MADAKI & ANOR v. GTB & ANOR (2022)

MADAKI & ANOR v. GTB & ANOR

(2022)LCN/17045(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, March 04, 2022

CA/KN/34/2020

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

1. SAFIYA NUHU MADAKI 2. MADAKI SHEHU NUHU APPELANT(S)

And

1. GUARANTY TRUST BANK PLC 2. ECONOMIC & FINANCIAL CRIMES COMMISSION (EFCC) RESPONDENT(S)

RATIO

WHETHER OR NOT EVERY CITIZEN HAS A DUTY TO MAKE COMPLAINTS OF COMMISSION OF CRIME TO THE LAW ENFORCEMENT AGENCIES

On the contrary, it is the duty of every citizen to make complaints of commission of crime to the law enforcements agencies, whenever and wherever they occur, and also the responsibility of the law enforcement agencies, whose statutory duty is to prevent and prosecute criminals, to receive such complaints, investigate and take necessary steps including arrest of suspects that investigation and prosecution of crimes entails. That, I guess, is also the rationale behind the principle in the old English case of Smith v. Selwyn (1914) 3 K.B. 98 that where one complaint constitutes both a felony and a civil wrong the criminal aspect must be reported to the law enforcement agencies for prosecution before the civil remedy can be embarked upon by the affected individual.
The fact that any allegation of crime, including forgery, could be properly reported to the authorities for investigation, and arrest could also follow, is also suggested by the dictum of the Ngwuta JSC in his lead judgment in the locus classicus of Jim Jaja v. C.O.P. (2012) LPELR-20621 (SC) at p.12, when his Lordship said that “if the appellant’s arrest and detention resulted from the allegation of forgery, which is a crime..” That is even as this Court and the apex Court was able to see, on the facts of that case, that the case was in fact a mere civil one of debt recovery given, as His Lordship there quickly added that “the fact that police in that case released appellant, Jim Jaja, on bail on “his mere undertaking to repay the loan” showed that “it [the dispute between the parties] was a civil matter.” PER UGO, J.C.A.

WHETHER OR NOT A PARTY CAN RESORT TO THE USE OF POLICE OR ANY LAW ENFORCEMENT AGENCY TO PURSUE RECOVERY OF DEBT

The law is also trite that a party cannot resort to the use of the Police or any law enforcement agency, to pursue recovery of debt. See the case of Oceanic Securities Int’l Ltd vs Balogun & Ors (2012) LPELR – 9218 (CA), Ezeigbo vs Ikechukwu & Ors (2019) LPELR – 48445 (CA).
See also Kure Vs C.O.P. (2020) LPELR – 49378 SC:
The primary duty of the Police by Section 4 of the police Act is the prevention of crime, investigation and detection of crime and the prosecution of offenders. See IBIYEYE V. GOLD (2012) ALL FWLR (PT 659) 1074. The Police is not a debt recovery agency and has no business to dabble into contractual disputes between parties arising from purely civil transactions. See MCLAREN V. JENNINGS (2003) FWLR (PT. 154) 528. When, as in the circumstances of this action, a purely civil matter is reported to the Police, such a person cannot go scot-free as the report ought not to have been made at all since it is not within the purview of Police duties. It is a report made malafide and he will be equally liable for the action taken by the Police irrespective of whether he actively instigated them or not, since he had no business involving the Police in a purely civil matter in the first place. Such conduct which portrays disregard of the law and is aimed at using the coercive powers of the State to punish a contracting party in a purely civil matter ought to be mulcted in exemplary damages. See OKAFOR & ANOR V. AIG POLICE ZONE ONIKAN & ORS (2019) LPELR- 46505.” Per ABBA Ail, JSC
See also Ohanedum & Anor Vs C.O.P. & Ors (2015) LPELR – 24482 (CA):
“We have stated repeatedly that the Police has no business in enforcing debt obligations or helping parties to settle or recover debts. See the case of Oceanic Securities International Ltd vs Balogun & Ors (2013) ALL FWLR (pt. 677) 633. See also the case of Ibiyeye & Anor vs Gold & Ors (2012) ALL FWLR (pt. 659) 1074, where this Court said: “I have to add that the resort to the Police by parties for recovery of debts outstanding under contractual relationship has been repeatedly deprecated by the Court.

THE POSITION OF LAW WHERE A PARTY ALLEGES THE CRIME OF FRAUD TO JUSTIY THE ARREST AND HARRASMENT OF ANOTHER

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the High Court of Justice of Kano State of 18/06/2019 dismissing the application of appellants against Respondents for enforcement of their fundamental rights to liberty. Appellants as applicants in their said application sought:
1. A declaration that the arrest and detention of the 2nd applicant by the 2nd respondent on the 24th July 2018 at around 6.20am till 25th July, 2018 and in the general circumstances of this case is arbitrary, illegal, unconstitutional and gross violation of the 2nd applicant’s fundamental rights guaranteed under Sections 34, 35, 36, 37 and 41 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) 2011.
2. A declaration that the entry or invasion into the residential house of the respondent (sic) by the 2nd respondent’s operatives under the instruction and instigation of the 1st respondent around 6.20am on the 24th July, 2018 and in the general circumstances of this case is arbitrary, illegal, unconstitutional and gross violation of the 2nd respondent’s (sic) fundamental rights guaranteed under Sections 34 and 37 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) 2011.
3. A declaration that the 2nd respondent base on the circumstances of this suit are not constituted as debt recovery agency and have no power whatsoever to demand, request or by whatever manner require the payment or refund or recovery of the Max Advance Credit facility the subject matter of the transaction between the 1st respondent and or any money whatsoever between the 1st Respondent and or any money whatsoever from the 1st applicant.
4. A declaration that the invitation, threat of arrest, arrest and detention of the applicant in the general circumstances of this suit by the 1st respondent on the instruction and instigation of the 4th (sic) Respondent with the sole aim of recovering the investment sum subject matter of the transaction between the 1st respondent and 1st applicant is contrary to the provisions of Section 35 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and it therefore constituted gross violation of the applicant’s fundamental right to liberty guaranteed thereof.

5. A declaration that the applicant is entitled to her personal liberty as guaranteed by the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap A9 L.F.N. 2004.

6. An order of perpetual injunction restraining the 2nd respondent either by himself, agents, servants and privies from intimidating, harassing, arresting or threatening to arrest the applicants.
7. An order of perpetual injunction restraining the 2nd respondent either by himself, agents, servants and privies with whatever name or style called from further requesting or demanding from the 1st applicant the payment of the Max Credit Facility or further inviting, intimidating and/or threat of arresting, arresting the applicant with the sole aim of recovering the credit facility the subject matter of civil banking transaction between the 1st respondent and 1st applicant or any further money whatsoever.
8. An order awarding the sum of ₦1,000,000.00 damages/compensation for the 2nd applicant against the 2nd respondent for the unwarranted infringement of the 2nd applicant’s fundamental rights guaranteed by the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap A9 L.F.N. 2004.
9. An order directing the respondents jointly and severally to pay the sum of ₦2,000,000.00 as compensation/damages to the 1st and 2nd applicants.
10. Any other order or orders as the Court may deem fit to make in the circumstances of this case.

Affidavits and written addresses were exchanged by parties and the application was argued, after which the lower Court ruled the application not made out and dismissed it.

The appellants in this appeal simply seeks answer from this Court to the question whether the High Court of Kano State properly considered all the affidavit evidence placed before it by parties before reaching its said decision dismissing their said application.

The facts of that application, or what prompted its filing, are that 1st Appellant who is the wife of 2nd appellant/applicant, was availed a credit facility by 1st Respondent, GTB Plc in the sum of ₦2,900,000.00 (Two Million Naira Hundred Thousand Naira). Along the line, 1st Respondent petitioned 2nd Respondent that 1st applicant secured the said facility in connivance with its rogue ex-staff, Shehu Mohammed, by presenting false documents to it that she, 1st appellant, was a staff of Aminu Kano Teaching Hospital (AKTH) and that she had actually obtained an irrevocable and unconditional undertaking from the Management of her said employers to domicile her emoluments with 1st Respondent for the purposes of the loan.

On the strength of that petition, 2nd Respondent’s operatives, according to the deposition of 2nd appellant in his affidavit supporting the application, swooped on the home of appellants on 24th July, 2018 to arrest her and, not finding her at home, arrested 2nd appellant, her husband, in her place and detained him till the following day before he was released on administrative bail. Second appellant swore that 2nd Respondent threatened him that if he refused to produce 1st appellant it would declare her wanted in the media. He complained that Respondents were simply harassing him and his wife over a purely civil matter hence he approached the High Court of Kano State with his wife for enforcement of their fundamental right to liberty and claimed therein declaratory and ancillary reliefs earlier set out.

Both respondents reacted to the application by filing counter-affidavits. The counter-affidavit of 1st Respondent was deposed to by one Olalekan Bello on 17/9/2018 and spans pages 158 to 163 of the records. There, 1st Respondent maintained that 1st applicant/appellant along with four other persons – Hadiza Sani, Abdullahi Rabiu, Abdullahi Abubakar and Baba Abba – actually connived with its rogue staff Shehu Mohammed to present false documents to it purporting that there were staff of AKTH and it was on the strength of that fraudulent claim it was misled into availing her its credit facility of ₦2,900,000.00, which indebtedness has since risen to ₦5,164,339.07K, hence its petition to 2nd Respondent to investigate the said forgery and fraud. It annexed to its counter-affidavit its Letter of Banking Facility Offer (Exhibit A) to 1st Applicant, which letter shows on its face that 1st applicant actually signed it with AKTH as the name of her employer. More poignantly, Mr. Olalekan Bello of 1st Respondent in paragraphs 27, 29, 32, 33, 34 of his counter-affidavit swore thus:
27. That by virtue of the facts in the preceding paragraphs, the firm of Dele Olaniyan & Co., initiated a petition dated 11th April to the 2nd Respondent with respect to forgery, fraud and criminal misrepresentation perpetrated by the said HADIZA SANI, ABDULLAHI RABIU, ABDULLAHI ABUBAKAR, BABA ABBA and the 1st applicant (a copy of the petition is attached and marked as Exhibit H).
28. That the contents of Exhibit H would clearly show that the petition of 1st Respondent was not for debt recovery but for investigation of fraudulent procurement of credit facilities perpetrated by the said HADIZA SANI, ABDULLAHI RABIU, ABDULLAHI ABUBAKAR, BABA ABBA and the 1st applicant.
29. That on the strength of the petition dated 11th April, 2018 the 2nd Respondent commenced rigorous investigations.
32. That facts in paragraph 18 and 20 and 21 of the applicant’s supporting affidavit are outright falsehood as the applicants have committed crimes and ought to be investigated and prosecuted by the 2nd respondent.
33. That it is in the interest of justice to refuse this application as a grant of this application would have the effect of shielding criminal offenders as the applicants from the long arm of the law.
34. That the 1st respondent would be greatly prejudiced by the grant of this application as same would set a dangerous precedent with the dire social and economic consequences with respect to would-be bank fraudsters as the 1st applicant and HADIZA SANI, ABDULLAHI RABIU, ABDULLAHI ABUBAKAR, BABA ABBA.

Second Respondent on its part in a seven-paragraph counter-affidavit spanning pages 103 to 105 of the records admitted acting on the said petition of 1st Respondent to it of obtaining fraudulent credit against 1st Appellant. It also admitted arresting 2nd appellant in the course of that investigation but denied arresting him in place of his wife. It rather insisted that he was arrested for his own role in the fraudulent scheme, following disclosure by one of the suspects that part of the proceeds of the alleged crime passed through him. It denied meddling in a civil case of debt recovery and insisted, instead, that it was only investigating criminal allegations made against appellants by 1st respondent.

Noteworthy is that 2nd Respondent, EFCC, also annexed to its counter-affidavit the response of Aminu Kano Teaching Hospital (AKTH) to its enquiries as to the genuineness of the purported letters identifying 1st applicant and the others as its employees. In its response in Exhibit EFCC 2A, AKTH said thus:
RE: INVESTIGATION ACTIVITIES
Yours No. 3000/EFCC/KNZ/CTG-PF/TC/133-18/VOL.20/002 dated 4th July, 2018 on the above refers. I am directed to acknowledge receipt of same with apologies for the delay in the response.
I am also to inform you that the attached documents are fake and they did not emanate from the hospital.
We wish to apologize for any inconveniences the delay might have caused the Commission, because we had to trace the previous correspondence to further establish that those documents did not emanate from Aminu Kano Teaching Hospital.
It is sincerely hoped that the information will suffice your enquiry.

It is necessary to point out that while appellants responded with a Further and Better Affidavit to the counter affidavit of 2nd respondent, EFCC (it spans pages 143 to 146 of the records), they did not respond at all to the counter-affidavit of 1st Respondent, Guaranty Trust Bank Plc. In the said Further and Better Affidavit also deposed to by 2nd respondent, appellants admitted that indeed 1st appellant had never been a staff of AKTH as suggested in the form she filed to obtain the loan in issue; that on the contrary, she had always been a housewife. (See paragraph 6 of that Further and Better Affidavit)

Second appellant in the same Further and Better Affidavit also seemed to admit the forgery in the documents with which the credit facility in issue was procured by 1st appellant as alleged by 1st Respondent when he swore in paragraph 12 thereof that:
13. That I know as a bank and customer relationship I am a 3rd party to the whole transaction which is between the 1st applicant and the 2nd respondent which Shehu Aliyu Mohammed have (sic) played a vital role in forging documents with the knowledge or consent of the 1st applicant. (Emphasis mine)

That was the state of the affidavit evidence before the trial High Court when the application was argued and parties adopted their written addresses in support of their positions.

In determining that appellants failed to make out a case of breach of their fundamental rights by respondents, the trial High Court, after reproducing paragraphs 12,13 and 27 as well as 5(a) and (g) of 1st and 2nd Respondent’s counter-affidavits respectively, had this among others to say:
“In the instant case, the above vital paragraphs of the counter-affidavit were not challenged or countered and failure to do so makes me to accept and act on them.”

Appellants founded their instant appeal against that decision on two grounds. They complained in their first ground of appeal that:
1. The learned trial judge erred when he held that paragraphs 12, 13, and 17 of the respondent’s counter-affidavit and paragraphs 5(a) and (g) of the 2nd Respondent’s counter-affidavit was not challenged.
Particulars of Error
a. In response to the respondent’s counter-affidavit, the appellant’s filed a further affidavit deemed as properly filed on the 26th of March, 2019 challenging the depositions in the respondent’s respective counter-affidavits.
b. The learned trial judge failed to consider the appellant’s further affidavit deemed as properly filed on the 26th of March 2019.
c. The learned trial judge thereafter held that paragraphs 12, 13, and 17 of the respondent’s counter-affidavit and paragraphs 5(a) and (g) of the 2nd Respondent’s counter-affidavit were unchallenged.

Their second ground of appeal is the omnibus one where they confusingly complained that “The judgment of the lower Court is against the weight of evidence placed on it by the lower Court.”

From these two grounds, they framed a single issue for determination in their brief of argument thus:
Whether the learned trial judge rightly considered the affidavit evidence before it.

The gist of their argument on their sole issue is that the learned trial judge shirked the responsibility placed on him by law to consider all relevant evidence placed before him by parties in determining cases when he, according to them, ignored their further affidavit earlier mentioned and held that paragraphs 12, 13, and 17 of the 1st Respondent’s counter-affidavit and 5(a) and (g) of 1st and 2nd Respondents’ counter-affidavits were unchallenged and dismissed their application. They complained that, by that finding, the lower Court breached their right to fair hearing which breach rendered its ruling a nullity.

First Respondent in its brief of argument adopted the sole issue of appellants but argued, instead, that appellants did not rely on their said affidavit at the hearing of the application so they are deemed to have abandoned it. In the alternative, they argued that appellants’ said Further and Better Affidavit offended Section 115(1) of the Evidence Act 2011 in that second appellant did not depose to it from facts in his personal knowledge but relied on information yet failed to disclose the source of his information, the time, place and circumstances of the information. It also submitted that the further and better affidavit of appellants included prayers, arguments and legal conclusions and so offended Section 115 (2) of the Evidence Act and should be discountenanced.

Second respondent on its part was of the opinion that the sole issue for determination is whether the learned trial judge was right when he dismissed appellants’ application. It then went to argue, citing the cases of Hassan v. EFCC (2014) 1 NWLR (PT 1389) (no page reference was provided) and EFCC & 1 Or v. Onwukeme in unreported Appeal No. CA/A/633/2013 of this Court of 14/7/2016, that a person arrested on suspicion of committing crimes should not be allowed to seek refuge under the fundamental rights provisions to escape justice and submitted that appellants’ fundamental rights were not breached in the circumstances of this case.

Resolution of issue
I am of the humble opinion that the sole issue in this appeal is whether the lower Court was right in its decision that appellants did not actually challenge paragraphs 12, 13, and 17 and 5(a) and (g) of 1st and 2nd Respondents’ counter-affidavits that he highlighted in his ruling. For if appellants truly challenged the said depositions and the trial judge was wrong in his finding to the contrary, he would not have only failed in his duty to consider every relevant evidence placed before him by parties in reaching his determining cases before him, he would have also denied appellants their guaranteed Constitutional right to fair hearing, with the consequence that his decision would be declared a nullity. If on the other hand he was correct and appellants did not challenge the said vital depositions of respondents, they would have simply shot themselves in the foot and must learn to live with the consequences of their action/omission. That is so as it is settled law that depositions in affidavits that are not denied are deemed admitted and ought to be acted upon by the Court. See Registered Trustees of the National Association of Community Health Practitioners of Nigeria & Ors v. MHWUN & Ors (2008) LPELR-3196 (SC).

So, were the said paragraphs 12, 13, and 17 and 5(a) and (g) respectively of 1st and 2nd Respondents’ counter-affidavits denied by appellants as they claim? It does not appear to me that appellants did. Taking on first the counter-affidavit of 1st Respondent, it will be seen that Appellants did not respond to it in any way by way of a further affidavit. Their one and only 19-paragraphed Further and Better affidavit deposed to by 2nd appellant on 17/9/2018 and spanning pages 143 – 146 of the records is in specific response to the 31st August, 2018 Counter-Affidavit of 2nd Respondent, EFCC and states so on its face. The consequence of that omission is that appellants admitted all the assertions of 1st respondent as contained in its counter-affidavit of 17/9/2018 of 1st Respondent as deposed to by Olalekan Bello and covering pages 153 -163 of the records. That includes not only paragraphs 27,28, 29, 31, 32, 33 and 34 of that affidavit earlier reproduced but includes paragraphs 12, 13 and 27 specifically referenced by the trial judge where Mr. Bello deposed that:
12. That the false and fraudulent representation of the 1st Applicant to the effect that she (1st Applicant) is a staff of AKTH Kano is evident in clause 10 of the memorandum of acceptance Exhibit UI 1 attached to the applicant’s supporting affidavit.
13. That on the basis of the false and fraudulent representation of the 1st applicant the 1st Respondent was misled into parting with a whopping sum of ₦2,900,000.00 to the applicant.
27. That by virtue of the fact in the preceding paragraph the firm of Dele Olaniyan & Co., initiated a petition dated 11th April, 2018 to the 2nd Respondent with respect to forgery, fraud and criminal misrepresentation perpetuated by the said ……1st applicant.

These depositions of commission of crime by appellants incidentally form the crux of 1st respondent’s petition in Exhibit H of the commission of the crime of forgery by 1st Appellant to 2nd Respondent, which petition triggered 2nd respondent’s investigation that appellants sought and still seeks to stop with their application and this appeal. Facts not denied are ordinarily deemed proved: see again Registered Trustees of the National Association of Community Health Practitioners of Nigeria & Ors v. MHWUN & Ors (2008) LPELR-3196 (SC). Appellants therefore cannot be seriously heard to argue that the said petition of 1st Respondent to 2nd Respondent against 1st Appellant was without basis and the actions taken by second respondent all illegalities.

As for the reason for the arrest of 2nd Appellant by 2nd Respondent, 2nd Respondent at paragraph 5(g) of its counter affidavit had this to say:
5(g) That the applicant’s averments in paragraph 13 of their counter-affidavit is false; the 2nd applicant was not arrested in place of the 1st applicant but for him to come and explain his role in the alleged crime following the disclosure by one of the suspects in the case that part of the proceeds of the crime passed through him to the 1st applicant. Attached and marked Exhibit EFCC 3-3A are the statements of one Shehu Aliyu Mohammed, a suspect in the case who indicted the 2nd applicant.

Second Appellant in his counter-affidavit was silent about this assertion of 2nd Respondent that EFCC in the course of the investigation of 1st Respondent’s petition came across some allegation against him hence he was arrested, detained and promptly released the following day even when his wife the 1st appellant had not shown up. That being the case, it is again difficult to fault his arrest and detention, even more so when account is taken of paragraph 5(i) of 2nd respondent’s counter-affidavit that 2nd appellant refused to co-operate with it by making statement to it on the allegation against him even when confronted with it hence he was detained.

The foregoing being the admitted circumstances under which 1st Respondent petitioned 2nd Respondent and the latter, a body set up by statute to investigate financial crimes like the instant one, swung into action, the lower Court in my opinion cannot be faulted in the way it determined the application.

In the event, this sole issue of appellants is resolved against them.

That should be the end of the matter, but I find it necessary, nevertheless, to say a word or two on the complaint of appellants that all the difference they had with 1st Respondent was a civil commercial dispute of loan recovery which did not need the invitation or intervention of the 2nd respondent, EFCC in the matter. They invoked Section 35 of the 1999 Constitution in making that argument. It appears appellants seem to lose sight of the fact that Section 35 of the Constitution guaranteeing right to personal liberty is not open-ended. On the contrary, the section rather provides for circumstances when a person’s liberty can be curtailed. It reads thus:
S. 35: 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 procedure permitted by law:
(a) In execution of the sentence or order of a Court in respect of a criminal of which he has been found guilty.
(b) by reason of his failure to comply with the order of a Court or in order to secure the fulfillment of any obligation imposed upon him 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. (Emphasis mine)
As shown earlier, not only did appellants in their further and better affidavit to the affidavit of EFCC admit the possibility of forgery of documents of Aminu Kano Teaching Hospital (AKTH) in the course of the procurement of the credit facility by 1st appellant from 1st Respondent, AKTH also confirmed that the documents bearing its name were actually forged, as earlier shown. In the light of that response, it cannot be seriously asserted that the petition of 1st respondent to EFCC and the investigation and subsequent steps EFCC undertook on the matter were without basis, amounted to infringement of appellants’ rights and not covered by the proviso in Section 35(1)(c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). While it is not open to argument that EFCC and indeed all the law enforcement agencies have no business intervening in purely civil disputes – a point I have myself emphasized in the past and even had cause to award damages/compensation against EFCC and its collaborator in my lead judgment of 19/01/2018 in Appeal No CA/L/2018 in Olanrewaju Anufi v. Economic & Financial Crimes Commission & Anor while overturning the ruling of the Federal High Court which had held to the contrary – it will be going too far to say that no complaint of commission of a crime by a person can be made to the law enforcement agencies and the law enforcement agencies also impotent once a transaction has a civil coloration. On the contrary, it is the duty of every citizen to make complaints of commission of crime to the law enforcements agencies, whenever and wherever they occur, and also the responsibility of the law enforcement agencies, whose statutory duty is to prevent and prosecute criminals, to receive such complaints, investigate and take necessary steps including arrest of suspects that investigation and prosecution of crimes entails. That, I guess, is also the rationale behind the principle in the old English case of Smith v. Selwyn (1914) 3 K.B. 98 that where one complaint constitutes both a felony and a civil wrong the criminal aspect must be reported to the law enforcement agencies for prosecution before the civil remedy can be embarked upon by the affected individual.
The fact that any allegation of crime, including forgery, could be properly reported to the authorities for investigation, and arrest could also follow, is also suggested by the dictum of the Ngwuta JSC in his lead judgment in the locus classicus of Jim Jaja v. C.O.P. (2012) LPELR-20621 (SC) at p.12, when his Lordship said that “if the appellant’s arrest and detention resulted from the allegation of forgery, which is a crime..” That is even as this Court and the apex Court was able to see, on the facts of that case, that the case was in fact a mere civil one of debt recovery given, as His Lordship there quickly added that “the fact that police in that case released appellant, Jim Jaja, on bail on “his mere undertaking to repay the loan” showed that “it [the dispute between the parties] was a civil matter.”

In this case, the petition of 1st Respondent (Exhibit EFCC 1 to 2nd Respondent, EFCC, contained at pages 106-108 of the records) never suggested or made any allusion to debt recovery. It simply called on EFCC to investigate and prosecute 1st appellant and others named in the petition for the crime of forgery it alleged was perpetrated by them.

For all the foregoing reasons, I find this appeal lacking in merit and accordingly dismiss it and affirm the ruling of the High Court of Kano State dismissing appellants’ application.

Parties shall bear their costs.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA, and I am in complete agreement with the conclusion and reasoning reached therein that this appeal has no merit. I too dismiss it and abide by all other consequential orders as contained in the lead judgment.

ITA GEORGE MBABA, J.C.A. (DISSENTING): I had the privilege of reading the draft of the lead judgment just delivered by my learned brother, B.M. Ugo JCA, but very respectfully, I am not able to agree with my learned brother, that “it is difficult to fault the arrest and detention of the Appellants, especially when account is taken of paragraph 5(1) of the 2nd Respondent’s counter-affidavit that the 2nd Appellant refused to co-operate with it by making a statement, even when confronted with it (Page 14 of the lead judgment).

It appears to me the entire complaint that led to the arrest and detention and/or harassment of Appellants, was founded on civil claims – debt owed by 1st Appellant (wife of the 2nd Appellant) to 1st Respondent (Bank), following a banking transaction (loan agreement), of which 1st Respondent had a right to take necessary action to recover the same by means of civil action/remedy.
The Petition to the 2nd Respondent to come into this purely civil wrong, is what baffles me, despite the allegation of fraud in the alleged way 1st Appellant used to obtain the Credit facility! Does the allegation that 1st Appellant secured the said bank facility in connivance with it its (Bank’s) rogue ex-staff, by presenting false documents to obtain the Bank loan (facility), undermine the fact of the said loan, being outstanding to the Credit of the Bank (1st Respondent)? By no means, in my view. And, has 1st Appellant been tried and convicted (or is being tried) for the alleged connivance or false documents, used in obtaining the loan?
I dare say that, even if 1st Appellant was being tried for alleged fraud or forgery or connivance on how she got the loan facility, that does not discount from the loan (debt due to the Bank), and so there was no cause to resort to Petition to the 2nd Respondent (EFCC) to haunt down the 1st Appellant, for the purpose of the loan transaction and, to use the 2nd Respondent to arrest and detain the 2nd Appellant, the husband of the debtor, simply because of being associated with the debtor, by marriage!
The Respondents had admitted arresting and detaining the 2nd Appellant in the course of investigation of the Petition of the 1st Respondent; but said that the 2nd Appellant was released promptly, the next day, even though his wife (1st Appellant) did not surrender to be arrested did not or show up!
I think that was a cross abuse of the powers of the 2nd Respondent, to arrest and detain the 2nd Appellant for alleged offence of the wife! We have depreciated this situation several times, that it is wrong to arrest a wife or husband in lieu of the other, or a father/mother to force the child (suspect) to come to the Police or law enforcement agency!

The law is also trite that a party cannot resort to the use of the Police or any law enforcement agency, to pursue recovery of debt. See the case of Oceanic Securities Int’l Ltd vs Balogun & Ors (2012) LPELR – 9218 (CA), Ezeigbo vs Ikechukwu & Ors (2019) LPELR – 48445 (CA).
See also Kure Vs C.O.P. (2020) LPELR – 49378 SC:
The primary duty of the Police by Section 4 of the police Act is the prevention of crime, investigation and detection of crime and the prosecution of offenders. See IBIYEYE V. GOLD (2012) ALL FWLR (PT 659) 1074. The Police is not a debt recovery agency and has no business to dabble into contractual disputes between parties arising from purely civil transactions. See MCLAREN V. JENNINGS (2003) FWLR (PT. 154) 528. When, as in the circumstances of this action, a purely civil matter is reported to the Police, such a person cannot go scot-free as the report ought not to have been made at all since it is not within the purview of Police duties. It is a report made malafide and he will be equally liable for the action taken by the Police irrespective of whether he actively instigated them or not, since he had no business involving the Police in a purely civil matter in the first place. Such conduct which portrays disregard of the law and is aimed at using the coercive powers of the State to punish a contracting party in a purely civil matter ought to be mulcted in exemplary damages. See OKAFOR & ANOR V. AIG POLICE ZONE ONIKAN & ORS (2019) LPELR- 46505.” Per ABBA Ail, JSC
See also Ohanedum & Anor Vs C.O.P. & Ors (2015) LPELR – 24482 (CA):
“We have stated repeatedly that the Police has no business in enforcing debt obligations or helping parties to settle or recover debts. See the case of Oceanic Securities International Ltd vs Balogun & Ors (2013) ALL FWLR (pt. 677) 633. See also the case of Ibiyeye & Anor vs Gold & Ors (2012) ALL FWLR (pt. 659) 1074, where this Court said: “I have to add that the resort to the Police by parties for recovery of debts outstanding under contractual relationship has been repeatedly deprecated by the Court.

The police have also been condemned and rebuked several times, for abandoning its primary duties of crime detection, prevention and control to dabbling in enforcement or settlement of debts and contracts between quarrelling parties, and for using its coercive powers to breach citizen’s rights and/or promote illegalities and oppression. Unfortunately, despite all the decided cases on this issue, the problem persists and the unholy alliance between aggrieved contractors/creditors with the Police remains at the root of many fundamental rights breaches in our Courts.” See also Yusuf Umar vs Salam & Ors (2001) 1 CHR 413.”
I therefore think the trial Court was wrong to dismiss the claims of the Appellants. The Respondents had admitted arresting and detaining the 2nd Appellant, and hunting for the 1st Appellant to arrest for the purpose of 1st Respondent’s Petition, over a purely civil claims, relating to debt recovery.

The allegation of fraud was, in my opinion, merely a ploy to justify the arrest and harassment of the Appellants, and the law has always frowned against such. See Onuchukwu vs EFCC & Ors (2018) LPELR – 50810 (CA), Okafor & Anor Vs Asst. I.G. Zone II Onikan & Ors (2019) LPELR 46505 (CA); Mangai vs C.O.P. Plateau State & Ors (2021) LPELR – 55145 (CA). In Omuma Micro Finance Bank (Nig.) Ltd Vs Ojinnaka (2018) LPELR – 43988 (CA), where it was held:
We have stated, repeatedly, that the police (or any Law Enforcement Agency, for that matter, including the Economic and Financial Crimes Commissions (EFCC) is not allowed to dabble into enforcement of civil contracts and agreements, or to engage in recovery of debts, under the pretext of doing lawful duties. See the case of Oceanic Securities International Ltd vs. Balogun & Ors (2013) ALL FWLR (Pt.677) 653; (2012) LPELR 9218 CA; where it was held: “Appellant could not therefore hide under the cover of reporting the 1st Respondent for issuance of dishonoured cheques, to subject him to the ordeal of arrest and detention… and escape the wrath of the law. He was pursuing the recovery of the alleged debt and resorted to the use of the Police…” In Ibiyeye & Anor vs. Gold & Ors. (2012) ALL FWLR (Pt. 659) 1074, this Court also held: “…The resort to the police by parties for recovery of debts, outstanding under contractual relationship, has been repeatedly deprecated by the Courts.
The Police have also been condemned and rebuked, several times, for abandoning its primary duties of crime detection, prevention and control, to dabbling in enforcement or settlement of debts and contracts between quarrelling parties, and for using its coercive powers to breach citizen’s rights and/or promote illegalities and oppression.” See also Chief (Hon) James Clement M. Ohanedum and Anor. vs. Commissioner of Police & Ors; CA/OW/175/11, delivered by this Court on 23/1/15. I believe the above can also be said of the E.F.C.C (also Law Enforcement Agency) which, rather than advising 1st Respondent to use legal means to recover the alleged debt, allowed its coercive powers to be used by the 1st Respondent to harass, intimidate and brutalize the Appellant, his wife, children and workers in a purely business transaction, legitimately entered into in a banker/customer relationship. By so doing, Appellant’s fundamental rights were violated and the trial Court was wrong to justify the breaches. In that case of Chief James Clement M. Ohanedum & Anor, vs. C.O.P & Ors (supra), we held that: “The Court has a duty to protect the fundamental rights of citizens and must not permit any violation for whatever reason, unless as stipulated in the law.” See Enukeme vs. Mazi (2014) LPELR – 23540 (CA).”
Of course an allegation of commission of crime is not a bar to pursuing fundamental rights of an Applicant, in appropriate situations. See the case of Mangai Vs C.O.P. Plateau State & Ors (2021) LPELR – 55145 (CA):
“The law has since been settled, that the Police does not and is not allowed to involve itself in purely civil disputes especially one touching on land ownership, contract and debt collection. Each time a party’s complaint to the Police involved such… the standing instruction is for the Police hands off and advise the parties.
See also EFCC vs Diamond Bank Plc & Ors (2018) LPELR – 44217(SC) on the wrongful use of Police or EFCC to harass bank debtors in purely civil claims:
“With the defendants not denying the said paragraphs, what is clear is that what transpired between the 1st applicant and the 1st respondent and brought them to the Court of trial was a pure contractual transaction of a debt recovery which situation was what impelled the 2nd and 3rd respondents to seek recourse to the Court in enforcement of their fundamental rights upon their detention by the appellant herein. Also that there was no criminality warranting the involvement of the appellant into the matter. I anchor on the following cases; A, G. Plateau State v A. G Nasarawa (2005) 129 LRCN 1523 at 1531; UNIBIZ v Commercial Bank (2005) 125 LRCN 1484 at 1495; University of Ilorin v Oyelana (2001) FWLR (Pt. 83) 2193 at 2209. It is to be noted that this action was brought under the Fundamental Rights (Enforcement Procedure) (FREP) Rules of 1979 that the application culminating in this appeal was brought pursuant to Order 2 Rule 1 states thus: “Any person who alleges that any of the fundamental rights provided for in the Constitution and to which he is entitled, has been, or is likely to be infringed may apply to the Court in the state where the infringement occurs or likely to occur, for redress.” The current 1999 Constitution of the Federal Republic of Nigeria (as amended) has Section 46(1) making similar provisions as the one quoted above. Therefore, with paragraphs 24 – 28 of the verifying affidavit showing that the invitation by the appellant to the 2nd and 3rd respondent was outside the purview of the investigative powers of the appellant as provided for in Sections 6 (h), 7, 8, 13, 38 and 41 of the EFCC Act. For clarity, I shall quote those depositions in the verifying affidavit as follows:
“23: “That the 1st applicant was at Eastern Bulkem Company premises transacting his cement business when the 1st respondent Port Harcourt Branch Vehicle (a Peugeot station wagon) stopped by his office and the policemen emerged from the vehicle while others remained inside and informed him that they were policemen from Lagos and that he was required at Mile 1, Police station Port Harcourt. 24. That he enquired to know why he was required at the station but they informed him that they will tell him when they get there and he immediately followed them to the station where he was informed by the policemen that the 1st respondent petitioned him a “419” and the policemen immediately gave orders for the 1st applicant to be detained in the cell which was promptly carried out after he was stripped naked. 25. That few hours in the cell his blood pressure rose drastically and he complained to his manager who summoned his doctor and who rushed down immediately and gave him treatment that will last till the next day as the policemen after claiming the 1st applicant in the cell left and never came back until the next day (19/4/05) 26: That on arrival the next day the policemen forcefully extracted the sum of N1,000,000.00 and which was paid into the 1st respondent’s account on the 20/4/05, and another N1,000,000.00 postdated cheque in favour of the 1st respondent and dated 4/6/05, as they informed the 1st applicant that it is on basis of the said payments that they will grant him bail failure which, they will bundle him to Lagos for more detention”. 27: That further to the detention of the 1st applicant, the policemen invited the 1st applicant to their office in Lagos on the 10th May, 2005, and the 1st applicant being afraid that his humiliation and intimidation will continue once he reports in Lagos over a purely commercial/civil transaction which the 1st respondent has labeled a “419” sought for leave to enforce his fundamental right from this Court and which Justice A. O. Faji granted on the 9th May, 2005. Annexed as Exhibit “T” and “U” are the invitation letter and the order of Court. 28, That the matter is still pending in the Federal High Court 2 and instead of waiting for the judgment of the Court the 1st respondent in disregard of the Court petitioned us again to EFCC on spurious claims when it is it that is owing us just to use it’s might to intimidate us”. The finding and conclusion of the Court of Appeal is stated hereunder, viz: “Accordingly, it is hereby declared that the invitation of the 1st applicant/appellant, vide Exhibit “V” by the 2nd respondent at the behest of the 1st respondent is unlawful and a violation of the fundamental right of the 1st applicant/appellant to personal liberty and a continuation of the harassment of the applicant/appellant by the 1st respondent in relation to the disputed or dubious debt allegedly owed by the appellants to the 1st respondent.” And also: “The appellants have shown the 1st respondent uses law enforcement agencies, as his attacking spinnels, to harass them, particularly the 1st applicant, to pay dubious debt.” The situation as found by the Court below is unfortunate and it is indeed disheartening and would not augur well for the nation if an investigating agency such as the appellant, EFCC would proceed to intervene in a matter already before a Court of competent jurisdiction. This Court has had occasion to cry out on such practices of flouting with monstrous effect the powers and integrity of a Court of law. See Governor Lagos State v Ojukwu (1986) 1 NWLR (Pt. 18) 631, FRN v Ifegwu (2003) 112 LRCN 2233 at 2266. The facts seen even from the counter affidavit of the 1st respondent paragraph 3 are self-explanatory to the effect that it was a pure debt recovery matter that was between the parties and I shall quote hereunder excepts from that counter-affidavit for reference thus: That the 1st applicant is the alter ego of the 2nd applicant. The bank in May, 2000 granted the 2nd applicant a N40 million overdraft facility to finance from purchase of cement from Bonny Allied Industries Ltd and Eastern Bulkem Company Ltd. This facility was secured by a lien over original payment vouchers. Debentures over the floating assets of the 2nd applicant, Legal Mortgage over the property of the first applicant located at Rumuigbo, Port Harcourt and a lien over three trucks and three fiat tractors. This facility was renewed and increased to N100 million upon maturity in May 2001 and charged 1% processing fee.” It can be seen that even from the deposition of the 1st respondent there was an absence of criminality in the transaction and so at the point the 2nd and 3rd respondents transformed into fraudsters were not explained to warrant the bringing into the picture the appellant as law enforcer to intervene in this simple and pure contract of overdraft facilities without a shade of fraud or fraudulent practice therein embedded. Therefore when the appellant propelled by 1st respondent invited the 3rd respondent for interrogation in respect of the transaction shown clearly in the affidavit in support and even the counter affidavit, the fundamental right of the 2nd and 3rd respondents had been breached and the appellant cannot call in aid its powers under the Police Act Section 4 and Sections “(5)” and 41 of the EFCC upon which it could exercise those powers.” Per PETER-ODILI, JSC

I therefore resolve the issues for Appellants and allow the appeal. I set aside the decision of the trial Court and award the sum of N2,000,000.00 to Appellants against the Respondents, jointly and severally for the violation of their Fundamental Rights. I also grant the order of injunction sought by Appellants.

The Respondents shall pay the cost of this appeal assessed at N100,000.00 only, Appellants.

Appearances:

Abdulmalik Muhammed, Esq. For Appellant(s)

Torijesu Okitikpi Esq. with him Mrs. E.J. Nisoyio and Sakina Nababa Esq for 1st Respondent.
Musa Isah Esq. for 2nd Respondent. For Respondent(s)

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