➥ CASE SUMMARY OF:
Ogheneovo Andrew Anibor V. Economic and Financial Crimes Commission (EFCC) & Ors. (CA/B/305/2012, 11 DEC 2017)
by Branham Chima.
➥ ISSUES RAISED
Right to liberty restrained;
Power of EFCC.
➥ CASE FACT/HISTORY
By a motion on notice, identified as Suit No. W/257/2011 and filed in the High Court of Delta State holden at Warri, the appellant, then applicant, applied for the enforcement of his fundamental rights by seeking the following relief: ‘1. A DECLARATION that the unlawful arrest and unlawful detention of the applicant in the cell of the Nigeria Police, Divisional Headquarters, Warri, between the hours of 11:10p.m. on Wednesday June 15, 2011 7:00a.m. of Thursday June 16, 2011 by the respondents without any formal charge is unconstitutional and wrongful act. 2. A DECLARATION that the unlawful search of the applicant law office at No. 22 Udu Bridge Road, by Ogodogu junction, near Udu Garage, Ovwian via Warri, between the hours of 9.00a.m. 10:00a.m. on Thursday June 16, 2011 by the respondents without any formal charge or order of Court is unconstitutional and wrongful act. 3. A DECLARATION that the unlawful seizure of documents and or several documents bearing on the liquidation of Mustard Seed Micro Investment Limited under the liquidatorship of the applicant and from the applicant at applicants law office at same time and date as above, by the respondents without any formal charge or order of Court is unconstitutional and wrongful act. 4. A DECLARATION that the unlawful arrest and detention of the applicant in a Toyota Hiace Bus/Vehicle belonging to the respondents, within Warri and thereafter from Warri to Asaba and from Asaba to Lagos and eventual detention in the cell of the respondents at No. 7A Okotie Eboh Road, Ikoyi, Lagos, between the hours of 7.00a.m 9.58 p.m. on Thursday June 16, 2011 and thereafter till Friday June 24, 2011 by the respondents without any formal charge is unconstitutional and wrongful act. 5. AN ORDER compelling or directing the respondents to make a public apology to the applicant in any Newspaper with national spread particularly in or within Warri and its environs over the unlawful arrest and unlawful detention of the applicant and also over the unlawful search and unlawful seizure of documents in possession of the applicant. 6. AN ORDER that the sum of N50,000,000.00 (Fifty million naira) only be awarded as damages against the respondents jointly and severally in favour of the applicant for damages suffered by the applicant over respondents unconstitutional and wrongful acts as stated above.’
The said motion on notice was supported with an affidavit of 26 paragraphs, a statement in support of the application, and the applicants written address. The respondents opposed the said application by filing a counter affidavit of 30 paragraphs, by which they tendered Exhibits EFCC 1 to EFCC 16; and also a written address in support of their opposition. It should be noted that the appellant filed a further affidavit of 5 paragraphs, including 20 (twenty) sub-paragraphs and a written reply on points of law.
After hearing the parties on the appellants said application, the trial Court delivered its judgment on 11/06/2012 wherein the appellants claims were dismissed with N50,000.00 costs against him.
This appeal is against the said decision.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the Court below was correct when it held that appellants fundamental rights was/were not breached by the respondents?
RESOLUTION: IN RESPONDENT’S FAVOUR. (Right were not breached).
[THE APPELLANT BY TEARING OFF THE COURT ORDER PASTED OBSTRUCTED THE EFCC CARRYING OUT ITS LAWFUL DUTY
‘I think that having regard to the wide range of statutory powers conferred on the 1st respondent, and bearing in mind the complaints against the appellant of his serious complicity in the monumental financial crimes or fraud perpetuated by Mustard Seed Micro Investment Limited, Pastor Glory Abrefera, Mrs. Nonye Abrefera and Reverend Vincent Okpogo; and further bearing in mind that Solace Fast Foods Limited is allegedly a product of these persons financial crime, the appellants arguments and complaints in this appeal are nothing but mere hair-splitting. For example, of what material relevance is the fact that the Court order allegedly torn by the appellant was pasted on the building of Solace Fast Foods Limited and not that of Mustard Seed Micro Investment Limited? The appellant argued that he did nothing wrong to warrant the respondents arresting and detaining him. I disagree with the views expressed by the appellant. The appellant claimed that he was merely a liquidator of both Mustard Seed Micro Investment Limited and Solace Fast Foods Limited but he proceeded to instruct one Mrs. Esther Pat-Ossai to tear a valid Court order and the 1st respondents poster pasted on the premises of one of the companies, thereby obstructing the respondents lawful course of duty. I am of the firm view that the appellant shot himself in his foot when, without any lawful authorisation or justification, he asked Mrs. Esther Pat-Ossai to remove a lawful Court order duly pasted by the respondents.’
THUS, THE APPELLANT WAS LAWFULLY ARRESTED
‘I have said enough to conclude that having regard to the circumstances and facts of this case, the appellant was lawfully arrested and detained on 15/06/2011. All that I am saying is that the appellants fundamental rights were not violated in the circumstances of this case.’]
‘To conclude this judgment, I find no merit in this appeal and it is hereby dismissed. The decision of the trial Court dismissing the appellants motion on notice, including the order for costs is hereby affirmed. There, however, no order for costs as the parties are hereby directed to bear their respective costs in this Court.’
➥ FURTHER DICTA:
⦿ GIVE ORDINARY MEANING WHERE STATUTORY PROVISIONS ARE CLEAR
The above constitutional provisions are clear, plain and unambiguous and should be accorded their literal interpretation by attaching the ordinary grammatical meaning to the words used therein. It is trite law that the elementary rule of construction is that words used in a statute should be given their ordinary grammatical meaning. Where the statutory provisions are plain and unambiguous, the Court should not go beyond their clear import. See Nabhan v. Nabhan (1967) 1 All NLR 47; Adejumo v. Gov; Lagos State (1972) 2 SC 45; Ogbuanyinya v. Okudo (1979) 6-9 SC 32; Ogbonna v. A-G; Imo State (1992) 1 NWLR (Pt. 200) 647 and Skye Bank PLC v. Victor Anaemem Iwu (2017) 16 NWLR (Pt. 1590) 24 at 87, per Nweze, JSC. — M.A.A. Adumein JCA.
⦿ IN INTERPRETING THE CONSTITUTION, ALL SECTIONS SHOULD BE READ TOGETHER
In interpreting the Constitution, the Supreme Court has also recommended that all the sections are to be construed together and hence it is impermissible to construe sections in isolation. See Skye Bank PLC v. Victor Anaemem Iwu (2017) 16 NWLR (Pt. 1590) 24 at 87, per Nweze, JSC. — M.A.A. Adumein JCA.
⦿ RIGHT TO LIBERTY; LIBERTY IS NOT ABSOLUTE – EXCEPTIONS
By the provisions of Section 35 (1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) every Nigerian, including the appellant, has his right to personal liberty recognized and guaranteed. Therefore, the Court will not allow a party’s right to personal liberty to be breached or violated, except as it is permitted by the Constitution, through the exceptions specified therein. It should be noted that since there are exceptions stipulated in the Constitution itself, the right to personal liberty is not absolute, to the extent that it cannot be impaired, as a person’s liberty can be temporarily restrained, for example, upon reasonable suspicion that the person has committed a criminal offence or even to prevent him from committing a criminal offence. See Section 35(1) (c) of the Constitution of Federal Republic of Nigeria, 1999 (as amended). See also the case of Emeka Ekwunugo v. Federal Republic of Nigeria and Anor. (2001) 6 NWLR (Pt. 708) 171 at 185, per Fabiyi, JCA (as he then was) where this Court stated as follows: “If there is a reasonable suspicion that a person has committed an offence, his liberty may be impaired temporarily. In the same vein, a person’s liberty may be tampered with so as to prevent him from committing an offence. In short, it is clear that no citizens freedom or liberty is absolute. The freedom or liberty of a citizen ends where that of the other man starts.” In the case of Alhaji Mujahid Dokubo-Asari v. Federal Republic of Nigeria (2007) 12 NWLR (Pt. 1048) 320 at 360, per Ibrahim Tanko Muhammad, JSC, the Supreme Court also stated as follows: “The above provisions of Section 35 of the Constitution leave no one in doubt that the section is not absolute. Personal liberty of an individual within the contemplation of Section 35(1) of the Constitution is a qualified right in the context of this particulars case and any virtue of Subsection (1) (c) thereof which permits restriction on individual liberty in the course of judicial inquiry or where, rightly as in this case, the appellant was arrested and put under detention upon reasonable suspicion of having committed a felony. A person’s liberty, as in this case, can also be curtailed in order to prevent him from committing further offence(s). It is my belief as well that if every person accused of a felony can hide under the canopy of Section 35 of the Constitution to escape lawful detention then an escape route to freedom is easily and richly made available to persons suspected to have committed serious crimes and that will not augur well for the peace, progress, prosperity and tranquillity of the society. I find support in so saying from Irikefe JSC (as he then was) earlier pronounced in the case of Echeazu v. Commissioner of Police (1974) NMLR 308 at page 314.” — M.A.A. Adumein JCA.
⦿ POWERS OF THE EFCC; EFCC HAS ALL POWERS OF THE POLICE
Under the EFCC Act, 2004, the 1st respondent has clear powers to investigate a wide variety of economic and financial crimes as stated but limited to those listed in Section 6(a) of the Act. The 1st respondent also has the powers to co-ordinate and enforce all economic and financial crimes laws. In the exercise of its powers, the 1st respondent has all the powers and immunities of a police officer under the Police Act. By Section 42 of the EFCC Act, the 1st respondent has been given powers to enforce any offence or to continue with proceedings instituted for the enforcement of the provisions of the Miscellaneous Offences Act; the Banks and Other Financial Institutions Act, 1991 (as amended); Failed Banks (Recovery of Debt and Financial Malpractices in Banks) Act (as amended); the Advance Fee Fraud and Other Related Offences Act; the Money Laundering Act; and any law or regulation relating to Economic and Financial Crimes. Under Paragraphs 3, 7, 13, 15, 19 and 20 of the Economic and Financial Crimes Commission (Enforcement) Regulations, 2010 provisions are made for receiving complaints; investigating complaints; obtaining Court orders; searching of suspects; discretion to prosecute suspects; and drafting of charges; respectively. — M.A.A. Adumein JCA.
⦿ GROUND OF APPEAL CHALLENGING AN OBITER DICTA IS INCOMPETENT
I only wish to restate here that it is the law that a ground of appeal attacking an obiter dictum is incompetent and it is liable to be struck out. See Alhaji Dahiru Saude v. Alhaji Halliru Abdullahi (1989) 4 NWLR (Pt. 116) 387 and Xtoudos Services (Nig.) Ltd and Anor. v. Taisei (W.A.) Ltd. and Anor. (2006) 15 NWLR (Pt. 1003) 533. As a rule, a ground of appeal should relate to, and be an attack or a challenge to the ratio decidendi of the decision appealed against. See Lasisi Ogbe v. Sule Asade (2009) 18 NWLR (Pt. 1172) 106 and Rt. Hon. Michael Balonwu and Ors. v. Governor of Anambra State and Ors. (2009) 18 NWLR (Pt. 1172) 13 … To conclude this judgment, I find no merit in this appeal and it is hereby dismissed. The decision of the trial Court dismissing the appellants motion on notice, including the order for costs is hereby affirmed. There, however, no order for costs as the parties are hereby directed to bear their respective costs in this Court. — M.A.A. Adumein JCA.
Ogheneovo Andrew Anibor
Economic and Financial Crimes Commission & Ors
➥ LEAD JUDGEMENT DELIVERED BY:
Moore Aseimo Abraham Adumein, J.C.A.
⦿ FOR THE APPELLANT(S)
Ogheneovo Andrew Anibor, Esq.
⦿ FOR THE RESPONDENT(S)
Kayode Oni, Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)