NAANKANG DAWAN v. ECONOMIC AND FINANCIAL CRIMES COMMISSION & ORS
In The Court of Appeal of Nigeria
On Wednesday, the 17th day of July, 2019
CORPORATE LAW: WHO CAN SUE ON BEHALF OF A COMPANY
I think this issue can be decided on the short point that appellant being not Taen Nigeria Ltd whose account was frozen cannot competently ask for the unfreezing of the said account. Yes, he may be its directing mind but that does not make him the company or owner of its account. The company is a distinct person in law: see Olalekan v. Wema Bank Plc (2006) LPELR-2562 (SC) and Ebhota & Ors v. Plateau Investment & Property Development Co Ltd (2005) LPELR-988 (SC). PER BOLOUKUROMO MOSES UGO, J.C.A.
FUNDAMENTAL RIGHT: WHETHER A COMPANY CAN SUE FOR THE BREACH OF IT’S FUNDAMENTAL RIGHTS
It is also recognized that an artificial person like Taen Nigeria Ltd can sue for enforcement of its fundamental rights: see Okechukwu v. EFCC (2015) 18 NWLR (PT 1490) 1 @ 24 E-F. PER BOLOUKUROMO MOSES UGO, J.C.A.
APPEAL: WHEN A PARTY DOES NOT REPLY TO THE BRIEF OF ARGUMENT OF HIS OPPONENT
Incidentally, appellant in his Reply Brief to 8th Respondents Brief of argument did not respond to these arguments of 8th Respondent. By his silence he is deemed to have conceded to them: see Okongwu v. NNPC (1989) 4 NWLR (PT 115) 296; Nwankwo v. Yar’ Adua (2010) 3 SCNJ (PT 1) 244 @ 265. In the event, this issue is resolved against appellant. PER BOLOUKUROMO MOSES UGO, J.C.A.
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
NAANKANG DAWAN Appellant(s)
1.ECONOMIC AND FINANCIAL CRIMES COMMISSION
2.IBRAHIM MAGU (Chairman, EFCC)
3. INDEPENDENT CORRUPT PRACTICES AND OTHER RELATED OFFENCES COMMISSION
4. Hon. ALHAJI ABDULLAHI BAKO
5. STATE SECURITY SERVICE
6. INSPECTOR GENERAL OF POLICE
7. COMMISSIONER OF POLICE, PLATEAU STATE
8. FIRST BANK OF NIGERIA LIMITED Respondent(s)
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the judgment of the Federal High Court dismissing the fundamental rights enforcement application of the appellant against the Respondents. Appellant in his said application sought:
1. An Order perpetually restraining any further arrest, intimidation or detention of the applicant by the Respondents, their privies, agents and Officers, pending the determination of this fundamental right enforcement.
2. An Order compelling the 8th respondent to unfreeze the account and not to tamper with any amount therein the accounts maintained by the applicant, to wit:
Taen Nig, Ltd
Acct No. 2127832011
Name of Bank: FCMB
And all other accounts connected to his BVN.
3. Damages in the sum of ?5,000,000.00 (Five Million Naira) only for the breach of his fundamental rights.
4. An order restraining the Respondents from further arresting, detaining or in any way intimidating him (applicant) pending the final determination of this application for the enforcement of his fundamental rights.
In a 45-paragraph affidavit in support of his application personally deposed to by him, he stated that he is Managing Director and Chief Executive Officer of Taen Nigeria Ltd whose account with 8th Respondent was frozen at the instance of 1st and 2nd Respondents pending conclusion of investigation of suspected financial Cybercrimes allegedly committed by him with the said account. He protested his innocence and gave the background to the allegation, saying he was rather approached by one Mr. Doyin Abdul alongside three Chinese nationals to supply them petroleum products to various mining sites in Wase Local Government Area of Plateau State. He was later told by his aforementioned business partners, he claimed, that international transfers would delay and even stall their mining activities, that since he had POS Machines, payment would be faster if he could apply to his bankers for the Machines to be configured for card-less transactions. He said he duly obliged and applied for the said card-less transaction POS Machine from 8th Respondent for an account in the name of Taen Nigeria Ltd and was granted same with account No 2025956973 in September 2017. Everything was going well, according to him, until 8th Respondent drew his attention to restriction placed on the account because of funds amounting to ?318,630,000.00 paid into it through his POS Machine within that rather very short period of time; that he needed to defend the said volume of payment. On 8th respondent?s suggestion, a visit was paid to the earlier mentioned Chinese Mining Sites at Wase LGA with some officials of 8th Respondent, which, after investigation, lifted the restriction.
In the first week of September 2017, he continued, his attention was drawn by 8th Respondent to the effect that charge-backs – meaning that the foreign funds credited into the account were being reversed by the credit/debit card owners on the ground that they never authorized the transfer into appellant?s account – were now occurring. He claimed Mr. Doyin and one of the Chinese nationals, a certain Mr. Lee, promised to rectify the problem and probably regularize his account, but failed to do so hence 8th Respondent initiated another visit to the same Wase L.G.A. Mining site to ascertain the identity of the persons making the payment into this account, but the Chinese on site could not recognize any of the persons on the identity cards, so 8th Respondent seized its POS Machine and instructed him to regularize his account from debit to credit. It was his inability to immediately do that that prompted 8th respondent to report him to the police which led to his arrest and detention on 19th December 2017. While in detention, he claimed, his house and office were searched and his managers and family members deposited proceeds of most of his sales and supplies and into the disputed account, which regularized and turned its status from debit to credit. He said upon police investigation, he was released on bail on 30th December 2017. Upon his release, he discovered that all his bank accounts, both individual and corporate, with 8th Respondent and other banks were frozen, thereby crippling his business and threw his family to hunger and hardship.
To his greatest dismay, he further deposed, the same account received another debit alert summing up to over ?683,000,000 on 10th January 2018.
On 24/1/2018, he further deposed, his Calabar Depot Representative was contacted by the Sales Representative and a management staff of Fynefield Petroleum Company Ltd with their depot in Calabar that their account was under serious investigation by EFCC Lagos office for fraudulent transaction. He complains that the involvement of another law enforcement agency, the EFCC, into his case is a clear indication that his liberty was no longer guaranteed; that he perceived that he would be subjected again to another round of arrest and detention; that 8th Respondent called him several times threatening to apply to 1st to 7th Respondents to arrest and detain him, hence he commenced his application for enforcement of his fundamental rights.
Only 1st, 2nd, 7th and 8th Respondents filed counter affidavits. That is even as the regularity of the counter affidavits of 1st, 2nd and 7th Respondents is being challenged by appellant in this appeal.
In its counter affidavit, 8th respondent largely agreed with appellant on how Taen Nig. Ltd applied for and was granted reconfiguration of one of its POS Machine to Card-less POS Machines. It said from 31/10/2017 the reconfigured POS terminal started receiving funds through foreign-issued credit cards and the bank?s processor alerted it of suspicious transactions, based on which it ordered a debit freeze on the said account. By this time, it said, its E-Department also discovered irregular transactions to the said account which by then had a total of ?603,662.908.00 settled into it and transferred to various accounts in other banks, leaving a balance of ?114,908,992. 62. Those suspicious transactions informed its visit to the Wase Mining Site of the Chinese nationals as claimed by appellant. It however added that it was deceived into lifting the initial lien it placed on the account in issue. It went on to depose further that as at 20/11/2017, just three months after grant of the card-less POS Machines, a whopping sum of ?908,271.096.00 (Nine Hundred and Eight Million, Two Hundred and Seventy One Thousand, Ninety-six Naira) had been paid into the said Taen Nigeria Limited?s account from 238 foreign credit cards issued in countries like USA, Canada, Brazil, Holland, Greece and others; that the said transactions were flagged fraudulent by both Master and Visa cards and charge back were filed against the Merchants (Master and Visa Cards) who then transferred the debit (charge backs) to it. As at 10/01/2018, it claimed, a total of ?904,068.742.00 had been debited to it in charge backs. That forced it to report the issue to the police on 19th January 2018 for which appellant was arrested and requested to present transaction receipts and evidence of service rendered to the foreign card owners but he failed to do so. It admitted forwarding another petition to the EFCC (1st and 2nd Respondents) because it is the body statutorily empowered and better placed to investigate and prosecute those involved in Money Laundering and Cybercrimes. It swore that appellant and his cohorts were involved in a well-planned international card fraud through the use of the POS Machine which was configured for online card-less transaction; that appellant was a member of an unknown international cybercrime syndicate which had stolen the card details of the owners of the 238 foreign cards before affecting the fraudulent transfers. In the course of police investigations, it claimed, some recoveries of about ?152,389,520.00 were made. It stated that as at 27/02/2018 it had had liability of ?738,218,837 as charge backs and was a victim of the fraud perpetrated by appellant.
It denied making any report to 3rd 4th, 5th and 6th Respondents. Upon receipt of its petition on 9/01/2018, EFCC, it said, it approached the Federal High Court and obtained an interim order for attachment/forfeiture of the assets and properties of appellant and Taen Nigeria Ltd.
The counter affidavit of the 1st and 2nd Respondents (EFCC and its Acting Chairman) did not deviate from these depositions of 8th respondents.
It is necessary to mention that appellant responded to the counter affidavits of both 8th and 1st and 2nd Respondents with Further Affidavits complete with written replies on points of law.
In his judgment, the lower Court (Kurya, J.,) held that:
(1) From the process filed 8th respondent had ?clearly shown? that appellant was involved in monumental International Cybercrime. (2) That ?the staggering sum of ?908,271.096.00 is the proceeds of the Cybercrime received from 238 debit cards issued in several countries including USA, Canada, Brazil, Holland, Greece and some other countries home and abroad.
(3) That respondents have not violated the rights of appellant in any way as to merit the grant of
the reliefs he sought.
(4) That appellant had not made out a case for to entitle the Court to interfere with the statutory functions of the 1st Respondent (EFCC) to investigate the allegation of crime against appellant.
On that note, the said application of appellant was dismissed.
Irked by that Ruling%