➥ CASE SUMMARY OF:
Diamond Bank Plc V. H.R.H. Eze (Dr) Peter Opara & Ors. (SC.375/2012, 9 March 2018)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Fundamental rights;
EFCC invitation.
➥ CASE FACT/HISTORY
The facts are that the 1st and 2nd Respondents as the applicants at the lower Court, were customers of the Appellant bank since 1994. The relationship continued until 2003 when the 1st and 2nd Respondents suspected some discrepancies in the management of their account with the Appellant. They engaged a banking consultant to investigate, and it was allegedly discovered that the Appellant had illegally over charged the 1st and 2nd Respondents, in the management of their account, to a tune of N10,776,921.19K refund of which they demanded. The 1st and 2nd Respondents though not convinced, mutually agreed with the banking consultant that the matter be referred to the Chartered Institute of Banker’s Committee on ethics and professionalism for arbitration. The matter was still pending there for arbitration when the Appellant reported the 1st Respondent to the Financial Malpractices Investigation Unit of the Nigeria Police Force CID Annex, Lagos. Consequently, policemen from Lagos came to Port Harcourt, arrested and detained the 1st Respondent on 18th April, 2005. The 1st Respondent was not granted bail until the policemen made him pay N2,000,000.00K to the Appellant. The police further directed the 1st Respondent to appear before them at Lagos on 10th May, 2005. In the mean time, the 1st and 2nd Respondents approached the Federal High Court, Port Harcourt in suit no. FHC/PH/CS/385/2005 between H.R.H Eze (Dr) Peter Opara and 1 Or v. Diamond Bank and 4 ORS for leave to apply for enforcement of their fundamental rights. Exhibit ‘U’ contains the order granting the leave sought. The 1st and 2nd Respondents, at paragraph 28 of their supporting affidavit, aver in the suit as follows:- “28. That the matter is still pending in the Federal High Court 2 and instead of waiting for the judgment of the Court, 1st Respondent, in disregard of the Court, petitioned us again to EFCC on spurious claims when it is owing us just to use its right to intimidate us.”
The Appellant’s Counter Affidavit seems to admit in paragaph 7 thereof that the 1st and 2nd Respondents “through their agents reported the matter to the Bankers subcommittee on ethics and professionalism” for arbitration and that “the committee – is yet to finally adjudicate on the matter.” Paragraph 6 of the said Counter Affidavit also admits that the Appellant went to lodge a complaint with the Financial Malpractice Investigation Unit of the 3rd Respondent which has the statutory duty to investigate transactions where Banks are being defrauded or the risk of the same exists. The 1st and 2nd Respondents were merely invited for an Interview on routine investigation. Nobody has threatened to arrest them. The Counter Affidavit of the 3rd Respondent avers that they (EFCC) are investigating the alleged fraud and obtaining by false pretence, not diversion of depositors’ funds, reported against the 1st and 2nd Respondents to them through Appellant’s letter of 27th October 2007, Exhibit “EFCC A”. The letter, Exhibit ‘V’, inviting the 1st Respondent for interview on 11th December, 2006 had triggered the 1st and 2nd Respondents resolve to apply for leave to apply for the enforcement of their fundamental rights. Upon leave granted to the 1st and 2nd Respondents to bring the application to enforce their fundamental rights, the 1st and 2nd Respondents filed, vide the originating motion on 6th December, 2006, an application seeking orders enforcing their fundamental rights.
The parties were heard on the 1st and 2nd Respondents’ application on 19th January, 2007. The learned trial Judge in his Ruling delivered on 23rd January, 2007 dismissed the application. Dissatisfied with the ruling of the Federal High Court, the 1st and 2nd Respondents appealed against that decision. The lower Court in its judgment dated 3rd March, 2011 allowed the appeal and granted all the reliefs. It is against the decision of the Court of Appeal above, that the Appellant has now appealed to this Court.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether the Court of Appeal was right when it held that the complaint to EFCC by the Appellant vide letter dated 27th October, 2006 constitute an abuse of the process of the law and was made maliciously to cover up fraud against the 1st and 2nd Respondents?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE LETTER/COMPLAINT WRITTEN BY THE APPELLANT TO EFCC CONSTITUTE AN ABUSE OF PROCESS
‘From the foregoing, it is my view that the parties having mutually agreed to refer the matter to the Chartered Institute of Banker’s – sub-committee on ethics and professionalism, the Appellant should not have gone ahead to report the matter to Financial Malpractices Investigation Unit, force C. I. D. annex, Lagos since the Banker’s Committee directed the parties to stay away from any further action pending the determination of her investigation, and this was clearly understood and agreed by both Parties. As if that was not enough, the Appellant again reported the matter to the Economic and Financial Crime Commission EFCC (3th Respondent). This amounted to an abuse of process.’
‘Generally, abuse of process involves circumstances and situations of infinite variety and conditions and which may be occasioned by malice, bias and desire to misuse or pervert the system of administration of justice. See Saraki v. Kotoye (1992) NWLR (Pt. 264) at 156. I agree entirely with the lower Court in its judgment at page 312 of the record of appeal when the Court held:- “The complaint of the Appellants, which unfortunately the learned trial misconceived, is that the 1st Respondent is resorting to multiplicity of complaints against them over the same issue to law enforcement agencies purposely to harass and emasculate them from complaining about the fraud of the 1st Respondent subjecting their account to illegal charges to its benefit and to the detriment of the Appellants. A banking consultant employed by the Appellants detected the fraud. Thereafter the Appellants and the 1st Respondent mutually agreed and the matter was referred to the Bankers Committee (sub-committee) on ethics and professionalism for arbitration. The 1st Respondent admits this fact and avers in the Counter Affidavit that the “committee – is yet to finally adjudicate on the matter'” While the matter is yet to be finally adjudicated upon by the committee the 1st Respondent reported the Appellants to the police. The 1st Appellant was arrested and detained, and had to unwillingly pay N2,000,000.00K to the 1st Respondent in order to be granted bail.” Looking at all that has been said. I am convinced by the Learned counsel for the 1st and 2nd Respondents that the actions of the Appellant was aimed at frustrating the investigation that is before the Bankers Committee. The subsequent actions of reporting the matter to the police and to the 3rd Respondent were nothing but abuse of process of law. What is even more disturbing in recent times is the way and manner the Police and some other security agencies, rather than focus squarely on their statutory functions of investigation, preventing and prosecuting crimes, allow themselves to be used by overzealous and/or unscrupulous characters for the recovery of debts arising from simple contracts, loans or purely civil transactions. Our security agencies, particularly the police, must know that the citizenry’s confidence in them ought to first be ensured by the agencies themselves by jealously guarding the integrity of the uniform and powers conferred on them.’]
.
.
↪️ II. Whether the Court of Appeal was right when it held that the invitation by EFCC (Exhibit V) to the 1st and 2nd Respondents constituted an infringement or a likelihood of an infringement to the fundamental rights of the 1st and 2nd Respondents?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE ACTIONS CONSTITUTED INFRINGEMENT TO THE FUNDAMENTAL RIGHTS OF THE 1ST & 2ND RESPONDENT
‘As I have stated earlier, the multiple actions by the Appellant were nothing but abuse of process of law. However, the actions also constituted breach of fundamental right. The detention of the 1st Respondent by the police in Lagos where he was compelled to pay N2,000,000.00K before he was granted bail, when the Appellant knew very well that the Banker’s committee which is the constituted authority to investigate the alleged matter, was conducting its investigation, is a clear case of breach of fundamental right. Exhibit V, which is the letter of invitation from Economic and Financial Crimes Commission inviting 1st Respondent also constituted likelihood of an infringement to the fundamental right of the 1st and 2nd Respondents. The 1st Respondent sensing another round of detention and intimidation from another Law Enforcement Agency, similar to what happened by the police in Lagos ran to the Court for enforcement of their fundamental right. There is no way, the Appellant could have reasonably suspected the 1st and 2nd Respondents to have committed any offence when the investigation, which the Appellant submitted itself to the Bankers Committee, has not been concluded. I agree with the decision of the Court of Appeal on page 316 of the records wherein it stated: “The application ought to have been granted’ I hereby grant it. Accordingly, it is hereby declared that the invitation of the 1st Applicant/Appellant, vide Exhibit ‘V” by the 2nd Respondent at the behest of the 1st Respondent is unlawful and a violation of the fundamental right of the 1st Applicant/Appellant to personal liberty and a continuation of the harassment of the Applicants/Appellants by the 1st Respondent in relation to the disputed or dubious debt allegedly owed by the Appellants to the 1st Respondent. The 1st Respondent cannot, under the enabling statute establishing the 2nd Respondent, improperly use the 2nd Respondent as their debt collectors in transactions that are completely civil and contractual. The Respondents, jointly and/or severally, are hereby restrained from disturbing, harassing and/or howsoever interfering with the personal liberty of the 1st Applicant/Appellant through intimidation, threats of invitation for interrogation, arrest, detention or in any other way or manner. Those shall be the declarations and order of the trial Court. The Ruling dismissing the application No. FHC/PH/CS/5087/2006, the subject of this appeal, is hereby set aside.” Having said this, issue No. 2 is resolved against the Appellant.’]
.
.
.
✓ DECISION:
‘This appeal lacks merit and is accordingly dismissed, the judgment of the lower Court is hereby affirmed. The 1st and 2nd Respondents are awarded costs of N500.000.00K against the Appellant.’
➥ FURTHER DICTA:
⦿ BECAUSE ISSUES ARE NOT TIED TO THE GROUND OF APPEAL WILL NOT MAKE THE ISSUE INCOMPETENT
Having examined the argument by the learned counsel for the 1st and 2nd Respondents above, it is my position that, by the rules of Court and practice, the issue or issues for determination are imperatively circumscribed or limited by the grounds of appeal. It is the law that any issue for determination not encompassed in the grounds of appeal is incompetent and should either be struck out or discountenanced.Abe v. University of Ilorin (2013) 6 NWLR (pt. 1319) page 183 at 205 paragraph D – G Honika Sawmill (Nig.) Ltd. v. Mary Okejie (1994) 2 NWLR (Pt. 326) 252 at 262. However, not tying the issues to the grounds of appeal is a mere inelegance, which cannot render the issue to be incompetent and struck out. This Court in UBN Ltd. v. Odusote Book Stores Ltd. (1995) NWLR (Pt.421) at 563 held thus: “While it is true that the rules as regards filing of brief of argument do not specifically state that counsel must indicate in his brief which of the ground or grounds of appeal are covered by an issue, it is highly desirable that, that should be done. This will assist the appellate Court tremendously in relating arguments on the issues to the grounds of appeal they are related, thus saving the time of the Court and enhancing quick disposal of the appeal.” From the above, it is crystal clear that the rules do not specifically state that counsel must indicate in his brief which of the ground or grounds of appeal are covered by an issue, therefore failure to do that is mere inelegance which cannot render the issue or issues void. See also Nigerian Ports Plc v. B.P. Pte Ltd. (2012) 18 NWLR (Pt.454) at 480 Hanseatic International Ltd. v. Usang 2002 13 NWLR (Pt.784) at 401-402. — S.D. Bage JSC.
⦿ FOR A PERSON TO QUALIFY AS A PERSON INTERESTED
In my view, an aggrieved person as in the circumstances of this appeal can be likened to a party interested as espoused by this Court, per Mohammed, CJN (Rtd.) in the case of Nwaogu v. Atuma (2013) All FWLR (669) 1022 at 1034 where His Lordship stated the law in these words: “…for a person to qualify as a person interested, the Applicant must show not only that he is a person having interest in the matter but also that the order or judgment of the Court below he is seeking leave to appeal against pre-judicially affects his interest. In other words, to succeed in the application, the applicant must show that they are persons who are aggrieved, or persons who have suffered legal grievances, or persons against whom decisions have been pronounced which have wrongly deprived them of something or wrongly refused them something or wrongly affected their title to something.” See also In Re: Ugadu (1988) 5 NWLR (Pt. 93) 189. — S.D. Bage JSC.
⦿ MERE LETTER OF INVITATION FROM EFCC DOES NOT CONSTITUTE ABUSE OF LAW/FUNDAMENTAL RIGHT
Upon a critical consideration of the entirety of the submission of Learned counsel in this case vis-a-vis the facts and circumstances of the case, I hold the view that there is no doubt that a mere letter of invitation from the 3rd Respondent to the 1st and 2nd Respondents did not constitute abuse of the process of law, and/or breach of fundamental right. — S.D. Bage JSC.
⦿ THE EFCC IS NOT A DEBT RECOVERY AGENCY
It is important for me to pause and say here that the powers conferred on the 3rd Respondent, i.e the EFCC to receive complaints and prevent and/or fight the commission of Financial Crimes in Nigeria pursuant to Section 6(b) of the EFCC Act (supra) does not extend to the investigation and/or resolution of disputes arising or resulting from simple contracts or civil transactions in this case. The EFCC has an inherent duty to scrutinize all complaints that it receives carefully, no matter how carefully crafted by the complaining party, and be bold enough to counsel such complainants to seek appropriate/lawful means to resolve their disputes. Alas! The EFCC is not a debt recovery agency and should refrain from being used as such. — S.D. Bage JSC.
⦿ OUR SECURITY AGENCIES NEED TO REDEEM ITSELF
The beauty of salt is in its taste. Once salt loses its own taste, its value is irredeemably lost. I say this now and again, our security agencies, particularly the police, are not debt recovery agencies. The agencies themselves need to first come to this realization, shun all entreaties in this regard and they will see confidence gradually restored in them. Where we are now in this country is that place where our “Men in black and blue” command almost no respect from the citizenry because of how low we have sunk. But it is my belief which belief, I must say I hold very dearly, that all hope is not lost, many women and men of deep integrity are in our security agencies, and they only need to rise now to the occasion. — S.D. Bage JSC.
⦿ DETENTION OF PERSONS ON DISPUTE OVER COMMERCIAL CONTRACTS IS NOT GOOD
Detention of persons on disputes over purely commercial transactions will have the effect of scaring away investors and this will ultimately affect negatively the economy of our country. Security Agencies should be circumspect in making detention orders and extracting money from parties in civil contract. — P.A. Galinje JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Sidi Dauda Bage, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Ogochukwu Onye Kwuluje Esq.
⦿ FOR THE RESPONDENT(S)
K.O. Uzoukwu Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
