➥ CASE SUMMARY OF:
Pastor Ezekiel Obiwusi V. The Economic Financial Crimes Commission & Anor. (CA/L/489/2016 • 9 Mar 2018)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Investigation by EFCC;
Fundamental Rights.
➥ CASE FACT/HISTORY
The Appellant by way of an Originating Motion supported by an affidavit of 12 paragraphs and a statement in support made pursuant to Order II Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009, along with four (a) exhibits and a written address in support, sought the following reliefs from the Court below: i. A declaration that the invitation of the Applicant by the 1st respondent at the instance of the 2nd Respondent to answer to questions which had been investigated and concluded by the Special Fraud Unit of the Nigeria Police is illegal, unconstitutional, null and void and the same is in flagrant violation of the Fundamental Rights of the Applicant as guaranteed under the Constitution of the Federal Republic of Nigeria, 1999 and the African Charter on Human Rights (Ratification and Enforcement) Act. ii. An ORDER of injunction restraining the 1st Respondent whether by itself or any of its officers, agents, servants, privies through any person or persons howsoever from inviting, harassing or further harassing, incarcerating or detaining the Applicant on the same allegation investigated by the Special Fraud Unit of the Nigeria Police Force and for which the Applicant has been exonerated. iii. AN ORDER of injunction restraining the 2nd Respondent from demanding or further demanding from the Applicant any amount of money falsely and unjustly being claimed as representing sums purportedly fraudulently obtained from the 2nd Respondent. iv. AN ORDER of Perpetual injunction restraining the 1st Respondent from threatening or further threatening the liberty of the Applicant, disturbing, interfering of further interfering, disrupting the business operations of the Applicant on the basis of the false and unjust claim by the 2nd Respondent for any sum purportedly representing monies lost by the 2nd Respondent.
The Respondents opposed the application and the Court below upon determination refused the application and dismissed same.
➥ ISSUE(S)
I. Whether the learned trial judge was right when he refused the Appellant’s application for enforcement of fundamental Human Rights and held that the 1st Respondent has the power to re-investigate the Appellant for an economic and financial crime despite an earlier investigation by the Special Fraud Unit of the Nigerian Police?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THERE IS NO LAW THAT RESTRICTS THE EFCC FROM REOPENING A CASE AND INVESTIGATING
‘The main thrust here is whether the Court was right in ignoring earlier investigations to proceed to put a seal of approval on the actions of the 1st Respondent who acted on the complaint of the 2nd Respondent. I do not see any point made by the Appellant in raising so much dust on the criminal trial before the Magistrate Court when he is not on trial there. The fundamental question is was he discharged and acquitted by a Court of competent jurisdiction to warrant him raising the principle of double jeopardy? The 1st Respondent is a body created by statute to carry out functions ascribed and specified in its Establishment act. Upon a careful and calm review of the powers of the 1st Respondent and the Police, these are statutory provisions with nothing therein that restricts the 1st Appellant from reinvestigating a complaint the police had looked into. The essence there is to prevent, investigate and prosecute economic crimes.’
‘The powers of the 1st Respondent include the powers of the Police and they are wide and cuts across several legislations promulgated to fight financial crimes. It is obvious that until a person is discharged formally or prosecuted by a Court of competent jurisdiction, the 1st Respondent has the powers to take over and continue or reopen inconclusive investigations, and except if there is a decision of a Court barring it from doing so, then the 1st Respondent should be responsible enough to hands off. It is even laughable that the Appellant as found by the trial Court, having been deeply involved in the fraud and who also benefitted there from would want to escape further investigations. He did not deny the use of his account nor his benefitting from the fraud. No doubt, the 1st Respondent can investigate him. I also agree with the submissions of the 2nd Respondent that the 1st Respondent can coordinate financial crimes being investigated by other agencies empowered to investigate crimes. As with such powers there is always an incidental power given for the due exercise of specific functions.’
THE APPELLANT IS NOT ABOVE INVITATION FOR INVESTIGATION
‘The Appellant by his showing admitted complicity in the alleged fraud and benefited from it. He is not being prosecuted and fears that lighting might strike twice having gone through some investigation by the Special Fraud unit of the Police. Was he discharged formally to warrant thinking all is over concerning the issue? There was no evidence of the supposed discharge by the Police, if there was any at all. The pending charge against the other two persons cannot be evidence of Appellant’s discharge. That cannot also be of any advantage to the Appellant. What evidence can stop a law from applicability other than a decision from a Court of competent jurisdiction or the agency by letter discharges the suspect. The step taken in pursuance of the attempt to further investigate the complaint was a mere invitation and the Appellant went to town contending otherwise. Is he above invitation by the 1st Respondent? He is merely being speculative, more so, the alleged detention for 5 days was by the Police and not the Respondents so how can the act of a third party be ascribed to the Respondents? The Respondents cannot also be in a position to refute such facts, they are acts of a third party. To compound it, the Police is not a party in this appeal. The Nigeria Police and the 1st Respondent are two parallel agencies of the Federal Government bestowed with investigative powers. The 1st Respondent is not subservient to the Nigeria Police and the argument that because the Police had taken a step, it becomes a bar against the 1st Respondent from acting under its statutory duty is misconceived. Furthermore, the 2nd Respondent cannot be restrained from filing a complaint with security agencies over what it considered as crime against its interest and when it so acts and a step is taken, it cannot found a claim or alleged breach of the fundamental right of any person. Every citizen has the right to report any suspicion of the commission of a crime, see FAJEMIROKUN v. COMMERCIAL BANK NIG LTD (2009) 5 NWLR (Pt. 1135) 558.’
‘It is obvious from the record of appeal that the Appellant has failed to satisfy the requirements for the reliefs sought for. An invitation alone cannot amount to breach or cause apprehension that the Appellant’s right will be violated. He merely alleged that the Police had violated his fundamental Right it and because the police are not here, the court cannot rely on that allegation to find in favour of the Appellant and against the Police. The Respondents cannot also be judged on the acts of the Police. The Appellant is merely hanging on fundamental right to avoid being investigated and this Court cannot be a part of it. I agree with the findings of the trial Court that the Appellant has no justification to approach any Court with the glaring admission that he participated in acts that can be termed criminal and fraudulent. There is a separate issue between breach of a fundamental right and right of agencies to investigate alleged crime. The 1st Respondent is empowered to investigate and no Court can stop such a legitimate duty. If crimes are not investigated how then can the society be secured? Investigation is not harassment or threat to the fundamental right of the Appellant. If there is a breach, the constitution made provision for compensation where it is established and so affirmed by the Court. I also do not find any materials that can move the Court to grant any of the reliefs.’
‘Besides, there is no statutory bar to investigation. If the matter is before the Court, was the Appellant arraigned over the same issues allegedly before the Court? The answer is No. I find the argument of the Appellant illogical, if others are before a Court so he should be spared? As observed above, the principle of double jeopardy applies to those who have gone through trial and not those under investigation. The lower Court properly evaluated the statements of facts and evidence before it in arriving at its decision which I am entirely in support of.’]
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.
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✓ DECISION:
‘I see no merit whatsoever in this appeal. It is lacking in merit and is hereby dismissed. The judgment of the lower Court delivered by HON. JUSTICE ANIMAHUN on the 11th of November, 2015 is affirmed. ₦50,000.00 costs in favour of the 2nd Respondent.’
➥ FURTHER DICTA:
⦿ FRESH ISSUE CANNOT BE RAISED ON APPEAL WITHOUT LEAVE SOUGHT AND OBTAINED
It is the law that a party cannot raise new issues without obtaining leave of the Court below or of the appellate Court. It is also against settled legal position that a ground of appeal must attack the ratio of the judgment. It is also trite law that the Appellant cannot raise a fresh issue not considered by the trial Court on appeal without first seeking and obtaining leave of Court, either of the trial or the Court of Appeal, the Court in the case of DIAMOND BANK v. ENIMOLA (2015) LPELR-40729 (CA) held thus: “Fresh issue cannot be raised on appeal without the leave of the Court of Appeal first sought and obtained. See GWEDE v. I.N.E.C. and ORS (2014) VOL 10-11 MJSC 1 @ 24.” Furthermore, it is trite that a ground of appeal takes root from the judgment or decision appealed against, i.e. challenging the ratio of the decision. A ground of appeal is expected to direct its attack at the ratio of the Court below. So if there is no decision on a point, then there cannot be a ground of appeal on the same point. See IKENTA BEST (NIG.) LTD v. A.G. RIVERS STATE (2008) LPELR-1476(SC) per TOBI, J.S.C thus: “Grounds of appeal provide the mirror through which the Court takes a peep at the appeal. Although grounds of appeal are not barometers for the initial determination of the strength of the appeal, they provide some useful information, even if speculatively, on the likely trend or outcome of the appeal. As the first point of contact with the appeal, the grounds of appeal should, at the first sight of the appellate Judges or on their face, show good cause why the appeal should be heard.” — Y.B. Nimpar JCA.
⦿ FUNCTIONS OF PARTICULARS OF APPEAL
The functions which particulars to a ground of appeal are required to perform are to highlight the grouse of the Appellants against the judgment on appeal. They are specifications of errors and misdirection which show the complaint the Appellant is screaming about and the line of thought the Appellant is going to canvass in his Brief of Argument. What is fundamental is that in the ground of appeal and the particulars which are really explanatory notes, what is in contest is left open and exposed so that there is no attempt at an ambush or giving of room to which the Respondent would say he was left in the dark of what he was to defend on appeal or that they are unable to understand or appreciate the complaint in the said ground. See WAZIRI and ORS v. GEIDAM and ORS (2016) LPELR-40660 (SC). — Y.B. Nimpar JCA.
⦿ WHAT IS A RATIO
A ratio has been explained in the case of PDP v. SYLVA and ORS (2016) LPELR-42559(SC) thus: “The law is settled that the ratio decidendi of a case is the principle of law upon which the case was decided. It is this principle that is binding on the parties and capable of being the subject of an appeal. The ratio decidendi constitutes the authority on which the case stands. See: N.A.B. Ltd. v. B. Eng. (Nig.) Ltd. (1995) 8 NWLR (Pt. 413) 257 at 289 H; Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228; Odugbo v. Abu (2001) 14 NWLR (Pt. 732) 45. It is also trite that a ratio decidendi is not decided in vacuo but on the facts of the case. In other words, it is necessary to consider the facts of the case presented before the Court to determine the basis on which it was decided. See: Idoniboye-Obu v. N.N.P.C. (2003) 2 NWLR (Pt. 805) 589.” per KEKERE-EKUN, J.S.C. — Y.B. Nimpar JCA.
⦿ INTERPRETATION OF SECTION 46 OF THE CFRN 1999
In considering a similar provision like Section 46 of the Constitution quoted earlier, Section 42(1) of the 1979 Constitution, the Court expounded on when a person can invoke the 3rd arm of the provision in the following way- “Section 42(1) has three major limbs. The first limb is that the fundamental right in chapter 4 has been physically contravened. In other words, the act of contravention is completed and the plaintiff goes to Court to seek redress. The second limb is that the fundamental right is being contravened. Here, the acts of contravention may or may not be completed. But in the case of the later. There is sufficient overt act on the part of the respondent that the process of contravention is physically on the hands of the respondent and that the act of contravention is in existence substantially. In the third limb, there is likelihood that the respondent will contravene the fundamental right of the plaintiff. While the first and second arm may ripen together in certain situations, the third limb of the subsection is entirely together in certain situations, the third limb of the subsection is entirely different. By the third limb the applicant need not wait for the completion or last act of contravention. It might be too late to salvage the already damaged condition. Therefore the third limb gives him the power to move to Court to seek for redress immediately he sense some move on the part of the respondent to contravene his fundamental rights. But before a plaintiff can or applicant invokes the third limb, he must be sure that there are enough acts on the part of the respondent aimed essentially and unequivocally towards the contravention of his rights. A mere speculative conduct on the part of the respondent without more cannot ground an action under the third limb.” See UZOUKWU v. EZEONU II (1991) 6 NWLR (Pt. 200) 708. — Y.B. Nimpar JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Yargata Byenchit Nimpar, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
