Legalpedia Citation: (2023-06) Legalpedia 34659 (CA)

In the Court of Appeal

Holden at Lagos

Tue Jun 27, 2023

Suit Number: CA/L/611/2017

CORAM

OBANDE FESTUS OGBUINYA JUSTICE, COURT OF APPEAL

FREDRICK OZIAKPONO OHO JUSTICE, COURT OF APPEAL

MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL

PARTIES

NPG PROPERTIES & CONST. WORKS LTD  – APPELLANT

 

APPELLANTS

ZENITH BANK PLC – RESPONDENT

 

RESPONDENTS

AREA(S) OF LAW

APPEAL, BANKING, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, FUNDAMENTAL RIGHT, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

The appellant, an incorporated/registered company, engaged in the business of property development and construction, is/was a current account customer of the respondent, a licenced financial banking institution, at its Challenge Branch, Ibadan, Oyo State. Sometime in April, May and June, 2016, the appellant attempted to effect a transfer of fund from its account with the respondent on line but could not access its account. On enquiry, it was informed that the respondent placed post no debit on the account from 1^st February, 2016. The Appellant was not informed of the development in any manner as it continued to receive alerts on the status of the balance on the account. There was no order of court to deny it access to the account. The respondent refused to lift the restriction despite protest letter from the appellant. The appellant’s funds in the restricted account were earmarked for business matters and the post no debit on it, without due process of law, caused colossal damage to its business operations. Sequel to that, the appellant besieged the lower court.

In reaction, the respondent, upon service of the processes on it, joined issue with the appellant and denied liability. They disclosed that the post no debit restriction on the appellant’s account was based on the request of the Economic and Financial Crimes Commission (EFCC) in its letter of 1^st February, 2016 to the respondent.

In a considered judgment, the lower court dismissed the application. The appellant was dissatisfied with the decision hence the instant appeal.

 

HELD

Appeal allowed in part

 

ISSUES

Ø Whether the Respondent breached the Appellant’s Fundamental Right as provided for under the law by placing a Post No Debit (PND) on the account of the Appellant without following the due process?

RATIONES DECIDENDI

FUNDAMENTAL RIGHTS – HISTORY, MEANING, AND ESSENCE OF FUNDAMENTAL RIGHTS

By way of prefatory remarks, fundamental rights have been defined as “the rights one holds by virtue; solely of being human person, that is to say, right naturally inhering in the human being”, Prof. B. O. Nwabueze, Constitutional Democracy in Africa Vol. 3 (Ibadan: Spectrum Book Ltd., (2004) 1. They are “rights attaching to man as a man because of his humanity”’ Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 53 at 589, per Oputa, JSC. They have been described as standing above ordinary laws of the land and a primary condition for a civilised existence, Kuti v. A. –G. Fed. (1996) 41 LRCN 200; Odogwu v. A. –G., Fed. (1996) 9-10 SCNJ 51. Thus, they occupy a kingly position in the residence of human rights. Fundamental rights fall within the specie of negative rights as against positive rights: economic, social, cultural and environmental rights – A Borokinu “The impact of Military Rule on Fundamental Human Rights in Nigeria” in Okpara Okpara (ed) Human Rights, Law and Practice in Nigeria, vol. 1 (Enugu: Chenglo Ltd., 2005) 353. Entrenchment of fundamental rights provisions in the Nigeria Constitutions traces its paternity to the Willink’s Commission of 1957: C. C. Nweze, JSC, The New Regime of Human Rights Litigation in Nigeria: Old Rights; New Enforcement Strategies in C. C. Nweze, A. J. Offiah and A. O. Mogboh (Jnr) (eds.), Beyond Bar Advocacy: Multidisciplinary Essays in Honour of Anthony Okoye Mogboh, SAN (Umuahia: Impact Global Publishers Ltd., 2011) 394.   The evolution of fundamental rights was “greatly influenced by the European Convention for Protection of Human Rights and Fundamental Freedoms…which, in turn, was influenced by the United Nations’ Universal Declaration of Human Rights of 1948”, see Nweke v. State (2017) 15 NWLR (Pt. 1587) 120 at 144 per Nweze, JSC; Kalejaiye v. L.P.D.C. (2019) 8 NWLR (Pt. 1674) 365.

Fundamental rights are now sheltered in Chapter IV which encompasses sections 33-45 of the Constitution, as amended. Section 46 of the Constitution, as amended, allocates to every citizen whose fundamental right is, or being, harmed, even quia timet, to approach the court to prosecute his complaint and obtain redress, see Sea Trucks (Nig.) Ltd. v. Anigboro (2001) 2 NWLR (Pt. 695) 159; Fajemirokun v. C. B. Nig. Ltd. (2009) 5 NWLR (Pt. 1135) 588; W.A.E.C. v. Adeyanju (2008) 9 NWLR (Pt. 1092) 270; Lafia Local Govt. v. Gov., Nasarawa State (supra); Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; Jack v. UNAM (2004) 5 NWLR (Pt. 865) 278; Gafar v. Government of Kwara State (2007) 4 NWLR (Pt. 1024) 375; Amale v. Sokoto Local Govt. (2012) 5 NWLR (Pt. 1292) 181; Jim-jaja v. C.O.P., Rivers (2013) 6 NWLR (Pt. 1350) 225; Denton-West v. Jack (2013) 15 NWLR (Pt. 1377) 205; Emeka v. Okoroafor (2017) 11 NWLR (Pt. 1617) 92; F.B.N. Plc. v. A.-G., Fed. (2018) 7 NWLR (Pt. 1617) 121; F.U.T., Minna v. Olutayo (2018) 7 NWLR (Pt. 1617) 176; EFCC v. Diamond Bank Plc (2018) 8 NWLR (Pt. 1620) 61; A. – G., Cross River Sate v. FRN (2019) 10 NWLR (Pt. 1681) 401; EFCC v. Reinl (2020) 9 NWLR (Pt. 1730) 489; Ihim v. Maduagwu (2001) 5 NWLR (Pt. 1770) 584. The accepted procedure for such a redress is encapsulated in the Fundamental Right (Enforcement Procedure) Rules, 2009, see Onyekwuluje v. Benue State Govt. (2015) 16 NWLR (Pt. 1454) 40. – Per O. F. Ogbuinya, JCA

BURDEN OF PROOF – STANDARD AND BURDEN OF PROOF OF BREACH OF FUNDAMENTAL RIGHT OF A CITIZEN

Nota bene, the burden of proof (onus probandi) of breach of fundamental right of a citizen resides in an applicant, id est, the appellant in this appeal, see Fajemirokun v. C.B. Nig. Ltd (supra); Lafia Local Govt. v. Gov., Nasarawa State (supra); Jim-Jaja v. C.O.P, Rivers State (supra). The standard of proof is on the balance of probability or preponderance of evidence, see Arowolo v. Olowokere (2012) All FWLR (Pt. 606) 398. – Per O. F. Ogbuinya, JCA

INTERPRETATION – INTERPRETATION OF STATUTES WHERE THE WORDS ARE CLEAR

It is an elementary law, known for its antiquity, that where the words of a statute are clear, they should be accorded their ordinary grammatical meaning without garnishing them with any lexical embroidery that will render them susceptible to convolution. – Per O. F. Ogbuinya, JCA

EFCC – POWERS OF AND THE PROCEDURE FOR EFCC TO ISSUE AN ORDER

It is decipherable from the clear phraseology and tenor of the prescription of section 34(1) of the EFCC Act, chronicled above, that the Chairman of EFCC, or any of its authorised/delegated staff, has to “apply to the Court ex parte for power to issue an order” to stop outward payments or operations of any account of a person who is under the crucible of criminal investigation pursuant to its powers under section 7 of the EFCC Act. By the same token, the provision, on the footing of its title, is dedicated to freezing order on financial institutions. To this end, it, to all intents and purposes, holds a premier position in the sphere of procurement of an order for freezing of account of suspects under investigation save in the presence of Constitutional provision. In an ample demonstration of its supremo in this regard, its legislator/draftsman employed, at this cradle, the phrase: “Notwithstanding anything contained in any enactment or law”. Notwithstanding is, usually, intended to express a clear intention to exclude any impinging/impeding effect of any other provision in a legislation so that the provision it introduces will fulfil itself. Therefore, the import of the word, “notwithstanding”, a phrase of exclusion, is that the section supersedes, controls, and overrides all other provisions of a legislation, see Olatunbosun v. Niger Council (1988) 1 NSCC 1025; A.G., Fed. v. Abubakar (2007) 8 NWLR (Pt. 1035) 117; Ugwuanyi v. Nicon Ins. Plc. (2013) 11 NWLR (Pt. 1366) 546; Adebayo v. PDP (2013) 17 NWLR (Pt. 1383) 1; A.-G., Lagos State v. A-G., Fed. (2014) 9 NWLR (Pt. 1412) 217; Cocacola (Nig)Ltd v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74; Ehindero v. FRN (2018) 5 NWLR (Pt. 1612) 301; A.-G., Bauchi State v. A.-G. Fed. (2018) 17 NWLR (Pt. 1648) 299.

It flows that by the deployment of the word“Notwithstanding”, a preposition, at the terminus a quo of the provision, every other kindred legislations on the point must bow to its superiority vis-à-vis the obtainment of order of court for freezing of account of citizens. – Per O. F. Ogbuinya, JCA

PROCEDURE – WHERE A STATUTE PRESCRIBES A PROCEDURE FOR PERFROMING ANY ACT

The settled position of the law, in the days of the yore, is that where a statute prescribes a method, procedure or condition for performing any act or thing, that made or pre-condition must be satisfied and followed stricto sensu . A court must interpret such a provision. Strictissimi juris, in the strictest manner. In this wise, once there is a tinge of breach of the method or procedure, the act or thing is mired in the quickened of nullity, see Onochie v. Odogwu (2006) 6 NWLR (Pt. 975) 65; N.S.I.T.F.M.B. v. Klifco Nig. Ltd (2010) 12 NWLR (Pt. 1211) 307; Wada v. Bello (2016) 17 NWLR (Pt. 1542) 374; SPDC (Nig.) v. Agbara (2019) 6 NWLR (Pt. 1668) 310; Mekwunye v. WAEC (2020) 6 NWLR (Pt. 1719) 1. – Per O. F. Ogbuinya, JCA

ORDER – MEANING OF AN ORDER

An order denotes “a mandate; precept; command or direction authoritatively given, rule or regulation, direction of a court or Judge made or entered in writing and not included in a judgment”, see Maideribe v. FRN (2014) 5 NWLR (Pt. 1399) 68 at 91 per Mohammed, JSC, (later CJN). It is a rudimentary law that once a word or phrase/expression is judicially defined, either by case-law or statute, it takes that meaning judicially assigned to it and drops/sheds its erstwhile technical or ordinary meaning it owned before, see Dapianlong v. Dariye (2007) 8 NWLR (Pt. 1036) 322; Shettima v. Goni (2011) 18 NWLR (Pt. 127) 413; A.-G, Fed. V. A.-G., Lagos State (2013) 16 WLR (Pt. 1380) 249; Ardo v. Nyako (2014) 10 NWLR (Pt. 1416) 5915); Utomudo v. Mil. Gov., Bendel State (2014) (2014) 11 NWLR (Pt. 1417) 94.

It is discernible from the connotation of an order, warehoused in an ex cathedra authority supra that wears the insignia of finality, that a direction must necessarily come from a court or a Judex. Indubitably, it is a court that is equipped with the monopoly and prerogative right to issue an order which, in the eyes of the law, embraces a direction. In other words, a direction, as engraved in section 34(4) (b) of the EFCC Act, must trace its paternity to a court or Judge in order to gain any legitimacy in the spirit of the entire provision. The reason is not far-fetched. It is a recognised canon of interpretation of laws, beyond any peradventure of doubt, that provisions of legislations are construed holistically in order to garner or reach at the intention of the legislature. That is to say, provisions of enactments are not to be subjected to fragmentary interpretation. Thus, mutually-related provisions and sections are married together so as to glean the intent of the law maker, see Oyeniran v. Egbetola (1997) 5 SCNJ 94; Matari v. Dangaladima (1993) 2 SCNJ 122; A-G., Fed. v. A-G, Abia State (2005) 12 NWLR (Pt. 940) 452; NPA Plc v. Lotus Plastics (2005) 19 NWLR (Pt. 595) 158; Odutola Holdings Ltd. v. Ladejobi (2006) 12 NWLR (Pt. 994) 321; Ugwu v. Ararume (supra); Bakare v. NRC (2007) 17 NWL:R (pt. 1064) 606; Nigerian Army v. Aminu Kano (2008) 5 NWLR (Pt. 1188) 429; Okonkwo v. Okonkwo (2010) 14 NWLR (Pt. 1213) 258; Abegunde v. O.S.H.A (supra); Nobis Elendu v. INEC (2005) 16 NWLR (Pt. 1845) 197; Akpamgbo-Okadigbo v. Chidi (No.1) (2015) 10 NWLR (Pt. 1466) 171; PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219. Indubitably, sections and paragraphs of sections must be read together, not in isolation. The reason is obvious. Paragraphs are complimentary to and explain the meaning and scope of a section or subsection, see Mobil Oil (Nig.) Plc. v. IAL 36 INC. (2000) 6 NWLR (Pt. 659) 146. It stems from the foregoing juridical survey, that a communal interpretation of the provision of section 34 of the EFCC Act, clearly, demonstrates that a direction, which is housed in the canopy of an order, must owe its ancestry to a court or Judge, in order to accord it desired the stamp of legality in relation to the implementation and enforcement of the provision. Short of that, such a direction will be drained of any legal parentage with its caustic legal consequences.– Per O. F. Ogbuinya, JCA

INTERPRETATION – THE DUTY OF THE COURT IN INTERPRETING LEGISLATIONS

The law tasks and imposes on the court the bounden duty to interpret a legislation in a manner that ensures that its mission is accomplished. In this regard, it must bear in mind, like a badge on its shoulder, that a law must not be construed to deflate/destroy its purposes. In the Latin days of the law, it was couched: Utres magis valeat quam valeat- that a matter may have effect rather than fail, see F.C.S.C. v. Laoye (1989) 2 NWLR (Pt. 106) 652; Onochie v. Odogwu (2006) 6 NWLR (Pt. 975) 65; Elebanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76; Olalomi Ind. Ltd. v. N.I.D.B. Ltd. (2009) 16 NWLR (Pt. 1167) 266; A.- G., Fed., v. A-G, Lagos (2013) 16 NWLR (Pt. 1380) 249; A.-G., Nasarawa State v. A.-G., Plateau State (2012) 10 NWLR (Pt. 1309) 419; Abegunde v. O.S.H.A (supra); Gov., Kwara State v. Dada (2011) 14 NWLR (Pt. 1267) 384; Amadi v. INEC (2013) 4 NWLR (Pt. 1345) 595; Dickson v. Sylva (2017) 8 NWLR (Pt. 1567) 167; Skye Bank Plc v. Iwu (2017) 16 NWLR (Pt. 1590) 24. As already noted, the principal aim of section 34 of the EFCC Act is not to foreclose the operation of an account of a suspect without the imprimatur of a court of law. Per contra, its purpose is to freeze an account of a culprit under investigation with the leave of a court of law by dint of an ex parte order. It will be doing serious violence to its object to apply the construction propounded by the respondent. I refuse the inviting solicitation so that its target will not vaporize, into the thin air, or perish in the womb of injustice. – Per O. F. Ogbuinya, JCA

SECTION 44 OF THE CONSTITUTION – EXERCISE OF THE RIGHT IN SECTION 44 OF THE CONSTITUTION

…section 44 (1) of the Constitution, as amended…

44-(1) No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things.

The provision has fallen for construction, in a flood of cases, see La Wari Furniture & Baths Ltd v. FRN (2019) 9; NWLR (1677) 262; Jonathan v. FRN (2019) 10 NWLR (PT. 1681) 533.

In order to emasculate the appellant’s claim, the respondent invented the defence in section 44 (2) (k) of the Constitution, as amended, videlicet:

(2) Nothing in subsection (1) of this section shall be construed as affecting any general law –

(k) relating to the temporary taking possession of property for the purpose of examination, investigation or enquiry. Incontestably, the exercise of the right donated in section 44(1) supra is flexible. Its elasticity is located in subsection (2) which encompasses (2) (k) displayed above. Put differently, a citizen’s right in subsection (1) is not absolute. It is a qualified right which is amenable to erosion by the circumstances enumerated in subsection (2), see La Wari Furniture & Baths Ltd v. FRN;Jonathan v. FRN (supra) – Per O. F. Ogbuinya, JCA

FUNDAMENTAL RIGHT – WHEN A PARTY ESTABLISHES AN UNJUSTIFIED DEPRIVATION OF HIS FUNDAMENTAL RIGHT – COMPENSATION

It is now, firmly, propagated by the case-law that a party who establishes an unjustified deprivation of his fundamental right is entitled, ex debito justitiae, to compensation in the form of damages, see Odogwu v. A.-G Fed. (supra); Jim-Jaja v. C.O.P., Rivers State (supra); F.B.N. Plc. v. A.-G., Fed (2018) 7 NWLR (Pt. 1617) 121. The word “entitled,” connotes “to give (a person or thing) a title, right or claim to something; furnish with grounds for laying claim”, see F.BN Plc. v. A.-G, Fed. (supra) at 149, per Augie, JSC. Compensation is coterminous with damages which signify: “the pecuniary compensation which the law awards to a person for the injury he has sustained by reason of the act or default of another, whether that act or default is a breach of contract or a tort” or “the recompense given by process of law to a person for the wrong that another has done him,” see F.B.N. Plc v. A.-G, Fed. (supra) at 174, per Okoro, JSC. In Jim-Jaja v. C.O.P, Rivers State (supra), at 254, Muntaka-Coomassie, JSC, opined:

The appellant’s claim is in connection with the breach of his fundamental rights to his liberty by the respondents. The onus is on him to show that he was unlawfully arrested and detained i.e that his fundamental right has been violated, If this is proved, by virtue of the provisions of Section 35(6) of the 1999 Constitution Federal Republic of Nigeria, the complainant is entitled to compensation and apology, where no specific amount is claimed. Where a specific amount is claimed, it is for the court to consider the claim and in its opinion, the amount that would be justified to compensate the victim of the breach. In this respect, the common law principles on the award of damages do not apply to matter brought under the enforcement of the Fundamental Human Rights procedure…. The procedure for the enforcement of the Fundamental Human Right was specifically promulgated to protect the Nigerians; fundamental rights from abuse and violation by authorities and persons. When a breach of the right is proved, the victim is entitled to compensation even if no specific amount is claimed. If flows that once a party proves that his fundamental right is tampered with, even in an infinitesimal measure, or likely to be trampled on, quia timet, he is a qualified candidate for recompense and apology in deserving cases. The fundamental right proceeding is sui generis as it is “a peculiar and special action provided for in the Rules”, Onyekwulaje v. Benue State Govt. (2015) 16 NWLR (Pt. 1484) 40 at 83, per Peter-Odili, JSC. No wonder, the law has directed the courts to display activism and dispatch in determining fundamental rights action, see Fidelity Bank Plc. v. Monye (2012) 10 NWLR (Pt. 1307) 1; Lafia Local Govt. v. Gov., Nasarawa State (2012) 17 NWLR (Pt. 1328) 94; Benson v. C.O.P. (2016) 12 NWLR (Pt. 1524) 445. In the same.,vein, the law grants an unbridled licence to the court to jettison and expel all obstacles parading the terrain of enforcement of fundamental right, see FUT, Mina v. Olutayo (2018) 7 NWLR (Pt. 1617) 176; Ihim v. Maduagwu (2012) 5 NWLR (Pt. 1770) 562. – Per O. F. Ogbuinya, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. African Charter on Human and Peoples Rights (Ratification and Enforcement) Act LFN 2004
3. Money Laundering (Prohibition) Act, 2011
4. Economic and Financial Crimes Commission (Establishment) Act, Cap. E1, LFN, 2004
5. Evidence Act, 2011
6. Banks and Other Financial Institutions Act, 1991 as amended, 1991 No. 25
7. Court of Appeal Act

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