarantees the right to property which right is subject for the purpose of any examination, investigation or enquiry, cited EBUKA v. STATE (2014) LPELR-23491 (CA). The Appellant argued that the lower Court ought to have allowed it tender the attached copy of the draft charge yet to be brought against the Respondent on the basis that it is a public document, having emanated from a public institution, and it does not need to be certified as such because it is still a draft, it referred to LASISI OGBE v. SULE ASADE (2009) 12 SC (Pt. III) 97.
Finally, Appellant submitted that the lower Court never found that there was any intimidation, threat or harassment occasioned the Respondent and the lower Court’s findings was based on speculation which ought not to be, referred to the cases of ARCHIBONG v. ITA (2004) 2 NWLR (Pt. 858) 590 @ 597, ACB PLC v. EMOSTRADE LTD (2002) 8 NWLR (Pt. 770) 501, GWANDU v. F.R.N. (2014) LPELR-23992 (CA), ONYEBUCHI v. F.R.N. (2007) LPELR -4134(CA), NEW PATRIOTIC PARTY v. I.G.P. (2000) 2 HRLRA 1 @ 27-29 in support.
The Respondent in its reply raised a subtle objection to ground 4, the ground from which the Appellant’s Issue 1 was distilled. He argued that the said ground does not relate to nor constitute a challenge to the ratio of the decision of the lower Court and that the said ground and the issues formulated therefrom are incompetent and ought to be discountenanced, see ONAFOWOKAN & 2 ORS v. WEMA BANK & 2 ORS (2011) 5 SC (Pt. 11) 1 @ 16-17, SARAKI v. KOTOYE (1992) 9 NWLR (Pt. 246) 156 @ 184, GARUBA & ORS v. OMOKHODION & 13 ORS (2011) 6-7 SC (Pt. V) 89 @ 98. He further argued that the issue that the case is founded on the tort of detinue was raised for the first time on appeal and consequently, the Appellant ought to have sought and obtained the leave of the Court before raising such fresh issue on appeal, referred to SUN PUBLISHING LTD v. ALADINMA MEDICARE LTD (2016) 9 NWLR (Pt. 1518) 557, ALAMIEYESEIGHA v. F.R.N. (2006) 16 NWLR (Pt. 1004) 1 @ 66. He contended that by participating in the proceedings without raising any objection, the Appellant has waived its right to object to the procedure now on appeal, cited ARIORI & ORS v. ELEMO & ORS (1983) NSCC 1.
Besides, the Respondent argued that the totality of the affidavit evidence and the reliefs sought shows that the complaint of the Respondent were that the actions of the Appellant were unlawful and infringed on the Respondent’s fundamental rights and they were right to have brought the action under the Fundamental Enforcement Rights Enforcement Rules, referred to IGWE v. EZEANOCHIE (2010) 7 NWLR (Pt. 1192) 61 @ 94, SEA TRUCK (NIG.) LTD v. ANIGBORO (2001) 2 NWLR (Pt. 696) 159 @ 178, F.B.N Plc v. A-G FED. (2014) 12 NWLR (Pt. 1422) 470. The Respondent argued that the Appellant is under this mistaken belief because of the first relief but that the first relief need not be the principal relief as in this case. He therefore urged the Court to discountenance the arguments of the Appellant under this issue.
With respect to the second issue, the Respondent submitted that based on the evidence adduced, the lower Court was justified in granting the reliefs sought. Also submitted that the Appellant did not controvert the depositions of facts contained in the Respondent’s affidavit in support of its application and those facts are deemed admitted, referred to TUKUR v. UBA (2013) 4 NWLR (Pt. 1343) 90 @ 130, UGWUANYI v. NICON INSURANCE PLC (2013) LPELR-20092 (SC). He also submitted that the Appellant failed to justify the violation of his fundamental rights and as such the lower Court was right in granting the Respondent’s motion for enforcement of his fundamental human rights, referred to DURUAKA v. NWOKE (2015) 15 NWLR (Pt. 1483) 417. The Respondent argued that in investigating economic and financial crimes, there is nothing in the law that permits the Appellant to violate the fundamental right of the Respondent to own property.
He further argued that transportation of money does not constitute a crime, cited HEMBE v. F.R.N. (2013) LPELR-22705 (CA), TAFIDA v. F.R.N. (2013) 12 SC (Pt. 1) 33 and that failure to obtain orders of the Court permitting it to seize his property is a flagrant disregard to Section 29 of the E.F.C.C. Act. Appellant argued that Section 1 of the Money Laundering (Prohibition) Act relied upon by the Appellant only places restrictions on making and accepting cash payments but not for movement of money. He urged this Court to find that the Appellant had no legal justifications in its actions and the lower Court was right to have granted his application.
In its reply brief, the Appellant argued that it sought leave of Court to raise Ground 4 with no objection by the Respondent and that in any case, the Respondent is wrong in its submissions that the said ground does not emanate from the decision of the lower Court. It argued that an Appellant is entitled to formulate a ground of appeal based on the procedure adopted in initiating the action resulting in the decision appealed against and that the authorities cited by the Respondent are inapplicable in this case, referred to AKPAN v. BOB (2010) 17 NWLR (Pt. 1223) 421 SC.
RESOLUTION
Jurisdiction is fundamental and its importance is paramount. It is always a threshold issue in any determination by the Court.
It has been described as the life wire and the blood of adjudication; see CHIEF IKEDI OHAKIM v. CHIEF AGBASO & ORS (2010) LPELR-2359 where the Apex Court on jurisdiction said thus:
“It is settled that jurisdiction is the live blood of any adjudication without which no proceeding, however brilliantly conducted by the Court or tribunal can be valid. It is really a threshold matter or sometimes referred to as a periphery matter to be dealt with once raised or challenged in any proceeding. Without jurisdiction, the whole trial or proceeding of the Court is a nullity however well conducted, that is why jurisdiction is very vital and fundamental to administration of justice in any judicial system. See also MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341; IKE v. NZEKWE (1975) 2 S.C. 1
The jurisdiction of our Courts is derived from statute and the Constitution. Hence where the Constitution has declared that the Courts cannot exercise jurisdiction any provision in any law to the contrary will be inconsistent with the provision of the Constitution and void. The reliefs highlighted earlier were made under the Fundamental Rights Procedure and that procedure was specially made pursuant to the power bestowed on the Chief Justice of Nigeria to set out a procedure for the enforcement of rights preserved by the Constitution under 3 limbs situations listed in Section 46(1) of the Constitution, it states thus:
“Any person who alleges that any of the provisions of this chapter has been, is being or is likely to be contravened in any state into him may apply to a High Court for the redress”
It is clear therefore that the Respondent must allege that any of his rights was/were contravened or infringed upon, is being infringed or is likely to be contravened. It is well settled that jurisdiction of the Court is primarily determined not only by the nature of the claim before the Court, but also by other considerations in the absence of which there can be no jurisdiction. Three essential elements for the exercise of the Court’s jurisdiction were settled in the case of MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341 as follows:
“A Court is competent when –
i. It is properly constituted as regards number and qualifications of the members of the bench, and no member is disqualified for the reason or another;
ii. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction: and
iii. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
The claim is basically declaratory and injunctive reliefs with regards to personal liberty, freedom of movement and the right to own property. The contention of the Appellant is that the claim was not initiated by due process of law by the nature of the main claim and a condition precedent to the exercise of jurisdiction. The area of contention is that for fundamental right enforcement proceedings, the alleged breach was not the principal claim but residual. Appellant contended that the allegation is fundamentally against the detention of the Respondent’s money in the sum of $1,198,900, which is a tortuous claim, specifically called detinue and such claims are not initiated by the procedure set for alleged fundamental rights breaches only.
The law is settled on what can be brought under the Fundamental Rights Procedure. They must primarily be reliefs that alleged breach of a fundamental right and this Court in the case of IGWE v. EZEANOCHIE (2009) LPELR-11885 (CA) gave a guide in the following words:
“Whenever the Court is confronted with an application brought under the Fundamental Right (Enforcement Procedure) Rules, it is imperative that the Court should critically examine the reliefs sought by the Applicant, the grounds for seeking the reliefs and the facts contained in the statement accompanying the application and relied on for the reliefs sought. Where the facts relied on disclose infringement of the fundamental right of the applicant as the main or basis of the claim, then it is a clear case for the fundamental Right (Enforcement procedure) Rules.”
And also in the case of ABDULHAMID v. AKAR (2006) 13 NWLR (Pt. 996) 127 the issue of proper reliefs under Fundamental Human Rights application was also pronounced upon in the following words:
“The position of the law is that for a claim to qualify as falling under fundamental rights, it must be clear that the principal relief sought is for the enforcement or for securing the enforcement of a fundamental right and not from the nature of the claim, to redress a grievance that is ancillary to the principal relief which itself is not ipso facto a claim for the enforcement of fundamental right. Thus, where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it will be incompetent to constitute the claim as one for the enforcement of a fundamental right: See Federal Republic of Nigeria & Anor v. Ifegwu (2003) 15 NWLR (Pt. 842) 113, at 180. Tukur v. Government of Taraba State (1997) 6 NWLR (Pt. 510) 549; and Sea Trucks (Nig) Ltd. v. Anigboro (2001) 2 NWLR (Pt. 696) 159.”
The question to answer is whether going by the reliefs in the originating motion, the matter is one that can come under the Fundamental Rights Enforcement Procedure thus conferring jurisdiction on the Court below?
The simple guide is that the main relief should be a fundamental right relief and not an ancillary relief, see TUKUR v. GOVERNMENT OF TARABA STATE (1997) 6 NWLR (Pt. 510) 549. It is not stated therein that the main relief must be the first relief on the application. It is just like identifying a cause of action in a statement of claim. Where however, the main relief is not the enforcement of a fundamental right or securing the enforcement of a fundamental right the jurisdiction of the Court cannot be properly invoked or exercised as the Court will be incompetent to do so, see IGWE v. EZEANOCHIE supra. The entire process or application must be carefully considered with a view to identifying the principal reliefs in the application, see IGWE’S case supra.
The Respondent sought for 10 reliefs on the face of the Originating motion (reproduced earlier), there is no need to reproduce them here again. As observed earlier, there is no statutory requirement compelling the applicant to make the first relief the principal one. It will always be clear from the facts surrounding the breach or alleged breach of any of the fundamental rights.
From the reliefs, I find five reliefs seeking for declarations which fundamentally relate to the arrest, detention, harassment of the Respondent and the unlawful seizure of the sum of $2,200,000.00 and international passport belonging to the Respondent. The next 4 are orders seeking the release of the cash and international passport and the remaining reliefs relate to reliefs for damages as a result of the alleged infractions. I have also carefully considered the statement in support along the supporting affidavit and further and better affidavit in support of the application. I have not seen where the word detinue was used. Like the Respondent posited, detinue did not arise from the judgment of the Court below. It is fresh and is being introduced fresh and without leave of Court. Ordinarily, the issue should be liable to be struck out but for the jurisdictional twist to it. Being part of the first issue which is challenging the jurisdiction of the Court below, it shall be considered but only as an aspect of jurisdiction. Though the jurisdictional issue is grounded on the new issue, the Court shall resolve the jurisdictional issue. It is clear from the record that there were allegations of breaches to the fundamental rights of the Respondent who also claim damages as a result. The issue of detention of the money and passport were a fall out of the allegation of unlawful seizure of the money. It was not standing on its own as an item of claim or breach of fundamental right.
Detinue is a common law tort and is a continuing cause of action. Detinue is defined by the Black’s law Dictionary and restated in the case of FIDELITY BANK v. KATES ASSOCIATED INDUSTRIES LTD (2012) LPELR-9790 (CA) in the following way:
“A common law action to recover personal property wrongfully taken or withheld by another.”
A party seeking a claim in detinue is required to show that he has immediate right to the possession of the goods or chattel against a person who is in actual possession of them and who upon proper demand, fails or refuses to deliver up possession without lawful excuse. Fundamentally, the Appellant’s coming into possession of the money was not as a result of any relationship with the Respondent.
It was in the course of the appellant performing its statutory functions, particularly as it alleged money laundering, exportation and making cash payments beyond the approved limit. The issue was not that of detinue standing alone when statements were taken from the Respondent as a suspect and he alleged threats to infringe on his fundamental rights.
The surrounding circumstances dictate where to situate a claim. The facts in issue in the application for enforcement of fundamental rights will largely show whether the claim is one that comes under the Fundamental Rights Procedure or is unrelated and in which case it should be fought under a different process. The facts here relate to the seizure of the $2,200,000 as alleged by the Respondent and $2,198,900 named by the Appellant.
No party explained the where about of the difference from when the money was seized at the airport by the NDLEA to when it was transferred to the Appellant. The contention by facts in support of the application clearly situates the claim not under detinue as a common law tort but in pursuance of the arrest, detention, search and alleged harassment of the Respondent by, the Appellant. In fact, the Appellant alleged the money was being exported from Lagos via Medview Airline, a domestic airline to Abuja all within the borders of Nigeria, quite bewildering and perplexing. The facts allege other facts such as the Respondent was invited to make statements and how the Respondent was making payments beyond the allowed threshold without passing through a financial institution. All those facts cannot but make the alleged seizure and retention of the money come under the right of ownership of movable goods. The money was not in the possession of the Appellant voluntarily but by the use of coercive powers of investigation.
I agree with the Appellant that detinue is a common law tort but the claim as represented by the reliefs named on the originating summons are clearly fundamental rights related issues. The Court below has no jurisdiction to hear common law claims. The Appellant introduced the word detinue merely as a diversionary measure. There was no relationship between the parties to have warranted the voluntary handing over of the money and the failure to return same after a formal demand. The Respondent was treated as a suspect right from the onset and the allegation against him by the Appellant are purely criminal allegations, it is difficult to see how detinue came into contemplation.
Having found that the there are principal reliefs seeking to enforce the fundamental rights of the Respondent, the first issue distilled by the Appellant is resolved against the Appellant. The Court below has jurisdiction to determine the originating motion seeking to enforce the fundamental rights of the Respondent.
Considering the second issue donated by the Appellant, it challenges the award made in favour of the Respondent by the Court below. An application such as the one in issue is fought basically on affidavit evidence. The Appellant in response alleged that they acted the way they did under statutory powers enabling it to investigate financial crimes and the Respondent was a suspect alleged to have committed money laundering. It raised a number of issues such as basis for the arrest, search, retention of the Respondent’s passport and the money in question.
I find the submission that the Respondent was exporting the money from Lagos to Abuja laughable and preposterous. It should attract no comment because it is sad that such submission could come from a counsel, a person fit and proper that was called to the Bar. Very sad indeed. Courts have over time admonished counsel to guide and assist the Court to see and know the truth and to do pure and undiluted justice, by placing all facts on the table even where the facts disclosed may not favour or work in the interest of his party. Colouring or shielding the truth by making it difficult to understand submission of counsel is contrary to the role of a counsel before the Court. The matter is not a matter of life and death that could tempt a person to stray away in an effort to save life. This is not the duty of counsel.
The Appellant also contended that the Respondent was making payments beyond the approved threshold and without passing it through a financial institution. Section 1 of the Money Laundering (Prohibition) Act 2011 provides thus:
“No person or body corporate shall, except in a transaction through a financial institution,make or accept cash payment of a sum exceeding –
a. N5,000,000.00 or its equivalent, in the case of an individual; or
b. N10,000,000.00 or its equivalent in the case of a body corporate.”
The facts are clear that the money was being moved to Abuja for conversion on the instructions of the Respondent, does that offend a law? I did not find any section of the Anti Money Laundering Act legislating against moving money or being in possession of money.
Can it by any stretch of argument be considered that he was making payment? Payment is defined by Black’s Law Dictionary, 9th Edition thus:
“Performance of an obligation by the delivery of money or some other valuable thing accepted in partial or full discharge of the obligation.
The money or other valuable thing so delivered in satisfaction of an obligation.”
Generally, you make payment in exchange for services or goods. You don’t give money for money in return, it is usually in exchange for some other thing. While the cash remains in the control/possession of the Respondent, it cannot be said that the Respondent was making any payment outside a financial institution. Payment is made out to another person whether natural or artificial persons. Something returns to the payer in return for the money paid out to the payee. That is not the scenario in this case.
Is there any legal provision against the keeping of money be it local or foreign currency in the house, on your person and outside the bank? None was cited and I also found none in my research. That was the finding of the trial judge too that none was established before him. How then can the keeping money at home or moving same transform to money laundering? We need to know what money laundering is, an author defined it thus:
“The process of concealment, disguising the true source or origin, ownership, movement and purpose of illegal funds or wealth with the intention to make it appear as if it originated from legitimate source.” See the Book by Professor Abdullahi Y. Shehu; “Economic Financial Crimes in Nigeria: Policy Issues and Options”, 2005 page 217.
The United Nations Convention against Transnational Organized Crime And the Protocols thereto by Article 6 (1) (a) criminalization of laundering proceeds of crime, it defined Money Laundering in the following ways:
i. The conversion or transfer of property, knowing that such property is the proceeds of crime, for the purpose of concealing or disguising the illicit origin of the property or of helping any person who is involved in the commission of the predicate offence to evade the legal consequences of his or her action;
ii. The concealment or disguise of the true nature, source, location, disposition, movement or ownership of or rights with respect to property, knowing that such property is the proceeds of crime.
The convention also defined a predicate offence to mean:
“Any offence as a result of which proceeds have been generated that may become the subject of an offence as defined in Article 6 of this Convention.”
See also UDEOGU v. F.R.N. & ORS (2016) LPELR-40102(SC).
It is settled that money laundering must be accompanied by a predicate offence which is an illegal act that yields the funds sought to be laundered as clean money. It is difficult or near impossible to prove money laundering without a predicate offence, see DAUDU v. F.R.N. (2018) LPELR-43637 (SC). The Appellant is therefore required to name a predicate offence that generated the funds. No predicate offence was alleged in this case. Money Laundering cannot stand/hang on its own without an illegal source (predicate offence).
The Appellant contended that Exhibit EFCC 6 – the proposed charge is a public document. It was not filed in Court and therefore it remains a mere proposal. A Court process is a judicial document and it is settled that both original and Certified True Copy (C.T.C.) of official documents are admissible in evidence but the said Exhibit has no foundation as a public document. C.T.C. of a charge must bear the certification of the Court which has custody of the original and if it’s the original, then, it must still have the stamp of the Court. The document is worthless in affirming that there was a charge (or proposed charge) against the Respondent. There is nothing as draft charge known to law, it cannot be evidence that a charge was filed. A charge is described thus:
“The word “charge” is both a noun and a verb. Black’s Law Dictionary 9th edition defines it as follows: As a noun: “A formal accusation of an offence as a preliminary step to prosecution.” As a verb: “To accuse (a person) of an offence.” In line with the two definitions of the word “charge” referred to above, a person is “charged” with a criminal offence when he is formally accused of having committed an offence. The formal accusation in writing is what constitutes the charge against him. Once he is made aware of the charge against him he is entitled to commence the preparation of his defence.” Per KEKERE-EKUN, J.S.C
Besides, uncertified public documents are not admissible by virtue of Section 104 and of the Evidence Act. See ONYALI v. OKPALA (2000) FWLR (Pt. 3) 515, UGOH v. BSLGSC (1995) 3 NWLR (Pt. 838) 288, CHIEF PHILIPS ANATOGU v. IGWE IWEKA II (1995) NWLR (Pt. 415) 547, NWAOGU v. ATUMA (2013) 11 NWLR (Pt. 1364) 117 @ 137. More so, by the combined effect of Section 104 and 105 of the Evidence Act, a document not certified cannot be used in proof of the contents of that public document, see OKOH v. IGWESI (2005) FWLR (Pt. 264) 891. Courts can only act on admissible evidence and if inadvertently it was admitted, the Court must discountenance it at judgment stage. Inadmissible documents are invalid for all intent and purposes. It cannot be reckoned with by the Court, see NWAOGU v. ATUMA supra.
There is the aspect of paragraphs of the Respondent’s affidavit which were not controverted by the Appellant. Those facts are deemed admitted by the Appellant and no amount of persuasive arguments can counter them. They stand as true. SeeLAWSON-JACK v. SPDC (NIG.) LTD (2002) LPELR-1767 (SC). Consequently, with paragraphs 4-28 of the further affidavit uncontroverted, the Court below had no option but to rely on the said facts to determine the application, see TANKO v. ECHENDU (2010) LPELR-3135 (SC). Unlike the situation in the case of DAUDU v. F.R.N. supra where the accused person failed to give a satisfactory account of the monies which were lodged in his account during his tenure as a local government chairman, here, the Respondent was able to prove the sources of the money found in the possession of one Ibiteye John Bamidele and his ownership of same.
The Appellant failed to put forward a clear case against the Respondent and were merely fishing for the twig to hang on. The Constitution of this country is very clear on what a person can be tried upon, it must be a offence known to law, Section 36 (12) states thus:
“Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law: and in this section a written law refers to an Act of the National Assembly or a law of a State any subsidiary legislation or instrument under the provisions of a law.”
It is trite that there cannot be a charge for an offence not named in a law. The act of keeping money at home or other places of choice is not a named offence in any law in this country. The Anti Money Laundering Act does not have such provision and the E.F.C.C. Act also has nothing in that direction. Furthermore, there is also no known offence for travelling with money legitimately earned within the country. The requirement of declaring sums beyond a threshold is only when you are travelling outside the country. Travelling from Lagos to Abuja is still within the territorial jurisdiction of the country known as Nigeria.
Going by the statements the Respondent made to the Appellant, the Respondent explained the sources of the money and several others in the various bank accounts. The Appellant has not shown they were countered. If those facts were not controverted then, the money came from legitimate sources and they cannot be illegal for the Respondent to own same. I agree with the findings of the trial judge. The Appellant has no justification to retain the money and without a Court order, contrary to Section 29 of the E.F.C.C. Act. It should be released to the Respondent forthwith.
However, if the passport was also collected as a condition for bail, that is legitimate and in the course of performing its duty, but where it gets to a point where no offence is disclosed by facts alleged, then, it behoves on the Appellant to do the needful and release same to the Respondent.
Failure to do so will mean the Appellant is breaching clear provisions of the Constitution protecting the rights of the Respondent. That will clearly present a clear picture of the Appellant abusing its powers to investigate financial crimes. It should not allow itself to be boxed into a frustrating corner. When no offence is disclosed by facts, it discharge and releases the suspect and whatever was collected from the suspect. I think energy should be deployed to clear cases where an offence is obviously discernable from the facts.
I restate the facts that no Court can restrain the Appellant from performing it statutory duties but all that must come within the ambit of the law. See PSYCHIATRIC HOSPITAL MANAGEMENT BOARD v. EJITAGHA (2000) 11 NWLR (Pt. 677) 154 @ 163. Both parties here are under the law and protected by law. Therefore, the question of infringement of fundamental rights being largely a question of facts does not defend on the whipping up of sentiments nor submissions of counsel. Appellant did not even have a clear case against the Respondent and did not controvert paragraphs 2-28 of the supporting affidavit.
An unchallenged affidavit is deemed admitted, see LAWSON-JACK v. S.P.D.C. (NIG.) LTD supra.
The Appellant failed to justify why the Respondent should be arrested, investigated and deprived of his hard earned money and the use of his international passport and therefore, the Court below was right in its decision. The Respondent was not making a payment as alleged and the question of threshold and financial institution does not arise.
The duty of the Court is to redress to any person whose rights have been infringed upon and the Respondent proved such so, he must be protected. If initially there was a reasonable suspicion, as investigation continued it must have become clear that no offence was committed. The Appellant cannot create an offence outside what the National Assembly has legislated. If the law seems inadequate or there are loopholes, the Appellant can make a case for its amendment but cannot over stretch legal provisions beyond statutory capacity.
This appeal lacks merit and it fails. The judgment of the Federal High Court delivered on the 4th of November, 2012 by HON. JUSTICE M. N. YUNUSA is hereby affirmed.
I make no order as to cost.
MOHAMMED LAWAL GARBA, J.C.A.: My learned brother Yargata Byechit Nimpar, JCA has adequately considered the crucial issues that require decision by the Court in this appeal, in the lead judgment, a copy of which I read before today. For reasons set out therein, I agree that the appeal lacks merit and join in dismissing it.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA. I agree with the reasoning and conclusion in the lead judgment and I adopt same.
The appeal lacks merit and it fails. The judgment of the lower Court is hereby affirmed. I abide by the order as to costs and all other consequential orders.
Appearances:
A. M. OcholiFor Appellant(s)
C. Z. Katung with him, Tokunbo AjibuluFor Respondent(s)
