Parties: Economic and Financial Crime Commission v. Diamond Bank Plc & 2Ors
Appeal No: SC/868/2014
Court: Supreme Court
Justices: OLABODE RHODES-VIVOUR, J.S.C. (Presided)
MARY UKAEGO PETER-ODILI, J.S.C
AMIRU SANUSI, J.S.C.
AMINA ADAMU AUGIE, J.S.C
SIDI DAUDA BAGE, J.S.C (Read the Leading Ruling)
Citation: (2018) 8 NWLR (Pt. 1620) P.61
The 2nd and 3rd Respondents were customers of the 1st Respondent bank. The 1st Respondent granted a loan to the 2nd Respondent. The loan was guaranteed by the 3rd Respondent, the Managing Director of the 2nd Respondent. In addition, the loan was secured by a lien over original payment vouchers, debentures over the floating assets of the 2nd Respondent, a legal mortgage poet the property of the 2nd Respondent located at Rumuigho, Port Harcourt, and a lien over three Fiat trucks and three Fiat tractors.
In 2003, the 2nd and 3rd Respondents suspected that the 2nd Respondent’s account with the 1st Respondent was being overcharged. They employed a banking consultant to audit the account and it was discovered that the 1st Respondent had debited the account with excess charge the 2nd and 3rd Respondents instructed the consultant to recover the excess charge. The consultant wrote a letter to the 1st Respondent and demanded refund of the excess charge.
Thereafter, the 2nd and 3rd Respondents and the 1st Respondent agreed to refer the matter to the Chattered Institute of Bankers’ Committee on ethics and Professionalism for arbitration. While the mailer was still pending before the Committee, the 1st Respondent wrote a letter dated 14th March 2005 to the 2nd and 3rd Respondents, and demanded payment of N44, 137,700.76 plus interest thereon as their debt within 21 days. The 1st Respondent also stated that if the 2nd and 3rd Respondents failed to pay the money as demanded, it would take all necessary actions against the 2nd and 3rd Respondents to recover the sum without further notice.
Afterwards, the 1st Respondent reported the 3rd Respondent to the Financial Malpractices Investigation Unit of the Nigeria Police Force C.I.D. Annex, Lagos. Consequently, policemen from Lagos went to Port Harcourt where they arrested and detained the 3rd Respondent on 18th April 2005, The 3rd Respondent was not granted bail until the policemen made him to pay N1,000,000 to the 1st Respondent and to issue a N1,000,000 cheque in favour of the 1st Respondent. The policemen further directed the 3rd Respondent to go to their office in Lagos on 10th May 2005.
The 2nd and 3rd Respondents were aggrieved. They filed a suit against the 1st Respondent and four other persons at the Federal High Court, Port Harcourt for enforcement of their fundamental rights. And that court granted the 2nd and 3rd Respondents leave to enforce their fundamental rights. While that suit was pending, the 1st Respondent wrote a complain of bank fraud and diversion of depositors’ money against the 2nd and 3rd Respondents to the Economic and Financial Crimes Commission (the Appellant).
The appellant therefore wrote a letter inviting the 3rd Respondent, as Managing Director of the 2nd Respondent, to appear in Lagos before its officers in charge of bank fraud. The letter stated that the Appellant was investigating a case of bank fraud and diversion of depositors fund reported by the 1st respondent against the 2nd and 3rd Respondents.
Alter the 2nd and 3rd Respondents received the Appellant’s letter, they filed a suit against the Appellant and the 1st Respondent for enforcement of their fundamental rights. They sought 3 reliefs;
(a) A declaration that the invitation of the 3rd Respondent by the Appellant at the behest of the 1st Respondent was unlawful and a violation of the 2nd Respondent’s fundamental right to liberty and dignity of his person and a continuation of the harassment of the2nd and 3rd Respondents by the Appellant in view of the pending suit between the 2nd and 3rd Respondents and the 1st Respondent and four 4 other persons.
(b) A declaration that under the Act establishing the Appellant, it lacked the statutory power to function as a debt collector on behalf of the 1st Respondent or anybody in matters of commercial contract.
(c) An order or court restraining the Appellant and the 1st Responded from disturbing or interfering with the right to liberty of the 2nd Respondent through further threat of invitation, arrest, detention intimidation, and unnecessary interrogation or in any other way or manner whatsoever.
The trial court heard and dismissed the suit. Dissatisfied with the Trial Court decision, the 2nd and 3rd Respondents appealed to the Court of Appeal. In its judgment the Court of Appeal held that the issuance of the appellant’s letter of invitation at the behest of the 1st Respondent was unlawful and a violation of the fundamental right of the 3rd Respondent to personal liberty. Therefore, the Court of Appeal allowed the appeal and granted all reliefs claimed by the 2nd and 3rd Respondents.
The Appellant was aggrieved with the judgment of the Court of Appeal. It appealed to the Supreme Court. It argued that its mere letter of invitation to the 2nd and 3rd Respondents did not amount to infringement of their fundamental rights because the letter did not state or suggest that they would be arrested on detained. The Appellant also argued that the 2nd and 3rd Respondents were not immune from being investigated or being invited for questioning on allegations against them The Appellant further argued that it had the statutory duty to investigate and prosecute Economic and Financial Crimes, including the allegations made against the 2nd and 3rd Respondents, and to establish the criminality or otherwise of the allegations.
In response, the 2nd and 3rd Respondents argued that the dispute between Respondents was the recovery of a debt that was being contested at the bankers’ committee, and that the issue could not transform into fraud warranting the 1st Respondent’s petition to the Appellant, which caused the Appellant to issue its invitation.
The 2nd and 3rd Respondents submitted that the Appellant’s letter of invitation was a continuation of the 1st respondent’s use of security agencies to harass and intimidate them. They argued that the invitation by the Appellant should not be taken as an isolated case otherwise the invitation would ordinarily be seen as routine and harmless. They further argued that the 1st Respondent’s complaint to the appellant was an act of self-help and an extra judicial action because it was made despite the subsisting order of the Trial Court in the 2nd and 3rd Respondents’ first suit, and was aimed at scuttling that suit.
In determining the appeal, the Supreme Court considered the following constitutional provisions and rule of court:
Section 35(1) and 46(1) of the Constitution of the Federal Republic of Nigeria, 1999, (as Amended) which state-
“35(1) Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with procedure permitted by law.
46(1) Any person who alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in any State in relation to him may apply to a High Court for redress.”
Order 2 Rule 1 of the Fundamental rights (Enforcement Procedure) Rule 2009, which states-
“Any person who alleges that any of the fundamental rights provided for in the constitution or African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or likely to be infringed, may apply to the Court in the State where the infringement occurs or is likely to occur, for redress.”
On Duty of police and security agencies not to allow themselves to be used for recovery of debt s arising from civil transactions –
Per BAGE, J.S.C. at page 80, paras. C-E:
“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 or 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.
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.”
On need for police officers with integrity to quickly act to redeem damaged reputation of police force –
Per BAGE, J.S.C. at page 80, paras. F:
Where we are now in this country is that place where our “Men- in black & blue” command almost no respect front 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”
On Unlawfulness of security agencies’ interference in cases pending before courts-
Per PETER-ODILI, J.S.C. at page 86, paras. D-H:
“The finding and conclusion of the Court of Appeal is stated hereunder, viz:
‘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 Applicant/Appellant, by the 1st Respondent in relation to the disputed or dubious debt allegedly owned by the Appellants to the 1st Respondent.’
‘The Appellants have shown the 1st Respondent uses law enforcement agencies, as his attacking spinnels, to harass them, particularly the 1st Applicant, to pay dubious debt.’
The situation as found by the court below is unfortunate and it is indeed disheartening and would not augur well for the nation in a investigating agency such as the Appellant, EFCC would proceed to intervene in a matter already before a court of competent jurisdiction. This court has had occasion to cry out on such practices of flouting with monstrous effect the power and integrity of a court of law.