IDAHOSA v. EFCC (2020)

IDAHOSA v. EFCC

(2020)LCN/14452(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, July 24, 2020

CA/B/592/2018

Before Our Lordships:

Samuel Chukwudumebi Oseji Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

PETER JESUOBO IDAHOSA APPELANT(S)

And

ECONOMIC AND FINANCIAL CRIMES COMMISSION RESPONDENT(S)

RATIO

WHETHER OR NOT A DECLARATORY RELIEF IS GRANTED AT THE DISCRETION OF THE COURT

The grant of declaratory relief is at the discretion of Court. Declaratory orders can only be granted when the Court is satisfied that taking into account all the circumstances of the case the claimant is fully entitled to them. Declaratory reliefs are not granted simply because the defendant admitted the claimant’s averments or that he did not even file a defence to the action. See Bello v. Eweka (1981) NSCC 48 @ 57-58 where the apex Court (Eso, JSC) had this to say:
“In fact, whether or not the point is taken by the defendant, the Court is still not bound to make a declaration once it does not consider it a proper case, in its discretion, to make one, see Markwald v. Attorney General (1920) 1 Ch. 348’ see also Wallersteiner v. Moir (1974) 3 ALL E.R. 217 as per Buckley L.J. where the learned Lord Justice said:
‘It has always been my experience and I believe it to be the practice of long standing that the Court does not make declaration of right either on admissions or in default of pleadings… but only if the Court was satisfied by evidence.” (Italics mine)
See also Makanjuola v. Ajilore (2001) 12 NWLR (pt. 727) 416, Network Security Ltd v. Dahiru (2008) ALL FWLR (pt. 419) 475 @ 498, Etim v. Akpan (2019) 1 NWLR (PT 1654) 451 (SC). PER UGO, J.C.A.

WHETHER OR NOT AN INJUNCTION IS GRANTED AS A MATTER OF COURSE OR MERE UNPROVEN EXPRESSION OF FEAR

Injunction, which appellant equally seeks, is not also granted as a matter of course or on mere, unproven expression of fear. An applicant for injunction on quia timet (because I fear) basis has a duty to show clearly that his rights are actually threatened. See London Borough of Islington v. Elliot and Morris (2012) EWCA Civ 56 where it was said by the English Court of Appeal that to justify coming to Court for an injunction on a quia timet (because I fear) basis requires that the applicant show “a concrete, strong tangible risk that an injunction is required in order to do justice in all the circumstances.” Section 46(1) of the 1999 Constitution of this country stating that any person who alleges that any of the provisions of Chapter VI of the Constitution ‘has been, is being or likely to be contravened in any State in relation to him may apply to the Court in that State for redress’ does, not deviate from this position. That provision certainly does not empower the Court to intervene on unsubstantiated fears as appellant did in this case. PER UGO, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the High Court of Edo State that was delivered by Ovbiagele, J., on 4th May 2018 dismissing the fundamental rights application of the appellant against the respondent. The trial Judge dismissed that application on the ground that appellant’s instant action was a duplication of an earlier Suit No. FHC/B/C5/1/2018 filed by appellant against the same respondent by a writ of summons in the Federal High Court Benin City Division so it amounted to abuse of process of Court. Appellant in his instant action had prayed for the following relief:
1. A declaration that he (applicant) is entitled to his right to personal liberty as enshrined in Section 35(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
2. A declaration that he (applicant) is entitled to his right to freedom of movement as enshrined in Section 41(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
3. A declaration that the threatened breach of the applicant’s fundamental right as contained in paragraph 1-2 above by the

Respondent having earlier instituted an action in the Federal High Court against it is against the fundamental human rights as contained in the 1999 Constitution of the Federal Republic of Nigeria (as amended).
4. An order of perpetual injunction restraining the respondent by itself, agents, privies, employees or anybody acting through it from attempting to invite, harass, arrest, detain, molest or to invite arrest, detain or harass the applicant whatsoever in respect of this matter.

In compliance with the Fundamental Rights (Enforcement Procedure Rules) 2009, appellant deposed to an affidavit of 19 paragraphs in support of it, in response to which the respondent filed a 52-paragraphed counter affidavit, which appellant also replied to with a 39-paragraphed affidavit.

Appellant’s case was simply was that, having instituted Suit No. FHC/B/CS/1/2008 in the Federal High Court against respondent for its directives to his banks to freeze his accounts, he was afraid that respondent would proceed to arrest him and make it difficult for him to prosecute that action and so infringe on his fundamental rights to liberty. That much he stated clearly

in paragraph 14 of his main affidavit where he swore that:
14. That having instituted action against the respondent, I have the reasonable belief and or under the apprehension that the respondent is likely to infringe on my fundamental right to liberty and free movement before, during and after the hearing of the suit under the guise of invitation to arrest and detain me so that I will not be in Court to prove my case against it or with the intention to intimidate, harass me, my business associates, customers and or family members with the intention to make me withdraw the suit or to force me to admit to any offence(s) I did not commit to further punish me as its action in closing, freezing or putting my accounts under its watch was done illegally.

He however did not pinpoint any steps taken by respondent to so harass or intimidate him to give him reason for that apprehension.

On its part, the respondent in its counter affidavit deposed to by one Sarah Mary-Jacob alleged that it was on the strength of preliminary revelations from its investigation of a petition of obtaining by false pretences against appellant and one Eskie Odianosen to the

specific effect that they were using a company called Beracah Works Limited to dupe members of the public and had in fact duped one Mrs Gloria Uhomoibhi to the tune of ₦1,700,000.00 (One Million and Seven Hundred Thousand Naira) and the proceeds moved by him into his said accounts which were the subject of his suit in the Federal High Court, that it contacted him by phone calls to respond to the allegation. It swore that after repeated attempts, appellant finally responded to its calls and promised to honour the invitation on 19/1/2018 but failed to do so hence it went to his house that same 19/1/2018 to arrest him; that upon sighting its operatives, he ran away and evaded arrest. It was on the same 19/1/2018 after he had evaded arrest, Mary-Jacob swore, he served Respondent his Federal High Court case summons in FHC/B/CS/1/2008 even though he had filed it since 3rd of January 2018. It denied attempting or having any plans to hinder his free movement, harass, intimidate or assault him or threatening his business interests and branded his said allegations tissues of lies to divert the attention of the Court. It asserted that all its operatives did, including

the order to freeze his accounts, were within the ambit of the law.

Appellant in a Further and Better Affidavit denied evading arrest and failing to honour respondent’s invitation. He swore in paragraph 18 of his Further and Better Affidavit that he was not even aware that respondent’s operatives were in his house on 19/1/2018 not to talk of him running away to evade arrest. On the contrary, he said, he had personally requested respondent to let him have the said petition against him to enable him make his response but it refused. He closed his said paragraph 18 saying:
“…if I was invited by the respondent, I could have willingly honoured the invitation as I have nothing to hide having not been involved in any fraudulent practice with anybody whatsoever.”

Further down at paragraph 23 of his same Further and Better Affidavit, he re-emphasized this commitment to honour respondent’s invitation, saying:
“…I was never invited through any means including phone calls which I could have gladly honoured based on my earlier request for same through my Exhibit A as I have never had any problem with anybody including

the petitioner and the Respondent before this time to make me have any fear about it.”

The application, to which both parties also filed written submissions, was finally argued and respondent raised the following three issues for determination:
1. Whether the trial Court had jurisdiction to entertain the matter.
2. Whether the action of the applicant does not amount to an abuse of Court process.
3. Whether the appellant made out a case against Respondent to grant the reliefs sought.

In its ruling of 4th May 2018, Ovbiagele, J., ruled positively, and correctly too I must say, on the first issue, that the Fundamental Rights (Enforcement Procedure) Rules clearly confers on both the High Court of a State and the Federal High Court jurisdiction to entertain cases bordering on breaches of fundamental human rights so his Court had jurisdiction. His Lordship however took the view, on the second issue, that appellant sued respondent before him on the same set of facts and grievances that also constituted the basis of his action in Suit No FHC/B/CS/1/2008 in the Federal High Court so his instant action for enforcement of fundamental

rights constituted abuse of Court process. On that basis, he proceeded to dismiss the action without considering the main issues having labeled them academic in the circumstances.

Appellant here questions that decision on four grounds and set out three questions for determination as follows:
1. Whether the trial Court had jurisdiction in entering judgment in favour of the respondent on a fact not deposed to in its counter affidavit without filing a notice of preliminary objection in accordance with Order VIII R.1(2) of the Fundamental Rights (Enforcement Procedure) Rules 2009.
2. Whether the trial Court rightly held that the action of the appellant in the trial Court was an abuse of Court process.
3. Whether the trial Court was right in not considering the other issues especially in appellant’s reply on point of law.

Respondent on its part formulated two issues as follows:
1. Whether the trial Court had jurisdiction, considering the issues of law and facts placed by respondent before it.
2. Whether the trial Court was right in its evaluation of evidence leading to the dismissal of the case of appellant who was applicant

before it.

In the absence of any objection by respondent to the three issues formulated by the appellant, I intend to adopt the said three issues of appellant.

Appellant contends on issue 1 that the issue of abuse of Court process on which the trial judge relied to strike out his action is a jurisdictional challenge so respondent ought to have complied with Order VIII R. 1 & 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009 stating that any challenge to the jurisdiction in such proceedings may apply to the Court for an order striking out or setting aside the proceedings and the Notice of preliminary objection to that effect must be filed along with the counter affidavit to the main application. He argues that respondent having not complied with that provision by filing a preliminary objection and not even raising the issue of abuse of process (which he labeled a condition precedent) in his counter affidavit, the lower Court’s jurisdiction was not properly ignited so it was wrong in entertaining the objection let alone dismissing his application on that ground.

Respondent in reply submitted that the procedure it adopted

was in order; and that in any case the provisions of Order VIII R.1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 employed the discretionary ‘May’ so it was in order.

Resolution of issue
It does not appear to me that there is any substance in this argument of appellant. In fact his argument confuses the concept of abuse of process of Court with challenge to the Court’s jurisdiction which is the subject of Order VIII R.1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 requiring that a preliminary objection be first filed. Jurisdiction of a Court is donated by the Constitution and the statute creating the Court in question (see Arjay Ltd v. A.M.S. Ltd (2003) 7 NWLR (PT 820) 571 @ 635 (SC), Ajomale v. Yaduat (No 1) (1991) 5 NWLR (PT 191) 257(SC), Adetayo v. Ademola (2010) ALL FWLR (PT 533) 1806 @ 1824 (SC) while abuse of process is a term generally applied to a proceeding that is wanting in bona fide, frivolous, vexatious and oppressive, which expression includes a multiplicity of proceedings involving the same parties and subject matter (seeSaraki v. Kotoye (1992) 9 NWLR (PT 246) 156 @ 188;

Sodipo v. Lemminkainen & Anor (1992) 9 NWLR (PT 258) 229 @ 242).
Every Court has a duty to stop abuse of process (see again Saraki v. Kotoye (supra), Seven-Up Bottling Co. Ltd v. Abiola & Sons Botling Co. Ltd (1992) 7 NWLR (PT 75) 156 @ 177, Okorodudu v. Okoromadu (1977) 3 S.C.21, Pavex Internal Co Ltd v. IBWA (1994) 5 NWLR (PT 347) 685), and that is regardless of whether such claim is ordinarily within its jurisdiction. That is what the lower Court did when it first rejected respondent’s contention that it lacked jurisdiction over the case yet held that the action was a duplication of the case of the appellant against the respondent in the Federal High Court and so was abuse of process of Court. Whether it was correct in that decision in the circumstances of this case is quite a different matter which I shall address shortly under issue two.
In deciding whether abuse of process has occurred or has taken place in a proceeding by reason of multiplicity of suits between the same parties on the same subject matter, what the Court does is to simply compare the contents of the first suit with that of the second one and see whether they are

aimed at achieving the same purpose: see Agwasim v. Ojichie (2004) 10 NWLR (PT 882) 613, Dingyadi v. INEC (2010) 44 NSCQR 301 @ 340. That was what the lower Court did with the processes in both suits before him through the affidavits of both parties, I therefore cannot see how it can be faulted on the procedure it adopted in this case. A contention that a Court process constitutes abuse of process being not a challenge to the jurisdiction of the Court is not required to be made a preliminary objection or contained in a counter affidavit as required by Order VIII R. 1 & 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009. In the result, I unhesitatingly resolve this issue against appellant.

In his issue two, appellant argued that his instant action for enforcement of his fundamental rights is not a duplication of Suit No. FHC/B/CS/1/2008 in the Federal High Court; that the two cases though against the same respondent were different in subject matter so the lower Court was wrong in labeling his instant action filed to protect his fundamental right to liberty threatened by respondent abuse of process of Court and worthy of dismissal. He

reproduced his claims in the Federal High Court to substantiate his claim and cited the cases of NDIC v. UBN Plc (2015) 12 NWLR (PT 1473) 246 @ 303 and C.O.M. v. Cobham (2006) 15 NWLR (PT 1002) 283 to submit that one subject matter or act may give rise to different rights and reliefs.

Respondent again argues that Ovbiagele, J., was correct; that appellant used the instant suit to waste the time of the Court, evade its invitation and the prospect of facing a criminal charge which it claimed was already pending against him in Court No. 2 of the Federal High Court Benin Division so the lower Court was right in dismissing his action as constituting abuse of process.

Resolution of issue
Now, this is what Ovbiagele, J., had to say in dismissing appellant’s fundamental rights action:
“Without much ado, it is clear that the conduct of the applicant is clearly an abuse of Court’s process. On the 3rd of January 2018 he dragged the respondent to the Federal High Court, Benin, on the same set of facts and grievances. On the 17th of January, he repeated this act in this Court. The action of the applicant is clearly vexatious,

frivolous, forum-shopping, time wasting and gold-digging, and I so hold.”

Was he right? That question I have shown earlier is best answered by comparing appellant’s complaints and claims in the two suits. I have already reproduced appellant’s claims in his instant fundamental rights action.

In his earlier Suit No FHC/B/CS/1/2008 before the Federal High Court which he commenced by a writ of summons, appellant claimed against respondent thus:
1. A declaration that the closure, freezing or placing of the plaintiff’s account Number 1005706126 with Zenith Bank Plc and his savings account with Account No 0050973631 with Access Bank Plc by the defendant and or under the defendant’s which is a sham, unlawful and or unconstitutional, null and void and is of no effect whatsoever as the same was made in breach of the rules of natural justice and was actuated by malice, bias and should be set aside.
2. An order of the Court directing the Defendant to henceforth release, unfreeze or remove the plaintiff’s Current account number 1005706126 with Zenith Bank Plc and his Savings account Number 0050973631 with Access Bank

under its watch to enable the Plaintiff operate them again.
3. An order of the Court granting perpetual injunction restraining the defendant, its agents, privies and nay other persons acting through it or for it from further closing, freezing or placing the Plaintiff’s current account with Account Number 1005706126 with Zenith Bank Plc, his Savings account Number 0050973631 with Access Bank and any of the Plaintiff other bank account(s) he has or may open or attempting to close, freeze or place the plaintiff’s aforestated bank accounts or any of his other bank account or accounts he may open under watch including that of his business associates or relatives.
4. The sum of ₦2,000,000.00 (Two Million Naira) against the defendant as exemplary and or aggravated damages.
5. The sum of ₦2,000,000.00 (Two Million Naira) as special damages against the defendant.
6. The sum of ₦2,000,000.00 (Two Million Naira) against the defendant as general damages against the defendant.
7. 10% interest rate of the judgment sum due from the date of judgment till the date of judgment (sic) is fully paid.
8. An order for cost.

It cannot in my humble opinion be seriously asserted by any means that these claims are the same or similar to his claims in the instant action seeking to enforce his fundamental right to liberty and freedom of movement by stopping respondent from interfering with his liberty and free movement so that he can prosecute his above claims in the Federal High Court against it without hindrance. The lower Court was therefore with all due respect wrong in its conclusion that this action amounted to abuse of process. In the event I unhesitatingly resolve this issue in favour of appellant.

In issue 3 appellant complains that the trial Court erred in not resolving all his complaints despite its conclusion that his suit constituted abuse of process. He is again right here, for the settled position of the law is that it is only the apex Court from which no further appeal lies that can afford not to decide all issues if it comes to the conclusion that an issue decided by it is enough to determine the case/appeal, for every other Court including this Court, we must decide all issues submitted to us, regardless of our opinion on other issues decided by us. The

reason for this is that, by so deciding it avoids potential orders of retrial and its attendant cost should an appellate Court take a different position on the case: See Adebayo v. Attorney General of Ogun State (2008) LPELR-80 (SC): Alafia v. Gbode Ventures Nig. Ltd (2016) LPELR-26065 (SC). This issue must therefore be and is here also resolved in favour of appellant.

But that is not the end of the matter, for appellant also correctly called on this Court to exercise its powers under Section 15 of the Court of Appeal Act 2004 and decide his application on its merits. I proceed to do that now.

As shown earlier, appellant founded his instant application on his fear of respondent interfering with his rights to free movement and liberty to prosecute his Federal High Court case. He says if not restrained by order of injunction, respondent might arrest him and make it impossible for him to prosecute his case in the Federal High Court. In other words, the declaratory and injunctive order he is seeking are all brought on grounds of fear. Curiously, however, he did not depose to even a single act of the respondent that gave him cause to entertain that fear. On

the contrary, as shown earlier, he swore that he had nothing to hide, had no problem with respondent and is even ready to honour its invitation on the issue (See again paragraphs 18 and 23 of his Further and Better Affidavit earlier reproduced). Now, if that be the case, where then lies the basis of his fear and the declaratory and injunctive orders he is seeking? None, I hasten to say. The grant of declaratory relief is at the discretion of Court. Declaratory orders can only be granted when the Court is satisfied that taking into account all the circumstances of the case the claimant is fully entitled to them. Declaratory reliefs are not granted simply because the defendant admitted the claimant’s averments or that he did not even file a defence to the action. See Bello v. Eweka (1981) NSCC 48 @ 57-58 where the apex Court (Eso, JSC) had this to say:
“In fact, whether or not the point is taken by the defendant, the Court is still not bound to make a declaration once it does not consider it a proper case, in its discretion, to make one, see Markwald v. Attorney General (1920) 1 Ch. 348’ see also Wallersteiner v. Moir (1974) 3 ALL E.R. 217

as per Buckley L.J. where the learned Lord Justice said:
‘It has always been my experience and I believe it to be the practice of long standing that the Court does not make declaration of right either on admissions or in default of pleadings… but only if the Court was satisfied by evidence.” (Italics mine)
See also Makanjuola v. Ajilore (2001) 12 NWLR (pt. 727) 416, Network Security Ltd v. Dahiru (2008) ALL FWLR (pt. 419) 475 @ 498, Etim v. Akpan (2019) 1 NWLR (PT 1654) 451 (SC).

of this country stating that any person who alleges that any of the provisions of Chapter VI of the Constitution ‘has been, is being or likely to be contravened in any State in relation to him may apply to the Court in that State for redress’ does, not deviate from this position. That provision certainly does not empower the Court to intervene on unsubstantiated fears as appellant did in this case.

At any rate, Courts do not lightly interfere with the performance of their duties by law enforcement agencies or even other departments of government for that matter. A compelling case has to be made to justify such interference. That is not the case here.

What is more, one cannot also rule out the possibility that if appellant honours respondent’s invitation as he has promised, he might even iron out his differences with it and even see need to withdraw his action. That possibility should not be frustrated by an injunctive order. Whichever way, the threats, intimidation and harassment by Respondent on which he founded his application have not been made out.

On the basis of all the foregoing, I hold that appellant’s

instant application for enforcement of his fundamental rights lacks merit; accordingly, I hereby dismiss it along with his appeal and affirm, albeit for different reasons, the order of the lower Court dismissing his action.
Parties shall bear their costs.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read in draft the judgment just delivered by my learned brother B.M. UGO, JCA.

I agree with the reasoning and conclusion that the appeal lacks merit and should be dismissed. I also dismiss the appeal and abide the consequential orders made in the leading judgment.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned Brother, BOLOUKUROMO MOSES UGO, JCA and I am in agreement with the reasoning and conclusions in dismissing the appeal as lacking in merit. I subscribe to the consequential orders made thereto.

Appearances:

B.O. Ainabebholo, Esq., with him, J. E. Oduwa, Esq. For Appellant(s)

F.O. Dibang, Esq., with him, F. Manager, Esq., and K. U. Udus, Esq. For Respondent(s)