EFCC v. UBOH
(2022)LCN/16419(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Thursday, June 30, 2022
CA/C/398/2018
Before Our Lordships:
Raphael Chikwe Agbo Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Between
ECONOMIC AND FINANCIAL CRIMES COMMISSION APPELANT(S)
And
EMEM ISRAEL UBOH RESPONDENT(S)
RATIO:
THE ONLY OPTION AVAILBLE TO THE APPELLANT IN RELATION TO THE RELEASE ON BAIL
And that the law is trite that the only option available to the Appellant after arresting the Respondent was to either charge him to Court within 24 hours or 48 hours as the case may be; or be immediately released on bail, vide Sections 34(a), 35(1) & (5) and 41(1) of the Constitution of Nigeria, 1999 as amended and Sections 293 and 294 of ACJA, 2015. The learned Respondent’s counsel relied on a host of cases including NIGERIAN ARMY VS. YAKUBU (2013) 4 NWLR (PT. 1355) and EFCC VS. OYUBU & ORS. (2019) LPELR-CA/L/1428C/2016 to support his submissions. BALKISU BELLO ALIYU, J.C.A.
THE LAW IN RELATION TO A PERSON WHO IS ILLEGALLY ARRESTED AND DETAINED
The learned trial Judge also granted this relief because it is the law, vide Section 35(6) of the Constitution, that any person who is illegally arrested and/or detained is entitled compensation. Upon the said relief, the learned trial Judge awarded the Respondent a reduced sum of N500,000.00 as compensation against the Appellant. Thus, the argument of the Appellant under this issue in paragraphs 5.0 to 5.2 of its brief is off the point and goes to no issue because both reliefs II and VIII actually succeeded. I find it also strange that the Appellant referred us to the case of LAWSON VS. AJIBULU(1997) 6 NWLR (PT. 507) 14 and quoted the Apex Court as holding that “In a claim for declaration of title to land, damages for trespass and injunction, once the claims for title and damage for trespass fail, the claim of injunction must also fail for an injunction is not granted in vein(sic)”. This case is completely irrelevant to this appeal and has not in any way helped the Appellant in the determination of this issue. I resolve issue two against the Appellant. BALKISU BELLO ALIYU, J.C.A.
BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, sitting at Uyo, Akwa Ibom State (trial Court), delivered on the 10th April, 2018 in respect of an application by way of a notice of motion no: FHC/UY/46/2018 filed by the Respondent for the enforcement of his fundamental rights against the Appellant. The facts of the case are that the Appellant received a written petition from one Bridget Bassey against the Respondent upon which it invited the Respondent for investigation. Upon honouring the invitation of the Appellant the Respondent was arrested and detained on the 15th February, 2018, and he claimed that he was refused bail by the Appellant neither was he charged to Court for any offence within the period stipulated by the Constitution.
Relying on these facts, the Respondent prayed the trial Court for the following reliefs against the Appellant:
I. A declaration that the Applicant is entitled to his rights to dignity of human person, personal liberty, freedom of movement and ownership of property in accordance with Sections 34, 35, 41 and 44 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Articles 5, 6, 12, and 14 of the African Charter on Human and Peoples Right (Ratification and Enforcement Act) 2004.
II. A declaration that the arrest and continued detention of the Applicant by the Respondent since Thursday, 15/02/2018 constitutes a gross violation of his fundamental rights guaranteed under Sections 34, 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Articles 5, 6, 12, and 14 of the African Charter on Human and Peoples Right (Ratification and Enforcement Act) 2004.
III. A declaration that the directive for the freezing of the Bank Accounts of the Applicant by the Respondent constitutes a gross violation of the Applicant’s fundamental right guaranteed under Sections 44 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Articles 5, 6, 12, and 14 of the African Charter on Human and Peoples Right (Ratification and Enforcement Act) 2004.
IV. An order of the Honourable Court for the releasing of the Applicant from the detention of the Respondent OR in the alternative;
V. An order of the Honourable Court admitting the Applicant to bail on the most liberal terms.
VI. An injunctive order restraining the Respondent, whether by themselves, officers, agents and/or servants from further harassing and intimidating the Applicant or in any manner breaching his fundamental rights in respect of any matter constituting the subject of the complaint in this application.
VII. An order of the Honorable Court directing the respondent to cause the unfreezing of the bank accounts of the Applicant linked and or joined together by the Applicant’s Bank Verification Number (BVN).
VIII. N100,000,000.00 (One Hundred Million Naira) only as damages against the Respondent in favour of the Applicant for breach of his fundamental rights.
IX. And such further order or orders as the Honourable Court may deem fit to make in the circumstances.
The Appellant denied infringing the Respondent’s fundamental rights and asserted that the Respondent was indeed granted bail on liberal terms but he was unable to fulfill the conditions of the bail, and he did not approach the Appellant to vary the conditions for him before filing the application. That Subsequently, the Appellant filed a charge of obtaining money by false pretence contrary to Section 1(1)(a) of the Advance Fee Fraud and other Related Offences Act at the Akwa Ibom State High Court, Uyo division, but was not given a date for arraignment of the Respondent before the filing of his application.
Upon consideration of the affidavits in support and in opposition to the application of the Respondent, and the parties’ written addresses, the learned trial Judge found and held that the Respondent established that his fundamental rights to freedom of movement and to own properties have been infringed upon by the Appellant and granted his reliefs (i), (ii), (iii), (iv), (vi), (vii) and (viii), and awarded the sum of N500,000.00 compensation against the Appellant with a caution that in the exercise of its powers, the Appellant must observe and safeguard the fundamental rights that inure to all citizens.
The Appellant was aggrieved with the decision of the trial Court and it filed a notice of appeal against it relying on two grounds of appeal to pray this Court to allow the appeal, set aside the decision of the trial Court and striking out the Respondent’s application.
The Appellant’s brief of argument was settled by N. K. UKOHA ESQ., and filed on the 27th November, 2018 but deemed appropriately filed on the 28th September, 2021. The learned counsel proposed two issues for the determination of the appeal thus:
1. Whether the lower Court was right in refusing to take into consideration the defence put up by the Appellant in its counter-affidavit annexed showing that the Respondent was granted bail on very liberal terms same day he was arrested. (Ground 1 of appeal).
2. Whether the Applicant’s relief No. 7 for damages of N500,000.00 which is consequential to relief No. 2 for pecuniary damage of N100,000,000.00 will succeed if relief No. 2 failed. (Ground 2 of appeal).
In opposing the appeal, the Respondent filed his brief of argument that was settled by DAVID AKPANOFUM ESQ., on the 2nd November, 2021, and he too proposed two issues for the determination of the appeal, reproduced below:
1. Whether in view of the facts and circumstances of this appeal, the lower Court was right in holding that the fundamental rights of the Respondent was violated by the Appellant.
2. Whether Respondent is entitled to damages for violation of his fundamental rights as decided by the Court below.
The appeal was called for hearing on the 17th May, 2022 and the parties’ respective counsel adopted their briefs. The issues proposed by the parties are the same, only different in language used to couch them. I adopt the Respondent’s two issues being more lucid for the determination of this appeal.
ISSUE ONE
Whether in view of the facts and circumstances of this appeal, the lower Court was right in holding that the fundamental rights of the Respondent was violated by the Appellant.
In arguing this issue, the learned counsel for the Appellant contended that the trial Court failed to consider the facts deposed in its counter-affidavit showing that in fact the Respondent was granted bail on very liberal terms on the same date he was arrested as shown in Exhibits ‘A’ and ‘B’ attached thereto. That the Respondent’s further affidavit in response to the Appellant’s counter-affidavit, wherein he stated that he met all his bail conditions but the Appellant still refused to release him from detention was a mere afterthought and, that the Respondent failed to attach any document to prove this claim.
On the right of bail of a person accused of criminal offence, the learned Appellant’s counsel relied on the cases of ADAMU SULEMAN & ANOR VS. COP PLATEAU STATE (2008) LPELR-3126 (SC), to submit that the Respondent’s inability to fulfill the bail conditions should not be visited upon the Appellant, especially as the Respondent failed to apply to the Appellant for the variation of the bail conditions. It was further argued that the learned trial Judge ignored the principle of law enunciated in the case of AUGUSTINE EDA VS. COP BENDEL STATE (1982) 3 NCLR 219 that the Appellant cited, rather the learned trial Judge held that the Appellant should have sought the leave of the trial Court to detain the Respondent beyond the time prescribed by the Constitution. The Appellant is of the view that the principle enunciated in the case of EDA VS. COP (supra) is applicable to this case being on all fours with the facts of this case. Learned counsel also referred us to the provisions of Sections 293, 296 and 297 of the Administration of Criminal Justice Act, (ACJA) 2015with regards to the jurisprudence behind the Court’s granting remand orders and whether same applies to the facts of this case.
The Respondent on his part posited that the record of appeal (pages 29, 54 and 68) clearly revealed that the Respondent was arrested and detained by the Appellant beyond the time frame allowed by law. And that the law is trite that the only option available to the Appellant after arresting the Respondent was to either charge him to Court within 24 hours or 48 hours as the case may be; or be immediately released on bail, vide Sections 34(a), 35(1) & (5) and 41(1) of the Constitution of Nigeria, 1999 as amended and Sections 293 and 294 of ACJA, 2015. The learned Respondent’s counsel relied on a host of cases including NIGERIAN ARMY VS. YAKUBU (2013) 4 NWLR (PT. 1355) and EFCC VS. OYUBU & ORS. (2019) LPELR-CA/L/1428C/2016 to support his submissions.
He also argued for the Respondent that the purported administrative bail the Appellant said it granted the Respondent in Exhibit ‘A’ it relied upon, is in law not a substitute for bringing the Respondent before a Court of law within the time allowed by Sections 35(5)(a) and (b) of the Constitution. He relied on the case of DANFULANI VS. OYUBU (2016) NWLR (PT. 493) 230 and EFCC VS. YAKUBU (supra), to further submit that the Appellant cannot rely on the torn and filthy umbrella of purported administrative bail to shy away from their constitutional responsibility of bringing the Appellant to Court within 24 hours or obtain a Court order to detain him beyond that time. He submitted that the argument of the Appellant, if upheld will only open an evil floodgate to the extent that the moment the Appellant’s officers issue a document such as their Exhibit ‘A’, (administrative bail), they can keep suspect forever, so as to satisfy their unconstitutional procedure of arresting persons before commencing investigation on the allegations.
In reply to the submissions of the Appellant that the learned trial Judge ignored the principle of law enunciated in the cases of EDE VS. COP and EFCC VS. CHUKWURAH that they cited, the Respondent submitted that the two cases are cited out of context and in a desperate attempt to justify the infringement of his fundamental rights. That, the Appellant failed to justify why they kept the Respondent for eight (8) days in their custody without being charged to Court.
RESOLUTION:
This issue is whether the trial Court was right to hold that the Respondent’s fundamental rights to freedom of movement and to own property were infringed upon by the Appellant. The fundamental rights enforcement proceedings are governed by the Fundamental Rights Enforcement Procedure Rules, 2009, by which the applicant has to file a statement and affidavit explaining the facts he or she is relying upon to seek the enforcement of his fundamental rights. In this appeal, the notice of application, grounds of the application and affidavit in support are contained in pages 19 to 28 of the record of appeal. The facts stated therein are simple; namely, that the Appellant based on a petition invited the Respondent to its offices on the 15th February, 2018 which he honoured and then he was arrested and detained from that date till the date he filed his notice of application at the trial Court, which was on 23rd February, 2018, a period of 8 days. The Appellant has by so doing contravened the clear provisions of Section 35(4)(a) of the Constitution of Nigeria 1999 (as amended), which categorically provide that any person arrested and/or detained upon a reasonable suspicion of having committed a crime shall be brought before a Court of law within a reasonable time. And in order not to be misunderstood or mischievously misinterpreted, sub-section (5)(a) of Section 35 explained in clear terms what the Constitution means by “reasonable time”, to be 24 or 48 hours as the case may be. There is therefore no iota of ambiguity as to the intendment of the Constitution. The Respondent having stated and established that he was detained beyond the time provided by the Constitution, the onus rebutted to the Appellant to explain or justify why it breached the clear provisions of the Constitution referred to.
The Appellant’s counter-affidavit is contained in pages 53-56 of the record of appeal. In paragraphs 13-14 of the counter-affidavit, the Appellant confirmed that the Respondent honoured its invitation on the 15th February, 2018 and; “That after the interview of the Applicant, he was immediately granted bail on the same15/02/2018 but he could not perfect bail conditions.” And so he remained in detention because he could not perfect his bail condition. With regards to the freezing of the Respondent’s bank accounts ordered by the Appellant suomotu, it explained in paragraph 24 of the counter affidavit that “the bank accounts complained by the applicant were allegedly used for the fraud.”
I also examined the further affidavit of the Respondent in reply to the Appellant’s counter-affidavit. The further affidavit is contained in pages 66 to 70 of the record of appeal and same was sworn by the wife of the Respondent on the 28th March, 2018, which indicated that the Respondent was still in the custody of the Appellant as at that date from 15th February, 2018. I note in particular that she stated in paragraphs numbered as 2(i)-(iii) that the Respondent perfected the conditions for his bail but that the Appellant’s officers changed their mind and refused to release him, saying “till further notice”.
These are the facts led in evidence before the learned trial Judge upon which he held in page 88 of the record of appeal that: “It is the view of this Court that the Respondent was in breach of the Applicant’s right to personal liberty by detaining him beyond the period of one day prescribed. The Respondent should have sought the leave of this Court to detain the Applicant beyond the time prescribed by the Constitution.”
His Lordship was absolutely right because the Constitution did not contemplate the so called “administrative bail”, and the reason for that is obviously that it did not contemplate the arresting authority, be it police or the Appellant herein to flagrantly disobey its provisions, i.e. to detain a suspect of crime beyond the 24 or 48 hours period after arrest without taking him or her to Court. Once the provisions are strictly adhered to, it becomes the duty of the Court to release the suspect for bail or not depending on the gravity of the charge and other considerations laid down by law. The arresting authority has no business granting bail to a suspect. If they genuinely need to have him detained for further investigation, then they must approach the Court with facts sworn in affidavit explaining why they must further detain such a suspect, period. There is no other way about it. In that case, the Court is abreast of the case and will keep an eye for any unnecessary tampering with the guaranteed fundamental rights of the suspect. All the claims of administrative bail have no backing of any law in view of the clear provisions of Section 35(4) and (5) of the Constitution.
With regards to the cases of SULEMAN & ANOR. VS. COP PLATEAU STATE(supra) and EDA VS. COP BENDAL STATE (supra) that the Appellant complained that the learned trial Judge ignored, these cases did not legalize “administrative bail” by the police or any other law enforcement agency. The Courts must be involved where the need arises to detain a suspect beyond the time provided by the constitutional provisions aforementioned, after the suspect has been taken before the Courts or on an application stating the reasons for his further detention.
With regards to the freezing of the Respondent’s bank accounts the learned trial Judge correctly found and held in page 89 of the record of appeal that:
“I am conscious of the fact that the Respondent is yet to obtain an interim order of attachment or forfeiture pending the outcome of the investigation or the determination of any charge. I am conscious of the fact that a charge has now been professed against the Applicant….”
The holding of the trial Judge cannot be faulted because while the Appellant is empowered to attach properties of an accused person of financial crime vide Sections 28 and 29 of the Economic and Financial Crimes Commission (Establishment Act) 2004, that power is not at large but subjected to a procedure laid down of obtaining interim order from the Court of competent jurisdiction to do so. Any order from the Appellant alone or any other law enforcement agency for that matter, to freeze a bank account of a suspect of economic crime or any other offence will be illegal and void. Any bank that obeys that order without seeing an order of Court of competent jurisdiction is culpable and can be proceeded against along with the issuer of the illegal directives. See EFCC VS. ADEDAMOLA (2019) 5 NWLR (PT. 1664) 301 (CA) and DANGABAR VS. FRN (2012) LPELR-19732 (CA). Consequently, the order of the Appellant to freeze the Respondent’s bank accounts without an order of Court to that effect is a flagrant violation of his fundamental right guaranteed by Section 44 of the Constitution. I therefore enter an affirmative answer to issue one and unhesitatingly resolve it against the Appellant.
ISSUE TWO
Whether the Respondent is entitled to damages for violation of his fundamental rights as decided by the Court below.
In arguing this issue, the Appellant referred to relief 8 sought by the Respondent for damages in the sum of N100,000,000.00 against the Appellant for the infringement of his fundamental rights to personal liberty. But the trial Court awarded the sum of N500,000.00 as compensation to the Respondents against the Appellant. The learned counsel submitted that reliefs 2 and 8 are inseparable and must swim or drown together because relief 8 is ancillary to relief 2. That if relief 2 fails, then relief 8 must also fail. He relied for support on the case of LAWSON VS. AJIBULU (1997) 6 NWLR (PT. 507) 14; and to urge us to so hold and resolve issue 2 in favour of the Appellant.
On his part, the Respondent argued that in the light of the facts before the trial Court, the Respondent is entitled to damages because the law is trite that an infringement of the fundamental rights of a person automatically entitles him to damages flowing directly from the infringement. He cited in support the cases of JIM-JAJA VS. COP RIVERS STATE (2013) 6 NWLR (PT. 1350) and urge this Court to dismiss this appeal and affirm the decision of the trial Court.
RESOLUTION
Issue two is a complaint regarding the award of N500,000.00 compensation to the Respondent, under his relief VIII. The Appellant’s only grouse against this award is that relief (II) is tied to relief VIII, and therefore, the failure of relief (II) automatically mean relief VIII will also fail. In relief II, the Respondent prayed for:
“A declaration that the arrest and continued detention of the Applicant by the Respondent since Thursday, 15/02/2018 constitutes a gross violation of the Appellant’s fundamental rights guaranteed under Sections 34, 35 and 41 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Articles 5, 6 and 12 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act 2004.”
The learned trial Judge granted this relief and so declared as can be seen in pages 90 to 91 of the record of appeal. That is to say that the total Court declared that the actions of the Appellant of detaining the Respondent beyond the period prescribed by Sections 35 of the Constitution and the freezing of his bank’s accounts without following the due process of obtaining an order to that effect was also in contravention of Section 41 of the Constitution. Now in relief VIII, the Respondent prayed the trial Court for N100,000,000.00 damages against the Appellant for the infringement of his fundamental rights already declared and granted in relief II.
The learned trial Judge also granted this relief because it is the law, vide Section 35(6) of the Constitution, that any person who is illegally arrested and/or detained is entitled compensation. Upon the said relief, the learned trial Judge awarded the Respondent a reduced sum of N500,000.00 as compensation against the Appellant. Thus, the argument of the Appellant under this issue in paragraphs 5.0 to 5.2 of its brief is off the point and goes to no issue because both reliefs II and VIII actually succeeded. I find it also strange that the Appellant referred us to the case ofLAWSON VS. AJIBULU(1997) 6 NWLR (PT. 507) 14 and quoted the Apex Court as holding that “In a claim for declaration of title to land, damages for trespass and injunction, once the claims for title and damage for trespass fail, the claim of injunction must also fail for an injunction is not granted in vein(sic)”. This case is completely irrelevant to this appeal and has not in any way helped the Appellant in the determination of this issue. I resolve issue two against the Appellant.
Having resolved the two issues against the Appellant, I find no atom weight of merit in this appeal and I dismiss it. I affirm the decision of the Federal High Court, Uyo Judicial Division delivered on the 10th April, 2018 in respect of Suit NO: FHC/UY/CS/46/2018. I award cost of N100,000.00 (One Hundred Thousand Naira) against the Appellant in favour of the Respondent.
RAPHAEL CHIKWE AGBO, J.C.A.: I was opportune to read in draft the lead judgment of my learned brother Aliyu JCA, and I agree with him that there is want of merit in this appeal. I too dismiss the appeal. I abide by the consequential orders contained in the lead judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Balkisu B. Aliyu, JCA, dismissing the unmeritorious appeal.
My learned brother has adequately resolved the salient issues raised by the parties to this appeal. Fundamental rights of a person are fundamental and therefore, a serious matter, which ought not to be fettered. See RANSOME-KUTI V A.G. FEDERATION (1985)2 NWLR (prt.6) 211, JACK V UNIVERSITY OF AGRICULTURE, MAKURDI (2004)5 NWLR (prt.865) 2008 and NNABUCHI V I.G.P. (2007) ALL FWLR (Prt. 368) 1158.
I agree entirely that the actions of the appellant of detaining the respondent beyond the prescribed period and also freezing of his bank’s account outside the procedure permitted by law constitutes an infringement of his fundamental rights guaranteed under Sections 34, 35 and 41 Of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
I also dismiss the appeal and abide by the consequential orders in the leading judgment.
Appearances:
NWANDU UKOHA ESQ. For Appellant(s)
DAVID AKPANOFUM ESQ. For Respondent(s)
