(2021) Legalpedia (CA) 31150
In the Court of Appeal
HOLDEN AT ABUJA
Friday, February 19, 2021
Suite Number: CA/A/302/2016
STEPHEN JONAH ADAH
BIOBELE ABRAHAM GEORGEWILL
ECONOMIC AND FINANCIAL CRIMES COMMISSION
AREA(S) OF LAW
CRIMINAL LAW AND PROCEDURE
PRACTICE AND PROCEDURE
SUMMARY OF FACTS
By an originating Motion on Notice filed before the High Court of the Federal Capital Territory, Abuja, the Appellant as Applicant sought to enforce his fundamental rights against the Respondent claiming the following reliefs namely; a declaration that the arrest and detention of the Applicant by the Respondent for failure to pay up/refund some money owed to one Mr. Femi between 10am of 9/4/2015 to 3pm of 10/4/2015 was illegal and unconstitutional as it violates the Applicant’s rights to personal liberty and freedom of movement under Sections 35 and 41 respectively of the 1999 Constitution (as amended), Articles 6 and12 of the African Charter on Human And Peoples Rights(Ratification and Enforcement) Act, Cap. A9, Laws of the Federation of Nigeria, 2004; a declaration that the further frequent threats of arrest and detention of the Applicant by the Respondent for failure to pay up/refund some money owed to one Mr. Femi is illegal and unconstitutional as it violates the Applicant’s rights to personal liberty and freedom of movement under Sections 35 and 41 respectively of the 1999 Constitution (as amended! Articles 6 and12 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap. A9, Laws of the Federation of Nigeria, 2004, amongst other reliefs. In support of the Motion on Notice, the Appellant filed an affidavit of 42 paragraphs deposed to by the Appellant, annexed to which are some documentary Exhibits A, B and C. In response, the Respondent filed a counter affidavit of 8 paragraphs deposed to by one Hamidu Waziri, an Operative with the Respondent, annexed to which are some documentary Exhibits EFCC 1 and EFCC 2. The matter proceeded to hearing on the affidavit and counter affidavit evidence and written addresses of the parties and the Court below delivered its Judgment in which all the claims of the Appellant against the Respondent were dismissed, hence this Appeal.
Issues Of Determination
Whether the Appellant proved by credible evidence any breach of any of his constitutionally guaranteed fundamental rights against the Respondents and was therefore, entitled to the grant of all or any of the reliefs sought against the Respondent?
APPEAL – EFFECT OF FAILURE OF A PARTY TO RESPOND TO THE ARGUMENT OF AN ADVERSE PARTY IN AN APPEAL
“I am aware that the Respondent, though duly served with all the processes in this appeal, including hearing notice of the hearing of this appeal, neither filed any Respondent’s brief nor participated at the hearing of this appeal. Ordinarily, in law the failure of the Respondent to make any counter submission in this Appeal would simply amount to a concession. This is so because where one party is duly served with the arguments of the adverse party and he fails or neglects or refuses to respond to the said arguments as proffered by the adverse, it would be taken that he has conceded to the arguments of the adverse. See Dr. Arthur Nwankwo & Ors V. Alhaji Uniaru Yar’Adua & Ors (2010) 12 NWLR (Pt. 1209) 518, where the Supreme Court per Onnoghen JSC., (as he then was but later CJN) had held inter alia thus: “It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue is not so contested and is deemed conceded by the defaulting party.” See also Ahmed V. Ahmed (2013) 41 WRN 1; Dairo V. Aderinoye (2013) 50 WRN 111”.
APPEAL – WHETHER THE FAILURE OF ONE PARTY TO COUNTER THE ARGUMENTS OF THE OTHER PARTY CONFER MERIT ON THE ARGUMENTS OF THE PARTY
“However, notwithstanding the above position of the law, I am aware that it is also the law that where an issue raised by one party is not countered by the adverse party, it does not automatically follow that such arguments are to be taken hook, line and sinker as correct by the Court. Thus the failure of one party to counter the arguments of the other party alone does not ipso facto without more confer merit on the arguments of the party as the Court is still under a duty to consider the arguments on their own merit. See Adah V. NYSC(2004) 13 NWLR (Pt. 891) 639. See also Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80; Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80; Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450; Elelu Habeeb V. AG. Fed. (2012) 13 NWLR (Pt. 1318) 423; Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121.
RIGHT TO PERSONAL LIBERTY – WHAT AMOUNTS TO “REASONABLE TIME” UNDER SECTION 35(4) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
“Now, by Section 35(1)(C) of the Constitution of Nigeria 1999 (as amended), it is provided thus: “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 a procedure permitted by law: – (C), for the purpose of bringing him before a Court in execution of the Order of Court or upon reasonable suspicions of his having committed a Criminal Offence or to such extent as may be reasonably necessary to prevent his committing a Criminal Offence” However, by Section 35(4) and (5) of the Constitution of Nigeria 1999 (as amended), it is provided thus: 35(4): Any person who is arrested or detained in accordance with sub – section 1 (C) of this Section shall be brought before a Court of Law within a reasonable time…. 35(5): In sub – section 4 of this Section, the expression ‘a reasonable time’ means – In the case of an arrest or detention in any place where there is a Court of competent jurisdiction within a radius of 40 Kilometres, a period of one day, and In any other case, a period of two days or such longer period as in the circumstances may be considered by the Court to be reasonable.
BAIL –CONDITIONS FOR THE GRANT OF BAIL – SECTION 31(1) OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT 2015
“In relation to bail conditions, by Section 31(1) of the Administration of Criminal Justice Act 2015, it is provided thus: “Where a Suspect is taken into custody, and it appears to the officer that the enquiry into the case cannot be completed forthwith, he may discharge the Suspect on his entering into recognizance, with or without sureties for a reasonable amount, to appear at the Police Station and at such times as are named in the recognizance”
INFRINGEMENT OF FUNDAMENTAL RIGHTS – RIGHT OF A PARTY WHO ALLEGES AN INFRINGEMENT OF HIS FUNDAMENTAL RIGHTS
“In order to ensure the efficacy of and facilitate the enforcement of these provisions safeguarding the right of the citizen to liberty and freedom from unlawful and unwarranted arrest and detention beyond the lawful period, by Section 46(1) of the Constitution of Nigeria 1999 (as amended),it is provides thus: “Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that state for redress.” The above was further reinforced by the provision of Order II Rule 1 of the Fundamental Rights Enforcement (Civil Procedure) Rules 2009,which provides thus: “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 is likely to be infringed may apply to the Court in the State where the infringement occurs or is likely to occur, for redress” The law is that an infringement or threatened or likely infringement of the right to personal liberty of the citizen, unless lawfully justified, is not only enforceable but would if proved amount to an unconstitutional act or omission for which a citizen whose right to personal liberty is so infringed upon or threatened to be infringed or is likely to be infringed is entitle to the protection of the law by way of a grant of his reliefs claimed for such actions or omissions against the offending party. See Fawehinmi V. IGP (2002) 7 NWLR (Pt. 767) 606.
RIGHT TO PERSONAL LIBERTY- IS THE RIGHT TO PERSONAL LIBERTY ABSOLUTE?
“However, the right to personal liberty, like it is with every other rights including the right to life, the most sacrosanct right of all to the human being, is not absolute and can as permitted by law be derogated from. Thus, in all or any of the circumstances spelt out in sub – section (C) of Section 35(1) of the Constitution of Nigeria 1999 (as amended), the right to personal liberty of the citizen may justifiably and lawfully be derogated from. See Alhaji Aliyu N. Salihu V. Suleiman Umar Gana & Ors (2014) LPELR – 203069 (CA).
POWER OF THE ECONOMIC AND FINANCIAL CRIMES COMMISSION – WHETHER COURTS ARE EMPOWERED TO INTERFERE WITH THE LAWFUL EXERCISE OF THE FUNCTIONS AND POWERS OF THE ECONOMIC AND FINANCIAL CRIMES COMMISSION
“My lords, by Section 6(b) of the EFCC Act 2004, it is provided that the EFCC shall be responsible for: “The investigation of all financial crimes, including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, future market fraud, fraudulent computer credit card fraud and contract scam, etc.” And by Section 6(h) of the EFCC Act 2004, it is further provided as follows: “The examination and investigation of all reported cases of economic and financial crimes with a view of identifying individuals, corporate bodies or groups involved.” Now, these are no doubt very enormous powers conferred upon the EFCC by law with the discretion to use same in the performance of its duties, which includes the power to arrest and detain in the course of investigation or to prevent and detect crime and truly the courts are wary of interfering with the lawful exercise of these functions, duties and powers of the EFCC except in clear cases of infringement on the rights of citizen as enshrined in Chapter IV of the Constitution of Nigeria 1999 (as amended). See Fawehimi V. IGP (2005)1 NCC 415; Aigbadion V. The State(2000) 7 NWLR (Pt 666) 686.
POWER TO ARREST – WHETHER THE ECONOMIC AND FINANCIAL CRIMES COMMISSION HAS THE POWER TO ARREST A PERSON UPON REASONABLE SUSPICION OF HIS HAVING COMMITTED A CRIMINAL OFFENCE
“Thus, constitutionally, the EFCC has the power to arrest a person upon reasonable suspicion of his having committed a criminal offence or to prevent him from committing one or where an officer of the law enforcement agency reasonably believes that such a person has committed a criminal offence. In all such cases however, the test of reasonable suspicion is objective and not subjective. See COP V. Obolo (1989) 5 NWLR (Pt. 120)130; Jackson V. Omonikuna (1981) NLR 283. However, it must be pointed out at once that the discretionary powers of the EFCC to arrest and detain a Citizen is neither left at large nor a carte blank cheque for indiscriminate and unwarranted arrest and detention of the Citizen without any reasonable grounds for suspecting that the Citizen had or was about to commit an offence known to law and thus these powers are clearly circumscribed by the provisions of Section 35 of the Constitution of Nigeria 1999 (as amended) and all such other laws providing for the protection of the rights of the Citizens to their personal liberty and dignity of the human person amongst other fundamental rights of the Citizen.
POWER OF THE ECONOMIC AND FINANCIAL CRIMES COMMISSION – WHETHER THE POWERS OF THE ECONOMIC AND FINANCIAL CRIMES COMMISSION INCLUDES THE COLLECTION OF DEBT
“It is true that notwithstanding enormous powers and duties conferred by law on the EFCC, the Respondent, under the EFCC Act 2004 and all such other laws enabling it in that behalf, the EFCC is not saddled with the authority to interfere with and meddle into disputes of purely civil nature between Citizens in contracts of which the law Courts are best suited and appropriately empowered by the Constitution of Nigeria 1999 (as amended) to deal with as they are presented before the Courts by such parties. In other words, and simply put, it is neither the duty nor the power or function of the EFCC to serve as agents of any person, be it an individual or a corporate citizen or even of Government at either the Federal or State or Local Government level, to collect debts from debtors, under any guise or pretext of investigating a crime in a purely civil dispute without any tinge of criminality. See Jim – Jaja V. Commissioner of Police (2011) 2 N.W.L.R (Pt. 1231) 375. See also Omman .V. Ekpe (2000) 1 NWLR (Pt. 641) 365; Jim Jaja V. COP &Ors (2013) 6 NWLR (Pt. 1350) 225; Arab Contractors Nigeria Ltd V. Gillian Umanah (2013) All FWLR (Pt. 683) 1977 @ p. 1990; Igwe V. Eze Anuchie (2010) 7 NWLR (Pt. 1192) 61; Agbai V. Okogbue (1991)7 NWLR (Pt. 204) 391; Oteri V. Okorodudu (1970) All NLR 199; Mclarence V. Jennings (2003) 3 NWLR (Pt. 808) 470; Afribank Nig Plc V. Onyima (2004) 2 NWLR (Pt. 858) 654; Anogwie & Ors V. Odom &Ors (2016) LPELR – 40214(CA).
RIGHT TO PERSONAL LIBERTY – WHETHER THE INVITATION, ARREST AND INVESTIGATION OF A PARTY BY THE ECONOMIC AND FINANCIAL CRIMES COMMISSION AMOUNTS TO A BREACH OF HIS RIGHT TO PERSONAL LIBERTY
The Appellant has no immunity in law from being investigated for allegation of committing any criminal offence. His right to personal liberty was therefore, as rightly found by the Court below not breached or threatened or likely to be breached merely by reason of his invitation, arrest and investigation for the criminal offences alleged against him by his business associates. Indeed, the Respondent has the undoubted powers to intervene and carry out its investigation as it did and therefore, it committed no wrong by so doing in the circumstances of this case. The Court below was therefore, right when it so held and it is not the business of, as it is also not the habit of, this Court to interfere with and disturb the correct findings of the Court below. See Section 35(1)(C) of the Constitution of Nigeria 1999 (as amended). Sea also Alhaji Aliyu N. Salihu V. Suleiman Umar Gana & Ors (2014) LPELR – 203069 (CA).
LEGAL CAPACITY TO STAND AND ACT AS A SURETY – EFFECT OF DISCRIMINATION OF A FEMALE TO STAND OR ACT AS A SURETY
“In law there is and should be no discrimination between the male and female sexes as to the legal capacity to stand and act as surety to a Suspect or an Accused person granted bail either by the law enforcement agencies or by the Court. Thus, any proven act of discrimination by way of rejection of a surety merely on account of her sex, being a female, will be unconstitutional and such rejection must be set aside while any such act of discrimination should be shut down and condemned. This is so because there is no legal basis for denying a female, on account of her being a female only, from standing or acting as a surety to a Suspect under detention by any law enforcement agencies or an Accused person under trial in Nigeria and any such practice is illegal and unconstitutional. It has no place in our laws! See Section 42 (1) (a) of the Constitution of Nigeria 1999 (as amended), which provides as follows: “42(1): A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person – Be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the Government, to disabilities or restrictions to which citizen of Nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinions are not made subject.”
“In law, proof can be used in either of two senses, namely; the establishment and refutation of an alleged fact by evidence and also as evidence that determines the decision of a Court. It is he who asserts that must prove. Thus, it is the party that asserts the existence of a particular fact that must prove it, and if he fails to prove that fact, his case will collapse. See Blacks Law Dictionary, 2nd Edition. See also Section 131 (1) of the Evidence Act. See further IGN (Nig.) Ltd &Anor V. Pedmar (Nig.) Ltd &Anor(2013) LPELR – 41064(CA).
DOCUMENTARY EVIDENCE – PROOF OF FACT BY DOCUMENTARY EVIDENCE
“In law a fact capable of being proved by documentary evidence should be so proved and also where documentary evidence supports oral or affidavit evidence, such oral or affidavit evidence, particularly were denied by the adverse party, becomes more credible, since in law documentary evidence whenever available is used as a hanger from which oral evidence is assessed. See Ndayako V. Mohammed (2006) 17 NWLR (Pt. 1009) 655. See also Kimdey V. Military Gov. of Gongola State (1988) 2 NWLR (Pt. 77) 445.
BAIL – WHETHER THE FAILURE OF A SUSPECT TO PERFECT HIS BAIL CONDITION CAN RENDER A DETENTION UNLAWFUL
“In law, when a person is arrested by a law enforcement agency, the granting of bail may be with or without sureties. Thus, where a Suspect is taken into custody, and it appears to the Officer that the enquiry into the case cannot be completed forthwith, he may discharge the Suspect on his entering into recognizance, with or without sureties for a reasonable amount, to appear at the Police Station and at such times as are named in the recognizance. It follows therefore, where a Suspect, such as the Appellant, though entitled to bail, is granted bail and the bail conditions include the production of sureties, failure by him to meet or perfect the bail condition for his release from detention, would not ipso facto render such a detention illegal and unconstitutional. In my view, such a failure by a Suspect to meet and or perfect the conditions of his bail resulting in his continued detention cannot be regarded or treated as an act or fault attributable to the arresting authority unless it is shown that the bail conditions were unreasonable and merely intended to punish the Suspect and to continuously keep him in detention. In other words, so long as the conditions for bail is not unreasonable and the Suspect fails to meet or perfect the bail conditions, his continued detention awaiting when he meets and perfects the bail conditions or when he is charged to Court, cannot ipso facto render such a detention unlawful.
CRIMINAL INVESTIGATION – WHETHER COURTS ARE EMPOWERED TO PREVENT THE ECONOMIC AND FINANCIAL CRIMES COMMISSION FROM INVESTIGATING A CRIME
“My lords, in the circumstances of this Appeal, it may be apt to point it out at once here and now that whilst performing its legitimate duties, no Court of law has the power to stop the EFCC from investigating a crime and therefore, no person against whom there is a reasonable suspicion of having committed an offence or likely to commit an offence would be granted any relief capable of shielding him against criminal investigation and prosecution since no citizen has any right to be an outlaw under the laws of this country. See Atakpa V. Ebetor (2015) 3 NWLR (Pt. 1447) 549 @ p. 558. See also IGP V. Ubah (2015) 11 NWLR (Pt. 1472) 405 @ p. 413; Nzewi V. COP (2000) 2 HRLR 156 @ p. 159; Badejo V. Minister of Education (1996) 8 NWLR (Pt. 464) 15 @ p. 19; Hassan V. EFCC (2014) 1 NWLR (Pt. 1389) 607 @ p. 613; Gani Fawehinmi V. IGP (2002) 7 NWLR (Pt. 767) 606; AG. Anambra State V. Uba (2005) 15 NWLR (Pt. 947) 44; ChristliebPlc V. Majekodunmi (2008) 16 NWLR (Pt. 1113) 324; Onah V. Okenwa (2010) 7 NWLR (Pt. 1194) 512; Amaechi V. INEC (2008) 5 NWLR (pt. 1080) 227 @ p. 252.
COURT – DUTY ON COURTS TO PROTECT CITIZENS FROM UNWARRANTED AND UNCONSTITUTIONAL INTERFERENCES BY LAW ENFORCEMENT AGENCIES OF THE GOVERNMENT
“However, it must also be pointed out at once here and now that in deserving cases the Court is under a duty to protect the citizen if so moved in a proper proceeding from the brazen breach of their fundamental rights and from unwarranted and unconstitutional interferences by law enforcement agencies of the Government. This is so because the rule of law is sacrosanct and paramount in every civilized democracies of the world, including Nigeria. The powers of the EFCC is undoubtedly quite enormous, making the responsible exercise of it all the more a sine quo non on the operative of the EFCC, and which powers must be exercised legitimately at all times within the ambit of the rule of law as enabled by the EFCC Act and all other relevant and applicable laws of the land. In Faith Okafor V. Lagos State Government & Anor (2016) LPELR – 41066 (CA) @ pp. 44 – 50, I had opined inter alia thus: “In my view….Those who govern must do so in compliance with the due process of law……To observe the laws in breach is to do havoc to the letter and spirit of the laws of the land…It is my view that democracy thrives more on obeying the rule of law rather than the whims and caprices of the leaders against the led…..The culture of impunity…..in the land which have been tolerated for far too long in this Country and has indeed run its full course must be stopped now.” See also Raymond Temisan Omatseye V. FRN (2017) LPELR – 42719 (CA) @ pp. 65 – 67 per Georgewill JCA.
STATUS(ES) REFERRED TO
Administration of Criminal Justice Act 2015|African Charter on Human And Peoples Rights (Ratification and Enforcement) Act, Cap. A9, Laws of the Federation of Nigeria, 2004|Constitution of Nigeria 1999 (as amended)|Economic and Financial Crimes Commission Act 2004|Fundamental Rights Enforcement (Civil Procedure) Rules 2009|
Ernest Nwoye Esq., with Mrs. Mercy Omanijo, for the Appellant|The Respondent, though duly served with hearing notice on 15/1/2021, did not participate at the hearing of this Appeal.|