Are Magistrates’ Courts Statutorily Empowered to Grant Freezing Orders? – Tanimola Anjorin-Ajose

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INTRODUCTION

The Nigerian Police Force are in the habit of approaching the magistrates’ court via an ex-parte application to freeze suspected bank accounts and inspect the bankers’ books (“Bankers Order”) with reliance on Section 7 of the Bankers’ Books Evidence Act 1879 (“Bankers Act”).

Where the same is granted, the onus is shifted on the holders of such accounts to approach the court with material facts to enable the courts set aside the Bankers Order. The Bankers Act is a Statute of General Application and the wordings of the referred section are clear, unambiguous and exhaustive. The powers of the court are limited to an order for inspection of bankers’ books and to copy entries in bankers’ books. The Bankers Act neither provides for a setting aside of the freezing order nor the timeline for such restrictions on the account. The implication of the lacuna is that the order remains valid until the same is set aside by a competent court.

The grant of freezing orders by the magistrates’ court revolves around jurisdiction of the court. In Onwudiwe v. F.R.N. (2006) 10 NWLR (Pt. 988) 382, Niki Tobi, JSC, aptly observed:-

“A party cannot beg or bargain jurisdiction into a matter before a Court of law; so too the adverse party cannot beg or bargain jurisdiction outside or out of a matter. Jurisdiction is an exact law that has to be applied exactly to any given case. It is either a Court has jurisdiction in a matter or it has not. In the determination of a jurisdiction of a Court, the enabling law vesting jurisdiction has to be taken in the light of the relief or reliefs sought. The moment the relief sought comes within the jurisdiction of the Court as adumbrated by the facts, the Court must assume jurisdiction as it has jurisdiction to do so. Of course, the reverse position is also correct and it is that the moment the relief sought does not come within the jurisdiction of the Court, as adumbrated by the facts, the Court must reject jurisdiction as it has no jurisdiction in the matter. To that extent jurisdiction looks almost like an exact formula in calculus, although it is devoid of actual figures and numbers.”

The Magistrates’ Court Law 2009 creating the court and the Bankers Act arguably granting powers to the magistrates’ court must be evaluated in the determination of the jurisdiction of the magistrates’ court to entertain freezing orders.

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Does the Bankers Book Act empower the magistrates’ court to grant a freezing order?

This is answered in the negative.

It is conceded that the provisions of section 44 (2) (k) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (“the Constitution”) allows for a temporary taking of possession of property of any examination, investigation or enquiry pursuant to an enabling law in force. This presupposes that there has to be legislation in force expressly donating such powers to the court. In furtherance of this provision, section 34 of the EFCC Act expressly allows for obtention of freezing orders ex-parte from either the Federal High Court or the State High Court. The provision of section 7 of the Bankers Act does not expressly donate such powers to the magistrates’ court or any other court(s) in force.

For ease of reference, the provisions of Section 7 of the Bankers’ Book Act provides thus:- Court or judge may order inspection, &c.

On the application of any party to a legal proceeding a court or judge may order that such party be at liberty to inspect and take copies of any entries in a banker’s book for any of the purposes of such proceedings. An order under this section may be made either with or without summoning the bank or any other party, and shall be served on the bank three clear days before the same is to be obeyed, unless the court or judge otherwise directs.

An application for a freezing order which seeks to deprive persons of their constitutionally guaranteed right(s) cannot be granted pursuant to the inherent jurisdiction of the court. The inherent jurisdiction of the court is derived from matters expressly granted to the court.

Is the Bankers Book Act still applicable in Nigeria?

Without any iota of doubt, the Bankers Book Act is no longer applicable in Nigeria and recourse must be made to the local legislations in force in Nigeria.

All laws in England as at 1st January, 1900 are referred to as Statutes of General Application and the same are applicable in Nigeria under the pretext of Received English Laws where there are no local laws enacted to deal with such specific situations. The Bankers’ Books Act was enacted in England in 1879 and therefore qualifies as a Statute of General Application (“SOGA”).

The erudite Jurist, Niki Tobi JSC in the case of Nze Bernard Chigbu v Tominas Nig. Ltd (2006) NWLR Pt. 984, p. 189 explained the inapplicability of Received English Laws in Nigeria as follows:-

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“Where a local statute is available and applies to a particular local situation, courts of law have no jurisdiction to go all the way to England to search for an English statute. This is because by the local statute, the law makers intend it to apply in the locality and not any English statute which is foreign and inapplicable 

Much as I appreciate the colonial tie between England and Nigeria, it will seriously hamper and compromise our sovereignty if we continue to go on a borrowing ‘spree’, if I may so unguardedly call it, to England for the laws of the country without any justifiable reason. Nigeria is Nigeria and England is England. Statutes of England cannot apply to Nigeria as a matter of course, even the so-called statutes of general application.” 

Unarguably, the combined effect of the provisions of section 251 (1) (d) and (3) of the Constitution is that both the civil and criminal aspect of all banking transactions are vested in the Federal High Court (“FHC”) and/or the State High Courts (“SHC”). The application for a freezing order will depends on the peculiar facts and circumstances as some may not be exclusively tied to a banking transaction. Notwithstanding this, some local legislations like the EFCC Act, the Money Laundering Act, and the ICPC Act expressly provides for the proper courts and the procedure for obtaining freezing orders in Nigeria.

It is submitted that in the absence of any express local legislation granting powers to the magistrates’ court to place a no debit order on any account, it is only the FHC or the SHC that has jurisdiction to entertain any question arising from a criminal investigations with respect to any banking transactions and recourse cannot be had to the Bankers Act. The criminal jurisdiction of the magistrates’ court expressly stated in section 28 of the Magistrates Court Law 2009 does not extend to granting freezing orders ex-parte on any persons bank accounts. The Supreme Court in the case of Attorney General of Bendel State & 2Ors v Adeyan (1989) 9 SC 127 stated as follows:-

“It is firmly established that in the construction of a statutory provision where a statute mentions specific things or persons, the intention is that those not mentioned are not intended to be included”.

On the flip side, it may be argued that the criminal investigation centres around fraudulent conversion or stealing and obtaining by false pretences which are matters within the criminal jurisdiction of the magistrates’ court by virtue of the Criminal Laws of Lagos State. The challenge however remains that at this point of seeking the freezing order(s), the Police are only seeking to place restrictions on the account for the purpose of inspecting the banking books and there is no existing charge in place. This is quite different from an allegation of stealing, fraudulent conversion or receiving and obtaining money under false pretences. In effect, it is an application to aid the investigative duties of the police.

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CONCLUSION

The law has since found a resting position that no court has the power to confer or donate jurisdiction to itself. It must act within the preview or confines of the law. Similarly, jurisdiction cannot be conferred on the court by the parties or by consent of the parties. Please see OSI V. ACCORD PARTY & ORS (2016) LPELR-41388(SC). In view of this settled law and in the absence of any local legislation vesting such powers on the magistrates’ court to freeze any suspicious bank accounts during investigation, the court with due respect will be acting ultra vires its express powers donated by the enabling law creating the court.

It is the writer’s considered view that since the magistrates’ court has jurisdiction over stealing, fraudulent conversion and obtaining under false pretenses, the Criminal Laws of Lagos State 2011 may be amended to expressly grant magistrates’ courts the power to entertain application for freezing orders during investigation where the prosecution has placed sufficient particulars before the court to enable the court exercise its discretion in its favour or a practice direction be issued by the Honourable Chief Judge of Lagos State pursuant to Section 27 (d) of the Magistrates’ Court Law 2009 donating such powers to the magistrates’ court and the detailing the procedure and timeline for such restrictions.

TANIMOLA ANJORIN-AJOSE, B.A (Hons.), LL.B (Hons.), B.L, LL.M (Hons.)


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