Whether the Exercise of the Investigative Powers of EFCC amount to Breach of Fundamental Rights

0
Photo: Credit Solution

PREAMBLE 

“The question of the infringement of fundamental rights is largely a question of fact and does not depend so much on the dexterous submissions from the forensic arsenal of learned counsel on the law. So it is the facts of the matter as disclosed in the processes filed that are examined, analysed and evaluated to see if the fundamental rights of the Appellants were eviscerated or otherwise dealt with in a manner that is contrary to the constitutional and other provisions on the fundamental rights of an individual. The law remains that he who asserts must prove, so the Appellants had the onus of proving by credible affidavit evidence that their fundamental rights were breached. See ONAH vs. OKENWA (2010) 7 NWLR (PT 1194) 512 at 535 – 536.”

 

The above quote is the holding of Justice UGOCHUKWU ANTHONY OGAKWU, J.C.A.  Delivering the leading judgment in the Court of Appeal case of CHROME INSURANCE BROKERS LTD & ORS v. EFCC & ORS (2018) LPELR-44818(CA). 

FACTS 

The 1st Appellant (Chrome Insurance Brokers Ltd) is the insurance broker for the 5th and 6th Respondents (The Comptroller-General Of Customs and Nigerian Customs Service) in respect of their Staff Group Life Assurance and Group Personal Accidents Insurance Scheme. The 2nd Appellant (Mrs. Folashade Adedayo Peters) is the Managing Director and alter ego of the 1st Appellant (Chrome Insurance Brokers Ltd), while the 3rd and 4th Appellants (Adebiyi Ademuyiwa and Mr. Kalu Ukpai Kalu Anyaori) are the Marketing Manager and Head, Technical of the 1st Appellant (Chrome Insurance Brokers Ltd) respectively.

Following a report to the Economic And Financial Crimes Commission (1st Respondent) that Chrome Insurance Brokers Ltd did not remit the premium paid by the staff of the Nigerian Customs Service to the insurance underwriting companies, the Economic And Financial Crimes Commission, as part of its investigations, wrote inviting Mrs. Folashade Adedayo Peters. Mrs. Folashade Adedayo Peters did not honour the invitation and a reminder was written, followed by the 2nd and 3rd Respondents (Mr. Ahmed Ghali and Mr. Niyi) visiting the office of Chrome Insurance Brokers Ltd in search of Mrs. Folashade Adedayo Peters. Adebiyi Ademuyiwa was arrested and he volunteered a statement after which he was released on bail on self-recognizance after about three hours. Mrs. Folashade Adedayo Peters still did not honour the invitation by the Economic and Financial Crimes Commission and on a subsequent visit to the office of Chrome Insurance Brokers Ltd, Mr. Kalu Ukpai Kalu Anyaori was arrested, he volunteered a statement and was released on bail on self-recognizance after about three hours. 

​In the statements volunteered by Adebiyi Ademuyiwa and Mr. Kalu Ukpai Kalu Anyaori, they stated that they had no knowledge of the details of the brokerage of the Nigerian Customs Service as it was an account exclusively handled by Mrs. Folashade Adedayo Peters and that only she could answer the inquiries being made by the Economic and Financial Crimes Commission.

With Mrs. Folashade Adedayo Peters yet to honour the invitation, she and the other Appellants commenced an action for enforcement of their fundamental rights at the Lagos State Federal High Court. The reliefs claimed by the Appellant include amongst others: an order enforcing their fundamental rights to privacy, personal liberty, fair hearing, freedom of movement and freedom to acquire and own immovable property anywhere in Nigeria, pursuant to the Nigerian Constitution and the African Charter on Human and Peoples Rights (Ratification & Enforcement) Act. 

The Trial Court refused the application. It dismissed the application and ordered that Mrs. Folashade Adedayo Peters honour the invitation of the Economic and Financial Crimes Commission and report at the office of the Economic and Financial Crimes Commission within forty-eight (48) hours of the judgment. 

This appeal was filed at the Lagos Judicial Division of the Court of Appeal against the judgment of the trial Court. 

ISSUES FOR DETERMINATION

The appeal was determined on the following issues:

  1. Whether in view of the acts of the Respondents, the Appellants are entitled to the orders of this Honourable Court enforcing their fundamental human rights?
  2. Whether a Court can award a relief not sought by parties before it.

DECISION 

In conclusion, the appeal was unanimously allowed in part. The decision of the trial Court dismissing the Appellants claims for enforcement of fundamental rights was affirmed while the order of the Court compelling Mrs. Folashade Adedayo Peters to produce herself at the office of the Economic and Financial Crimes Commission was set aside. 

RATIO DECIDENDI

  • CONSTITUTIONAL LAW – BREACH OF FUNDAMENTAL RIGHTS: Whether the exercise of investigative power of the Economic and Financial Crimes Commission will amount to breach of fundamental right

“The principal relief claimed by the Appellants is the alleged violation of their fundamental rights to privacy, personal liberty, fair hearing, freedom of movement and freedom to acquire and own immovable [movable] property. The Lower Court dismissed the Appellants action on the grounds that there was no such evisceration of their rights disclosed by the evidence. I have already redacted the salient facts of this matter. By the provisions of Sections 6, 7, and 13 of the EFCC Act, the 1st Respondent has the statutory power to investigate, arrest, interrogate, search and detain any suspect: OBIEGUE vs. A-G FEDERATION (supra) and ONAH vs. OKENWA (supra) at 536. This is undoubtedly so. The only qualification, and a very important one at that, is that the power must not be misused or abused. The power must be exercised in accordance with the law. It has to be noted that the right to personal liberty enshrined in Section 35 of the Constitution, which is one of the rights the Appellants sought to enforce is not an absolute right. By Section 35 (1) (c) of the Constitution, a person can be deprived of his liberty upon reasonable suspicion of his having committed an offence. Where there is such a deprivation of liberty, such a person arrested or detained shall be brought to Court within a reasonable time, within the meaning of Section 35 (5) of the Constitution, that is, one day where there is a Court of competent jurisdiction within a forty kilometre (40km) radius of the place of detention.

It was on the suspicion that a crime had been committed, as it relates to the allegation of criminal diversion on remittance of the premium paid in respect of the 6th Respondent’s Staff Group Life Assurance and Group Personal Accidents Insurance scheme, that the 1st Respondent launched its investigation and invited the 2nd Appellant for questioning. The 2nd Appellant did not honour the invitation. It was in the course of this investigation that the 3rd and 4th Appellants were arrested, detained and released on bail after they had volunteered their statement. The facts are lucent that they were detained for only about three hours and then released on bail.

The Constitution is the organic law; it is to be given purposive interpretation: see NAFIU RABIU vs. KANO STATE (1981) 2 NCLR 293 at 326, PDP vs. INEC (2001) 1 WRN 1 at 32 – 33 and DIRECTOR OF SSS vs. AGBAKOBA (2003) 10 WRN 93 at 153 – 154. This being so, it would appear that the purpose of Section 35 (5) of the Constitution and the requirement of taking a suspect to Court within a reasonable time is equally satisfied by the release of such person on bail or otherwise within a reasonable time of the arrest. I am not in any doubt whatsoever that the constitutional requirement was satisfied in this matter since the 3rd and 4th Appellants were released on bail on self-recognizance after about three hours of their arrest and detention. Since the facts before the Lower Court showed that the 3rd and 4th Appellants were released on bail within a reasonable time of their arrest and detention, I agree with the Lower Court that their fundamental rights were not breached.

The Appellants complaint of the breach of the right to privacy arises from their aversion to the alleged invasion, trespass, harassment and threat to arrest and prosecute them. Let me iterate that the 1st- 3rd Respondents invited the 2nd Appellant for an interview in the course of their investigations.

The invitation was not honoured. A reminder letter was sent (See pages 93 and 94 of the Records). The 2nd Appellant did not report. In a situation which I would liken to the “mountain moving to Mohammed”, the 2nd and 3rd Respondents then went to the office of the 1st Appellant in search of the 2nd Appellant.

It seems to me that on the facts the complaint of trespass, invasion and harassment arise from the failure by the 2nd Appellant to respond to the invitation sent to her; what is more the 3rd and 4th Appellants who volunteered statements clearly stated that the subject of the investigation was only known to the 2nd Appellant. If the 2nd Appellant had responded to the invitation, it may not have been necessary for the 1st -3rd Respondents to go to the 1st Appellant’s office. Consequently the facts do not bear out any evisceration of the Appellants’ right to privacy. It has to be remembered that Section 7(1) (a) of the EFCC Act gives the 1st Respondent the power to investigate whether any person has committed an offence. The visit to the 1st Appellant’s office in the course of such investigation, without more, cannot be a violation of any fundamental right.

The Appellants complaint on the alleged evisceration of their right to own moveable property is premised on the deposition that the 1st -3rd Respondents carted away two cartons containing files and other documents relating to the 1st Appellant’s relationship with the 6th Respondent (see paragraph 14 of the Appellant’s affidavit on page 35 of the Records). The investigation being conducted by the 1st Respondent was on allegation of commission of offence in respect of the relationship between the 1st Appellant and the 6th Respondent. This is in exercise of the 1st Respondent’s power under Section 7 (1) (a) of the EFCC Act. By all odds, Section 43 of the 1999 Constitution guarantees the right to own moveable property. Furthermore, Section 44 (1) of the Constitution provides that no moveable property shall be taken possession of compulsorily except in accordance with law which provides for payment of compensation. However, Section 44 (2) (k) of the Constitution then stipulates thus:

“(2) Nothing in Subsection (1) of this section shall be construed as affecting any general law-

(k) relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry.”

It was in the course of investigations under the EFCC Act, a general law; that the files and documents were taken away. Accordingly, the facts do not bear out any breach of the Appellants rights to own movable property.

The Appellants complain about breach of their right to freedom of movement. There is nothing on record which bears out any such infringement. The 2nd Appellant who was invited is yet to respond to the invitation so no one has hindered her movement. The 3rd and 4th Appellants who were arrested were on their own deposition released after about three hours. Be that as it may, Section 41 (2) of the Constitution recognizes that the freedom of movement of a person may be restricted where there is reasonable suspicion of a crime having been committed. Therefore the arrest of the 3rd and 4th Appellants and the restoration of their liberty within a reasonable time as required by Section 35 of the Constitution is not an evisceration of their right to freedom of movement.

The complaint on the breach of the right to fair hearing is anchored on the deposition that the 1st -3rd Respondents refused to show the Appellants the alleged Petition written against the 1st Appellant. Now, the invitation for interview was directed at the 2nd Appellant. The 2nd Appellant has not responded to the invitation. This complaint would have had substance if the 2nd Appellant had reported as required, demanded to see the Petition and it was refused. As it relates to the 3rd and 4th Appellants, their statements at pages 96-99 of the Records give the lie to any claims of infringement of their right to fair hearing as they made statements in respect of the relationship between the 1st Appellant and 6th Respondent stating that it was a relationship exclusively within the purview of the 2nd Appellant only. The facts do not disclose any infringement of the right to fair hearing.

There are no facts in the affidavits filed substantiating any infringement of the right of the Appellants to the dignity of human person guaranteed under Section 34 of the Constitution. There is no allegation of the Appellants having been subjected to torture, inhuman or degrading treatment, slavery, servitude, forced or compulsory labour.

In all, the Lower Court was on very strong wicket which it held as follows at pages 258 of the Records:

“From the circumstances of this case I cannot view the arrest or invitation of the 1st to 4th applicants for the purpose of investigations by the respondents herein as a breach of rights to privacy, personal liberty or fair hearing. Nor is there any breach of the right to free movement or to acquire any immovable property.

There is as well no breach of any right to dignity of human person occasioned in the circumstance of this action.”

The Appellants hanker after the award of compensation for the infringement of the fundamental rights and complain about the refusal of the Lower Court to award compensation as claimed by them. Doubtless, Section 35 (6) of the Constitution stipulates that any person who is unlawfully arrested or detained shall be entitled to compensation and public apology. The thrust of this constitutional provision is that the entitlement to compensation arises where the arrest or detention is unlawful in the sense that a Court has found that the fundamental rights of a person have been infringed upon.

I have already held in the course of this judgment that the decision of the Lower Court that the Appellants fundamental rights was not breached is the correct decision. This being so, the lower Court was equally right in refusing to award them any compensation as their fundamental rights were not breached.” Per OGAKWU, J.C.A. (Pp. 21-29, Paras. A-B).    

  • CRIMINAL LAW AND PROCEDURE – CRIMINAL INVESTIGATION: Whether Court can stop criminal investigation by government agency

“At the outset, I stated that the allegation of infringement of fundamental rights was a question of fact and was not dependent on the sabre-rattling from the forensic arsenal of learned counsel. The affidavit evidence did not disclose any evisceration of the Appellants’ fundamental rights. It seems that the object of the Appellants’ action and the perpetual injunction they sought was to shield themselves from the investigation of the criminal allegation against them. In A-G ANAMBRA STATE vs. UBA (2005) 15 NWLR (PT947) 44, Bulkachuwa, JCA (now PCA)held:

“For a person, therefore to go to Court to be shielded against criminal investigation and prosecution is an interference with powers given by the Constitution to law officers in control of criminal investigation. The plaintiff has no legally recognisable right to which a Court can come to his aid…The plaintiff cannot expect a judicial fiat preventing a law officer in the exercise of his constitutional power.”

Put simply, a Court cannot stop a law enforcement agency from investigating a crime; and whether to or how it is done is a matter within the discretion of the law enforcement agency. See IGP vs. UBAH (2014) LPELR (23968) 1 at 27-28, FAWEHINMI vs. IGP (2002) 7 NWLR (PT 767) 606, HASSAN vs. EFCC (2013) LPELR (22595) 1 at 29 and SALIHU vs. GANA (2014) LPELR (23069) 1 at 34.” Per OGAKWU, J.C.A. (Pp. 29-30, Paras. B-C).

  • ACTION – CLAIM(S)/RELIEF(S): Whether the Court can grant a relief not claimed

“The Appellants have made a foofaraw of the order made by the Lower Court for the 2nd Appellant to report to the 1st Respondent within 48 hours of the judgment, contending that the relief was not claimed and that the parties were not given a hearing on the terms of the said order before it was made.

The law as I know it is that the Court and the parties are bound by the reliefs claimed in an action as framed by the claimant and it is not the duty of the Court to grant any relief outside what had been claimed. In the words of Tobi, JSC in EAGLE SUPER PACK (NIGERIA) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 or (2006) LPELR (980) 1 at 40:

“It is elementary law that a Court is bound by the relief or reliefs sought. The generosity or charity of a Court of law is confined strictly to the relief or reliefs sought to the extent that a Court of law cannot give a party what he did not claim. That is completely outside our procedural law. The rationale behind this is that a party who comes to Court knows where the shoe pinches him and therefore knows the limits of what he wants. The Court, as an unbiased umpire, so to say, cannot claim to know the relief or reliefs better than the party…”

See also DUMEZ NIGERIA LTD vs. NWAKHOBA (2008) LPELR (965) 1 at 26 and AKINTERINWA vs. OLADUNJOYE (2000) LPELR (358) 1 at 40 or (2000) 6 NWLR (PT 659) 92.

The Respondents who wear the shoes knew where it pinched them; they did not counterclaim for any order of Court to compel the 2nd Appellant to honour the invitation for her to report for interview. It was therefore not the business of the Lower Court to consider how to get the 2nd Appellant to honour the invitation of the 1st Respondent. In defining the meaning of “claim” in OSUJI vs. EKEOCHA (2009) 16 NWLR (PT 1166) 81 or (2009) LPELR (2816) 1 at 55, Tobi, JSC stated thus:

“A claim, in our adjectival law, originates an action. It is the pivot or the cynosure of the case. It sets out the relief or reliefs sought by the plaintiff. A plaintiff is bound by his claim and must not deviate from it willy-nilly.”

Just as it is elementary that the claimant cannot present a case different from his claim, so also can a Court not adjudicate between parties on the basis of a claim not formulated by them. In OSUJI vs. EKEOCHA (supra) at page 44, Adekeye, JSC stated:

“The position of the law is clear that a Court of law can only grant reliefs claimed by a party and not more. It is trite that a Court is duty bound to adjudicate between the parties on the basis of the claim formulated by them.”

It is hornbook law that a Court is not Santa Claus or a charitable institution and cannot award to a party what it has not claimed. A Court cannot award a party what he has not asked for as that would be an unusual charity and goodwill which a Court of law, qua judex, has no jurisdiction and is incompetent to do. If a party does not ask for a particular relief, it is not the business of a Court to award such a relief. Parties in a contested litigation know what they want and ask for it in Court. If it is proved, so be it. Judgment will be entered in favour of a party only to the extent of what has been asked for. See EKPEYONG vs. NYONG (1975) 2 SC 65 at 73-74 and AJIKAWO vs. ANSALDO NIG. LTD (1991) 2 NWLR (PT 173) 359 at 372 B-D. Consequently, it was unsolicited and unusual charity for the Lower Court to order the 2nd Appellant to produce herself at the 1st Respondent’s office within the next 48 hours from the delivery of the judgment when there was no such relief claimed. It was definitely not a consequential order as it did not flow from the decision of the Lower Court that there was no breach of the Appellants’ fundamental rights.

I therefore resolve issue number two against the Respondents and hold that a Court cannot award a relief not sought by the parties as the chafed order in this matter was not a consequential order.” Per OGAKWU, J.C.A. (Pp. 30-34, Paras. E-A).

CHROME INSURANCE BROKERS LTD & ORS v. EFCC & ORS (2018) LPELR-44818(CA)

ALSO READ   Preparing wills saves rancour after death, lawyer says

Law Pavillion

Send your press release/articles to: info@dnlpartners.com . Follow us on Twitter at @Dnl_Legalstyle and Facebook at DNL Legal and Style



© Copyright DNL Legal & Style 2017.

This piece may only be copied on the condition that DNL Legal & Style is duly acknowledged in this manner: “Source: DNL Legal & Style. View the original

Leave a Reply