SAVANNAH & CHEMICAL IND. v. EFCC & ANOR
(2020)LCN/15412(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, November 13, 2020
CA/L/713/2018(1)
RATIO
DAMAGES: DISTINCTION BETWEEN THE PRINCIPLES GUIDING THE AWARD OF DAMAGES IN TORT AND IN CONTRACT
In an action for breach of contract, the measure of damages is the loss flowing naturally from the breach and is incurred in direct consequence of the violation. (See Swiss-Nigeria Wood Industries Ltd. v. Bogo) (1970) 6 NSC 235). The principles guiding the award of damages in tort are different from those guiding the award of damages in contract. (See James v. Mid-Motors Nigeria Co. Ltd. (1978) 11 and 12 SC 31, (1978) 11 NSCC 536). The object of tort damages is to put the plaintiff in the position he would have been in if the tort had not been committed, whereas, the object of contract damages is to put the plaintiff in the position he would have been in if the contract had been satisfactorily performed.
Even if it had been clear that the claim is in the tort of negligence, there may be need for a further inquiry, whether the tortious conduct found has occasioned only economic loss and, if so, if it is within the variety of tortuous conduct for which the Court will award compensation for economic loss.”
In the same case Galadami, J.S.C. held thus:
“The basic object of an award of damages is to compensate the plaintiff for the damages, loss or injury he has suffered. The guiding principle is restitution in integrum. The principle envisages that a party which has been damnified by the act which is called in question must be put in position in which he would have been if he had not suffered the wrong which he is now being compensated for. See NEPA v. R.O. ALLI & ANOR (1992) 10 SCNJ 34, ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR v. EKWENEM (2009) 6-7 (Pt. II) SC 5.” PER EBIOWEI TOBI, J.C.A.
INTERPRETATION OF STATUTE: LITERAL APPROACH
The law is settled that when it comes to the interpretation of the provision of a statute, such statute must be construed literally and the words therein given their ordinary meaning.
See ABACHA & ORS VS. FAWEHINMI (2000) 6 NWLR (pt. 660) 228, CSS BOOKSHOPS LTD. VS. REGISTERED TRUSTEES OF MUSLIM COMMUNITY RIVERS STATE & ORS (2006) 11 NWLR (pt. 992) 530; UDE VS. NWARA & ANOR (1993) 2 NWLR (pt. 278) 638; OKOTIE EBOH VS.MANAGER & ORS (2004) 18 NWLR (pt. 905) 242.
In the case of PROVOST LAGOS STATE COLLEGE OF EDUCATION & ORS VS. EDUN & ORS (2004) 6 NWLR (pt. 870) 476 @ 509 paras D – F, TOBI J.S.C. held thus:
What is the effect of non-compliance with the law? It is settled law that expropriatory statutes which encroach on a persons proprietary rights must be construed fortissimo contra preferates, that is strictly against the acquiring authority but sympathetically in favour of the citizen whose proprietary rights are being deprived. Consequently, as against the acquiring authority, there must be a strict adherence to the formalities prescribed for the acquisition.
See OBIKOYA VS. GOVERNOR OF LAGOS STATE (1987) 1 NWLR (pt. 50) 385; LSDPC VS. FOREIGN FINANCE CORPORATION (1987) 1 NWLR (pt. 50) 413, ATTORNEY GENERAL, BENDEL STATE VS.P.L.A.AIDEYAN (1989) 4 NWLR (pt. 118) 646.”
The provision of Section 34 (1) of the Economic and Financial Crimes Commission Act, encroaches on a persons proprietary right to monies in his or her bank account. It must therefore be construed strictly using the literal approach. It is trite law that when a legislation prescribes a procedure or method for doing an act, it is only such procedure or method that is permissible and no other. See OYAMA VS. AGIBE (2016) ALL FWLR (pt. 840) 1274 at 1292 paras E-F. It is also the law that where a statute provides unambiguously for an act to be done in a particular manner, failure to perform that act in the prescribed manner amounts to noncompliance and its effect cannot be waived. See NIGER-CARE DEV. CO. LTD. VS.ASWB (2008) ALL FWLR (pt. 422) 1052 and IKPE VS.ELIJAH 2011 LPELR 4516 CA. PER EBIOWEI TOBI, J.C.A.
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
SAVANNAH & CHEMICAL INDUSTRIES APPELANT(S)
And
1. ECONOMIC AND FINANCIAL CRIMES COMMISSION 2. GUARANTY TRUST BANK RESPONDENT(S)
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Hon. Justice C.M.A. Olatoregun of the Lagos Division of the Federal High Court delivered in Suit No. FHC/L/CS/1304/2010 – Savannah & Chemical Industries Limited vs. Economic and Financial Crimes Commission & Anor delivered on 28/4/2017. The Appellant (then Plaintiff) instituted this suit currently on appeal against the Respondents (then Defendants) at the lower Court vide an Originating Summons claiming against the Respondents jointly and severally the reliefs contained on pages 5-6 of the record of appeal.
The originating summon was supported by a 21 paragraph affidavit (pages 4-17 of the record) to which was annexed a few exhibits. The 1st Respondents filed a counter affidavit of 15 paragraphs (pages 83-91 of the record) while the 2nd Respondent filed a counter affidavit of 10 paragraphs (pages 52-55 of the record) in opposition to the originating summons. The main thrust of the counter affidavit was aimed at dismissing the suit. The 1st Respondent filed a preliminary objection found on pages 73-77 of the records. The lower Court after taking arguments from counsel to the parties, in a considered judgment found on pages 155-165 of the record answering the questions 1 and 2 for determination of the preliminary objection in the negative and question 3 in the positive held in this wise:
“For reasons given above I found upon which the declaratory reliefs sought could be based. In particular the failure to present this Court the offending Freezing Order sanctioning the Plaintiff referred to as Exhibit SC4 in paragraph 16. Prayers 1 to 3 fail and are dismissed.
In view of the fuller reasons given above in relation to Sections 34 (3) and 38 (1) on the duty imposed on the 2nd Defendant, prayer 4 fails and same is dismissed.
The 1st Defendant is hereby restrained from further interposing or interfering with the Plaintiff’s company without due process of law being followed.”
The Appellant dissatisfied with the decision of the lower Court vide a notice of appeal filed on 30/4/2018 filed this appeal. The notice of appeal is found on pages 168-174 of the record and contains five grounds of appeal. The grounds without their particulars are hereunder reproduced:
GROUND I
The entire judgment of the Court rendered in the proceeding is contradictory and perverse thereby occasioning a total miscarriage of justice.
GROUND II
The learned trial Judge erred in law in the total misconception of the processes grounding the Appellants summons in the holding:
“Again the Certified True Copy of the Circular Letter dated December 7, 2009 referred to by the Plaintiff in respect of which their reliefs are based is NOT before this Court. They referred to it in paragraph 16 of the affidavit in support of the originating summons as Exhibit SC4 attached to the originating summons is a copy of Justice Nyakos judgment in suit No. FHC/CS/58/10”;
WHEN INFACT THAT counter letter of December 7, 2009 was squarely placed before the Court filed in the Summons, although mistakenly marked Exhibit SC2 (instead of SC4).
GROUND III
The finding of Honourable Court that, ‘there is no argument on the fact that the account of the Plaintiff was placed under caution’.
And that, ‘that can be seen from Exhibit EE1 dated 23rd November, 2009, ‘as reproduced in the judgment’, cannot be justified on the said Exhibit.
GROUND IV
The trial Court erred in law when it held that:
“The duty is that of the Plaintiff to show that the word, ‘Caution’ and ‘Freeze’, are one and the same and can be used interchangeable. Section 34 of the Economic and Financial Crimes Commission Act did not use the word, ‘Caution’. It used the word ‘Freeze”
GROUND V
The entirety of the trial Court reasoning contradict the penultimate orders of dismissal arrived at in the order of dismissal entered in respect of the Plaintiffs reliefs Nos. 1, 2, 3 and 4 (actually numbered (i), (ii), (iii) and (iv) in the Summons).
The Appellant brief filed on 24/9/18 but deemed as properly filed and served on 19/3/2019 was settled by J.H.C. Okolo SAN. In Appellant’s brief, learned senior counsel raised two issues for determination viz:
1. Whether the entirety of the trial Court’s judgment rendered in the proceedings is perverse and the reasoning contradict the penultimate order of dismissal entered in respect of the plaintiff/Appellant’s reliefs number i, ii, iii and iv which thereby occasioned a total miscarriage of justice.
2. Whether the trial Court was wrong to base its finding of facts and conclusions merely on speculations.
On issue one, learned silk argued for the Appellant that it is an agreed fact by all the parties that the 1st Respondent in exercising its statutory functions issued an order/direction to the 2nd Respondent bank to place the trading account of the Appellant under caution. This, learned senior counsel argued, was not denied or challenged by any of the Respondents and which facts relates to questions one and two. It is the further argument of counsel that the lower Court was also in agreement with the submissions of the Appellant with regards to the determination of question one and two and having answered those questions in the negative, the learned trial Judge ought to have no difficulty in answering question three in the negative and thus proceed to grant all the reliefs sought by the Appellant. It is the further submission by learned silk in line with the holding of the learned trial Judge that no freezing order could be lawfully issued in the absence of a Court order. Learned silk submitted further that where the 2nd Respondent in apparent compliance with orders/directive issued by the 1st Respondent which did not comply with the preconditions of the law, the 2nd Respondent will be liable in damages to the Appellant. He relied on Section 34(3) of the EFCC Act and Mobil vs. Lasepa (2003) 104 LRCN 240. Counsel cited Citi bank (Nig) Ltd vs. Graftis Properties Ltd (2015) 51 WRN; UBA Ltd vs. Ademuyiwa (1999) 11 NWLR (Pt. 628) 570 to the effect that where a cheque has been dishonoured, a customer is entitled to claim damages against the bank for breach of contract. It is on this premise that counsel submitted that the order of the trial Court was totally perverse, absurd and contradictory to the earlier finding of the Court which was borne out of the evidence before the Court. Learned counsel placed reliance on Gilsod Associates Ltd vs. V.A.L.G.O.N (2011) 21 WRN 57; Anyegwu vs. Onuche (2009) 11 WRN 1; Lagga vs. Sarhuna (2008) 50 WRN 63.
It is the submission of learned senior counsel that the Appellant’s supporting affidavit and even the Respondent’s counter affidavit provided the trial Court with ample and sufficient evidence to rely upon and guide the Court in the just determination of the answer to the questions 1, 2 and 3 in the negative and the reliefs sought by the Appellant. It is the further submission of learned silk relying on Goodwill Trust Inv. vs. Witt & Busch Ltd (2011) 34 WRN that the trial Court was in grave error in insisting on the presentation of the circular dated 7/12/2009 to fill a vacuum that does not exist in the Appellant’s case when all the pleadings and evidence are already before the Court and the dismissal of reliefs 1 to 4 and the subsequent granting of relief 5 makes the whole judgment perverse. It is the contention of counsel that it provided the lower Court with the certified true copies of two judgments which deal on the interpretation of the words ‘freezing’ and ‘caution’, yet from all facts and indication, the learned trial Judge refused to go with the holding in those cases citing Government of Kwara State vs. Irepodun Block Manufacturing Company (2013) 12 WRN 106 @ 173-174. Counsel further contended that from the fact pleaded in paragraph 17 of the Appellant’s affidavit in support which was neither challenged nor contradicted, it is clear that in compliance with the 1st Respondent’s directive, the 2nd Respondent placed a restriction on the Appellant’s account which consequence was that the Appellant who had sufficient balance in its trading account was barred from operating the said account.
Learned silk argued on behalf of the Appellant that having successfully discharged the burden of proving that the words ‘freeze’ and ‘caution’ can be used interchangeably and shown to have the same effect, there was no need for the trial Court holding that it has not done so, more so, when the certified true copies of the judgment are already before the Court. It was finally submitted by learned counsel that in the light of the foregoing and on the strength of the two judgments before the lower Court which is binding and remains valid, the words ‘freeze’ and ‘caution’ are one and the same and both carry the same effect.
On issue two, it is the contention of counsel that from the lower Court’s determination of the preliminary objection raised by the 1st Respondent, which presents the factual/live issue upon which the Appellant instituted the action against the Respondents, the trial Court was not in doubt as to the nature and grounds upon which the Appellant instituted the suit and so it was however surprising that the learned trial Judge who had earlier expressed its satisfaction that the Appellant’s suit was not speculative but one which discloses a reasonable cause of action, turned around to hold to the contrary. Learned silk opined that the finding of the lower Court was vague and filled with uncertainty and absurdity; a mere speculation and conjecture. For this position, counsel relied on Raphael Ejezie& Anor vs. Christopher Anukwu & 3 Ors (2008) 4 SCNJ 113; Okoya & 2 Ors vs. Santilli & 2 Ors (1993-1994) All NLR 404; Ivienagbor vs. Bazuaye (1996) 6 SCNJ 240. It was finally submitted by counsel that the facts and evidence placed before the trial Court are sufficient enough to satisfy the trial Court that the Appellant’s case is not a mere academic exercise but one that is competent and discloses factual/live cause of action. He therefore urged this Court to allow the appeal.
The 1st Respondent raised a preliminary objection dated and filed on 7/1/2019 anchored on lack of locus standi of the Appellant and consequently challenged the jurisdiction of the Court.
The 1st Respondent’s brief dated and filed 7/1/2019 was settled by Modupe O. Akinkoye Esq. Same was deemed as properly filed and served on 12/3/2020. Counsel in the 1st Respondent’s brief raised a lone issue for determination by this Honourable Court, viz;
Whether the refusal of the lower Court to grant the reliefs 1-4 of the Appellant’s prayer has occasioned any miscarriage of justice.
Arguing the preliminary objection, counsel contended that Exhibit SC2 found on page 24 of the record clearly shows that the Appellant’s account was never placed on caution, rather it was the account of Global Form Work Nigeria Limited and therefore the Appellant has no locus standi to institute the action at the lower Court. Learned counsel relied on Bewaji vs. Obasanjo (2008) 9 NWLR (Pt. 1093) 540 @ 570. It is the submission of counsel that Global Form Work Nigeria Limited is a juristic personality and as such the Appellant overreached itself in suing on behalf of the Global Form Work Nigeria Limited. Counsel cited Benedict Ojukwu vs. Loiusa Chinyere Ojukwu & Anor 4 NWLR (Pt. 1078) 435; Osigwelem vs. INEC (2010) LPELR-4657 (CA).
It is the submission of learned counsel to the 1st Respondent that contrary to the misleading insinuations of the Appellant that the EFCC has no right to place a restriction on its account without a Court order, in actual fact the EFCC is empowered by law to place a restriction on an account suspected of, or being investigated for financial crimes pending Court order for the purpose of preserving the subject matter from being dissipated. It is posited by counsel that it is the expectation of every Court that a Claimant in a civil matter would prove his case beyond the balance of probabilities and where a Claimant as in the instant case, the Appellant failed to meet the required standard, he cannot expect the Court to assume the existence of such facts. For this position, counsel relied on Dickson & Anor vs. Assamudo (2013) LPELR-20416 (CA). Relying further on Adekunle vs. A.G of Ogun State (2014) LPELR-22569 (CA) counsel posited that the Appellant failed to prove on the balance of probabilities that the 1st Respondent placed a caution on its account. It is the submission of 1st Respondent’s counsel that the arguments and authorities cited by the Appellant on intervening or the re-evaluation of evidence by this Court is inapplicable as the appellate Court does not make it a habit of intervening with the evaluation of evidence of the trial Court. He placed reliance on Deriba vs. State (2016) LPELR-40345 (CA).
It is the further submission of counsel that an order of injunction cannot lie against the 1st Respondent for carrying out its statutory duties contrary to the complaint in which their names strongly featured and that no Court will interfere with the performance of such duties as same will only amount to interfering with the roles and or duties of the Commission by the Judiciary. Counsel called in aid Peter vs. Okoye (2002) 3 NWLR (Pt. 755) 529 @ 537. Counsel relying on Sections 5, 6, 7, 8 and 41 of the EFCC Act, 2004 stated that the acts of the 1st Respondent were done in the lawful exercise of its statutory duties and as such, an injunction should not be granted to restrain a lawful action. Counsel further stated that though Section 46 of the Constitution allows an Appellant to apply for the enforcement of his fundamental right if he senses that his right is likely to be infringed, such Appellant must place sufficient materials before the Court (which the Appellant has not done); as a mere speculative conduct on the part of the Respondent without more cannot ground an action under the Fundamental Rights Enforcement Procedure Rules and Section 46 (1) and (2) of the Constitution. He cited Uzuokwu & Ors vs. Ezeonu II & Ors (1991) 6 NWLR (Pt. 200) 708 @ 784; Sea Trucks Nig. Ltd vs. Anigboro (2001) 2 NWLR (Pt. 696) 159. It is the contention of the 1st Respondent that the Commission is just like any other law enforcement agency, which receives complaint and in the investigation of such complaint, can invite, arrest and detain any person suspected of the offence Counsel submitted that the Appellant’s assertion is based on suspicion and speculation.
Going further, counsel to the 1st Respondent submitted that Section 45(1) of the Constitution permits a derogation of individual and personal rights in the interest of the public as well as in the interest of defence, public safety and public order et cetera. He relied on Badejo vs. Minister of Education (1996) 8 NWLR (Pt. 464) 15 @ 19; R vs. Commissioner of Police, Ex Parte Blackburn (1968) 2 QB 118 @ 136 followed in Fawehinmi vs. IGP (2000) 7 NWLR (Pt. 665) 481 @ 523; AG Anambra State vs. Chris Uba (2005) 15 NWLR (Pt. 947) 44 @ 50-53; Nzewi vs. COP (2000) 2 HRLRA 156 @ 158. In conclusion, counsel urged this Court to dismiss the appeal for lacking in merit. He referred this Court to Okanu vs. COP (2001) 1 CHR (Cases on Human Rights) 412.
The 2nd Respondent’s brief dated and filed 28/8/2018 was settled by Chief Adewale Adeniji. Learned counsel in 2nd Respondent’s brief also raised a sole issue for determination by this Honourable Court viz;
Whether the lower Court was not right in dismissing the Appellant’s reliefs 1-4 despite having answered the Appellant’s questions for determination in the positive?
The 2nd Respondent in its brief raised a preliminary objection which was abandoned during adopting of briefs and consequently was struck out.
On the argument on the lone issue for determination, it is the contention of learned counsel that against the contention of the Appellant, there is no contradiction whatsoever in the decision of the trial Court. Counsel argued that the Appellant’s failure to discharge the burden of proof imposed by Section 131 of the Evidence Act, upon which its declaratory reliefs sought can be granted is the trial Court’s reasoning for dismissing the Appellant’s reliefs. He cited Odukwe vs. Ogunbiyi (1998) 8 NWLR (Pt. 561) 352; Iroagbara vs. Ufomadu (2009) 11 NWLR (Pt. 1153) 587 @ 599. Counsel relied on MTN (Nig) Communications Ltd vs. Esuola (2018) LPELR-43952 (CA); Ilori & Ors vs. Ishola & Anor (2018) LPELR-44063 (SC) in submitting that the learned trial Judge was right when he held that the Appellant failed to discharge the duty to show that the words ‘caution’ and ‘freeze’ are one and the same and can be used interchangeably. It is the contention of learned counsel that the question for determination in the originating summons is on the interpretation of a statute, to wit; the EFCC Act 2004 and the Appellant has not placed acceptable proof of its complaint before the Court contrary to Section 131 of the Evidence Act 2011. He relied on Bullet Int’l (Nig) Ltd & Anor vs. Omonike Olaniyi & Anor (2017) LPELR-42475 (SC). With respect to the perversity of the judgment of the lower Court, learned counsel for the 2nd Respondent argued that that portion of the judgment referred to by the Appellant was an obiter of the Judge of the lower Court. Also, with respect to the contention of the Appellant that the 2nd Respondent actually admitted to have frozen the account of the Appellant, it was submitted by counsel that from the face of the documentary evidence of the 2nd Respondent – Exhibit EE1, it can be gleaned that the 2nd Respondent placed a caution on the Appellant’s account and not freezing it. Counsel relied on Vincent Egharevba vs. Dr. Orobor Osagie (2009) 18 NWLR (Pt. 1173) 299 SC in positing that oral evidence cannot wish away the clear and unambiguous terms of a document. It is the submission of learned counsel that contrary to the Appellant’s argument, nowhere on the face of Exhibit EE1 does it say anything about forfeiture of any sum of money to the government if the owner is prosecuted and convicted. On the strength of this submission and the case of Edward Okwejiminor vs. G. Gbakeji & Anor (2008) 1 SC (Pt. III) 263, counsel urged this Court to discountenance such argument.
Going forward, counsel submitted that even though the judgment of Nyako, J., was attached as an exhibit to its Originating Summons, the Appellant did not address the Court on this point in its written address nor did it rely on Exhibit EE1 which is the letter written by the 1st Respondent to the 2nd Respondent. Counsel argued that Exhibit SC2 was not addressed to the Appellant and same was written by Oceanic Bank who was not a party to the suit. Counsel further argued that Exhibit SC2 does not direct the restriction on the Appellant’s account with the 2nd Respondent. Responding to the Appellant’s argument on the certified true copies of the Judgment attached to its application, counsel stated that the lower Court acknowledged the judgment of Nyako, J but chose not to follow it as it is at best of persuasive authority not binding on the lower Court as they are both Courts of co-ordinate jurisdiction. He placed reliance on Ilami Arugu & Ors vs. Rivers State Independent Electoral Commission & Ors (2010) LPELR-9086 (CA). Counsel arguing in line with 1st Respondent posited that Exhibit EE1 does not use the word ‘freeze’ and that in the exhibit, the 1st Respondent directed the 2nd Respondent to place caution on the Appellant’s account.
It was contended by learned counsel that once the 2nd Respondent is served with Exhibit EE1, the 2nd Respondent under the EFCC Act has no discretion in obeying same. He relied on Sections 34(3), (4)(b) and 38(1) of the EFCC Act. Finally, counsel submitted that as a law abiding corporate citizen, the 2nd Respondent was duty bound to obey the laws of Nigeria and as such the learned trial Judge was right when he held that the 2nd Respondent is by law bound to obey the said directive of the 1st Respondent and that the 2nd Respondent is not liable to pay damages in any form. In conclusion, counsel urged this Court to dismiss the appeal for lacking in merit and affirm the decision of the lower Court.
The Appellant exercising his right of reply, filed a reply brief on 27/5/2020 wherein he reiterated some of the arguments contained in its Appellant brief and as such I will not be going into them as it offends the essence of a reply brief vide Aweto vs. FRN (2018) LPELR-43901 (SC); Eromosele vs. FRN (2018) LPELR-43851; Abiodun vs. FRN (2018) LPELR-43838 (SC).
The above is the submission of counsel in this appeal. Before I address the substantive appeal, I will first dispose of the preliminary objection as raised by the 1st Respondent in his brief. The law is settled to the effect that where there is a preliminary objection, the Court should dispose of it first. See Sogunro & Ors vs. Yeku & Ors (2017) 2 S.C. (Pt. II) 1; Petgas Resources Limited vs. Mbanefo (2017) 1 NWLR (Pt. 1061) 442.
With respect to the preliminary objection, it is the 1st Respondent’s contention that the Appellant does not have the locus standi which goes to the jurisdiction of the Court to entertain the appeal. The basis of the contention of counsel is that it was not the Appellant’s account that was placed on caution, rather it is that of Global Form Work Nigeria Limited; and as such the Appellant lacks the locus standi to institute the action on behalf of Global Form Work Limited. Counsel relied on a host of authorities for this submission.
I opt to comment on this issue because whatever pronouncement is made on this issue would determine this appeal with finality or otherwise without more; as locus standi of a plaintiff to institute an action is a condition precedent to the Court’s jurisdiction. It is inextricably linked to the exercise of jurisdiction by a Court. In other words, where the party initiating an action lacks locus standi, the Court would be robbed of jurisdiction. See Nworka vs. Ononeze-Madu (2019) 7 NWLR (Pt. 1672) 422 @ 444-445.
The Court has in Gov., Imo State vs. Amuzie (2019) 10 NWLR (Pt. 1680) 331 @ 352 defined the term locus standi to mean:
“Legal capacity to institute proceedings in a Court of law. Locus standi is a threshold issue that affects the Court’s jurisdiction.”
In Centre for Oil Pollution Watch vs. N.N.P.C. (2019) 5 NWLR (Pt. 1660) 518 @ 561-562, the apex Court while explaining the concept of locus standi stated thus:
“A person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something. The person aggrieved must be a man who has been refused something which he had a right to demand. Therefore, in simple terms, the narrow and rigid conception of locus standi means that it is only a person who has suffered a specific legal injury by reason of actual or threatened violation of his legal right or legally-protected interest who can bring an action for judicial redress. In effect, the rule with regard to locus standi postulates a right-duty pattern which is commonly found in private law litigation. Subsequently English decisions clung to the pattern. Nigeria Courts, as legatees of the English concept of locus standi. In doing so, however, they would appear to have merged the narrow and restrictive concept of private law (cause of action test) with the requirements of public law…”
The question that begs for an answer in this appeal with respect to the preliminary objection of the 1st Respondent is “does the Appellant possess the locus standi to have instituted this suit at the lower Court?” At this point, I will refer to the Originating Summons and supporting affidavit of the Appellant which is akin to the Writ of Summons and Statement of Claim, as it is the initiating process that activates the jurisdiction of the Court. This is the point of call in determining whether the Appellant had locus standi to initiate the suit at the lower Court. Where I find that the Appellant lacks the requisite locus standi, same will divest the lower Court of jurisdiction ab initio.
I am tempted to look at the notice of preliminary objection filed by the 1st Respondent to this appeal. I decided to fall for the temptation and on a closer look, I discovered that there is no prayer before the Court in the motion. The Counsel for the 1st Respondent in the motion only stated that the 1st Respondent is raising a preliminary objection to the hearing of the appeal. After that, the counsel stated the reasons upon which the appeal should not be heard. Conventionally, such motion is followed with a prayer to dismiss or strike out the appeal. This conventional prayer is not so stated. Does this affect the application? Technically it should as there is no prayer sought but substantially no, as the purport of the application is known which is that the 1st Respondent is objecting to the hearing of the appeal on the ground stated above. The implication of the success of an application of this sort is to dismiss the appeal whether counsel sought for that order or not. Was this really necessary for consideration, maybe not particularly when no issue was raised on the competence of the preliminary objection? I will therefore not make an issue of what the other parties made no issue of. It is not my case and therefore I am to decide the case on the strength of the issues placed before the Court. See Paul Masu Esq., vs. John Udeagbala (2011) LPELR-4833.
Like I said earlier, the necessary process to scrutinize in the determination of whether the Appellant had the locus standi to sue is the Originating Summons and the affidavit in support. This view is supported by M.C.S. (Nig.)(Ltd./Gte) vs. C.D.T. Ltd (2019) 4 NWLR (Pt. 1661) 1 @ 26; Dopah vs. Regd. Trustees, UMCN (2019) 4 NWLR (Pt. 1663) 520 @ 537-538. The Supreme Court in Nyesom Wike vs Peterside & Ors (2016) 1-2 S.C. (Pt. 1)37 in this regard held:
“Locus standi has been defined as the legal capacity to institute an action in a Court of law. Where a plaintiff lacks locus standi to maintain an action, the Court will lack the competence to entertain his complaint. It is therefore a threshold issue which affects the jurisdiction of the Court. See: Daniel Vs. INEC (2015) LPELR – SC.757/2013; Thomas vs. Olufosoye (1986) 1 NWLR (Pt.18) 669; Opobiyi & Anor, Vs. Layiwola Muniru (2011) 18 NWLR (Pt.1278) 387 @ 403 D – F.
It is also trite that in determining whether a plaintiff has the necessary locus to institute an action, it is his pleadings that would be considered by the Court. The claimant must show sufficient interest in the subject matter of the dispute. See: Emezi vs. Osuagwu (2005) 12 NWLR (Pt.939) 340.”
The Originating Summons and the affidavit in support are found on pages 4-10 of the record of appeal. I have taken my time to go through the 21 paragraphs affidavit and I find that although the bulk of the affidavit was dedicated to a case between the 1st Respondent and the said Global Form Work Nigeria Limited, there was a change in the tide of the wind when the Appellant’s name was introduced in paragraph 15 and 16 of the affidavit in support. In the said paragraphs, the Appellant averred that the 2nd Respondent has repeatedly refused the Appellant from operating the account. The main thrust of the Appellant’s case is that the 2nd Respondent on the instruction of the 1st Respondent placed a caution on its account. If this paragraph does not establish locus standi for the Appellant I wonder what it is.
Though, the relevant document to establish the locus of the Appellant is the processes filed by the Appellant but since the Respondent filed processes that are in the case file, I am at liberty in law to look at it. Looking at the counter affidavit and the annexure therein, I find from the content of Exhibit EE1 found on pages 54-55 of the record that the directive of the 1st Respondent to the 2nd Respondent puts the Appellant at the front burner of this case. Contrary to the argument of learned counsel for the 1st Respondent that the Appellant does not have the locus standi to initiate the suit, I hold that the argument cannot fly. From the showing of the Appellant’s affidavit, it can be gleaned that the Appellant was affected by the action of the 1st Respondent to wit; directing the placing of caution on the Appellant’s account. I have also taken the liberty of going through the 2nd Respondent’s counter affidavit in opposition to the Appellant’s Originating Summons and I find as a fact that the 2nd Respondent admitted placing a caution on the Appellant’s account. It therefore does not lie in the mouth of the 1st Respondent to claim that the Appellant has no locus standi. The law is settled to the effect that facts admitted need no further proof. See Oguanuhu & Ors vs. Chiegboka (2013) LPELR-19980; Ajibulu vs. Ajayi (2013) LPELR-21860 (SC).
While I agree that the Appellant and Global Form Work Nigeria Limited are two distinct legal personalities and each can sue and be sued it its own name, I also find that Global Form Work Nigeria Limited as well as the Appellant have locus standi to initiate the action at the lower Court against the 1st Respondent. The Appellant has therefore decided to sue and the 1st Respondent cannot pick and choose who is to sue it. In the light of the foregoing, I do not agree with the 1st Respondent’s counsel that the Appellant does not have locus standi to institute the suit against the 1st Respondent at the lower Court. As a matter of fact, the Appellant does. Consequently, the preliminary objection of the 1st Respondent fails and same is hereby dismissed.
I have gone through the briefs of counsel and considered the issues raised therein by parties represented by their counsel this appeal and I am convinced that this appeal can conveniently and effectively be disposed of on a lone issue for determination. On the strength of this, I will adopt the first issue of the Appellant as the sole issue for determination. I do this with all sense of responsibility as the law allows me to do that. See Ikuforiji vs. FRN (2018) LPELR-43884 (SC); Kalu vs. State (2017) LPELR-42101. For completeness, the sole issue for determination reads:
Whether the entirety of the trial Court’s judgment rendered in the proceedings is perverse and the reasonings contradict the penultimate order of dismissal entered in respect of the plaintiff/Appellant’s reliefs number i, ii, iii and iv which thereby occasioned a total miscarriage of justice.
Having reproduced the issue above, I will now go on to consider it but before then, I will like to do a little house keeping first.
The Appellant counsel has argued that paragraph 17 of its affidavit was not denied by the Respondents in their counter affidavit and as such the facts contained therein are deemed admitted and need no further proof. While I agree with Appellant counsel that facts admitted need no further proof vide Oguanuhu & Ors vs. Chiegboka (supra); Ajibulu vs. Ajayi (supra), I do not agree that the Respondents conceded this fact in their counter affidavit. I have gone through the counter affidavit of the Respondents and I find that the Respondents denied the fact that they freezed the Appellant’s account but rather argued that they placed it on caution. In the light of this, I will refer to paragraphs 8 and 5 of the 1st and 2nd Respondents counter affidavit respectively. This was what formed the crux of the suit at the lower Court. The respective paragraphs read:
“8. That contrary to paragraph 16, the true facts are that the accounts of Savannah & Chemical Industries Ltd were placed under caution and not frozen as claimed in connection to Chief G.N. Ebom who is also the alter ego of Global Formwork Nig. Ltd which is under investigation.
5. The 1st Defendant by its letter dated 23rd November, 2009 directed the 2nd Defendant to place the Plaintiff’s account on caution; which directive the 2nd Defendant complied with. Produced and shown to me marked Exhibit EE1 is a copy of the said letter.”
I will also like to point out the argument of the Appellant that the failure of the learned trial Judge to rely on Exhibits S4, which is judgments of Hon. Justice B.F.M. Nyako, which judgment would have settled the issue on whether the words ‘caution’ and ‘freezing’ mean one and the same thing therefore occasioned a miscarriage of justice. I have gone through the judgments and though I would not want to comment on its contents now, I wish to say that the judgment was delivered by a brother Judge of the same Court of co-ordinate jurisdiction and as such, the learned trial Judge was not bound by it. At best, it can only be of persuasive authority. SeeIbeziako vs. Nwagbogu & Anor (1972) LPELR-1395 (SC). Let me refer to the words of this Court per Awotoye, J.C.A. in Arugu & Ors vs. Rivers State INEC & Ors (2010) LPELR-9086 (CA):<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“Suit Numbers PHC/1383/2007, PHC/1503/2007 and PHC/1575/2007 are judgments of a High Court which has co-ordinate jurisdiction with the Court below in the appeal. It is trite law these decisions are of persuasive authority to the Court below. See OBEYA V. SOWADE (1969) NNLR 17; 1969 (1) NMLR 112; see also POLICE AUTHORITY FOR HUDDERS FIELD v. WATSON (1947) KB 842 at 848. If the learned trial Judge agrees with the decisions in the judgments he is right, to follow them. On the other hand if he disagrees with the said decisions, he also would be right to arrive at a different decision. In this case the lower Court chose to follow the decisions of Diepiri J. in PHC/1383/2007, PHC/1503/2007 and PHC/1575/2007 I do agree that a decision of a Judge of concurrent or co-ordinate jurisdiction cannot be binding as between them. See IBRAHIM LATUNDUN BALOGUN & ORS V. EMIR OF ILORIN ALHAJI SULU GAMBARI & ORS. (supra).”
Having disposed of that, I will now consider the germane questions in this appeal. The summation of the entirety of this suit at the lower Court which is now on appeal is that the Appellant claimed that the 1st Respondent issued a directive to the 2nd Respondent to freeze its account which action prevented the Appellant from carrying out transactions on its account. This is moreso when this was done without the order from Court. This singular act makes the Respondents liable to it. The 1st Respondent on the other hand have argued that the account was not frozen as against the Appellant’s argument but rather it was placed on caution as the Appellant’s account was undergoing investigation at the time. That action the 1st Respondent argued was exercised within its power by law. The 2nd Respondent specifically contended that it cannot be held liable to the Appellant in respect of carrying out the directive of the 1st Respondent, a directive it was empowered to give under the Act establishing it.
Learned counsel for the Appellant is calling this Honourable Court to interfere with the findings of fact of the lower Court. I must warn myself at this point that the trial Court is the Court saddled with the responsibility and duty of making specific findings on facts before it and the appellate Court will seldom interfere with such powers of the trial Court except where same is exercised outside the evidence before it, in which case the finding will be seen as perverse and has occasioned a miscarriage of justice. See Tsokwa Motors (Nig.) Ltd. vs. UBA Plc. (2008) LPELR-3266 (SC); Madu vs. Madu (2008) LPELR-1806 (SC).
Going through the arguments, the thread that runs through the arguments of the parties borders on the interpretation of the words ‘freeze’ and ‘caution’ and whether both words carry the same meaning and can be used interchangeably. An answer to this will solve more than half of this appeal.
The 1st Respondent has thus argued that it issued a directive it was empowered by the law to issue and as such the Court cannot prevent it from carrying out a lawful exercise of its statutory powers. What this Court ought then to determine first is, what directive was issued to the 2nd Respondent by the 1st Respondent. Is it to freeze the Appellant’s account or to place a caution on it? In answering this question, I need not look farther as the answer is embedded in the contents of Exhibit EE1 found on pages 54-55 of the record of appeal. It reads:
“CR: 3000/EFCC/LS/X/EG1/VOL4/266 23rd November, 2009
The Managing Director,
GT Bank Plc,
Plot 1699 Oyin Jolayemi Street,
Victoria Island Lagos.
Attention: Chief Compliance Officer
INVESTIGATION ACTIVITIES
RE: GLOBAL FORMWORK NIGERIA LIMITED AND SAVANNAH & CHEMICAL INDUSTRIES
This Commission is investigating a case of Conspiracy and Money Laundering in which the above mentioned accounts featured.
2. In view of the above, you are requested to kindly furnish the following information:
a) The Account Opening package of both Domiciliary and Naira Accounts.
b) The Statements of Account from inception to date.
c) All correspondences between the customer and the Bank.
d) And any other information that may assist investigation.
3. You are also requested to place caution on the accounts and apprehend on sight the operators of the accounts.
4. Your early response in this regards will be highly appreciated please.
For, ABDURRAHAMAN AHMAD
For: Executive Chairman”
This is the content of the Exhibit EE1 and from a clear reading of the contents, it is incapable of double interpretation that the word used is “… to place caution” and not “…. to freeze”. When the words used in a statute are clear and unambiguous, they should be given their literal interpretation. See Gana vs. SDP & Ors (2019) LPELR-47153 (SC); Abegunde vs. Ondo State House of Assembly & Ors (2015) LPELR-24588 (SC). To this end, I hold that the directive issued to the 2nd Respondent by the 1st Respondent was to place caution on the Appellant’s account and not to freeze it as contended by Appellant’s counsel.
Having so held, can it be said that the 1st Respondent is so empowered to direct the 2nd Respondent to place a caution on the Appellant’s account? I have looked at the Act establishing the 1st Respondent that is, the Economic and Financial Crimes Commission (Establishment) Act, I do not seem to find the word caution being used in the Act. What I however found is a reference to the word ‘freeze’. At this point, I will refer to the relevant Section of the EFCC Act on this point. This is Section 34(1), (2) and (3) and it provides:
“34. (1) Notwithstanding anything contained in any other enactment or law, the Chairman of the Commission or any officer authorised by him may, if satisfied that the money in the account of a person is made through the commission of an offence under this Act and or any of the enactments specified under Section 7 (2) (a) – (f) of this Act, apply to the Court ex-parte for power to issue an order as specified in Form B of the Schedule to this Act, addressed to the manager of the bank or any person in control of the financial institution or designated non-financial institution where the account is or believed by him to be or the head office of the bank, other financial institution or designated non-financial institution to freeze the account.
(2) The Chairman of the Commission, or any other authorised by him may by an order issued under Subsection (1) of this Section, direct the bank, other financial institution or designated non-financial institution to supply any information and produce books and documents relating to the account and to stop all outward payment, operations or transactions (including any bill of exchange) in respect of the account of the person.
(3) The manager or any other person in control of the financial institution shall take necessary steps to comply with the requirements of the order made pursuant to subsection (2) of this section.” Underlined for emphasis.
The subject heading of the said section reads “Freezing order on banks or other financial institutions”. There is no portion of the said section that deals on ‘caution’. Having acknowledged this, one question that bugs my mind is, what is the effect (if any) of both orders, to wit, ‘to freeze’ and ‘to place caution’. The English words ‘freeze’ and ‘caution’ have different meanings. According to the Oxford Advanced Learner’s Dictionary 6th Edition on pages 186 and 513, caution and freeze were respectively defined thus:
“Caution: 1. Care that you take to avoid danger or mistakes; not taking any risks;
2. A warning that is given by the police to somebody who has committed a crime that is not too serious.
3. A warning or a piece of advice about a possible danger or risk.”
“Freeze: To prevent money, a bank account, etc, from being used by getting a Court order which forbids it.” From the online Investopedia, ‘an account freeze’ was defined in these words:
“An account freeze is an action taken by a bank or brokerage that prevents some transactions from occurring in the account. Typically, any open transaction will be canceled, and checks presented on a frozen account will not be honored. However, the account holder can still deposit money into the account.”
Although, as earlier mentioned, I cannot seem to find the meaning of the word ‘caution’ in the usage of the banking practice or its reflection in the Act, from the affidavit of the Appellant and the Respondents’ counter affidavit, it can be gleaned that the facts presented therein are similar to the effect of the word ‘freeze’ from the definition. While with respect to caution, there is no consequence until one refuses to yield to the warning, freeze on the other hand means that it is untouchable ab initio. Freezing has a far reaching implication than caution. Of particular interest is the provision of Section 34 (2) of the EFCC Act cited above which gives the purport of what freezing an account entails. By the section to freeze an account entails stopping ‘all outward payment, operation and transaction’ in an account. When the order given to a bank by the 1st Respondent in all intent and purpose means stopping outward payment or stopping any operation and transaction on any account it means the account is freezed. Does it really matter whether the word used is ‘freeze’ or ‘caution’? In my opinion it should not, if the intendment is to stop a party from operating the account. That the 1st Respondent intended to stop the Appellant from making any transaction in its account with the 2nd Respondent by Exhibit EE1 is not without doubt. The 2nd Respondent was even asked to apprehend anyone who comes into the bank to operate the account. It can therefore be deduced and I will not be mistaken to say that from the act of the 2nd Respondent in stopping all operations on the Appellant’s account in compliance with the 1st Respondent’s directive to place a caution on the account that the word ‘to place caution’ and ‘to freeze’ carry the same effect and implication and as such can be used interchangeably. While I agree with the Respondents in their argument that the words ‘freeze’ and ‘caution’ in their ordinary and grammatical meaning are different, the question I ask myself is ‘within the context of the facts presented by the parties at the lower Court, what is the effect of the Exhibit EE1 written by the 1st Respondent to the 2nd to place the Appellant’s account on caution?’ The answer to my mind and as can be gleaned from the action of the 2nd Respondent in compliance with the directive of the 1st Respondent is that the 2nd Respondent stopped all outward payment and any operation and transaction on the account of the Appellant. So while I agree with the Respondent’s counsel that in its ordinary and grammatical meaning, caution is different from freezing, I cannot close my eyes to the fact that the effect of Exhibit EE1 and the drastic directive contained therein amounted to the same consequence and carry the same effect as a freezing order. On this note, I do not agree with the learned trial Judge when he held that the Appellant failed to prove to the Court as required by the law under Section 131 of the Evidence Act that the words ‘to freeze’ and ‘to place caution’ are one and the same.
I have gone through this whole length to establish this fact because the determination of this appeal rest on the interpretation of the words. Having held in the affirmative that within the context in which they are used, the words are one and the same and can be used interchangeably, I will now cast my mind back to the section under which the 1st Respondent issued its directive to the 2nd Respondent.
The section as mentioned above is Section 34 of EFCC Act. I will not reproduce the section here since I had produced it above.
From the clear reading of the said section, few things stand out which will be necessary to point out in the determination of this appeal. These are:
1. That the Chairman of the Commission or any officer authorized by him, must be satisfied that the money in the account of a person is made through the commission of an offence;
2. Where he is satisfied of this fact, he is required to apply to Court exparte for power to issue an order (in this case, the freezing order);
3. Where such is granted, the Chairman of the Commission or any officer authorized by him may direct the bank in compliance with the order to freeze the account of the person;
4. Where the bank is in receipt of the directive, the manager or any other person in control of the financial institution shall ensure necessary steps are taken in compliance with the said directive.
It is instructive to note that applying to Court exparte is a pre-condition necessary to exercise the powers contained in Section 34 of the EFCC Act. I have also taken the liberty of reading in whole of the said Section 34 and it is clear to me from that section that for the Appellant to exercise such powers as directed to the 2nd Respondent by the 1st Respondent, it must have reasonably suspected that the account is involved in a crime, this suspicion to my mind is not just a mere suspicion but rather one that comes about from fact finding investigation. The 1st Respondent must have carried out investigation and gotten hard evidence which formed the basis of its suspicion. The 1st Respondent however, has not placed before this Court or deposed in its counter affidavit at the Court below, any findings from its investigation to show that it had reasonable suspicion that the account of the Appellant was involved in a crime and as such directed the 2nd Respondent to place a caution on the account of the Appellant. I hold this view because same is strengthened under Section 34(1) of the EFCC Act. Under the Act, for the Commission to apply to Court exparte for power to issue the order, the Chairman must be satisfied that the money in the account was made through the commission of a crime. Again, such satisfaction can only come after investigation has been carried out and not just a mere speculation. The Section under reference does not give the unilateral power to the 1st Respondent to give an order to the 2nd Respondent to freeze or place caution on the account of the Appellant. It is not in doubt that the 1st Respondent has powers conferred on it to pass such an instruction to the 2nd Respondent. There is however a caveat paced on the 1st Respondent which it must comply with to make such instruction to be valid and legal. To avoid abuse of power, the 1st Respondent under the same law it is claiming to have given the order to the 2nd Respondent to place a caution on the Appellant’s account must satisfy two conditions. One of which is that the Chairman of the 1st Respondent must be satisfied that the money in the account of the Appellant must be proceeds from the commission of crime. This is subjective to the Chairman of the Commission. The challenge with this is that if this power is not checked it will be subject to great abuse. If not checked, the Chairman who wakes up from the wrong side of his bed can just proceed against any person under the pretext that what a person has in its account is proceeds of crime and therefore give an instruction to a bank. This can be used against perceived enemies. Leaving such a power in the hand of a person who does not have the constitutional powers to determine what constitute a crime and indeed determine who is guilty of a crime is very dangerous. This is because one of such action can be very damaging. The constitutional powers to determine what constitute a crime is in the Court and not in any one else no matter how highly placed. This is the constitutional power of the Court not even an administrative Tribunal and any law that gives that power to anyone apart from the Court will be contrary to the Constitution and be declared null and void. See Abacha vs. FRN (2014) LPELR-22014 (SC).
It is to avoid the abuse of that power that the same law mandates the Commission to apply for an ex parte order to freeze the account of a suspect. The Commission will then issue a letter asking the bank or financial institution to freeze the account. That letter will be accompanied with the order and it is when the bank or financial institution receives that letter and the order from the Court that the bank will comply. The compelling force to the bank in that instance is really not the letter but rather the order of the Court.
Learned Counsel to the 1st and 2nd Respondents have argued placing reliance on Section 6(5)(b) of the Money Laundering (Prohibition) Act 2011 (as Amended) that the Commission has the power to restrict any transaction on an account even without a Court order. The aforementioned provision reads:
“5.….
(b) Notwithstanding the provisions of paragraph (a) of this sub-section, the Chairman of the Economic and Financial Crimes Commission or his authorized representative shall place a Stop Order not exceeding 72 hours, on any account or transaction if it is discovered in the course of their duties that such account or transaction is suspected to be involved in any crime.” Underlined for emphasis.
The argument of the Respondents relying on Section 6 (5)(b) of the Money Laundering Act will not suffice in this instance. First, the money laundering Act is a general law while the EFCC Act is a specific law and the law is settled that where there is a general and specific provision or law, the specific provision will prevail. SeeInakoju & Ors vs. Adeleke & Ors (2007) LPELR-1510 (SC); Madumere & Anor vs. Okwara & Anor (2013) LPELR-20752 (SC).
The Money Laundering Act being a general law though did not specifically mention the place of Court order however the argument that it was necessary for the Chairman of the Commission to unilaterally make the instruction for the purpose of urgency, I make bold to say that is what the exparte motion is all about. For the 1st Respondent to act under Section 34 of the EFCC Act which the 1st Respondent claimed to be acting under, it must comply with the whole law. The 1st Respondent had the duty to comply with the procedure stated under the law otherwise, the action will be null and void. One or two cases in this regard will go a long way to explain the point I have been making. In GTB vs. Adedamola & Ors (2019) LPELR-47310 (CA), this Court per Abubakar, J.C.A. held this much in these words:
“Let me go back to the thin issue to resolve in this appeal. The compressed facts constituting basis for placing restriction on the Account of the 1st Respondent by the Appellant was following an instruction from the Economic and Financial Crimes Commissions. In fact, the 1st Respondent said so expressly in his affidavit and the statement in support of the application. At paragraph 20 of the affidavit, the Applicant/1st Respondent said as follows. “That the order frozen my Bank account was done as a result of crime allegedly committed by another person which I am not privy to”. Again at page 46 of the records of appeal, the Applicant said he was informed by his Bank that his account was placed under restriction by the Economic and Financial Crimes Commission, paragraphs 7 to 14 of the affidavit in support. On 1st Respondents own showing from the paragraphs in the support, the Bank action was on Instructions because there were allegations of crime surrounding the operations of the Account. The lower Court found the action of the Appellant, 2nd and 3rd Respondents as a violation of the fundamental Right of the 1st Respondent. The learned trial Judge at page 51 of the records of appeal said as follows: “..In this case there is no evidence that the applicant committed any criminal offence, or was even reasonably suspected to have committed any offence. The EFCC has not come up with anything suggestive that Akinshiku Roy mentioned the Applicant as having conspired to commit the alleged offence he was accused of. Even if the Applicant was alleged to have committed a criminal offence, EFCC cannot on its own direct the Bank to place restriction on his accounts in the Bank without an order of Court. The law allows EFCC to come even with ex-parte application to obtain an order freezing the account of any suspect that has lodgments that is suspected to be proceeds of crime. No law imposes a unilateral power on the EFCC to deal with the applicant this way. Again Guaranty Trust Bank has no obligation to act on EFCC’S instructions or directives without an order of Court….” The above is the reasoning of the learned trial Judge. I decided to check the provisions of the law relating to the powers of the Economic and Financial Crimes Commission to issue instructions to Banks to freeze Bank accounts of Customers, I read the provisions of Section 34(1) of the Economic and Financial Crimes (Establishment) Act 2004, the section provides as follows: 34 (1) Notwithstanding anything contained in any other enactment or law, the Chairman of the Commission or any officer authorized by him may, if satisfied that the money in the account of a person is made through the commission of an offence under this Act or any enactments specified under Section 7(2) (a)-(f) of this Act, apply to the Court ex-parte for power to issue or instruct a bank examiner or such other appropriate regulatory authority to issue an order as specified in Form B of the Schedule to this Act, addressed to the manager of the bank or any person in control of the financial institution where the account is or believed by him to be or the head office of the bank or other financial institution to freeze the account. (Underlining mine). The above provisions are in accord with the decision of the lower Court. The Economic and Financial Crimes Commission has no powers to give direct instructions to Bank to freeze the Account of a Customer, without an order of Court, so doing constitutes a flagrant disregard and violation of the rights of a Customer. I must add that, the judiciary has the onerous duty of preserving and protecting the rule of law, the principles of rule of law are that, both the governor and the governed are subject to rule of law. The Courts must rise to the occasion speak and frown against arrogant display of powers by an arm of Government. It is in the interest of both Government and citizens that laws are respected, as respect for the rule of rule promotes order, peace and decency in all societies, we are not an exception. Our Financial institutions must not be complacent and appear toothless in the face of brazen and reckless violence to the rights of their customers. Whenever there is a specific provision regulating the procedure of doing a particular act, that procedure must be followed.” Similarly, in Olagunju vs. EFCC (2019) LPELR-48461 (CA), this Court per Ojo, J.C.A. extensive took the same position in these words:
“From the totality of the evidence before the lower Court, it is not in dispute that the Respondent did not obtain a Court order before giving instruction to Heritage bank to freeze the Appellants accounts maintained with her.
The question now is whether the Respondent acted within its powers under the law when it gave the instruction to Heritage Bank to freeze the Appellants accounts, which instructions were carried out.
The Respondents case is that it received a petition from AMCON wherein criminal offences were alleged against the Appellant and investigation revealed that the Appellants accounts with Heritage bank contained monies which are proceeds of crime. Section 38 (1) of the EFCC Act gives powers to the Respondent to receive information without hindrance. Section 34 of the same Act which empowers the Respondent to give instruction to freeze Accounts provides thus:
Notwithstanding anything contained in any other enactment or law, the Chairman of the Commission or any officer authorized by him may, if satisfied that money in the account of a person is made through the commission of an offence under this Act or any enactments specified under Section 7 (2) (a) to (f) of this Act apply to the Court ex parte for power to issue or instruct a bank manager or such other appropriate regulatory authority to issue an order as specified in form B of the schedule to this Act, addressed to the manager of the bank or any person in control of the financial institution where the account is or believed by him to be or the head office of the bank other financial institution or designated non- financial institution to freeze the account.”
The law is settled that when it comes to the interpretation of the provision of a statute, such statute must be construed literally and the words therein given their ordinary meaning.
See ABACHA & ORS VS. FAWEHINMI (2000) 6 NWLR (pt. 660) 228, CSS BOOKSHOPS LTD. VS. REGISTERED TRUSTEES OF MUSLIM COMMUNITY RIVERS STATE & ORS (2006) 11 NWLR (pt. 992) 530; UDE VS. NWARA & ANOR (1993) 2 NWLR (pt. 278) 638; OKOTIE EBOH VS.MANAGER & ORS (2004) 18 NWLR (pt. 905) 242.
In the case of PROVOST LAGOS STATE COLLEGE OF EDUCATION & ORS VS. EDUN & ORS (2004) 6 NWLR (pt. 870) 476 @ 509 paras D – F, TOBI J.S.C. held thus:
What is the effect of non-compliance with the law? It is settled law that expropriatory statutes which encroach on a persons proprietary rights must be construed fortissimo contra preferates, that is strictly against the acquiring authority but sympathetically in favour of the citizen whose proprietary rights are being deprived. Consequently, as against the acquiring authority, there must be a strict adherence to the formalities prescribed for the acquisition.
See OBIKOYA VS. GOVERNOR OF LAGOS STATE (1987) 1 NWLR (pt. 50) 385; LSDPC VS. FOREIGN FINANCE CORPORATION (1987) 1 NWLR (pt. 50) 413, ATTORNEY GENERAL, BENDEL STATE VS.P.L.A.AIDEYAN (1989) 4 NWLR (pt. 118) 646.”
The provision of Section 34 (1) of the Economic and Financial Crimes Commission Act, encroaches on a persons proprietary right to monies in his or her bank account. It must therefore be construed strictly using the literal approach. It is trite law that when a legislation prescribes a procedure or method for doing an act, it is only such procedure or method that is permissible and no other. See OYAMA VS. AGIBE (2016) ALL FWLR (pt. 840) 1274 at 1292 paras E-F. It is also the law that where a statute provides unambiguously for an act to be done in a particular manner, failure to perform that act in the prescribed manner amounts to noncompliance and its effect cannot be waived. See NIGER-CARE DEV. CO. LTD. VS.ASWB (2008) ALL FWLR (pt. 422) 1052 and IKPE VS.ELIJAH 2011 LPELR 4516 CA.
My firm view is that the only interpretation that can be extended to the provision of Section 34 (1) of the EFCC Act is that when the Respondent is investigating a Crime, its Chairman may decide whether there is the need to freeze the account involved. This is clearly the discretion of the Chairman. When he however decides that there is the need to freeze such account, he must obtain a Court order before doing so.
A Court Order is therefore a condition precedent for the exercise of the Respondents power to freeze an account pursuant to the provisions of Section 34 (1) of the EFCC Act. The Respondent must obtain a Court Order before taking such a step. Anything to the contrary is a flagrant violation of the law and right of the owner of the frozen bank account. The Courts have consistently frowned at such violations. In the very recent case of GT BANK VS. ADEDAMOLA (2019) 5 NWLR (pt. 1664) pg. 30 at 43, my learned brother of this Court Abubakar J.C.A. held as follows:
Before freezing customers account or placing any form of restrain on any bank account, the bank must be satisfied that there is an order of Court. By the provisions of Section 34 (1) of the Economic and Financial Crimes Commission Act 2004, the Economic and Financial Crimes Commission has no power to give direct instructions to banks to freeze the account of a customer without an order of the Court. So doing constitutes a flagrant disregard and violation of the rights of a customer. I must add that the judiciary has the onerous duty of preserving and protecting the rule of law. The principles of rule of law are that both the governor and the governed are subject to rule of law; no one is above the law. Whenever there is brazen violation of the rights of a citizen, the Courts in the discharge of their responsibility to the society, must rise the occasion, speak, frown upon and condemn arrogant display of powers by an arm of government. It is in the interest of both government and citizens that laws are respected, as respect for the rule of law promotes order, peace and decency in all societies, and we are not an exception. Our financial institutions must not be complacent, reticent and toothless in the face of brazen and reckless violence to the rights of their customers. Whenever there is a specific provision regulating the procedure of doing a particular act, that procedure must be followed.”
To this end, I make bold to say that the action of the 1st Respondent in directing the 2nd Respondent to place the Appellant’s account on caution was not in compliance with the law and it is therefore unilateral and should be condemned in very strong terms. A governmental agency should not be the one that violates the law at any rate. It is sad and very sad indeed when government agencies see themselves as untouchable and decides to act outside the clear provision of the law. A message must be sent and voice heard loud and clear that the midwife of the rule of law in any society is the Court. If the other arms of government and particularly the executive and its agencies act without due regard to the rule of law, there will be a miscarriage in the delivery of the dividend of democracy. Nobody is above the law and when any person goes against the law, a Court should not pat the back of such a person but frown at such a situation. An agency fighting corruption must be above board in all respect. Corruption is wider than monetary gains as anything done outside due process is corruption. I will not say more than this.
Let me now turn to the direction of the 2nd Respondent.
Having held that the action of the 1st Respondent was not in conformity with the law, can it be said that the 2nd Respondent was obligated to accede to the directives of the 1st Respondent and consequently, discharged of any liability to the Appellant in damages?
It is no doubt that there are some obligations which a bank owes to its customers, amongst which are the duty of secrecy and confidentiality. By this duty, the bank is not obliged to reveal or divulge any information regarding the account of a customer to a third party, except under certain circumstances. These circumstances were enunciated in Fidelity Bank vs. Onwuka (2017) LPELR-42839 (CA):
“It is beyond controversy that one of the principal duties of a banker to its customer is to maintain a complete secrecy/confidentiality of the information about a customer’s account from the day the account is closed and is no longer operated. It is one of the implied terms of contract between the customer and the banker which is not restricted to the account alone but also to any other information which comes to the knowledge of the banker about the customer in the course of their contractual relationship. However the duty of the banker to maintain secrecy/confidentiality of the status of the account and any other information relating thereto is not absolute. It is a qualified duty. In other words, it is subject to a number of exceptions which were established by the English case of TOURNIER V. NATIONAL PROVINCIAL AND UNION BANK OF ENGLAND (1924) 1 KB 461 AT 472 as follows: (a) “Where disclosure is under compulsion of law. (b) Where there is a duty to the public to disclose. (c) Where the interests of the bank require disclosure. (d) Where the disclosure is made by express or implied consent of the customer.” These exceptions which are referred to as Tournier’s principles still holds good today as they have been confirmed in several other cases. See TURNER V. ROYAL BANK OF SCOTLAND PLC (1999) LLOYD’S LAW REP. BANKING 231 AT 234, CHRISTOFI V. BARCLAYS BANK PLC (2000) 1 WLR 937 AT 946, OCEANIC BANK PLC VS. OLADEPO (2012) LPELR – 19676. We are concerned here with the first exception. The banker would be justified and is in fact under a duty to disclose information relating to a customer’s account where the law or Statute requires the banker to so do. Disclosure under compulsion of the law is not limited to a situation where a Statute requires the bank to disclose information about a customer’s account, it extends to an order of Court to disclose the state of a customer’s account, the banker is bound to disclose the state of the customer’s accounts. In BARCLAYS BANK PLC V. TAYLOR (1989) 3 ALL ER. 563, it was contended that a banker’s duty of secrecy/confidentiality included the duty to resist any order made by a lawful authority to look into the affairs of the customer and the bank was under a duty to inform the customer about the order. The English Court rejected that contention on the ground that such duty cannot be implied into the banker and customer relationship. See also ROBERTSON V. CANADIAN IMPERIAL BANK OF COMMERCE (1995) 1 ALL ER 824. The argument of the appellant’s counsel that a disclosure of all the account details of the judgment debtor would be a breach of its duty of secrecy/confidentiality must be rejected. A banker has no option than to disclose particulars of its customer’s accounts when it is compelled to do so by the Court. Reliance of the appellant on lack of specific account details must also be rejected because the nature, number and the amount of money standing to the credit of the judgment debtor in its account with the appellant are matters within the knowledge of the appellant which must be disclosed on the order of Court to enable the Court to determine whether or not the judgment debtor has money in the custody of the garnishee and whether such money is sufficient to satisfy the judgment debt. That was the position of this Court in OCEANIC BANK PLC VS. OLADEPO (SUPRA) and it remains unchanged.”
Similarly, in UBA vs. CAC & Ors (2016) LPELR-40569 (CA), this Court per Obaseki-Adejumo, J.C.A. held:
“It is beyond doubt that a banker owes his customer a legal duty of confidentiality not to disclose information to third parties, and any breach of this duty could give rise to liability in damages if loss results. This duty arises between a banker and customer upon the opening of an account and continues beyond the time when the account is closed. It covers all transactions concerning the account and information obtained by virtue of the relationship between the banker and its customer. The duty is, however, qualified by a few exceptions which were laid by BANKES, L.J. TOURNIER v. NATIONAL PROVINCIAL AND UNION BANK OF ENGLAND (1924) 1 KB 461 at 472, where the Learned Jurist stated: “In my opinion, it is necessary in a case like the present to direct the jury what are the limits, and what are the qualifications of the contractual duty of secrecy implied in the relation of banker and customer. There appears to be no authority on the point. On principle, I think that the qualifications can be classified under four heads: (a) Where disclosure is under compulsion by law; (b) where there is a duty to the public to disclose; (c) where there interests of the bank require disclosure; (d) where the disclosure is made by the express or implied consent of the customer. An instance of the first class is the duty to obey an order under the Bankers’ Books Evidence Act. Many instances of the second class might be given. They may be summed up in the language of Lord Finlay in Weld-Blundell v. Stephens (1), where he speaks of case where a higher duty than the private duty is involved, as where “danger to the State or pubic duty may supersede the duty of the agent to his principal.” A simple instance of the third class is where a bank issues a writ claiming payment of an overdraft stating on the face of the writ the amount of the overdraft. The familiar instance of the last class is where the customer authorizes a reference to his banker.” See also Christofi v. Barclays Bank Plc [2000] 1 WLR 937. The above exceptions seem to have been incorporated into Article 7 of the Code of Conduct of the Code of Banking Practice ostensibly referred to by the Appellant Counsel. For purpose of clarity, Article 7 states: “7.1 Banks will observe a strict duty of confidentiality about their customers (and former customers) affairs and will not disclose details of customers’ accounts or their names and addresses to any third party, including other companies in the same group, other than in the four exceptional cases permitted by the law, namely: 7.1.1 Where a bank is legally compelled to do so; 7.1.2 Where there is a duty to the public to disclose; 7.1.3 Where the interests of the bank require disclosure: and 7.1.4 Where disclosure is made at the request or with the consent, (expressed or implied) of the customer. 7.2 Banks will not use exception 7.1.3 above to justify the disclosure for marketing purposes of details of customers’ accounts or their names and addresses to any third party, including other companies within the same group. 7.3 All banks should insist on their staff signing a “Declaration of Secrecy” to guarantee the confidentially of customer information.”
Under these instances, the bank is under obligation not to depart from the duty of care owed to the customer without incurring liability.
The 2nd Respondent’s counsel have argued that once it is served with directive as in Exhibit EE1, the 2nd Respondent must take necessary steps in complying with the order. It has argued that it does not have the latitude of applying its discretion whether or not to comply with such order.
I have established earlier in this judgment that the powers granted to the 1st Respondent under Section 34(1) is pursuant to fulfilling the pre-condition of obtaining a Court order. It therefore goes without saying that the 2nd Respondent ought to have taken reasonable steps to find out to its satisfaction whether such order was obtained. The 2nd Respondent was not diligent enough in carrying out its duty of care and as such rendered itself liable to the Appellant. This finding goes without saying that the banks are obligated to comply with the directives of the Commission with respect as the one contained in Exhibit EE1 but same must be done after due satisfaction that the Commission has complied with the law.
The legal department exist in the bank to properly advice the bank on legal issues such as this. The mere fact that a letter has come from the 1st Respondent does not take away the duty on the 2nd Respondent to ask for the Court order. What is not right is not right. Who is involved does not make what is wrong right or what is right wrong. What will constitute a valid instruction from Section 34 will be an exparte order obtained by the 1st Respondent from the Court. This is the law. The law does not change simply because it is EFCC that is involved. The law which set up EFCC has made that provision for an ex parte order and therefore it is within the power of the bank to ask for the order and not to slavishly obey a baseless instruction that has no legal backing. I must not be understood to be saying that the 1st Respondent had no power to write Exhibit EE1 but that the condition precedent to giving such an instruction must be met and the 2nd Respondent has a duty not to obey an instruction that does not comply with the law particularly when the obedience to such an order will affect the right of another. The 2nd Respondent is therefore liable to the Appellant.
Let me comment here with respect to the learned trial Judge’s holding which is to the effect that the failure of the Appellant to present the freezing order is detrimental to the case of the Appellant. I do not seem to agree with the learned trial Judge, as there is evidence on the record which proves that the 1st Respondent issued a directive to the 2nd Respondent to place a caution on the Appellant’s account (Exhibit EE1), the 2nd Respondent had also admitted that in compliance with the directive of the 1st Respondent, it placed a caution on the Appellant’s account; which implication is that it restricted further transaction on the Appellant’s account. Having held earlier that the order to freeze or place caution on the Appellant’s account both carry the same effect within the context they were used, I see no reason or relevance of the said freezing order as the evidence before the Court and the admittance of the 2nd Respondent has already established this fact. Facts admitted need no further proof.
The Appellant had submitted that the judgment of the lower Court is contradictory. I think I agree with him with due respect to the trial Judge. The lower Court rightly stated the position of the law on pages 163 and 164 of the record as it relates to Section 34 of EFCC Act stating clearly that the 1st Respondent by the provision of the law should have obtained a Court order. The lower Court had held on page 164 of the record thus:
“I answer questions 1 and 2 in the negative.” This decision is in line with the finding of the lower Court. In light of the above, I therefore cannot understand the decision on the prayers when the lower Court dismissed prayers 1, 2, 3 and 4 of the originating summons. To appreciate the point I am making, I will now reproduce the question for determination in the originating summons and the prayers in the originating summons. The three questions for determination are:
“1) Whether under the provisions contained in the EFCC Act 2004 (as amended), or any other existing statutory provisions, the 1st Defendant Commission can lawfully/legitimately in the exercise/enforcement of the statutory powers thereby, conferred on it, by order or any such directions, either freeze, preclude, or prevent the plaintiff company from any operation or exercise of banking rights in respect of the same over funds belonging to the plaintiff company, lodged with the 2nd Defendant, without the disclose (sic) of any criminal allegation or reasonable suspicion thereto, against the company.
ii) Whether the 1st defendant commission can under Section 34 of the aforesaid Act or otherwise, impound, freeze, forcefully prevent or preclude the Plaintiff company or any of its servants/agents duly authorized, from the operation of the said Account with funds belonging to the plaintiff company, without first obtaining an order of Court in that regard.
iii) Whether the 2nd defendant Bank is bound in law to obey/comply with any such orders/directives from the 1st Defendant to foreclose all such or any operations of the Plaintiff company over the aforesaid Account, without any good cause or reason shown.”
The prayers are:
“i) A declaration that the 1st Defendant Commission has no vires in law either to issue, enforce or secure the enforcement of any such order aforesaid on the 2nd Defendant, the effect of which is to preclude the exercise of the plaintiff trading company’s contractual rights in the due operation of the said Account, so held with the 2nd defendant Bank.
ii) A declaration that the order so made by the 1st Defendant Commission is Null and Void, being in excess of the statutory powers reposed in the Commission under the EFCC Act 2004 (as amended)
iii) An order setting aside the said Order for any purpose whatsoever, without any good/justifiable cause shown N500,000,000.00 Damages for the continuing breaches of contract so unjustifiably occasioned the plaintiff trading venture
iv) An order of injunction restraining the Defendants jointly and severally, their officers, agents, servants and/or privies however constituted, from further interposing on or interfering in any matter whatsoever with the due exercise of the plaintiff company in the operation of the said Account, through any of its authorized management signatories or its officers/agents/servants duly authorized thereto.”
I still cannot understand further why the lower Court after declaring the action of the 1st Respondent illegal refused to grant the reliefs that will give life to the finding. The lower Court dismissed reliefs (i),(ii),(iii) and (iv) but went ahead to grant relief (v). This is quite inconsistent and contradictory.
In the circumstance as a Court of justice and exercising the power conferred on me by Section 15 of the Court of Appeal Act, I assume the position of the lower Court and make the obvious order. In the light of the evidence as disclosed in the affidavit in support and the counter affidavit of the Respondents, it is not hard for me to answer question 1, 2 and 3 in the negative and thereby grant reliefs (i)(ii)(iii) and (v) in favour of the Appellant.
Having answered all the questions in favour of the Appellant and granted reliefs (i)(ii)(iii) and (v), it behooves me to pronounce on the relief touching on damages which is relief (iv). The Court, in awarding general damages is to assess the damages based on an injury that naturally flowed from the wrong suffered by the Appellant. The gravity of the damages awarded will be based on an injury suffered which naturally flows from what the Appellant suffered. The apex Court in stating the principle upon which general damages will be awarded held in Elf Petroleum vs. Umah & Ors (2018) 1 SC (Pt. 1) 173; (2018) LPELR-43600 (SC) Ogunbiyi, J.S.C. at page 27 thus:
“It is pertinent to re-iterate herein that in the award of General Damages, a wide spread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching and contrary to the contention held by the appellant herein. The measure of general damages is awarded to assuage such a loss, which flows naturally from the defendant’s act. It needs not be specifically pleaded. It suffices if it is generally averred. They are presumed to be the direct and probable consequence of that complained of.
Unlike special damages, it is generally incapable of exact calculation. See the following authorities of Federal Mortgage Finance Ltd V. Hope Effiong Ekpo (2004) 2 NWLR (Pt. 865) 100 at 132, Dumez V. Ogboli (1972), 2 SC 196 and Wasa V. Kalla (1978) 3 SC 21.”
In Agbanelo vs. UBN Ltd (2000) 7 NWLR (Pt. 666) 534, the Supreme Court made a similar decision in these words:
“Before a Court can commence a meaningful assessment of damages, it must be sure of the nature of the claim, that is to say, whether the claim is in contract or in tort, and, if in tort, the nature of the wrong alleged.
I adopt the definition of the terms “damages” contained in the McGregor on Damages (16th Edition 1997) as follows (in paragraph 1):
“Damages are pecuniary compensation obtained by success in an action for a wrong which is either a tort or a breach of contract, the compensation being in the form of a lump sum awarded at the time, unconditionally and generally…”
In an action for breach of contract, the measure of damages is the loss flowing naturally from the breach and is incurred in direct consequence of the violation. (See Swiss-Nigeria Wood Industries Ltd. v. Bogo) (1970) 6 NSC 235). The principles guiding the award of damages in tort are different from those guiding the award of damages in contract. (See James v. Mid-Motors Nigeria Co. Ltd. (1978) 11 and 12 SC 31, (1978) 11 NSCC 536). The object of tort damages is to put the plaintiff in the position he would have been in if the tort had not been committed, whereas, the object of contract damages is to put the plaintiff in the position he would have been in if the contract had been satisfactorily performed.
Even if it had been clear that the claim is in the tort of negligence, there may be need for a further inquiry, whether the tortious conduct found has occasioned only economic loss and, if so, if it is within the variety of tortuous conduct for which the Court will award compensation for economic loss.”
In the same case Galadami, J.S.C. held thus:
“The basic object of an award of damages is to compensate the plaintiff for the damages, loss or injury he has suffered. The guiding principle is restitution in integrum. The principle envisages that a party which has been damnified by the act which is called in question must be put in position in which he would have been if he had not suffered the wrong which he is now being compensated for. See NEPA v. R.O. ALLI & ANOR (1992) 10 SCNJ 34, ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR v. EKWENEM (2009) 6-7 (Pt. II) SC 5.”
While the Appellant was not required in law to specifically prove what the action of the Respondents have caused him, there must be some element of proof to show that the Appellant suffered some form of injury as a result of the action of the Respondents. I have gone through the 21 paragraph affidavit of the Appellant and I find that Appellant deposed to the fact that as a result of the action of the Respondents it could not access the monies in the account to carry out its trading operations. Thus, going by the averment in Paragraph 18 of the affidavit in support ‘will gravely impose disastrous financial consequences both on its reputation and trading business.’ The Appellant did not state what he actually suffered but the law is; once there is a wrong there is a remedy. Naturally, the refusal to honour the cheque from the Appellant as shown in paragraph 17 of the Appellant’s affidavit in support has made the Appellant suffered some damages which though not properly articulated I assess to be N3,000,000.00 on the strength of paragraphs 17,18 and 19 of the Appellants affidavit in support against the Respondents jointly and severally. For ease of reference, I reproduce those paragraphs:
“17. That specifically on Thursday 25th February, 2010, I was detailed to go to the 2nd Defendant Opebi Branch Bank with a cheque duly endorsed by the signatories of the plaintiff company on the said account to withdraw money for the use of the plaintiff company’s aforesaid trading operations, but the 2nd defendant refused the transaction thereon, on the grounds that the said company Account was frozen on the orders of the 1st defendant Commission.
18. That the 2nd defendant Bank is fully aware and conscious of the fact that the plaintiff company is not only a distinct commercial enterprise, different from the Global Formwork Nigeria Ltd., and that its actions nuzzling all operations on its account held with it, will gravely impose disastrous financial consequences both on its reputation and trading business.
19. That the defendants dispute the aforesaid judgments of the Courts herein founded upon and its abject failure to offer any reason whatsoever for the aforesaid continuing breaches of contract being so occasioned, has refused to relent in their said unlawful actions, hence this suit.”
On a whole it goes to say that this appeal succeeds entirely except on the damage which is assessed in the sum of N3,000,000.00 severally and jointly against the Respondents. The judgment of Hon. Justice C.M.A. Olatoregun of the Lagos Division of the Federal High Court in Suit No. FHC/L/CS/1304/2010 – Savannah & Chemical Industries Limited vs. Economic and Financial Crimes Commission (EFCC) & Anor is hereby set aside.
Cost is awarded in favour of the Appellant in the sum of N300,000 (Three Hundred Thousand Naira) against each of the Respondents severally and jointly.
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JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the comprehensive judgment prepared by my learned brother, EBIOWEI TOBI, J.C.A. with nothing extra to add.
BALKISU BELLO ALIYU, J.C.A.: I had the preview of the Judgment just delivered by my learned brother EBIOWEI TOBI, J.C.A.
I agree with the reasoning and conclusion reached in the lead Judgment and I adopt same as mine in also allowing this appeal.
I abide by the consequential order made in the lead Judgment.
Appearances:
F. A. DALMEIDA Esq. For Appellant(s)
A. OGUNSINA Esq. – for 1st RESPONDENT
CHIEF ADEWALE ADENIJI Esq. – for 2nd RESPONDENT For Respondent(s)
