UBA PLC v. JUDE-BELA EJE & ORS
(2022)LCN/16530(CA)
In the Court of Appeal
(MAKURDI JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/MK/149/2019
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
UNITED BANK FOR AFRICA, PLC APPELANT(S)
And
1. ERIBA JUDE-BELA EJE 2. MR. JOHNSON BABALOLA 3. ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC) 4. POLARIS BANK PLC RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE CORRECT APPROACH IN A CLAIM FOR THE ENFORCEMENT OF FUNDAMENTAL RIGHTS
The trite position of the law as regards whether or not a matter falls or is properly that which belongs to the enforcement of fundamental rights procedure is as clearly stated by the Apex Court in the case of SEA TRUCKS NIGERIA LTD v. ANIGBORO (2001) LPELR-3025 (SC) Per KARIBE-WHYTE, JSC (as he then was) stated at page 28 -29 that:
‘’The correct approach in a claim for the enforcement of fundamental rights is to examine the relief sought, the grounds of such relief, and the facts relied upon. Where the facts relied upon disclose a breach of the fundamental right of the applicant as the basis of the claim, there is here a redress through the enforcement of such rights through the Fundamental Rights (Enforcement Procedure) Rules, 1979. However, where the alleged breach of right is ancillary or incidental to the main grievance or complaint, it is incompetent to proceed under the rules. This is because the right, if any, violated, is not synonymous with the substantive claim which is the subject-matter of the action. Enforcement of the right per se cannot resolve the substantive claim which is any case different.’’ PER HASSAN, J.C.A.
THE POSITION OF LAW FOR A CLAIM TO QUALIFY AS FALLING UNDER FUNDAMENTAL RIGHTS
I shall start with the first issue whether the trial Court had jurisdiction to hear and determine this suit under the Fundamental Right Enforcement Procedure Rules. It has been established that, for a claim to qualify as falling under fundamental rights, the principal relief sought must be for the enforcement of fundamental right. In FEDERAL REPUBLIC OF NIGERIA VS. IFEGWU (2003) 15 NWLR (PT.842) 113. (2003) LPELR-3173 (SC). The Supreme Court per Uwaifo JSC held thus:
“however for a claim to qualify as falling under fundamental rights, it must be clear that the principal relief is for enforcement or for securing the enforcement of fundamental right and not, from the nature of the claim to redress a grievance that is ancillary to the principal relief which itself is not ipso facto a claim of fundamental right. In other words, where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it is incompetent to constitute the claim as one for the enforcement of a fundamental right.”
See also WAEC VS. AKINKUNMI (2008) LPELR-3468 (SC) UNIVERSITY OF ILORIN VS. OLUWADARE (2006) 14 NWLR (PT.1000) 751, ALHAJI TSOHO DAN AMALE VS. SOKOTO LOCAL GOVERNMENT & ORS (2012) LPELR-7842 (SC). PER JOMBO-OFO, J.CA.
FACTORS TO BE CONSIDERED BY THE COURT IN AWARDING GENERAL DAMAGES
Again it is the general principle governing the award of general damages, it is variously held in TAYLOR VS. OGHENEOVO (2012) 13 NWLR (PT. 1316) 46; GARBA VS. KUR (2003) 11 NWLR (PT.831). That in awarding general damages, the Court will be guided by the opinion and judgment of a reasonable man as the general damages are loses which flows naturally from the defendant’s act and that each quantum need not be pleaded or provided as same is generally a presumption of law.
General damages had been held to be the natural consequences that flow from the wrongful act of the defendant which is the cause of action of the plaintiff. Such damages do not need to be pleaded or strictly proved as the Court can suo motu at its discretion award same after calculating whatever sum of money will be reasonably justified to compensate the plaintiff for the wrong he or she had suffered in the hands of the defendant after taking into consideration the facts and circumstance of the case. See S.P.D.C. (NIG) LTD. VS. TIEBO VII (2005) 9 NWLR (PT. 931) 439, O.M.T. CO. LTD. VS. IMAFIDON (2012) 4 NWLR (PT. 1290) 332. PER JOMBO-OFO, J.CA.
MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court sitting at Makurdi delivered by Hon. Justice M. O. Olajuwon in Suit No. FHC/MKD/CS/28/2019, on the 13th day of June, 2019, wherein the trial Court entered judgment for the 1st Respondent against the Appellant, 2nd, 3rd and 4th Respondent by awarding damages of N5,000,000.00 (Five Million Naira) only jointly and severally for freezing the Account of the 1st Respondent.
The Appellant was the 5th Respondent, while the 1st Respondent was the Applicant, the 2nd Respondent was the 1st Respondent, the 3rd Respondent was the 2nd Respondent and the 4th Respondent was the 4th Respondent at the trial Court. The Appellant being aggrieved with the decision of the trial Court had appealed against same to this Court vide her Notice of Appeal dated 18th day of June, 2019. The Notice of Appeal is found at pages 189 – 192 of the Record.
The Record of Appeal was compiled and transmitted to this Court on the 19th of September, 2019. The Appellant’s brief of argument was filed on the 10th of October, 2019, while the 1st Respondent’s brief of argument was filed on the 16th of June, 2021, but deemed properly filed on the 4th of April, 2022. The 2nd and 3rd Respondents’ brief of argument was filed on the 23rd of June, 2020, but deemed properly filed and served on the 4th of April, 2022. The 4th Respondent did not file any brief in respect of this appeal. The Appellant upon receipt of the 1st Respondent’s brief filed Appellant’s reply brief on the 13th of July, 2021.
At the hearing of the appeal, counsel to Appellant, 1st Respondent and 2nd and 3rd Respondents adopted their respective briefs. Upon which this Court reserved the Appeal for judgment.
The 1st Respondent who was Applicant at the trial Court commenced this suit by an application for the enforcement of his fundamental right via a motion dated 26th of March, 2016, and filed on the same date. The motion was accompanied by affidavit and statement in support of the application. The 1st Respondent amended his application and the reliefs sought by the his amended application against the Appellant, the 2nd to 4th Respondents on the face of his motion paper found at pages 48 to 50 of the Record of Appeal, and by the statement accompanying the application at pages 59 to 60 are as follows:
1. A DECLARATION that the arrest and detention of the Applicant for days without being informed about the reason for his detention is a gross violation of his fundamental right to liberty.
2. A DECLARATION that the manhunt, threats, intimidation from the 1st and 2nd Respondents against the Applicant is illegal, wrongful, unwarranted and unjustifiable and a violation of his fundamental rights to dignity, liberty and freedom of movement.
3. A DECLARATION that being a human being and citizen of the Federal Republic of Nigeria the Applicant is entitled to the enjoyment, protection and enforcement of his fundamental rights as enshrined in Sections 33, 34, 35, 36, 37, 38, 39, 41 and 44 of the 1999 Constitution of the Federal Republic of Nigeria (CFRN) (as amended).
4. A DECLARATION that it is wrongful in law and a gross violation of the Applicants Fundamental Right as approved by Section 35 of the CFRN 1999 for the 1st and 2nd Respondents to influence, initiate or order the arrest and detention of the Applicant for 4 days, without disclosing his offence or arraigning him in a Court of competent jurisdiction.
5. A DECLARATION that the arrest of the Applicant and impounding his car which is not a proceed of crime by the 1st and 2nd Respondents with the use of powers apparatus and facility and the intimidation terrifying harassment, terrorization, overawe, unnerve and incarceration which has made him apprehensive and in a state of fear for his life, is a direct breach of Section 33, 35and 37 of the 1999 Constitution and a breach of the constitutional right of the applicant.
6. A DECLARATION that the illegal and unlawful freezing of the account of the Applicant by the Respondents is gross violation of his fundamental rights as enshrined in Section 44 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
7. AN ORDER restraining the 1st to 2nd Respondents, either by themselves, agents, servants, privies, assigns from further harassing, intimidating, arresting, detaining or influencing his arrest or prosecution over a baseless assumption that his partnership with YouTube is illegal.
8. AN ORDER of perpetual injunction restraining the 1st and 2nd Respondents by themselves, agents, servants, privies or howsoever from hunting, intimidating, threatening and or arresting and detaining the applicant because of his partnership with an internet based program known as YouTube or for an undisclosed offense.
9. AN ORDER of mandatory injunction compelling the Defendants jointly and severally to release the car of the Applicant, LEXUS RX330 2005 MODEL GREY COLOR WITH CHASIS NUMBER JTJHA31U75009714 in their custody or in the alternative, payment of the sum of N5,000,000 (Five Million Naira Only) the current market value of the car, where respondents refuse to release same.
10. AN ORDER of mandatory injunction compelling the respondents to unfreeze his accounts both in his name and his business name to wit:
a. First Bank Account No, 3042882004
b. Polaris Bank Account No. 1130315012
c. Uba Plc (Dormicilary) Account No. 3002302596
d. U.B. A Plc (Domicilary) Bank Account No. 3002639416
e. U.B.A PLC Account Number 210022674
f. U.B.A PLC Account Number 2102403248
11. AN ORDER of Court directing the respondents jointly and severally to pay the applicant the sum of N100,000,000.00 only as damages as compensation for the breach of his fundamental rights.
The Appellant, and 2nd to 4th Respondents upon receipt of the 1st Respondent’s application, filed their respective counter-affidavit and joined issues with the 1st Respondent/Applicant in urging the Court to dismissing the application for enforcement of fundamental rights.
BRIEF STATEMENT OF FACTS
The case of the 1st Respondent against the Appellant is that he maintained Accounts Numbers 3002302596, 3002639416 (Domiciliary Account) and Account Numbers 210022674 and 2102403248 with the bank as her customer. The case 1st Respondent also has Account Number 1130315012 with the 4th Respondent. That the 2nd and 3rd Respondents ordered the freezing of his accounts with the Appellant, and the 4th Respondent.
The 1st Respondent’s case is that he came to be aware of the freezing of his Account on the 8th of March, 2019, when he went to make withdrawals with his ATM and it was not working. He went into the bank and they informed him that he cannot make withdrawals on the ground that EFCC gave an order that his accounts should be frozen. This according to the 1st Respondent made him to visit the office of the 3rd Respondent on the 11th of March, 2019, to find out why his accounts were frozen and he was informed without more that the money in his account are proceeds of crime.
The 1st Respondent’s case is that he arrived at the 3rd Respondent’s office early and explained to the officers of the 3rd Respondent that he owns a YouTube Channel but the 3rd Respondent insisted on conducting search at his house and immediately impounded his vehicle. That upon the conclusion of the search and nothing incriminating was found in his house, his lawyer applied for his bail but same was turned down by the 3rd Respondent on the basis that she was not done with her investigation.
It is 1st Respondent’s case that even though he was willing to provide reasonable surety, the 3rd Respondent denied him bail and detained him from the 11th of March, 2019, to the 14th of March, 2019, at the directive of the 2nd Respondent. That he is not a criminal and even after the granting of bail, his accounts remained frozen. That the actions of the 3rd Respondent are all geared towards intimidating him and the freezing of his account unleashed fear in him to get funds to take care of his pregnant wife, plus same brought his business to a halt. Hence, the application for the reliefs set out on the statement supporting his application for enforcement of his fundamental human rights against the Appellant, 2nd, 3rd, and 4th respondents respectively. See pages 51 – 58 of the Record of Appeal.
The Appellant by her counter-affidavit found at pages 102 to 104 of the Record of Appeal stated that 1st Respondent who was applicant at the trial Court was her customer with the following accounts 3002302596 Domiciliary; 3003639416 Domiciliary; 210022674 and 2102403248 and that the 1st Respondent enjoyed the account freely until the bank received a written instruction in EXH I annexed to the counter-affidavit, from the 3rd Respondent herein to place the accounts of the 1st Respondent on post no debit.
The case of the Appellant is that she obeyed the lawful directive of the 3rd Respondent and did not violate the fundamental rights of the 1st Respondent as the operation of an account is not part of fundamental rights set out in Chapter 4 of the 1999 Constitution, and that she is not liable to the claims of the 1st Respondent which are all directed at the 2nd and 3rd Respondents herein who are 1st and 2nd Respondents at the trial Court.
The 2nd and 3rd Respondents herein who were 1st and 2nd Respondents at the trial Court filed the 1st and 2nd Respondents’ counter-affidavit where in the deponent stated that the 3rd Respondent sometimes in February, 2019, received an intelligence report of suspicious transactions involving the Appellant bank US Dollar account in the name of the 1st Respondent in the sum of over two hundred thousand US Dollars.
That the intelligence of the 3rd Respondent shows that the 1st Respondent is a student with no justifiable means of income and receives and withdraws the monies immediately which is inconsistent with the known pattern of transactions in an account, 1st Respondent’s lifestyle and his source of income. That base on this intelligence report, there was need to take steps to prevent the possible laundering of suspicious proceeds or illegal activities.
The 2nd and 3rd Respondent’s case was that contrary to 1st Respondent’s case that he was not granted bail, the commission granted him bail on the 11th of March, 2019, and he was promptly informed of the crime against him and given the opportunity to make a statement and he was not illegally detained by the 3rd Respondent. That the 1st and 2nd Respondent has the powers to identify, trace and freeze proceeds of criminal activities and investigate and prosecute financial crimes in Nigeria, therefore, the prayers of the 1st Respondent are baseless as his fundamental rights were not violated. See pages 73 to 76 of the record of appeal.
The 4th Respondent did not file any process in this appeal, therefore I shall not border about his responds at the trial Court for now.
After the exchange of affidavits and counter-affidavits and further affidavits, and adoption of addresses filed by parties by their respective counsel, the trial Court in her considered judgment found at pages 144 – 188 of the record entered judgment in favor of the Applicant/1st Respondent and ordered the 2nd and 3rd Respondents to release the vehicle of 1st Respondent to him, the Appellant to unfreeze the accounts of 1st Respondent domiciled with her and pay damages of N5,000,000,00 jointly and severally for breach of 1st Respondent’s fundamental rights, hence this appeal by the Appellant bank.
ISSUES FOR DETERMINATION
The Appellant’s brief of argument raised three issues for the determination by this Court as follows:
1. Whether the trial Court had jurisdiction to hear and determine this suit under the Fundamental Right Enforcement Procedure Rules. (Distilled from Ground 1).
2. Whether the Appellant Bank had the power to freeze the account of the 1st Respondent without Court order pursuant to Section 6 (5) (b) of the Money Laundry Prohibition Act. (Distilled from Ground 2).
3. Whether on the state of pleading, it was the Appellant or the 1st Respondent who had the onus of proof that the account of the 1st respondent was unfrozen before the expiration of 72 hours or frozen beyond 72 hours. (Distilled from Ground 3).
The 1st Respondent in his brief of argument adopted the issues formulated by the Appellant with a one modification in the word ‘frozen’ in issue two exchanged with ‘freeze’ making the issue read thus:
Whether the Appellant Bank had the power to freeze the account of the 1st Respondent without Court order pursuant to Section 6 (5) (b) of the Money Laundry Prohibition Act. (Distilled from Ground 2).
The 2nd and 3rd Respondents formulated two issues to wit:
– Whether in the eyes of the law the 2nd and 3rd Respondents were in a position to freeze the account of the 1st Respondent. (Distilled from Grounds 2 and 3).
– Whether the Court below had jurisdiction to hold that the 1st Respondent was unlawfully detained and did not amount to miscarriage of justice. (Distilled from Ground 1).
I have examined carefully the judgment of the Federal High Court, sitting at Makurdi, and the submissions of Counsel in their respective briefs, and since the Appellant and 1st Respondent are at idem on the issues arising for determination, I shall adopt the three issues distilled in the Appellant’s brief with 1st Respondent’s issue two replacing Appellant’s issue two (which are similar) as the proper issues arising for the just determination of this appeal. On that note, I shall proceed to consider and resolve these issues serially commencing with issue one.
ISSUE ONE
Whether the trial Court had jurisdiction to hear and determine this suit under the Fundamental Right Enforcement Procedure Rules. (Distilled from Ground 1).
APPELLANT’S COUNSEL SUBMISSION
Counsel submitted that jurisdiction is the life blood of adjudication, therefore any decision by a Court that lacks jurisdiction to hear and determine the matter is a nullity no matter how well conducted. Counsel referred to the case of Nwachukwu v. Nwachukwu (2018) 17 NWLR Pt. 1648, 357 at 365 paras E. That jurisdiction is the legal capacity, power or authority to adjudicate vested in a Court by the constitution or statute which creates it, therefore, the absence same nullifies the proceedings no matter how well conducted. Counsel also relied on the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 and Utih v. Onoyivwe (1991) 1 NWLR Pt. 166.
Counsel submitted that in determining whether a Court has jurisdiction to entertain a matter, the material to look at are the writ of summons and statement of claim where the matter is commenced by way of writ, the originating summons and the affidavit in support where the matter is commenced by originating motions. In order words, it is only the processes filed by the plaintiff or the applicant that will be considered to determine where the Court has adjudicatory powers to hear the matter. See A.G Fed v. Guardian Newspaper Ltd (1999) 9 NWLR (Pt. 618) 187, Uwaifo v. A.G. Bendel State (1998) 4 NCLR 1, Adeyemi v. Opeyori (1976) 9 – 10 SC 31.
Counsel submitted that the 1st Respondent’s case against the Appellant was that his Accounts was frozen by the bank, and according to counsel, the trial Court has no jurisdiction to entertain the suit against Appellant under Enforcement of Fundamental Rights Procedure. That the judgment of the trial Court delivered on the 13/6/2019, is a nullity having been made without jurisdiction, and therefore must collapse as it hangs on nothing. Counsel referred to the case of Agugwu v. Orakwute (1996) 8 NWLR (Pt. 466), 859.
Counsel submitted that the 1st Respondent’s claim does not fall within the provisions of Chapter of Four the 1999 Constitution as amended to warrant the 1st Respondent commencing his action under the Fundamental Right Enforcement Procedure Rules as the Fundamental Rights Enforcement Rules cannot be used to institute an action for enforcement of a right that has not been specifically enlisted in Chapter Four of the 1999 Constitution. Counsel referred to the authority of Peterside v. I.M.B Nigerian Ltd (1993) 2 NWLR (Pt. 278) 712 at 718 – 719 where the Court held that the right that can be enforced under the Fundamental Rights Enforcement Procedure Rules must be those ones that have been specifically mentioned in Chapter 4 of the 1999 Constitution. See also Hassan v. EFCC (2014) 1 NWLR (Pt. 1389) 607 at 624 paras D – E.
Counsel on that note submitted that the complaint of the 1st Respondent that his accounts has been frozen does not fall within the contemplation of Chapter 4 of the 1999 Constitution as amended. That maintaining a bank account and operation of same does not fall within the contemplation of Chapter 4 of the Constitution as the relationship between the 1st Respondent and Appellant is contractual and same cannot be enforced by way of Fundamental Right Enforcement Procedure.
1ST RESPONDENT’S COUNSEL SUBMISSION
Counsel to the 1st Respondent urged this Court to hold that the trial Court had jurisdiction to hear the 1st Respondent’s case as Chapter 4 of the Constitution guarantees the fundamental rights of all individuals. That the principal relief sought by the 1st Respondent by his amended motion is for the enforcement of his fundamental right which has been infringed upon. Counsel submitted that the Court had jurisdiction as the issue of the freezing of the 1st Respondent’s account is a fall out from the breach of his fundamental rights.
Counsel submitted that whenever a matter is before a Court, it behold on the Court to critically look at the processes and once the facts relied on discloses infringement of fundamental rights of the client, then the claim is clearly for enforcement of fundamental Human rights. Counsel referred the Court to the case of Igwe v Ezeanochie (2010) 7 NWLR (Pt. 1192) 61, Adekunle v. A. G Ogun State(2014) LPELR 22569, Jimoh v. Jimoh (2018) LPELR 43793 and Princess v. Governor of Ogun State (2018) LPELR 44986.
See also Francis Igwe v. Goddy Ezeanochie & Or (2009) LPELR 11885 (CA) 26 – 29 paras G – A where the Court of Appeal held that where the facts relied on disclose infringement of fundamental rights of applicant as the main basis of the claim then it is a clear for the enforcement of such rights through the fundamental rights (Enforcement Procedure) Rules.
Counsel submitted that the issue that is central in this appeal is narrow, that is, whether the Appellant as a banker committed breach of the 1st Respondent’s fundamental rights by freezing his account. According to Counsel, the facts leading to the restriction of the 1st Respondent’s account was that she received an instruction from the 3rd Respondent to place the account under restriction and the Appellant has not shown to this Court any legal cause why the 1st Respondent was denied access to his account. That Appellant’s argument that she placed the account of the 1st Respondent on the instruction of the 3rd Respondent does not excuse her breach of 1st Respondent’s fundamental rights neither does it deny the lower Court of jurisdiction to entertain same.
Counsel submits that Appellant’s counsel submission that 1st Respondent’s claim against her does not fall under Chapter 4 of the Constitution is misconceived as S. 44 of the constitution deals with moveable and immovable property and the money under the account of the 1st Respondent with the Appellant comes under movable property and the rights are guaranteed that a human being may not be prohibited or prevented from enjoying the use of his money in his account. See UBA v. Osok (2016) LPELR 40 110 (CA) where the Court referred to money in the account of a customer as property of the customer and unless placed under restriction by a Court order, a restriction placed by the bank on the account on basis of unproven allegations would amount to a derogation of the right to property which is entrenched in United Nations Declarations of Human Rights. See Article 17.
Counsel submitted while relying on the authority of Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 122) 517 that 1st Respondent’s primary duty was to establish that his fundamental right was violated and he has done that by his affidavit evidence before the Court. Counsel referred the Court to the case of GTB PLC v. Adedamola (2019) 5 NWLR (Pt. 1664) 30 at 43 paras E – F and Mogaji & Ors v. Board of Custom and Excise & ANOR (1982) 3 NCLR 552 AT 562 where the Court held that even though the Appellant is bound to comply with the order of the 1st and 2nd Respondent, but same is not automatic, but is dependent on an order of Court.
Counsel while relying on the authority of Fidelity Bank Plc v. Bayuja Ventures Ltd & Bashir Jimoh (2012) All FWLR (Pt. 646) CA 456; (2011) CA 12 LPELR where the Court held that a bank has no right to freeze a customer account without a proper Court order submitted that the trial Court has jurisdiction to entertain the 1st Respondent’s application for the enforcement of his fundamental rights as the act of the Appellant freezing his account is a breach of 1st Respondent’s fundamental rights.
2ND TO 3RD RESPONDENT’S SUBMISSION
On issue one formulated by the 2nd and 3rd Respondent, Counsel submitted that although it is the duty of a respondent in a matter to support the decision of the trial Court, but where a respondent files a cross-appeal, the respondent can argue the appeal on that note. That this Court on the 9th of June, 2020 granted their motion to cross-appeal. And since jurisdiction is the life wire of a case, it cannot be conferred on a Court by agreement of parties. That the trial Court acted in the instant case without jurisdiction and its action cannot be validated.
Counsel submitted that the 2nd and 3rd Respondent have demonstrated throughout the entire case that there was no cause of action against them as the 2nd and 3rd Respondents did not freeze the account of the 1st Respondent, nor did they detain him unlawfully. That the assertion by the 1st Respondent that his account was frozen by a letter written by the 2nd and 3rd Respondent was not correct as the letter relied upon by the 1st respondent had been discredited by another document, but yet the trial Court believed the 1st Respondent and entered judgment in his favor.
Counsel contended that the 2nd and 3rd Respondents wrote a letter to the Appellant to freeze the account of the 1st Respondent and the Appellant froze the account for only 72 hours which the Appellant specifically stated in her letter in response to the 2nd and 3rd Respondents’ request. Therefore, according to counsel, by virtue of Appellant’s letter confirming that she placed the account on freeze for only 72 hours, that mean after 72 hours, in the eye of the law, the account of the 1st Respondent was unfrozen and the 2nd and 3rd Respondents ought not to be held liable as no one can punish an act done pursuant to the law.
Counsel went ahead to state the distinction between a PND and freezing of an account by saying that PND mean to restrict payment out of the account but payments of taxes and credit into the account is allowed while freezing an account mean monies cannot go in or out of the account. That the trial Court was clearly wrong to hold that 2nd and 3rd Respondent froze the account of 1st Respondent without credible evidence where there was no any freezing in the first place.
Counsel submit that by virtue of S. 136 (1) of the Evidence Act, 2011, the burden of proving a particular fact lies on the person who wishes the Court to believe in its existence, and the Court of law can only decide cases base on pleaded facts and evidence led thereon coupled with applicable laws to the fact as law does not apply in vacuum. That EXH EFCC 1 completely excused the 2nd and 3rd Respondent from any liability and the trial Court’s decision occasioned miscarriage of justice to the 2nd and 3rd respondents. Counsel submitted that the 1st Respondent suppressed facts and led the lower Court to believe him more than the hard evidence before it and exercised its discretion against the 2nd and 3rd Respondents. That where a judge in the consideration of a matter before him consider matters that are not before him in exercising his discretion, it is wrong and fails to exercise his discretion judicially.
The 2nd and 3rd Respondent on issue two formulated by them only submitted that the 1st Respondent was not detained unlawfully having been granted bail on the same day he was apprehended, therefore, there was no need for the trial Court to enter judgment against the 2nd and 3rd Respondent.
RESOLUTION OF ISSUE ONE:
The trite position of the law as regards whether or not a matter falls or is properly that which belongs to the enforcement of fundamental rights procedure is as clearly stated by the Apex Court in the case of SEA TRUCKS NIGERIA LTD v. ANIGBORO (2001) LPELR-3025 (SC) Per KARIBE-WHYTE, JSC (as he then was) stated at page 28 -29 that:
‘’The correct approach in a claim for the enforcement of fundamental rights is to examine the relief sought, the grounds of such relief, and the facts relied upon. Where the facts relied upon disclose a breach of the fundamental right of the applicant as the basis of the claim, there is here a redress through the enforcement of such rights through the Fundamental Rights (Enforcement Procedure) Rules, 1979. However, where the alleged breach of right is ancillary or incidental to the main grievance or complaint, it is incompetent to proceed under the rules. This is because the right, if any, violated, is not synonymous with the substantive claim which is the subject-matter of the action. Enforcement of the right per se cannot resolve the substantive claim which is any case different.’’
In the instant appeal, I have examine the originating process at the lower Court contained in pages 2-4 of the record the principal reliefs of the 1st Respondent is for enforcement of his fundamental right to personal liberty and property under the Fundamental Right Enforcement Procedure Rules 2009, the 1st Respondent claim is for unlawful arrest and detention for 4 days, impounding of his car and frozen of his bank accounts. His claim is not based on simple contract contrary to the submission of the Appellant, and as rightly submitted by learned counsel for the 1st Respondent that the main claim before the lower Court is the breach of the fundamental right of the 1st Respondent and the freezing of his account is a fall out of the breach of his fundamental right. Issue one is hereby resolve against the Appellant.
ISSUE TWO
Whether the Appellant Bank had the power to freeze the account of the 1st Respondent without Court order pursuant to Section 6 (5) (b) of the Money Laundry Prohibition Act. (Distilled from Ground 2).
APPELLANT’S COUNSEL SUBMISSION
Counsel while urging this Court to answer the issue in the affirmative reproduced the provisions of Section 6 (5) (b) of the Money Laundering Prohibition Act, 2011, which provides as follows:
“Notwithstanding the provisions of Paragraph (a) of the Subsection, 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 discovered in the course of their duties that such account or transaction is suspected to be involved in any crime.”
Counsel submitted that the provision of Section 6 (2) (a) – (f) of the Money Laundering Act empowers the EFCC to enforce the provision of the Money Laundering Act, and in the instant case, the account of the 1st Respondent was frozen in line with Section 6 (5) (b) of the Money Laundering Act. Counsel referred to the authorities of Direct on PC Ltd v. Binkum Nig Ltd (2016) 3 NWLR Pt. 1498 50 at 64 paras F – G and Dangana v. Usman (2013) 6 NWLR (Pt. 1349) 50 at 80 – 81 paras A – B and urge this Court to give the provisions of Section 6 (5) (b) of the money Laundering Act its ordinary meaning which is unambiguous.
Counsel submitted that the provision of Section 6 (5) (b) does not require the 3rd Respondent to obtain a Court order before requesting the Appellant to post no debit (PND) the account of the 1st Respondent. That the letter in EXH 1 attached to the counter affidavit of the Appellant on record is an order as defined by S. 34 (4) (b) of the EFCC Act and was issued within the provisions of the law. That the question that begs for answer is whether there exists a suspicious ground for the 3rd Respondent to place a stop order on the account of the 1st Respondent and according to counsel the answer is in the affirmative as out of the four accounts maintained by the 1st Respondent with the Appellant, 2 were domiciliary account with inflows of Dollars, and the 3rd Respondent has a duty to investigate the suspicious transaction in the account of the 1st Respondent with the Appellant.
Counsel submitted that 3rd Respondent by S. 34 of the EFCC Act has power to direct a bank to freeze the account of a person under investigation and the Appellant owes the society a duty to obey the directives of the 3rd Respondent given the danger of financial crimes, corruption and money laundering in our society. Therefore, the Appellant is not liable to the 1st Respondent as she just obeyed the directives from a law enforcement agency. Counsel cited S. 34 (1) and (2), and 14 (1) of the EFCC Act and submitted that by those provisions, the 3rd Respondent has power to direct the Appellant to freeze an account, failure to do which attracts penalties.
Counsel also cited the provisions of S. 38 (1) of the EFCC Act and S. 21 of the Money Laundry Act and submitted that the 3rd Respondent’s letter in EXH I was written pursuant to the two sections and the Appellant was just obeying lawful directive from the 3rd Respondent. Counsel also cited the authority of Danfulani v. EFCC (2016) 1 NWLR (Pt. 1493) at 421 paras E – F and submitted that the fundamental right of the 1st Respondent guaranteed by the constitution is not absolute.
Counsel submitted further that the 1st Respondent by paragraph 29 of his affidavit accompanying his amended motion on notice only sought reliefs against the 2nd and 3rd Respondents herein and not the Appellant. That it is trite that the express mention of one thing excludes the other, therefore the 1st Respondent by specifically seeking reliefs only against the 2nd and 3rd Respondents has excluded the Appellant from liability and counsel urge this Court to so hold.
1ST RESPONDENT’S COUNSEL SUBMISSION
Counsel submits that even though Appellant are bound to comply with the directives of the 2nd and 3rd Respondents, the compliance is not automatic but dependent on an order of Court. According to counsel, where as in the instant case the 1st Respondent is suspected to commit an offence, the 3rd Respondent ought to go to Court an obtain an ex-parte order to freeze the account before she conduct her investigation. That in the instant case, there is no such order and neither was there any evidence that 1st Respondent committed any crime. And even if the 1st Respondent committed an offence, EFCC cannot on its own order the freezing of the 1st Respondent’s account without a Court order.
Counsel submitted that in fact by the decision of GTB Plc v. Adedamola (Supra), the Appellant has no obligation to act on EFCC instructions or directives without a Court order as the judiciary has the onerous duty of preserving and protecting the rule of law. That it must be stated that EFCC is not a Court of law so as to move against the account of a person suspected of crime without due process. Counsel also referred to the authority of Fidelity Bank Plc v. Bayuja Venture (Supra) to submit that the Appellant’s action of freezing the 1st Respondent’s account on the instruction of the 3rd Respondent was a breach of his fundamental right.
Counsel submitted that the provision is clear and unambiguous, that notwithstanding anything contained in any other enactment or law, which includes S. 6 (5) (b) of the Money Laundering Act, the EFCC must 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 to freeze any account. That assuming but not conceding that S. 6 (5) (b) was relied upon to order the Appellant to freeze the 1st Respondent’s account, the order was supposed to last for 72 hours, and it was clear that the account of the 1st Respondent was frozen from 8th of March, 2019, his account remained frozen till the amended process of the 1st Respondent was filed on the 15/4/2019, and the counter-affidavit filed on behalf of the Appellant on the 6/5/2019 did not state anywhere that the freezing of his account was lifted after 72 hours. That it is clear that the period under which the Appellant froze the 1st Respondent’s account was beyond 72 hours, therefore, she cannot rely on the provision of S. 6 (5) (b) of the Money Laundering Act.
Counsel submitted that the provision of S. 38 (1) of the EFCC Act and S. 21 (1) of the Money Laundering Act does not empower the Appellant to freeze the account of the 1st Respondent without a Court order, and doing so amounts to total disregard of the right of the 1st Respondent which is a breach of his fundamental rights. That the Appellant has not shown to this Court that she has any legal cause for freezing the account of the 1st Respondent and that the Appellant’s argument that she froze the account of the 1st Respondent on the authority of the 2nd and 3rd Respondent is misconceived and same does not exonerate the Appellant from the breach of 1st Respondent’s fundamental rights. That Appellant is well aware that by the provision of Sections 6 (5) (b) and 6 (7) of the Money Laundering Act, she is empowered to unfreeze the account of the 1st Respondent if she does not receive a Federal High Court Order from the 2nd and 3rd Respondent.
Counsel submitted that since S. 44 of the Constitution guarantees the 1st Respondent’s right to movable property which includes the money in his account with the Appellant, unless by a Court order, the restriction on the account base on unfounded allegations is a derogation of the right of the 1st Respondent for presumption of innocence. This according to counsel is equally guaranteed by Article 17 of the United Nations Declaration of Human Rights.
Counsel submitted that when this Court looks at the counter-affidavit of the Appellant, it would come to the inevitable conclusion that the Appellant froze the account of the 1st Respondent unlawfully.
RESOLUTION OF ISSUE TWO
Section 6 (5) (b) of the Money Laundering Act provides:
‘’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.’’
By the provision of Section 6 (7) ‘’Where it is not possible to ascertain the origin of the funds within the period of stoppage of the transaction, the Federal High Court may, at the request of the commission, or other persons or authority duly authorized in that behalf, order that the funds, accounts or securities referred to in the report be blocked.’’
Section 6 (8) states that ‘’An order made by the Federal High Court under Sub-section (7) of this section shall be enforced forthwith.’’
By virtue of the above provisions, it is not in doubt that the 3rd Respondent has the powers to place a stop order or freeze an account suspected to be involved in financial crime for 72 hours, without a Court order. Upon the expiration of the 72 hours and where the commission is not done with its activities in respect of the account, a Court order has to be obtained to extend the life of the order freezing the account. Where the required Court order is not made available, the stop order or freezing the account lapses and the financial institution is obliged to unfreeze the account.
From the available evidence in the records the 1st Respondent account domiciled with the Appellant have been frozen by the Appellant since the 8th of March, 2019. The 72 hours have long lapsed and the account are still frozen without a Court order and as rightly submitted by the 1st Respondent’s counsel that the Appellant is not empowered to freeze the account of the 1st Respondent without a Court Order after 72 hours and so doing amounts to a total disregard to the rights of the 1st Respondent and as such a breach of the fundamental right of the 1st Respondent. Thus issue two is hereby resolved against the Appellant.
ISSUE THREE
Whether on the state of pleading it was the Appellant or the 1st Respondent who had the onus of proof that the account of the 1st respondent was unfrozen before the expiration of 72 hours or frozen beyond 72 hours. (Distilled from Ground 3).
APPELLANT’S COUNSEL SUBMISSION
Counsel submitted on this point that in order to discover where lies the onus in a given case, the Court has to look critically at the pleadings. That the onus is on the 1st Respondent to prove that his account was frozen beyond 72 hours by providing instrument he presented and same was dishonored. That however, the finding of the trial judge in her judgment was that the Appellant who was 5th Respondent did not state in her counter-affidavit that 1st Respondent’s Account was unfrozen.
Counsel submitted that the Appellant’s case was only that she was mandated by the 3rd Respondent to freeze the 1st Respondent’s account for 72 hours as mandated by S. 6 (5) (b) of the Money Laundering Act, and the 1st Respondent in paragraph 7 of his further affidavit admitted that Appellant was obliged to obeyed the 3rd Respondent’s directive.
Counsel submitted that the assertion of 1st Respondent in the second leg of paragraph 7 of his further affidavit where he stated that “The 5th Respondent did not do the needful by unfreezing my account after 72 hours as it is illegal to do so” placed the burden of prove on the 1st Respondent to prove that the Appellant did not do the needful by unfreezing his account after 72 hours. That wrong placing of burden of proof leads to miscarriage of justice. Counsel relied on the authority of Ewo v. Ani (2004) 3 NWLR (Pt. 861) 610 at 637 paras D – E.
Counsel rounded up by submitting that the law is trite that the burden of proof is on the party who alleged the opposite and whoever asserts must prove. Therefore, the burden is on the 1st Respondent who alleges that his account was frozen beyond 72 hours, and the mere allegation in an affidavit without leading credible evidence to prove same goes to no issue and same is mere speculation.
1ST RESPONDENT’S COUNSEL SUBMISSION
Counsel on this issue relied on Sections 131, 132, and 133 of the Evidence Act, 2011 to submit that the burden of prove is on the party who asserts the affirmative to call credible evidence of the existence of his assertion. That the burden of proving a fact rests on the party who asserts the affirmative of the issue and not on the party who denies it for a negative is usually incapable of proof. See Senator Iyola Omisore & Anor v. Ogbeni Adesoji Aregbesola & Ors (2015) LPLER 24803 and Ayala v. Daniel & Ors (2019) LPELR 47184 (CA).
That it is a fact that 1st Respondent’s account remained frozen for over 3 months until judgment was delivered by the trial Court, as if the account was unfrozen, the Appellant would had said that in her counter-affidavit. That the only fact in the Appellant’s counter-affidavit was that she froze the 1st Respondent’s account on the instruction of the 3rd Respondent to post no debit on the account. Counsel urged this Court to hold that the burden is on the Appellant to show that 1st Respondent’s account was unfrozen after 72 hours.
RESOLUTION OF ISSUE THREE:
The answer to this issue can very easily be found in the decision of the learned trial Judge where he held at page 184 of the records that ‘’The counsel to the 5th Respondent (Appellant) in his oral argument in Court stated that the Applicant (1st Respondent) has not placed anything before this Court to show that the account was not unfrozen after 72 hours. It is the law that whoever asserts the affirmative must prove, by credible evidence, the existence of his assertion. See Sections 131, 132 and 133 of the Evidence Act 2011. The Latin maxim in this regard is ‘’INCUMS PROBATIOQUI DICIT, NON QUI NEGAT’’ Meaning the burden of proving a fact rest on the party who asserts the affirmative of the issue and not upon the party who denies it for negative is usually incapable of proof. In other words, the burden of proof rests with the party who asserts a positive and not on one who affirms the negative. See the case of Senator Iyiola Omisore & Anor v. Ogbeni Rauf Adesoji Aregbesola & Ors (2015) LPELR-24803 and Ayala v. Daniel & Ors (2019) LPELR-47184 (CA).
The position of the Applicant is that his accounts are still being frozen. If the 5th Respondent (Appellant) had unfrozen them, it would have stated so in its counter-affidavit and give further evidence to prove same. The onus is on the 5th Respondent to show that the account was unfrozen after 72 hours of being frozen without the Court order. The party did not state anywhere in its counter-affidavit that the bank unfroze the account of the Applicant at any point in time. The fact contained in paragraph 5 of the counter affidavit filed by the 5th Respondent is ‘’That the Applicant operated the above account freely and enjoyed Banker/Customer relationship with the 5th Respondent until on the 8/3/2019 when the 5th Respondent received written instruction from the 2nd Respondent to post no debit on the account of the Applicant.’’
If the 5th Respondent had unfrozen the account, it would have stated so in the counter-affidavit. The onus of proving that the account was unfrozen was not discharged by the 5th Respondent. I therefore hold that the accounts of the Applicant with the 5th Respondents are still frozen and have been so frozen since the 8th of March 2019.’’ I entirely agree with the above findings of the learned trial Judge and I decide this issue against the Appellant.
The learned trial Judge in his wisdom awarded the sum of N5,000,000.00 (Five Million Naira) as damages against the Appellant jointly and severally for the breach of Fundamental Right of the 1st Respondent to the freezing of his accounts domiciled with the Appellant without a Court order.
While I agree with the learned trial judge that once an infringement is proved, compensation follows, the Applicant needs not prove any loss or damages suffered but our point of disagreement is the amount awarded as damages.
The Court of Appeal in Attah v. IGP & Ors (2015) LPELR – 24565 (CA) Page 46 paragraphs D-F per Augie, JCA (as he then was now JSC) Stated that:
‘’In the well-known case of Ajayi v. A.G. Fed. (1998) 1 HRLRA 373, the Court observed that in fixing an amount for the infringement of fundamental rights, the following factors, amongst others, will be taken into consideration – (a) The frequency of the type of violation in recent times; (b) The continually deprecating value of the Naira; (c) The motivation for the violation; (d) The Status of the Applicant; (e) The undeserved embarrassment meted out to the Applicant including pecuniary losses; and (f) The conduct of the parties generally, particularly the Respondent.’’
In the instant appeal, I have again carefully read the judgment of the lower Court and I am of the humble view that the learned trial judge acted on wrong principles of law as there was no evidence presented before him in assessing the damages claimed and the damages awarded is manifestly high considering the facts of this case. In the circumstances, the damages awarded by the lower Court against the Appellant is hereby set aside. Alternatively, the sum of N500,000.00 (Five Hundred Thousand Naira) is awarded as damages against the Appellant in favour of the 1st Respondent.
In conclusion, this appeal succeeds in parts the judgment of the lower Court delivered on 13th day of June, 2019 in Suit No. FHC/MKD/CS/28/2019 by Hon. Justice M.O. OLAJUWON J., as it affects the Appellant in respect of the order that the unlawful and illegal freezing of the accounts of the 1st Respondent by the Appellant is a violation of the 1st Respondent’s right to dignity of human person and that the Appellant should immediately unfreeze the 1st Respondent’s bank account with the following details:
UBA Plc. (Domiciliary) account number 3002302596;
UBA Plc. (Domiciliary) account number 3002639416;
UBA Plc. Account number 2100226274 and
UBA Plc. Account number 2102403248 are hereby affirmed, while the order that the Appellant should jointly and severally pay the 1st Respondent the sum of (Five Million Naira) only as compensation for the breach of the 1st Respondent’s fundamental rights is hereby set aside. Alternatively, the sum of N500,000.00 (Five Hundred Thousand Naira) is awarded as compensation against the Appellant in favour of the Respondent.
IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading the drat judgment of my learned brother, HON. JUSTICE MUSLIM SULE HASSAN, JCA, and there is no doubt that my Lord has comprehensively dealt with the salient issues raised by the parties in this appeal.
In conclusion, this appeal succeeds in parts and I also abide by the consequential order.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the leading judgment delivered by my learned brother, HON. JUSTICE MUSLIM SULE HASSAN, JCA. My learned brother has elaborately dealt with all the issues relevant for the determination of the appeal. I agree with him entirely on the findings and the conclusion reached therein, that the appeal succeeds in parts. However, I shall make few comments by way of contribution.
I shall start with the first issue whether the trial Court had jurisdiction to hear and determine this suit under the Fundamental Right Enforcement Procedure Rules. It has been established that, for a claim to qualify as falling under fundamental rights, the principal relief sought must be for the enforcement of fundamental right. In FEDERAL REPUBLIC OF NIGERIA VS. IFEGWU (2003) 15 NWLR (PT.842) 113. (2003) LPELR-3173 (SC). The Supreme Court per Uwaifo JSC held thus:
“however for a claim to qualify as falling under fundamental rights, it must be clear that the principal relief is for enforcement or for securing the enforcement of fundamental right and not, from the nature of the claim to redress a grievance that is ancillary to the principal relief which itself is not ipso facto a claim of fundamental right. In other words, where the alleged breach of a fundamental right is ancillary or incidental to the substantive claim of the ordinary civil or common law nature, it is incompetent to constitute the claim as one for the enforcement of a fundamental right.”
See also WAEC VS. AKINKUNMI (2008) LPELR-3468 (SC) UNIVERSITY OF ILORIN VS. OLUWADARE (2006) 14 NWLR (PT.1000) 751, ALHAJI TSOHO DAN AMALE VS. SOKOTO LOCAL GOVERNMENT & ORS (2012) LPELR-7842 (SC).
In this appeal, the principal reliefs of the respondent, particularly reliefs 1-8 as contained on page 102-104 of the record of proceedings, is for the enforcement of his fundamental human right to personal liberty and property under the Enforcement of Fundamental Right Enforcement Procedure Rules 2009. The respondent principal claim is for his unlawful arrest and detention for days, impounding of his car and frozen of his bank account. These are not claims for breach of contract of any kind.
Where the breach of the provision of Chapter IV of the Constitution is the principal claim bordered on the enforcement of fundamental right the procedure can be invoked even though other claims are made. The apex Court had this to say in ALHAJI TSOHO DAN AMALE VS. SOKOTO LOCAL GOVERNMENT & ORS SUPRA.
A trial Court will only have jurisdiction to proceed to enforce a fundamental right of an applicant guaranteed under Chapter iv of the Constitution if the main claim disclose a breach of fundamental right of the applicant.
Flowing from the plethora of authorities of the apex Court and this Court, it is my humble but firm view that the issue of unlawful arrest and detention for days, impounding of his car and frozen of his bank account, which were tie fulcrum of the Respondents claim before the trial Court are within the ambit of enforcement of fundamental human right.
Again it is the general principle governing the award of general damages, it is variously held in TAYLOR VS. OGHENEOVO (2012) 13 NWLR (PT. 1316) 46; GARBA VS. KUR (2003) 11 NWLR (PT.831). That in awarding general damages, the Court will be guided by the opinion and judgment of a reasonable man as the general damages are loses which flows naturally from the defendant’s act and that each quantum need not be pleaded or provided as same is generally a presumption of law.
General damages had been held to be the natural consequences that flow from the wrongful act of the defendant which is the cause of action of the plaintiff. Such damages do not need to be pleaded or strictly proved as the Court can suo motu at its discretion award same after calculating whatever sum of money will be reasonably justified to compensate the plaintiff for the wrong he or she had suffered in the hands of the defendant after taking into consideration the facts and circumstance of the case. See S.P.D.C. (NIG) LTD. VS. TIEBO VII (2005) 9 NWLR (PT. 931) 439, O.M.T. CO. LTD. VS. IMAFIDON (2012) 4 NWLR (PT. 1290) 332.
The learned trial judge in the Court below exercised his discretionary jurisdiction in granting the general damages in favour of the Respondents against the appellant and gave reasons. Being a discretionary remedy, the Court of appeal ordinarily would not readily interfere with the decision of the learned trial judge to grant general damages. In EVANS VS. BARTLAM (1937) A.C. 473 AT 480, Lord Atkin had to say:
“And while the appellate Court in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the judge’s discretion except on grounds of law, yet if it sees that on other grounds the decision will result in injustice being done it has both the power and duty to remedy it.”
Consequently, having regards to the circumstance and facts of this case, especially where it is established that, 1st respondent’s account frozen only had a balance of N439,093.66 only, and same was a savings account enjoying interest and a business account, it appears to me that the N5,000,000.00 (Five Million Naira) amount awarded as compensation seems ridiculously high, and it must have been an erroneous estimation of damages.
It is for these and other reasons set out in greater details that I, also reach the conclusion that the appeal succeeds in part. I endorse all consequential orders made in the lead judgment.
Appearances:
D.A. DALONG, Esq. For Appellant(s)
G.G. CHIEA-YAKUA, Esq., with him M.A. EJEH, Esq. For Respondent(s)
