EFCC v. DINA (2022)

EFCC v. DINA

(2022)LCN/16418(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Tuesday, July 19, 2022

CA/OW/274/2012

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Ibrahim WakiliJauro Justice of the Court of Appeal

Between

ECONOMIC AND FINANCIAL CRIMES COMMISSION APPELANT(S)

And

JOSEPH DINA RESPONDENT(S)

RATIO

A COURT OF LAW IS NOT ALLOWED TO GRANT WHAT IS NOT ASKED FOR OR CLAIMED

It is trite law that a Court of law is not allowed to grant what is not asked for or claimed, as the Court is neither a charitable institution nor Father Christmas. Its duty in a civilclaim is only to render unto a party according to his proven claim. SeeAgbi V. Ogbeh (2006) 11 NWLR (Part 990) page 65 at 12P Para D per Musdapher JSC (as he then was); Arab Contractors (O.A.O) Nigeria LTD v. Gillian Umanah (2013) 4 NWLR Part 1344 page 323 at 348 para G – H per Ogunwumiju JCA (as she then was). OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A

GRANTING AN AWARD AGAINST A PARTY

A Court should not grant an award against a party who did not infringe on the rights of the adverse party CHRIST THE KING SEVENTH DAY MISSION V. NJOKU (2005) ALL FWLR Pt. 287, CA 938; ADIMORA V. AJUFOR (1988) 3 NWLR Pt. 80 Page 1. MINI LODGE LTD. V. NGEI (2007) 4 WRN. 54.
The Appeal succeeds and same is hereby allowed.
The decision of the Federal High Court, sitting in Umuahia delivered on the 22nd day of February, 2012 in Suit No: FHCV/UM/M/65/2011 is hereby set aside in part with N100,000 Costs in favour of the Appellant. RITA NOSAKHARE PEMU, J.C.A

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the decision of the Federal High Court, sitting in Umuahia, delivered on the 22nd of February, 2012, in Suit No. FHC/UM/M/65/2011.
In the judgment, the Court below granted the reliefs sought by the Applicant.

SYNOPIS OF FACTS
The Respondent (Applicant in the lower Court) had claimed the following against four Respondents, including the Appellant who was the 5th Respondent for the following:
(A) A Declaration that the arrest and detention of the applicant by the 3rd and 4th Respondents, their officers and agents at the behest of the 1st and 2nd Respondents from the 5th of October, 2010 to the 11th of October, 2010 without the commission of any crime/criminal act is an infraction of the fundamental right of the Applicant and/or in breach of Sections 35 (1), 36 (1) and 41 of the 1999 Constitution of the Federal Republic of Nigeria.
(B) A Declaration that the continued harassment and intimidation of the Applicant by the 1st and 2nd Respondents is in contradiction to the fundamental right of the Applicant.
(C) A Declaration that the steps being undertaken by the 1st and 2nd Respondents to use the instrumentality of the 5th Respondent to further arrest and detain the Applicant on a purely civil matter is likely to infringe on the fundamental right of the Applicant to personal liberty and freedom of movement as enshrined in Sections, 35 (1) 36 (1) and 41 of the Constitution of the Federal Republic of Nigeria.
(D) A Declaration that the move by the 1st and 2nd Respondents to forcibly seize and/or detain the properties of the Applicant without reference to the Court is likely to infringe on the fundamental rights of the Applicant as enshrined in Sections 43 and 44 (1) of the Constitution of the Federal Republic of Nigeria.
(E) An order of this Honourable Court restraining the Respondents jointly and severally; their agents, servants or privies or any person or group of persons acting for them or on their behalf from arresting and/or detaining the Applicant relative to the subject matter of this suit and/or using the instrumentality of the 5th Respondent to harass and/or intimidate the Applicant.
(F) An order of this Honourable Court restraining the Respondents jointly and severally, their agents, servants or privies or any person or group of persons acting for them or on their behalf from forcibly seizing and/or detaining the moveable or immoveable properties of the Applicant relative to the subject matter of this suit.
(G) N50,000,000.00 (Fifty Million Naira) jointly and severally against the 1st and 2nd Respondents for the unlawful arrest and detention of the Applicant by the 3rd and 4th Respondents at the behest of the 1st and 2nd Respondents and for the embarrassment, humiliation and emotional and psychological trauma occasioned by the said acts of the 1st and 2nd Respondents.

The gist of the facts is that sometime in 2009, the Appellant approached one Emma Abugu (the C.E.O. of Present Value Investment Ltd) for a loan of N150,000,000.00 to finance a road construction contract, in Abia State, the facility was for an overdraft of N150,000,00.00. Both parties entered into a memorandum of understanding. The sum of N25,000,000 was later paid to the Respondent in two tranches with the promise that the remaining sum of N125,000,000 would be released later.

Instead of advancing him the agreed sum, the Company resorted to harassing him and demanding for the said sum of N150,000,000 (which was the sum covered in the post-dated Cheque) which the Respondent was prevailed on to issue as security for the overdraft.

The Respondent received an invitation letter on the 29th of September 2010 from the Commissioner of Police, General Investigation Section “D” Department (Force CID) Ikoyi Lagos State to come and answer to the allegations of Issuance of Dud Cheque.

This is because the Respondent was alleged to have issued them a post-dated cheque for the sum of N150,000,000 which was returned unpaid upon presentation.
The Respondent was detained from the 5th day of October 2011 to the 11th day of October 2011. He was thereafter granted bail.

After the investigation, it was discovered that the Respondent did not collect the sum of N150,000,000 as alleged, neither did he attempt to cheat or defraud the Company.

On the 16th of May 2011, 18th of May, 2011 and 27th of May, 2011, one Mr. Emma Abugu called the Respondent’s Mobile Phone informing him that he will report him to EFCC, and that he would be arrested.

The Respondent, consequent upon this threat sued for the Enforcement of his Fundamental Human Rights at the Federal High Court, Umuahia. Joined in the Suit were the 1st Respondent at the lower Court, 2nd Respondent at the lower Court, 3rd Respondent at the lower Court, 4th Respondent at the lower Court and the 5th Respondent at the lower Court.
At the Court below, the 1st, 2nd, 3rd and 4th Respondents filed no defence to the action.

However, the 5th Respondent (the Appellant in this appeal) filed a Counter Affidavit and Written Address. It stated inter alia that it did not invite anyone nor investigate anything pertaining to this matter. That the matter is speculative, as the Respondent has failed to place before the Court below materials, that he was invited, or detained by the Appellant. Even the 5th Respondent (Appellant herein) in its counter affidavit deposed to the fact that there was no case or petition before the EFCC to warrant being joined as a party.

After the hearing, the Court below resolved all the issues submitted for determination in favour of the Applicant, (Respondent in this Appeal) thereby granting all the reliefs sought. The Court also held that the arrest and detention of the Respondent is unlawful, unconstitutional and illegal. Page 95 to 119 of the Record of Appeal.
Damages in the sum of N5,000,000 (five Million Naira) was awarded against the Respondents jointly and severally.

The 5th Respondent (Appellant in this appeal) is dissatisfied with the judgment of the Court below and has appealed it. This is because the award of damages was against it as well as the other Respondents.

Pursuant to the Practice Direction of this Honourable Court, the Appellant filed its Notice and Grounds of Appeal on the 14th of February, 2013. (Pages 120 – 122 of the Record of Appeal) encapsulating one Ground of Appeal.
The Appellant filed his brief of argument on the 9th of October 2019. It is settled by MBAHIE INNOCENT Esq.
The Respondent filed no brief of argument.
The Appellant proffered a sole issue for determination

ISSUE FOR DETERMINATION
“Whether the trial Court was right when it awarded the payment of the sum of N5,000,000 as damages against the Appellant in favour of the Respondent when same was not sought and prayed against the Appellant by the Respondent.”

SOLE ISSUE
It is the contention of the appellant that they did not receive any petition against the Respondent, nor did they arrest or investigate the appellant to warrant them being joined as a party.

Submits that the learned trial judge at the Court below erred in law when he awarded damages against the appellant who did not infringe on the rights of the respondent. Cites CHRIST THE KING SEVENTH DAY MISSION V. NJOKU (2005) ALL FWLR PT.287 CA 938.
Urges Court to uphold the appeal and set aside the judgment of the lower Court as regards the award of damages.

RESOLUTION
It is curious that the Appellant was never seized of any petition pertaining to the Respondent. The Respondent was therefore never arrested nor detained by the Appellant.

At the Court below, the Appellant had bought an application to have its name struck out which was refused by the Court below. It was only the Appellant (as 5th Respondent in the lower Court) that filed a Counter Affidavit in response to Fundamental Rights action. The 1st – 4th Respondents neither entered appearance nor filed any process in reply. In the counter affidavit filed on the 27/6/2011, – pages 70 – 71 of the Record of Appeal. – In paragraphs 5, 6, 7, 9, 10 11, 12 and 13, the Appellant clearly stated that nothing links him to the allegations in the motion.

The Applicants in the Court below filed a reply to the counter affidavit. Curiously the averment in the counter affidavit were not denied specifically. These material paragraphs in the 5th Respondent’s (Appellant in this appeal), counter affidavit are in law deemed admitted by the Applicant. OWURU & ANOR V. ADIGWU & ANOR (2017) LPELR-42763 (SC); INAKOJU V. ADELEKE (2007) 4 NWLR (PT.1025) 427 at 684-685 H-B; E-G.
It is one thing to ask for a relief/reliefs by a party to a suit, but it is another thing to prove his entitlement to that relief.

Notably is that Relief G in the suit, the subject of this appeal is one sought against all the Respondents except the 5th Respondent. Specifically – page 119 of the Record of Appeal. For the Court below to award the damages of five Million Naira against all the Respondents jointly and severally was an award not based on law and was therefore perverse.

The answer to the sole issue for determination is, in the negative and same is resolved in favour of the Appellant and against the Respondents.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, RITA NOSAKHARE PEMU, JCA, where the facts and issues in contention have been amply set out.

I agree with my learned brother that the Respondent did not seek the award complained by the Appellant against it.
It is trite law that a Court of law is not allowed to grant what is not asked for or claimed, as the Court is neither a charitable institution nor Father Christmas. Its duty in a civil claim is only to render unto a party according to his proven claim. See Agbi V. Ogbeh (2006) 11 NWLR (Part 990) page 65 at 12P Para D per Musdapher JSC (as he then was); Arab Contractors (O.A.O) Nigeria LTD v. Gillian Umanah (2013) 4 NWLR Part 1344 page 323 at 348 para G – H per Ogunwumiju JCA (as she then was).

I also find merit in this appeal and allow the same. The judgment of the lower Court is accordingly set aside, with the costs as awarded by my learned brother.

IBRAHIM WAKILI JAURO, J.C.A.: I read in draft the judgment just delivered by my learned brother Rita N. Pemu, (PJ) JCA. I agree with his Lordship that a Court ought not to grant an award against a party who did not violate the rights of the adverse party. The lower Court was in error to have made the award in the circumstances. The appeal has merit and same is hereby allowed.
I abide by the order as to costs.

Appearances:

I.I. Mbachue, Esq, with him, C. R. Edozie, Esq, For Appellant(s)

Respondent, absent and unrepresented For Respondent(s)