RIVERS STATE MICROFINANCE AGENCY v. MRS. DIALABA S. D. ISOKARIARI & ANOR
(2018)LCN/11878(CA)
(2018) LPELR-44863(CA)
In The Court of Appeal of Nigeria
On Monday, the 9th day of July, 2018
CA/PH/91/2015
RATIO
COMMERCIAL LAW: RECOVERY OF DEBT
“That it is trite law that recovery of debt is not the mandate of the E.F.C.C. Cited: MACLAREN V. JENNINGS (2003) 3 NWLR {Pt. 808} 470; OBIEGUE -V- A. G. OF THE FEDERATION (2014) 5 NWLR {Pt. 1399} 171 at 214 215 paragraphs H A. GABRIEL JIM-JAJA V. C.O.P (2013) 6 NWLR {Pt. 1231} 375; Sections 6 and 7 of the EFCC Act. That the finding of the learned trial Judge was right since the transaction between the parties is commercial transaction. That the law is trite that Police, EFCC or any anti graft agency has no business in enforcing loan recovery. Cited: OCEANIC SECURITIES INT. LTD V. BALOGUN (2012) 4 CLRN at page 136 lines 3 21.” PER BITRUS GYARAZAMA SANGA, J.C.A.
CRIMINAL LAW: DISHONORED CHEQUE
“This provision by the Dishonoured Cheques (Offences) Act put paid to the entire submission by learned counsel to the 1st Respondent that there is no alleged offence before the 2nd Respondent warranting the arrest of the 1st Respondent when it is a loan transaction and recovery of same is in issue. The issue before the 2nd Respondent is not that of recovery of debt, it is issuing dishonoured cheques which is an offence as provided by Sections 1 and 2 of the Dishonoured Cheques (Offences) Act and I so hold. The submission by learned counsel to the 1st Respondent and the authorities cited and relied upon are hereby discountenance by me.” PER BITRUS GYARAZAMA SANGA, J.C.A.
JUSTICE
THERESA NGOLIKA ORJI-ABADUA justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA justice of The Court of Appeal of Nigeria
Between
RIVERS STATE MICROFINANCE AGENCYAppellant(s)
AND
1. MRS. DIALABA S. D. ISOKARIARI
2. ECONOMIC AND FINANCIAL CRIME COMMISSIONRespondent(s)
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment):
This Suit No. FHC/FHR/179/2013 was commenced by the 1st Respondent as Applicant before the Federal High Court of Nigeria Port Harcourt Judicial Division H.A. NGANJIWA J. presiding. The Applicant sued the Appellant and 2nd Respondent as 1st and 2nd Respondents to enforce her Fundamental Rights via a Motion on Notice pursuant to Order 2 Rules 1, 2, 3, 4 and 5 of the Fundamental Human Rights (Enforcement Procedure) Rules, 2009 and Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and under the inherent jurisdiction of the trial Court seeking for the following reliefs: –
i) A DECLARATION that in the exercise of the applicants fundamental human right and constitutional right, the applicant is entitled to her personal liberty save as may be constitutionally deprived as may be provided for in the provisions of Section 35 of the 1999 Constitution of the Federal Republic of Nigeria, as Amended and Article 4, 5 & 6 of the African Charter On Human and Peoples Rights (Ratification & Enforcement) Act, 2004.
ii) A DECLARATION that the unlawful arrest and detention of the applicant by the respondents is a breach of the applicants right to personal liberty and integrity and therefore null and void.
iii) AN ORDER OF PERPETUAL Injunction restraining the respondents whether by themselves, agents and or privies from further interfering with or disturbing the applicants personal liberty and his surely.
iv) The sum of N20,000,000.00 (Twenty Million Naira) as Exemplary damages for the periods the applicant was undergoing serious psychological trauma from the respondents first detention of the applicant and the subsequent harassment of the applicant by the respondents.
v) A DECLARATION that the continues attempt by the respondents to arrest and detain the applicant in respect of the loan obtained from the 1st respondent by the bank (Minje-se Churchill Micro Finance Bank Ltd) which the applicant works for as a Managing Director is unlawful.
vi) ANY ORDER(S) AS this Honourable Court may deem fit to grant in the circumstance.
GROUNDS UPON WHICH RELIEFS ARE SOUGHT
1) The collusive acts of the respondents unlawfully arresting, detaining, restricting, disturbing and interfering with the applicants right to personal liberty to freely carry on with her business as the Managing Director of Minje-se Churchill Micro Finance Bank Ltd as provided for in Section 35 of the 1999 Constitution of the Federal Republic of Nigeria as amended is unconstitutional.
2) The collusive acts of the respondents without the directive of a Court of law and law/or without recourse to same; to restrain the personal liberty of the applicant based on a loan granted the bank she works with by the 1st respondent, that is Minje-se Churchill Micro Finance Bank Ltd is unconstitutional and in total breach of the applicants Fundamental Human Rights to personal liberty.
3) The respondents has failed to observe and apply the provisions of Articles 4 & 6 of the African Charter on Human And Peoples Rights (Ratification & Enforcement) Act, 2004 which has imposed a duty on them (respondents) to have respect for the applicants life and integrity of her person and that this right cannot be arbitrarily deprived of the applicant by the respondents and also the fact the every one shall have right to liberty and to the security of his person.
4) The act of the 1st respondent using the 2nd respondent as a tool to recover the loan granted to the bank (Minje-se Churchill Micro Finance Bank Ltd) which the applicant is the Managing Director, by the 1st respondent is illegal. (see pages 3 4 of the record of appeal)
In support of the Motion on Notice is an 11 paragraphs affidavit and documents annexed to and marked as Exhibits A, A1, A2, A3, B, B1, B2 and B3 respectively. (They are on pages 9 to 28 of the record of appeal). A written address in support of the Application for the enforcement of fundamental human rights was also filed by the Applicant. It is dated 30/08/2013 filed on 03/09/2013. (pages 29 36 of the Records.) The Applicant also filed Further Affidavit of 18 paragraphs annexed to which is a document marked as Exhibit CO2 and a Reply on points of law. (pages 119 126 of the record of appeal).
In opposing the application, the Appellant as 1st Respondent filed a 31 paragraphs counter affidavit deposed to by one OTONYE MACBARINGO its Company Secretary/Legal Adviser dated 09/09/2013. Attached to the counter affidavit are copies of documents marked as Exhibits RIMA 1 to RIMA 8 respectively. (pages 33 60 of the record of appeal). The 2nd Respondent also filed a counter affidavit containing 12 paragraphs (pages 61 70 of the Records). Attached to the counter affidavit are documents marked as Exhibits EFCC1, EFCC2a, EFCC2b, EFCC3, EFCC4, EFCC5 and EFCC6 respectively. (pages 71 111 of the record of appeal). The 2nd Respondent written address in opposition to the Applicants Motion on Notice dated and filed on 10/09/2013 is on pages 112 118 of the record of appeal. The 2nd Respondent filed a Further Affidavit of 14 paragraphs on 11/03/2014. (pages 146 147 of the record of appeal). The Applicant also filed a Reply on Points of Law to the 2nd Respondents counter affidavit also dated 10/03/2014. (pages 148 149 of the record of appeal).
Processes having been filed and exchanged, learned counsel addressed the trial Court on 30/10/2014 and the learned trial Judge reserved judgment to 27th November, 2014. But it was on 17th December, 2014 that judgment was delivered. (pages 263 273 of the record of appeal). The learned trial Judge after reviewing the processes filed before him and the evidence adduced therein held thus: –
Having regard to the foregoing and the reasons already given I hold that the Applicant has established that the acts of the Respondents have violated her fundamental right as guaranteed by the 1999 Constitution as amended. I therefore hold there is merit in the application and same is granted with its reliefs. I make the following Orders: –
1: A DECLARATION that the Applicant is entitled to her personal liberty save as may be constitutionally deprived in accordance with the provisions of the Constitution.
2: That the arrest and detention of Applicant by the Respondents is unlawful and a breach of her right to personal liberty and intergrity and null and void.
3: AN ORDER OF PERPETUAL Injunction is made restraining the respondents, agents, servants or privies from further interring (sic) with or disturbing the applicants personal liberty and his surety in connection with or related to this suit.
4: A declaration that the continued attempt by the respondent to arrest and detain the applicant in respect of the loan obtained from the 1st Respondent by (Minje-Se Churchill Microfinance Bank Ltd) where the Applicant works as a Managing Director is unlawful.
5: It is ordered that the Applicant is at liberty to follow due process in recovering the loan granted.
6: The sum N5,000,000.00. is awarded against the Respondents severally and jointly as Exemplary damages to the Applicant for the unlawful arrest and detention and for the periods the Applicant went through the serious psychological trauma in the hands of the Respondents plus the cost of prosecuting this case.”
This decision aggrieved the Respondents. Learned counsel to the 1st Respondent filed a Notice of Appeal on 29th December, 2014 containing 7 grounds of appeal which shorn of their particulars, reads as follows: –
GROUNDS OF APPEAL
1: The learned trial Judge erred in law in entering Judgment for the Applicant/1st Respondent in the sum of N5m (5 Million Naira) against the Respondents jointly and severally, for the unlawful arrest and detention of the Applicant and the psychological damage suffered by the Applicant.
2: The learned trial Judge erred in law in holding as he did that the 1st Respondent/Applicant sought a short out (sic) by writing a petition to the Economic and Financial crimes Commission (EFCC) and using the commission to pursue the Applicant/1st Respondent.
3: The learned trial Judge erred in holding that even if the Minji-Se Churchill Micro-Finance Bank Ltd had committed the crimes alleged, the Applicant/1st Respondent as a director of the Bank will not be vicariously liable for same.
4: The learned trial Judge erred in law in holding that the 1st Respondent/Appellant took law into own hands by going to EFCC and that its action should be condemned in its entirety.
5: The learned trial Judge misdirected himself in law in holding that the Subject Matter between the parties was contractual and not criminal and therefore not within the jurisdiction of EFCC.
6: The learned trial Judge erred in law in holding that the 1st Respondent/Appellant was crying more than the bereaved and that instead of defending itself by justifying why it went to the EFCC, it was busy defending EFCC, the 2nd Respondent.
7: The learned trial Judge erred in law in holding that the petition written by the 1st Respondent/Appellant against the Minji-Se Churchill Microfinance Bank Ltd on the alleged fraudulent acts of the Applicant/1st Respondent was brought in Bad Faith. (pages 328 342 of the record of appeal).
The Appellant filed an Amended Notice of Appeal on 29/03/2016 deemed as properly filed and served on 08/03/2017 wherein one additional ground of appeal was added to the seven as follows: –
8: The Federal High Court lacked the requisite jurisdiction to entertain and or grant the reliefs, claimed by the Applicant/1st Respondent in her application to enforce her fundamental human Rights.
The record of appeal was compiled and transmitted to this Court on 25/03/2015. Appellants Amended Brief of Argument was filed on 29/03/2016 but deemed as properly filed and served on 8th March, 2017. It was settled by DENNIS I. OKWAKPAM Esq.
After stating the facts in brief, learned counsel formulated three issues from the 8 grounds of appeal as follows: –
1: Whether the lower Court had the jurisdiction to adjudicate on the 1st Respondents suit considering the subject matter of the case? (Ground 8)
2: Having regards to the evidence proffered by the parties and the law, was the Appellants petition to the 2nd Respondent against the 1st Respondent wrong or illegitimate as to constitute an infringement of the fundamental rights of the 1st Respondent? (Grounds 1, 3, 4, 5, 6 and 7)
3: Whether considering the entire circumstances of this case, the award of N5,000,000.00 (Five Million Naira) as exemplary damages against the Appellant was proper? (Ground 2)
The 1st Respondents Brief of Argument dated 4th May, 2017 filed on 26th May, 2017 but deemed as properly filed and served on 7th June, 2017 was prepared by C. P. AGBAEZE Esq. Learned counsel stated the facts in brief and formulated three issues for determination as follows: –
1: Whether the lower Court does not have the jurisdiction to have adjudicated the matter. (Ground 8)
2: Having regards to the evidence preferred by parties and the law, was the Appellants petition to the 2nd Respondent against the 1st Respondent wrong or illegitimate as to constitute an infringement of the fundamental human rights of the 1st Respondent? (Grounds 2(sic) 3, 4, 5, 6 and 7).
3: Whether, considering the entire circumstances of this case, the award of N5,000,000.00 (Five Million Naira) as exemplary damages against the appellant is proper? (Ground 2).
The 2nd Respondent did not file a brief of argument, its counsel however filed a Cross Appeal which I will consider below. I will adopt the issues canvassed by learned counsel to the Appellant in determining this appeal.
Issue 1
In his submission on issue one, learned counsel to the Appellant submitted that the lower Court had no jurisdiction to adjudicate on the 1st respondents suit as the subject matter of the suit is not within the jurisdiction of the Court. That Section 251(1) of the Constitution of the Federal republic of Nigeria 1999 (as amended) confers exclusive jurisdiction on the Federal High Court in matters contained therein.
Thus the said Federal High Court does not have the jurisdiction to entertain any claim that does not fall within any of the matters enumerated under the said Section. Cited the judicial authority of GOVERNOR OF KWARA STATE V. LAWAL (2007) 13 NWLR {Pt. 1051} 347 at 373 paragraphs F H. That the suit at the lower Court is based on an unpaid loan given a microfinance bank and issuing a dud cheque. That that offence does not fall under the fundamental rights procedure as it is not related to Chapter IV of the 1999 Constitution as amended. Cited:TUKUR V. GOVT. OF TARABA STATE (1997) 6 NWLR {Pt. 510} 549 at 576 577; ADETONA -V- I. G. ENT. LTD (2011) 7 NWLR {Pt. 1247} 535 at 564 paragraphs B E. That the Federal High Court does not have the jurisdiction to hear and determine a suit commenced under the Fundamental Rights Procedure Rules if the right threatened or breached does not fall within the enumerated matters under Section 251(1) of the Constitution as in this case.
Learned counsel urged the Court to resolve this issue in favour of the Appellant and hold that the Federal High Court lacks the jurisdiction to adjudicate on the suit of the 1st Respondent.
In his submission on this issue, learned counsel to the 1st Respondent argued that the trial Court had the jurisdiction to adjudicate on this matter which it did accordingly. Learned counsel cited Section 46 of the 1999 Constitution as amended that any person who alleges that any of his right as contained in Chapter IV of the Constitution has been, or is about to be breached or contravened in any state in relation to him may apply to a High Court in that state for redress. That in TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR {Pt. 177} 17 the Supreme Court held that both the State High Court and Federal High Court has concurrent jurisdiction over fundamental right matters.
Learned counsel also quoted Section 251(1) (a) and (r) of the 1999 Constitution as amended. That it is now settled and established that once any of the parties is a Federal Government Agency the Federal High Court has jurisdiction to entertain the matter. Cited ABSIEC V. KANU (2013) 13 NWLR {Pt. 1370} 69 at 83 paragraphs D H. That the offence allegedly committed by the 1st Respondent was reported to the 2nd Respondent. That the offence falls under Section 3 of the Dishonoured Cheques Act which gives the Federal High Court exclusive jurisdiction over the matter. Learned counsel distinguished the case of ADETONA V I. G. ENT. LTD (Supra) cited and relied upon by the Appellant as the facts are not on all fours with this suit.
He urged the Court to resolve this issue in favour of the 1st Respondent and hold that the trial Court had jurisdiction to hear and determine this suit.
RESOLUTION OF ISSUE 1:
Issue 1 is:
Whether the lower Court had jurisdiction to adjudicate on the 1st Respondents suit considering the subject matter of the case?
Upon a careful consideration of the subject matter of this suit, it is obvious that the main reason the 1st Respondent was reported to the 2nd Respondent is that she issued a dud cheque to the Appellant.
The Appellant categorically deposed to this fact in paragraphs 23 and 24 of its counter affidavit as follows: –
23: The 1st Respondents solicitor after several months, were constrained to write a petition to the 2nd Respondent to investigate Minje-Se and its directors, including the Applicant, for the issuance of dud cheques and for fraud perpetuated on the 1st Respondent.
The petition is exhibited herewith as EXHIBIT RMA7.
24: That in furtherance of the 1st Respondents Solicitors letter, the Applicant and her husband were invited by the 2nd Respondents officials but was never arrested or detained. They admitted the substance of the petition and undertook again to repay the outstanding balance of the wholesale microfinance fund which the husband personally guaranteed. The outstanding balance of the facility at this point was N16,086,956.53K..
The 2nd Respondent confirmed this state of affairs in its counter affidavit on pages 61 to 70 of the record of appeal where it was deposed in paragraphs 5(a) and (m) thus: –
5(a) That the 2nd Respondent received a petition on the 3rd day of March, 2012 from the 1st Respondent written on its behalf by Global Law Firm. The said petition is hereby attached and marked as Exhibit EFCC 1.
(m) That preliminary investigation into the alleged complaint also revealed that Exhibit EFCC 2a and 2b were returned unpaid by United Bank for Africa, UBA, as a result of inadequate funds standing to the credit of Minje-Se Churchill Microfinance Bank Ltd. A copy of the statement of account of Churchill Microfinance Bank Ltd. on which the UBA account was drawn, particularly the portions underlined is hereby attached and marked as Exhibit EFCC 6.’
Therefore the submission that the Federal High Court has no jurisdiction over this suit is not the position of the law. This is so because the offence allegedly committed by the 1st Respondent of issuing a dud cheque is contrary to Section 3 of the Dishonored Cheques (Offences) Act, Cap D 11, LFN, 2004. Also the 2nd Respondent is a Federal Government Parastatal or Agency which confers jurisdiction on the Federal High Court as held, by the Apex Court in ABSIEC V. KANU (Supra) at page 83 paragraphs D H. that: –
Irrespective of the nature of the claim once any of the parties before the State High Court is the Federal Government or any of its agencies, the state High Court loses jurisdiction. It is the Federal High Court by virtue of Section 251 of the Constitution and the interpretation given by this Court to that Section or other related sections or statutes that can lawfully exercise jurisdiction thereon.” Per I. T. MUHAMMAD JSC.
It is my finding therefore that the 1st Respondent was right by commencing this suit and ventilating her grievance before the Federal High Court. The submission by learned counsel to the appellant and the authorities cited and relied upon are hereby discountenanced by me. This issue is resolved in favour of the 1st Respondent.
Issue 2 canvassed by the Appellant is: –
Having regards to the evidence proffered by the parties and the law, was the Appellants petition to the 2nd Respondent against the 1st Respondent wrong or illegitimate as to constitute an infringement of the fundamental rights of the 1st Respondent?
In answer to this issue learned counsel to the Appellant submitted that by the petition it wrote against the 1st Respondent to the 2nd Respondent (on pages 71 23 of the Record of Appeal), it alleged that the 1st Respondent had issued to it a dud cheque which is contrary to Section 2 of the Dishonoured Cheques (Offences) Act, Cap D11 Laws of the Federation of Nigeria, 2004. That the Appellant had reasonable cause to believe that an offence was committed by the 1st Respondent before instructing its solicitors to write the petition to the 2nd Respondent whose duty as imposed by the law that established it, is to investigate such allegations and to prosecute offenders. That when a petition is written to the 2nd Respondent its duty to look at the complaint cannot be suppressed. Cited: DODO V. EFCC (2013) 1 NWLR {Pt. 1336} 468 at 510 paragraphs A C.
Learned counsel submitted further that issuing a dishonoured cheque is a financial crime under Section 2 of Dishonoured Cheques (Offences) Act, Cap 11 (Supra). That it is also a financial crime to divert a facility obtained for the purpose of disbursing same to targeted beneficiaries. Cited AKINGBOLA V. CHAIRMAN EFCC (2012) 9 NWLR {Pt. 1306} 475 at 535 paragraph B.
The Appellants petition complaining of issuance of dud cheque and the diversion of loan against the 1st Respondent to the 2nd Respondent is legitimate and proper in the circumstances. That the learned trial Judge was in error when held that Appellants petition and the investigation by the 2nd Respondent was debt collection simpliciter thus holding that the 2nd Respondent was liable for infringing on the fundamental right of the 1st Respondent. That Appellants petition was not for the 2nd Respondent to recover its debt from the 1st Respondent. That although the transaction was commercial, crime later sprouted out from the said transaction which requires the investigation by the 2nd Respondent. That it is not un-common for crimes to appear from an originally commercial transaction. Cited: ADEBO V. OMISOLA (2005) 2 NWLR {Pt. 909} 149 at 175 paragraphs F-G.
That the Appellants petition to the 2nd Respondent was proper in the circumstances as it alleges crime for which the 2nd Respondent has the statutory power or duty to examine or investigate. That the Appellant did not take the law into its hands by its petition against the 1st Respondents Bank which allegedly committed a crime. That Appellant has the obligation to report crime to the law enforcement agencies as such its petition was not brought in bad faith. Learned counsel made further submission that are cogent in respect to this argument which I will refer to in my findings hereunder. He urged the Court to resolve this issue in favour of the Appellant.
In his argument on this issue, learned counsel to the 1st Respondent submitted that the petition written by the Appellant to the 2nd Respondent is a worthless document. That this is because a copy displayed by the 2nd Respondent on pages 71 72 of the Records is unsigned while the copy displayed by the Appellant on pages 53 54 of the Records is not the copy sent to the 2nd Respondent. That looking at pages 62-65 of the Records the 2nd Respondent knows fully well that the transaction between the 1st Respondent and the Appellant is a loan transaction. That the loan was given to Minje-Se Churchill Microfinance Bank Ltd and not to the 1st Respondent. That even the Appellant by its counter affidavit on pages 33 36 of the Records knows that the transaction between it and the 2nd Respondent is a loan facility granted to the said 1st Respondent but it went ahead to arrest and detain the 1st Respondent. That on pages 9 13 of the Records is a letter dated 8th March, 2011 for loan by the Appellant to the 1st Respondents Bank. That the Appellant is trying to protect the 2nd Respondent in its brief of argument, but they failed to justify their act on why they went to the 2nd Respondent to recover the balance of its money from the 1st Respondent instead of filing the appropriate civil suit at the State High Court against Minje-Se Churchill Microfinance Bank Ltd. That the said Bank started repaying the loan to the tune of N11,940,760.00 to the Appellant as evidenced by its bank statement of account on page 27 of the record of appeal.
That it is clear that there was no alleged offence before the 2nd Respondent warranting the arrest of the 1st Respondent when it is just a loan transaction. That it is trite law that recovery of debt is not the mandate of the E.F.C.C. Cited: MACLAREN V. JENNINGS (2003) 3 NWLR {Pt. 808} 470; OBIEGUE -V- A. G. OF THE FEDERATION (2014) 5 NWLR {Pt. 1399} 171 at 214 215 paragraphs H A. GABRIEL JIM-JAJA V. C.O.P (2013) 6 NWLR {Pt. 1231} 375; Sections 6 and 7 of the EFCC Act. That the finding of the learned trial Judge was right since the transaction between the parties is commercial transaction. That the law is trite that Police, EFCC or any anti graft agency has no business in enforcing loan recovery. Cited: OCEANIC SECURITIES INT. LTD V. BALOGUN (2012) 4 CLRN at page 136 lines 3 21.
That assuming but not conceding that Minje-Se Churchill Micro Finance Bank Ltd., committed a criminal offence based on issuing dud cheque, the 1st Respondent cannot be held liable. Learned counsel repeated his argument that the petition written by the Appellant to the 2nd Respondent is a worthless document as it was not signed. That the 1st Respondent is a mere employee of the Bank. She never took loan from the Appellant and is not a director of the said bank as she did not signed any irrevocable personal guarantee. That the acts of the Appellant and the 2nd Respondent are mere harassment and intimidation of the 1st Respondent which the law frowns at. That it was not the 1st Respondent that issued dishonoured cheque but the Bank. That the 1st Respondent was arrested and detained for more than six (6) hours, which fact was conceded by the Appellant. That on the authority of ALABOH -V- BOYES (1984) 5 NCLR 830 there was a violation of the 1st Respondents fundamental right.
That the trial Court was right in granting a perpetual injunction restraining the 2nd Respondent from further
22
interfering with the fundamental right of the 1st Respondent. That the right of investigation by the EFCC is subject to judicial control in order to curb excesses, and the Court will not shy away from its sacred responsibility. Cited: GLOBE FISHING IND. LTD V. COKER (1990) 7 NWLR {Pt. 162} 265; AFROTEC V. MIA (2001) 6 WRN 65 SC. Learned counsel urged the Court to resolve this issue in favour of the 1st Respondent.
FINDINGS ON ISSUE 2
For emphasis, I will state issue 2 as formulated by the Appellant again.
Having regards to the evidence proffered by the parties and the law, was the Appellants petition to the 2nd Respondent against the 1st Respondent wrong or illegitimate as to constitute on infringement of the fundamental rights of the 1st Respondent?
To answer this all encompassing question, I have to consider the Appellants petition to the 2nd Respondent against the 1st Respondent in order to determine whether it constitute an infringement of the fundamental rights of the 1st Respondent. The two letters written on 19th April, 2012 addressed to the Executive Chairman of the 2nd Respondent on pages 53 to 54 and 71 72 of the record of appeal reads as follows: –
As its solicitors, the Rivers State Microfinance Agency (RIMA) has instructed us to petition Minji-Se Churchill Microfinance Bank Limited (Minji-Se) and its directors for their refusal and/or failure to refund an outstanding sum of N16,086,956.53k due to our client under a wholesale microfinance fund, it furnished Minje-Se sometime in March, 2011 and for liberally issuing dud cheques in purported liquidation of the fund.
In March 2011, by an offer letter, dated 10/3/2011, our client advanced the total sum of N23,233,695.66 to Minji-Se Churchill Microfinance Bank Ltd (Minji-Se) as a wholesale microfinance fund for disbursement as micro loans to micro entrepreneurs. Minji-Se was to repay the facility over a period of six (6) months, beginning from 20th June, 2011, with a moratorium of one (1) month.
Minji-Se secured the funds from our client after completing several pre-acceptance formalities. It executed a Microfinance Operations Agreement and issued an undertaking by 2 guarantors (its directors) to secure the fund. As part of the security for the facility, Minji-Se also provided six post dated cheques covering the 6 monthly repayment packages.
Regrettably, Minji-Ses first repayment cheque bounced before it was eventually redeemed. The second was returned as unpaid, with the usual notification of DCR on it. The 3rd cheque suffered the same fate, until Minji-Se paid the sum of N2.5 (Two Million, Five Hundred Thousand Naira) vide its cheque of 17th October, 2011.
The total sum due to our client now is N16,086,956.53k. which Minji-Se has deliberately refused to settle and/or pay till date.
It is callous and bothers (sic) on total irresponsibility hinged on an inordinate desire for unearned pecuniary returns that you Minji-Se would perpetuate a fraud of this nature on our client, a parastatal set up by the Rivers State Government with a mandate to amongst others strengthen the Microfinance Institutions, alleviate poverty and generally engage in economic empowerment of Rivers indigenes.
Our client is deeply distressed that Minje-Se rather than disburse the fund it received from our Agency diverted same to other activities, probably with potentials for higher returns.
The only reasonable inference we can deduce from this unwholesome practice of Minje-Se, is that even at the point it received the fund never had an intention of disbursing same and consequently diverted the funds for other purpose.
Due to the untoward actions of Minji-Se, our Agency has being (sic) subjected to unnecessary distractions and loss of income. In the circumstances, we urge you to cause an investigation into the activities of Minji-Se and its Directors and their deliberate issuance of at least four (4) dud cheques and consequently order their prosecution, for the crimes committed.
Copies of the following documents are hereto attached: –
(1) Offer Letter dated 8th March, 2011.
(2) Microfinance Operations Agreement.
(3) Irrevocable Personal Guarantee by some Directors of the MFB.
(4) Board Resolution.
(5) Result of a search conducted by our External Solicitor on the incorporation documents of the MFB.
(6) Photocopies of returned Cheques dated 19th June, 2011 and 20th July, 2011.
(7) Copies of letters written by our client to the MFB dated 24/6/2011, 28/6/2011, and 26/8/2011.
(8) Copy of a Letter from the MFB to our client dated 23/8/2011.<br< p=””>
(9) Correspondence between our client and the MFB guarantors dated 22nd August, 2011.
(10) Copy of a letter written to the MFB by the under signed (Global Law Firm) dated 12th October, 2011.
(11) Copy of a letter written by the undersigned to the MFBs solicitor, Mr. Monima E. Karibi-Whyte; dated 2nd November, 2011.
We count on your prompt intervention and thank you immensely.”
The letter was signed by Dennis I. Okwakpam Esq.
The last sentence of the letter gives the real reason for writing the letter when it states thus: –
In the circumstances, we urge you to cause an investigation into the activities of Minji-Se and its Directors and their deliberate issuance of at least four (4) dud cheques and consequently order their prosecution, for the crimes committed.”
This assertion in the Appellants petition was not denied by the 1st Respondent. She as the Managing Director of Minji-Se Churchill Microfinance Bank Ltd and her husband who is a Director in the Bank and who guaranteed the loan did not denied the fact that they issued dud cheques to the Appellant.
All learned counsel to the 1st Respondent did in his brief of argument is attempt to disparage the two copies of the petitions that one is not signed and the other is not the copy forwarded to the 2nd Respondent for investigation.
The DISHONOURED CHEQUES (OFFENCES) ACT is an Act that makes it an offence for any person anywhere in Nigeria to induce delivery of any property or to purport to settle a lawful obligation by means of a cheque which when presented within a reasonable time is Dishonoured on the grounds that no Funds or Insufficient Funds were standing to the credit of the Drawer of the Cheque. Section 1 of the Act provides thus: –
1: (1) Any person who
(a) Obtains or induces the delivery of anything capable of being stolen either to himself or any other person; or
(b) Obtains credit for himself or any other person, by means of a cheque that, when presented for payment later than three months after the date of the cheque, is dishonoured on the grounds that no funds or insufficient funds were standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn, shall be guilty of an offence and on conviction shall
(i) in the case of an individual be sentenced to imprisonment for two years, without the option of fine; and (ii) in the case of a body corporate be sentenced to fine of not less than N5000.”
Section 2 of the Act provides as follows: –
Whether any offence under this Act by a body corporate is proved to have been committed with the consent of or connivance of, or to be attributable to any neglect on the part of any director, manager, secretary or other similar officer, servant or agent of the body corporate (or any person purporting to act in any such capacity) he, as well as the body corporate, shall be deemed to be guilty of the offence and may be proceeded against and punished in the same manner as an individual.”
This provision by the Dishonoured Cheques (Offences) Act put paid to the entire submission by learned counsel to the 1st Respondent that there is no alleged offence before the 2nd Respondent warranting the arrest of the 1st Respondent when it is a loan transaction and recovery of same is in issue. The issue before the 2nd Respondent is not that of recovery of debt, it is issuing dishonoured cheques which is an offence as provided by Sections 1 and 2 of the Dishonoured Cheques (Offences) Act and I so hold. The submission by learned counsel to the 1st Respondent and the authorities cited and relied upon are hereby discountenance by me.
The 2nd Respondent possess wide ranging powers to investigate allegations of financial crimes pursuant to Section 7 of the E.F.C.C. Act. Section 7(1) (a) of the Act provides thus: –
7(1) The commission has power to
(a) Cause investigations to be conducted as to whether any person, corporate body or organization has committed any offence under this Act or other Law relating to Economic and Financial Crimes.”
See: MR. FELIX ORIYOMI EWULO V. ECONOMIC & FINANCIAL CRIMES COMMISSION & ORS (2015) LPELR 40912 (CA) per ABUBAKAR JCA (on pages 34 35 paragraphs A D); ALH. TUKUR DANFULANI V. ECONOMIC & FINANCIAL CRIMES COMMISSION & ORS (2015) LPELR 25899 (CA) per ADEFOPE-OKOJIE JCA (pages 11 17 paragraphs D A).
In ORJI UZO KALU V. FEDERAL REPUBLIC OF NIGERIA & ORS (2016) LPELR 40108 (SC) the Supreme Court held per GALADIMA JSC on pages 15 16 paragraphs D B thus: –
Sections 6 (m) and 46 of the Economic and Financial Crimes Commission (Establishment), Act vest in EFCC the function and duty of investigating and prosecuting persons reasonably suspected to have committed economic and financial crimes. For a person to rush to Court to place a clog or shield against criminal investigation and prosecution is a clear interference with the powers given by law and the Constitution to EFCC in the conduct of criminal investigation and prosecution. It is clearly an abuse of due process of the law. See ABACHA V. FRN (2014) 6 NWLR {Pt. 1402} 43 at 112; DARIYE V. FRN (2015) 2 SCM P. 46 at 68. ATTORNEY GENERAL OF ANAMBRA V. UBA (2005) 15 NWLR {Pt. 947} 44 at 67.”
Upon considering the facts and circumstances of this suit and the holding by the Apex Court, it is clear as crystal that the 1st Respondent instituted this suit before the lower Court in a futile attempt to cripple the efforts of the 2nd Respondent from investigating its shady acts of issuing dud cheques and trying to divert the amount her Bank collected from the Appellant, for other purposes.
This action by the 1st Respondent tantamount to interference with the powers of the 2nd Respondent from performing its legitimate duties of investigating and prosecuting financial crimes, which is an abuse of due process of the law. It is my holding therefore that the petition written by the Appellant to the 2nd Respondent on the shady and questionable behavior of the 1st Respondent, is legal and legitimate since the 2nd Respondent has the power to investigate and prosecute the 1st Respondent, the Bank and guarantors of the loan secured from the Appellant. The fundamental rights of the 1st Respondent was not infringed. This issue is resolved in favour of the Appellant.
Issue 3 formulated by the Appellant is: –
Whether, considering the entire circumstances of this case, the award of N5,000,000.00 (Five Million Naira) as exemplary damages against the Appellant is proper?
In view of my holding on issue 2 above, the answer to this issue is obvious. The award of exemplary damages against the Appellant in favour of the 1st Respondent by the learned trial Judge is not proper and I so hold.
The said award is hereby set aside. It is the judgment of this Court that the Appellant acted within the ambit of the law in petitioning the 2nd Respondent on an allegation of crime since the said 2nd Respondent is empowered to investigate and prosecute petitions alleging financial crimes. The fundamental rights of the 1st Respondent was not infringed by the Appellants petition to the 2nd Respondent. The award of N5,000,000:00 (Five Million Naira) general damages against the Appellant and the 2nd Respondent in favour of the 1st Respondent is set aside for being totally unwarranted. This appeal is meritorious and is allowed. In consequence thereof, the judgment of the lower Court in suit No. FHC/PH/FHR/179/2013 delivered on 17th December, 2014 is hereby set aside. There shall be no order as to cost.
CROSS APPEAL
This cross appeal by the Economic & Financial Crime Commission is against the judgment of the Federal High Court Port Harcourt Judicial Division H. A. NGANJIWA J. presiding in suit No. FHC/PH/FHR/179/2013 delivered on 17th December, 2014. By a Motion on Notice filed on 10th March, 2017 the cross Appellant/Applicant prayed this Court for the following reliefs: –
1: An Order granting leave to the Cross Appellant/Applicant to use the record of appeal in Appeal No. CA/PH/91/2015 before this Hon. Court to argue this Appeal.
2: An Order of this Hon. Court granting leave to the Cross Appellant/Applicant to transmit the Supplementary Record of Appeal to this Hon. Court.
3: An Order deeming the Supplementary Record of Appeal as properly transmitted and served.
4: An Order granting leave to the Cross Appellant/Applicant to amend the original Notice of Appeal filed on 24/2/2015 to include an additional ground of appeal numbered as Ground 5 in the proposed Amended Notice of Appeal exhibited in support of this application and marked Exhibit A and add the word Cross Appellant omitted in the original Notice of Appeal.
5: An Order deeming the Amended Notice of Appeal and Grounds of Appeal as properly filed and served.
6: An Order granting leave to the Cross Appellant/Applicant to file and argue the said additional ground of appeal in its brief of arguments.
7: An Order for extension of time within which Cross Appellant/Applicants can file and serve its Cross Appellants Brief of Argument filed on 22/3/2016 in this appeal.
8: An Order deeming the Cross Appellants brief of argument already filed incorporating arguments on the additional ground as properly filed and served.
There are 6 grounds upon which the application is brought. Accompanying the motion paper is a 17 paragraphs affidavit in support deposed to by one R.E. ALAO (Mrs.) a Legal Practitioner with the Cross Appellant/Applicant, attached to which is the proposed Amended Notice of Appeal containing 5 grounds of appeal marked as Exhibit A and the Original Notice of Appeal containing 4 grounds of appeal marked as Exhibit B. Clean copies of the Amended Notice of Appeal and Cross Appellants Brief of Argument filed on 10/3/2017 and 3/7/2015 respectively were also filed by the Cross Appellant/Applicant. The motion was granted as prayed on 25/9/2017.
The Cross-Appellants Amended Notice of Appeal is dated 9th March, 2017, filed on 10th March, 2017 but deemed as properly filed and served on 25th September 2017. It contains 5 grounds of appeal, which shorn of the particulars reads as follows:
GROUND 1
The learned trial Judge Hon. justice H. A. Nganjiwa of the Federal High Court Port Harcourt Division erred in Law when he failed to call oral evidence in the face of the conflicting affidavits filed by parties in this suit.
GROUND 2
The learned trial Judge Hon. justice H. A. Nganjiwa of the Federal High Court Port Harcourt Division, erred in law when he failed to dispassionately and or at all properly evaluate the affidavits/evidence before him and then proceeded to hold that Applicant has established that the acts of the Respondents have violated her fundamental rights as guaranteed by the 1999 Constitution as amended.
GROUND 3
Assuming without conceding that the learned trial Judge was right in his conclusions that it was a commercial transaction and a loan facility the learned trial Judge erred in law when it (sic) proceeded to assume jurisdiction over the subject matter.
GROUND 4
The judgment is against the weight of evidence.
GROUND 5
The learned trial Judge, Hon. justice H. A. Nganjiwa of the Federal High Court Port Harcourt Division, erred in law when he entered judgment in favour of the Applicant/1st Respondent in the sum of N5 Million jointly and severally against the Respondents.
RELIEFS SOUGHT FROM THE COURT OF APPEAL
(i) An Order setting aside the judgment of the learned trial Judge delivered on 17th December, 2014.
(ii) An Order dismissing 1st Respondents application and entering judgment in favour of the cross appellant.
Upon considering the decision I arrived at in the main appeal above vis-a-vis the grounds of appeal contained in the Amended Notice of Appeal and the reliefs sought as narrated above, it is obvious that this cross appeal is now spent and considering it will amount to a mere academic exercise. Same is hereby struck out having been overtaken by events.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, BITRUS GYARAZAMA SANGA JCA gave me the opportunity of reading the lead judgment before it was delivered. I agree with the reasoning of my learned brother.
There is merit in the appeal and I allow it while the Cross Appeal is struck out. I abide by the consequential orders.
Appearances:
D. I. Okwakpam, Esq. with him, O. M. Okwakpam, Esq.For Appellant(s)
E. B. Nnaji, Esq. for the 1st Respondent in the main Appeal & The 2nd Respondent in the Cross Appeal.
I. Agwu, Esq. (Legal Officer EFCC)
for the 2nd Respondent/Cross AppellantFor Respondent(s)
Officer EFCC)
for the 2nd Respondent/Cross AppellantFor Respondent
