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Madam Benedicta A. Obomanu V. Mr. S. D. Georgewill L.V.C. & Ors. (CA/PH/736/2013 • 22 Oct 2014)

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➥ CASE SUMMARY OF:
Madam Benedicta A. Obomanu V. Mr. S. D. Georgewill L.V.C. & Ors. (CA/PH/736/2013 • 22 Oct 2014)

by Branham Chima (LL.B.)

➥ SUBJECT MATTER(S)
Investigation by EFCC;
Fundamental Rights.

➥ CASE FACT/HISTORY
This is an appeal against the decision of the Rivers State High Court of justice delivered on 20 August 2013 in suit No. BHC/39/2013. The appellant by a motion dated and filed on 14 March 2013 , brought an application for the enforcement of her fundamental rights to personal liberty and freedom of movement in terms of the following reliefs, inter alia: ‘1. A declaration that the continuous harassment, intimidations, threat of arrest and detention of the applicant by the 4th and 5th respondents at the instigation of the 1st, 2nd and 3rd respondents working as partners in respect of the 5,103 kilometer Duburo/East West Road Construction Project, embodied in the “Road Construction Agreement of 15 December 2010”, subject matter of suit No. BHC/149/2012 pending and subsisting before the honourable court is an infringement of the applicant’s fundamental rights to personal liberty and freedom of movement guaranteed and protected under the Constitution of the Federal Republic of Nigeria, 1999 (as amended).’

The brief facts of the case are that sometimes in November 2012, the 4th respondent received a petition written by the 1st 3rd respondents against the appellant and the companies she represent (Zion Services (Nig.) Ltd and Ndapa Construction Ltd) respectively. The petition alleged a case of obtaining money under false pretence and issuance of dud cheques against the appellant and her companies. The 4th respondent commenced its preliminary investigation by inviting the 1st 3rd respondents who came and substantiated their petition. The 4th respondent wrote a letter of invitation to the appellant for an appointment to enable 4th respondent hear her own side of the matter. The appellant requested and rescheduled the visit for another date. The 4th respondent acceded to the request. A day to the date requested by the appellant, the 4th respondent received a process from the appellant alleging infringement of her fundamental human rights. Issues were subsequently joined by all the parties. The lower court in its judgment dismissed the appellant’s application.

Available:  Alexander Madiebo & Ors v. Godwin Nwachukwu Nwankwo (2001)

➥ ISSUE(S)
I. Whether the learned trial Judge was right to have dismissed the appellant’s case?

➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]

↪️ ISSUE 1: IN RESPONDENTS’ FAVOUR.

[THE APPELLANT CANNOT RESTRAIN THE EFCC FROM INVESTIGATING IT
‘Appellant cannot hide under the cloak of fundamental human rights to gain immunity against investigation and prosecution in the face of these glaring facts and provisions of the law. A cursory look at the writ of summons which appellant refused to furnish at the lower court for reasons best known to her but was attached by the 1st 3rd respondents in their counteraffidavit shows that the 4th and 5th respondents are not parties to the suit. They were not served nor informed of the suit. Before an applicant can invoke section 46(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), there must be enough acts of the respondent from which the court can infer or deduce that her fundamental human right is likely to be contravened. See the case of Ogbuefi Azuka v. The A .I.Zone 5, Benin City and Others (2007) CHR at page 69. Therefore, an invitation sent to the appellant for investigation without more, is not a threat to her personal liberty. What the 1st 5th respondents did was in line with the constitutional provisions of section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) . The question of instigation raised by the appellant against the 1st 3rd respondents has to be established by the appellant to earn the relief sought. It requires evidence as to facts to support that the allegation was not made in good faith or that it was a fabricated story which caused the 4th and 5th respondents to invite her. The 1st 3rd respondents exercised their right in seeking the intervention of the Economic and Financial Crimes Commission.’

‘The learned trial Judge came to a firm and correct interpretation of the law when he stated at page 151 of the record thus: “The undisputed fact before me is that the 1st, 2nd and 3rd respondents made report to the 4th and 5th respondents that the applicant committed financial crime, as a result of which the 4th and 5th respondents extended invitation to the applicant to come and react to the investigation against her. The applicant instead of honouring the invitation extended to her, rather ran to court to pray the court to restrain the 4th and 5th respondents from investigating the crime reported to them”. Unchallenged averments in a counter-affidavit are deemed established and a court has no option than to rely on the said counter-affidavit as a fact of the truth. See the case of Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24. The powers of the 4th respondent are constitutional and statutory. Injunctions cannot by mere asking without cause be granted by the court against their exercise.’]
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✓ DECISION:
‘The sum total is that the appeal is frivolous, lacks merit and it is accordingly dismissed. The ruling of the lower court in suit No. BHC/39/2013 delivered on 20 August 2013, is hereby affirmed. ₦30,000.00 (Thirty Thousand Naira) cost is hereby awarded against the appellant and in favour of the 1st, 2nd and 3rd respondents.’

Available:  Idris Olatokunbo Olarewaju v. University Of Lagos & Ors (2014)

➥ FURTHER DICTA:
⦿ ISSUANCE OF DUD CHEQUES IS A CRIMINAL OFFENCE
Section 1 of the Dishonoured Cheque (Offences) Act, 2004, makes the offence of issuing dud cheques a criminal offence, which the 4th and 5th respondents are empowered to investigate against the appellant. See the case of Fajemirokun v. Commercial Bank (Nig.) Ltd (2009) All FWLR (Pt. 487) 1, (2009) 5 NWLR (Pt. 1135) 588 at page 40, where the Supreme Court per Tabai JSC opined as follows: “In the first place, the issuance of dud cheque is a criminal offence under section 1 of the Dishonoured Cheques (Offences) Act, Cap D11 Laws of the Federation of Nigeria, 2004, and for which the respondents were entitled to make a report to the police’’. — Fasanmi JCA.

⦿ MEANING OF INVESTIGATION
Thus, investigation is a process in which you examine the facts connected with an event, situation or allegation to discover the truth. The outcome of such may not necessarily lead to judicial proceedings. Courts have decried the dangerous practice of rushing to the High Court to prevent the Police, Economic and Financial Crimes Commission officers or law officers with statutory duties from arresting, investigating and prosecuting criminal suspects. See the case of Attorney-General, Anambra State v. Chief Chris Uba (2005) All FWLR (Pt. 277) 909, (2005 ) 15 NWLR (Pt. 947) 44 at page 67, where his lordship, Bulkachuwa JCA (as she then was) opined: “For a person therefore to go to court to be shielded against criminal investigation and prosecution is an interference of powers given by the Constitution to law officers in the control of criminal investigation … The plaintiff cannot expect a judicial fiat preventing a law officer in the exercise of his constitutional power”. — Fasanmi JCA.

Available:  Chief Saliu Agara & Ors. v. Chief Yinusa Agunbiade & Ors. (2012) - CA

⦿ JUDGES USING THE LAW FOR SOCIAL ENGINEERING
The current trend of rushing to court to abort criminal investigation and prosecution in this country if not urgently halted, might witness a situation where armed robbery and murder suspects, kidnappers and terrorists holding the nation to ransom will file actions in court to restrain the police and other security agencies from arresting, investigating and prosecuting them as they are also entitled to secure their fundamental rights. Judges should strive to operate the law for the attainment of social engineering. See the case of Ekwenugo v. Federal Republic of Nigeria (2001) FWLR (Pt. 63) 99, (2001) 6 NWLR (Pt. 708) 171 at page 187, paragraphs C, per Fabiyi JCA (as he then was) when he stated: “I have always held the view by which I shall continue to stand that in reality; judges should strive to operate the law for the attainment of social engineering. It is by so doing that our desire to attain national rebirth and regeneration can become concretized. The national psyche can then start to develop positively once again and lesser mortals in other lands will stop looking at our undoubted respected citizens with disdain on presentation of our green passports as ‘exhibits’ before them”.

➥ LEAD JUDGEMENT DELIVERED BY:
Fasanmi JCA

➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)

➥ MISCELLANEOUS POINTS

➥ REFERENCED (LEGISLATION)

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

End

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