EFCC v. ADIGWE (2020)

EFCC v. ADIGWE

(2020)LCN/14480(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, July 17, 2020

CA/L/331/2012

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Tijjani Abubakar Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

ECONOMIC AND FINANCIAL CRIMES COMMISSION APPELANT(S)

And

SEBASTIAN ADIGWE RESPONDENT(S)

RATIO

FACTOR TO BE CONSIDERED IN FIXING AMOUNT FOR THE INFRINGEMENT OF FUNDAMENTAL HUMAN RIGHTS

So, the argument on exemplary damages cannot hold ground as the Court below clearly expressed in the closing part of its judgment that it had awarded the N500,000 as “compensatory damages”.
In the case of First Bank of Nigeria Plc and Ors. v. A.-G., Federation and Ors. (2018) 7 NWLR (pt.1617) 121, the Supreme Court after reviewing upward the award of N750,000 for the 24 hours detention of the 2nd – 5th appellants for it to be shared among them at N250,000 each in that case to N1 million for each of the 2nd — 5th appellants held per the illuminating lead judgment prepared by His Lordship, Augie, J.S.C., that the Supreme Court had made it clear in Jim-Jaja v. C.O.P. Rivers State (2013) 6 NWLR (pt. 1350) 255 that a person who has established that he was unlawfully detained, as in this case, does not have to pray for compensation before he is awarded one; that such person is entitled to compensation automatically; but that where he claims a specific amount, as in this case where the respondent claimed N50 million for compensation, it is for the Court to consider the claim and award, in its opinion, an amount that would be justified to compensate the claimant. His lordship went on to elucidate in part of the judgment in page 162 of the law report that —
“In fixing an amount for the infringement of fundamental rights, the following factors inter alia may be taken into consideration — See Arulogun v. C.O.P., Lagos State and Ors. (2016) LPELR – 40190 (CA) –
(a) The frequency of the type of violation in recent times;
(b) The continually depreciating 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 loss; and
(f) The conduct of the parties generally, particularly the respondent”.
Having regard to the status of the respondent as the managing director of Afribank at the material time coupled with the other factors (supra), the award of N500,000 compensatory damages for breach of the respondent’s fundamental right to personal liberty for more than 48 hours by the appellant was moderate and modest when viewed vis-a-vis or against the backdrop of the N1 million. PER IKYEGH, J.C.A.

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from a judgment of the Federal High Court (the Court below) whereby it awarded compensatory damages of N500,000 against the appellant in favour of the respondent for a breach of the fundamental right of the respondent to personal liberty.

The facts behind the case as gleaned from the evidence adduced at the Court below were that the respondent was arraigned at the Federal High Court in charge No. FHC/L/294C/2009 and was granted bail in the said case; then on 03.05.2011, the respondent reported at the office of the appellant in accordance with the condition of the bail granted by the High Court; the appellant proceeded to detain the respondent on account of a purported charge No.ID/115C/2011 it had filed at the High Court of Lagos State since 29.03.2011 on the same set of facts upon which the respondent filed an application ex parte for the enforcement of his fundamental rights to personal liberty which was granted followed by a grant of the motion on notice to enforce the respondent’s fundamental rights to personal liberty wherein the respondent was awarded N500,000

compensatory damages against the appellant.

On the other hand, the appellant’s case was that charge No. ID/160C/2011 related to the offences of stealing, cheating and conspiracy to commit these offences which had no correlation with charge No. FHC/L/294C/2009 dealing with financial crimes amounting to N60,215,000.00 allegedly committed by the respondent while he was the managing director of Afribank; therefore the appellant had to arrest and detain the respondent for interrogation on the new offences of stealing, cheating and conspiracy to commit the said offences which the appellant subsequently discovered after the criminal charge in the Federal High Court was filed and prosecution thereof had commenced; and that the Magistrates Court of Lagos State validated the remand order and renewed it for the remand of the respondent pending his arraignment in the charge No. ID/160C/2011.

The Court below heard the matter on the merit and resolved in favour of the respondent in its judgment that the appellant had violated the respondent’s right to personal liberty upon which it awarded N500,000 compensatory damages against the appellant.

Not satisfied with the judgment of the Court below, the appellant filed a notice of appeal with sundry grounds of appeal contained in pages 137 — 140 of the record of appeal (the record).

The appellant filed a brief of argument on 18.06.13 with these issues for determination —
“1. Whether, in the circumstances of the case, the learned trial Judge was right to have held that the detention of the Respondent by the Appellant was in breach of the Respondent’s fundamental right to liberty under Section 35(5)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (CFRN);
2. Whether the arrest and detention of the Respondent by the Appellant cannot be supported by the Appellant’s statutory powers under its enabling statute;
3. Whether the learned trial judge was right in awarding damages in favour of the Respondent.”

The appellant submitted on the first issue that had the Court below followed the canon of interpretation requiring purposive construction of constitutional provisions, particularly Section 35(5) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution)

read with Articles 6 and 12 of the African Charter on Human and Peoples Rights and the cases of Asari-Dokubo v. FRN (2007) 12 NWLR (pt.1048) 320 at 360, Ekwenugo v. FRN (2001) 6 NWLR (pt. 708) 171 at 185, A.G., Anambra State v. Chris Uba (2005) 15 NWLR (pt. 947) 44 at 67, A.G., Bendel State v. A.G., Federation (1981) 10 SC 1, Nafiu Rabiu v. Kano State (1980) 8 – 11 SC 130 at 149, A.-G., Ondo State v. A.G., Federation (2002) 9 NWLR (pt. 772) 222 and Lufadeju v. Johnson (2007) 8 NWLR (pt. 1037) 535 as well as Section 268(1) of the Administration of Criminal Justice Law No. 10 of 2007 it should have refused the application to enforce the respondent’s fundamental right to personal liberty as the arrest and detention of the respondent involved a complex investigation of the case of financial crimes, which required time and was to avoid interruption with the investigation of the case by the respondent, being an influential person, therefore the arrest and detention was not mala fide but was based on reasonable circumstances.

The appellant referred to Sections 6 and 7 of the Economic and Financial Crimes Commission (EFCC) Act 2004 (Establishment Act), and the cases of

Nyame v. FRN (2010) 7 NWLR (pt. 1193) 344 at 403, Bamidele v. Commissioner for Local Government (1994) 2 NWLR (pt. 328) 568 at 583, Adebowale v. Military Governor of Ogun State (1995) 4 NWLR (pt. 397) 733 at 575, Fawehinmi v. Akilu (1987) 4 NWLR (pt. 67) (no pagination), NDIC v. Okem (2004) 10 NWLR (pt. 880) (no pagination) to contend that by using the phrase “shall” in Section 6 of the EFCC Act the appellant had the untrammeled powers to arrest and detain the respondent for the purpose of bringing him before a Court of law and preventing the commission of a crime and that the duty imposed on the appellant is so sacrosanct that it cannot be curtailed by any other enactment save by an amendment of the enabling EFCC Act, failure to perform which would attract judicial review by an order of mandamus, therefore the appellant had the bounden duty to arrest and detain the respondent towards the enforcement of its mandate under the EFCC Act for the purpose of bringing him to Court to answer to the alleged economic and financial crimes of stealing and cheating which accorded with reasonableness as borne out on the obtaining of an order of remand from the Magistrates Court within the

spirit of Section 35 of the 1999 Constitution.

The appellant contended that by relying on the cases of Nwangwu v. Duru (2002) 2 NWLR (pt.751), Umar v. Onwudine (2002) 10 NWLR (pt.774) 129, Federal Minister of Internal Affairs v. Shugaba Darman (1982) 3 NCLR 915, Odogu v. A.G., Federation (1996) 6 NWLR (pt. 546) 508 at 519 to hold that once a party showed the infringement of his fundamental rights he does not need to show that he suffered consequential damages, as the infringement automatically entitles him remedy in form of compensatory damages and in isolated instances exemplary damages to “serve as a deterrent against naked, arrogant, arbitrary and oppressive abuse of power”; consequently, the Court below awarded the sum of N500,000 as compensatory damages when in fact the damages were in the mould of exemplary damages within the context of the case of F.R.A. Williams v. Daily Times of Nigeria (1990) 1 NWLR (pt. 124) 1 at 30 where the Supreme Court held that exemplary damages will be justified where it is prescribed by statute or for oppressive, arbitrary or unconstitutional action by servants of the Government or where the

defendant’s act which has been held to be tortuous was done with a guilty knowledge, the motive being that the chances of economic advantage outweigh the chances of economic or even (perhaps) physical penalty.

The appellant then contended that there can be no award of damages to the respondent given that the appellant acted within the reasonable bounds permitted by Section 35 of the 1999 Constitution; therefore the appellant further contended that the compensatory damage of an exemplary nature which the Court below awarded against the appellant should only be awarded where there has been a “naked, arrogant, arbitrary and oppressive abuse of power” which, was not the case here and had no legal justification; upon which the appellant urged that the appeal should be allowed and a declaration made that the appellant was not in breach of the respondent’s fundamental rights.

The respondent filed his brief on 13.08.13. The respondent cited Section 35(4) of the 1999 Constitution to argue that the appellant did not dispute the fact that the

respondent was detained in its custody from 03.05.11 to 06.05.11, a period of 3 days, without arraigning him in a Court of competent jurisdiction within a radius of 40 kilometres from the place of detention of the respondent which violated the respondent’s absolute right to personal liberty vide the Court of Appeal decision in the case of Jim-Jaja v. C.O.P. (2011) 2 NWLR (pt. 1231) 375 at 398 to the effect a citizen is absolutely entitled to his freedom and cannot be deprived of it until and unless “due process is meticulously observed”.

The respondent further argued that due process was not followed in his case as stipulated in Section 35(4) and (5) of the 1999 Constitution read with the case of Asari-Dokubo v. FRN (2007) 12 NWLR (pt.1048) 320 at 360 as he was not brought to Court within a reasonable time as required by sub-sections (1)(c) and (5)(a) of Section 35 of the 1999 Constitution as where the respondent was detained was less than 40 kilometres radius to the Lagos State High Court and the Federal High Court and; that as the unlawful

detention lasted for more than 2 days Section 35(5)(b) of the 1999 Constitution did not exonerate the appellant showing there was unreasonableness on the part of the appellant within the clear and unambiguous words of Sections 35 and 36 of the 1999 Constitution vide Mkpa v. Mkpa (2010) 4 NWLR (pt.1214) 612 at 645, Orhiunu v. FRN (2005) 1 NWLR (pt.906) 39.

The respondent also argued that the remand order did not validate the unlawful detention way after the one-day limit imposed by the 1999 Constitution had expired placing reliance on the case reported as Vol. 1 Human Rights Law Report of Africa and Shugaba v. Minister of Internal Affairs (1981) 2 NCLR 459.

The respondent argued that since Section 1 of the 1999 Constitution makes the Constitution supreme, it supersedes Sections 6 and 7 of the EFCC Act and Section 268(1) of the Administration of Criminal Justice Law (ACJL) read with the case of Trousseau Investment Limited v. Eyo (2011) 6 NWLR (pt.1242) 195 at 207.

The respondent also argued that there was a breach of Section 35(5) of the 1999 Constitution entitling the respondent to automatic award of damages as it is the duty

of the Court to grant redress to a successful party whose constitutional rights have been infringed vide the cases of lgwe v. Ezeanochie (2010) 7 NWLR (pt.1192) 61 at 94, Agbai v. Okogbue (1991) 7 NWLR (pt.204) 391; and that it has not been shown that the Court below applied a wrong principle of law or took into account some irrelevant factors or that the amount awarded was either ridiculously low or ridiculously high to justify review of the N500,000 damages on appeal vide the cases of Makinde v. Omaghomi (2011) 5 NWLR (pt.1240) 249 at 269, Agaba v. Otobusin (1961) 2 SCNLR 12 and Onwuka v. Omogui (1992) 3 NWLR (pt.230) 393; upon which the respondent urged that the appeal should be dismissed.

The order of remand obtained by the appellant at the Magistrate Court to keep the respondent in its detention was made 3 days after the respondent was detained by the appellant as the judicial act did not exonerate the appellant but protected the further detention of the respondent on the aegis of the judicial intervention vide Balogun v. Amubikahun (1989) 3 NWLR (pt.107) 18 at 30 and Abiola v. Abacha (supra) cited by the respondent.

The gravamen of the case is not whether the appellant should not exercise its statutory powers under Sections 6 and 7 of the EFCC Act in the investigation of economic and financial crimes. But that in carrying out the statutory duties or functions the appellant should not cause the infraction of the constitutional provisions relating to personal liberty by taking an arrested person to Court not more than 24 hours of his arrest where a Court of competent jurisdiction exists within 40 kilometres radius to the place of arrest or detention as in this case vide Section 35(1)(c), (4), 5(1)(a) of the 1999 Constitutionwhich, for ease of appreciation, provides —
“35. -(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law-
(c) for the purpose of bringing him before a Court in

execution of the order of a Court or upon reasonable suspicion of his having committed a criminal offence, or to such extent as may be reasonably necessary to prevent his committing a criminal offence; …
(4) Any person who is arrested or detained in accordance with subsection (1)(c) of this section shall be brought before a Court of law within a reasonable time.
(5) In subsection (4) of this section, the expression “a reasonable time” means —
(a) in the case of an arrest or detention in any place where there is a Court of competent jurisdiction within a radius of forty kilometres, a period of one day; and
(b) in any other case, a period of two days or such longer period as in the circumstances may be considered by the Court to be reasonable.”
The function of the appellant has to be within the frame-work of the 1999 Constitution. By Section 1(1) and (3) thereof the Constitution is supreme and any enactment must bow or beckon to it. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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What Section 35 of the 1999 Constitution (supra) requires is attainable. It is simple: Once a person is arrested or detained on reasonable ground(s) that he had committed an offence that is bailable, the person should be taken to a Court of competent jurisdiction within 24 hours where such Court exists within 40 kilometres radius, as in this case, where the place of arrest and detention of the respondent by the appellant was at the place of work of the appellant at Awolowo Road, Ikoyi, which is within 40 kilometres radius of the Federal High Court and the State High Courts located within Ikoyi; likewise, the Magistrates Courts located at Igbosere, Lagos Island.
The proper thing for the appellant to have done was not to keep the respondent in custody but it should have proceeded to obtain an order of the Court to keep the respondent in its custody for the investigation of the “complex” case on the Monday of 3rd of May, 2011, which was a working day. That is the bastion of the rule of law: Due process. This is to entrench the fact that it is only by judicial process that a person can be detained for the investigation of bailable offences like stealing and cheating.

Had the appellant followed due process in the matter, the present situation would not have arisen.
The Court below was accordingly right to hold in part of its judgment contained in page 120 of the record that —
”In the instant case, the applicant was arrested and detained in the Lagos Metropolis, which has arrays of Court within much less than a radius of forty kilometers. Therefore, the applicants case falls under the purview of Section 35(5)(a) of the Constitution. The respondent thus had no justification whatsoever to detain the applicant for longer than one day, between 3rd day May, 2011 and 6th day of May 2011, when such detention was not by order of Court”.
The Court below proceeded to hold aright, in my view, that the said detention amounted to a breach of the respondent’s fundamental right to personal liberty and awarded N500,000 compensatory damages to the respondent against the appellant vide the tail-piece of the judgment of the Court below contained in page 125 of the record.
Section 35(6) of the 1999 is explicit that —
“Any person who is unlawfully arrested or detained shall be entitled to compensation…..”

His lordship went on to elucidate in part of the judgment in page 162 of the law report that —
“In fixing an amount for the infringement of fundamental rights, the following factors inter alia may be taken into consideration — See Arulogun v. C.O.P., Lagos State and Ors. (2016) LPELR – 40190 (CA) –
(a) The frequency of the type of violation in recent times;
(b) The continually depreciating 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 loss; and
(f) The conduct of the parties generally, particularly the respondent”.
Having regard to the status of the respondent as the managing director of Afribank at the material time coupled with the other factors (supra), the award of N500,000 compensatory damages for breach of the respondent’s fundamental right to personal liberty for more than 48 hours by the appellant was moderate and modest when viewed vis-a-vis or against the backdrop of the N1 million

awarded to each of the 2nd – 5th appellants in the First Bank of Nigeria Plc case (supra) whose wrongful detention was for 24 hours and who held the rank or position or station in life relatively below the present respondent at the material time.

In conclusion, I find no substance in the appeal and hereby dismiss it and affirm the judgment of the Court below (Tsoho, J., (now C.J.)) with N300,000 costs to the respondent against the appellant.

TIJJANI ABUBAKAR, J.C.A.: I read before now the comprehensive leading Judgment prepared and rendered in this appeal by my learned brother Ikyegh, JCA. I am in complete agreement, I therefore adopt the Judgment as my own and endorse all consequential orders including the order on costs.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My Lord, the Hon. Justice Joseph Shagbaor Ikyegh, JCA obliged me with the draft of the lead judgment just delivered in which he found no substance in the instant appeal and dismissed it.

I agree with the reasoning of my Lord and of the conclusion which he reached. I also dismiss the appeal as it lacks merits.

Appearances:

Dr. C. O. Ukattah For Appellant(s)

Mr. A. Abdulsalam For Respondent(s)