Ubaka Victor Onyemelukwe[1] does a review of the
Supreme Court decision in Diamond Bank PLC v HRH Eze, Petrol
Contnental Nig. Ltd, and EFCC, arguing that the decision neither
punctures nor decimates the competence of the EFCC to scrutnize all
complaints including civil disputes, maters or transactons in order
to detect determine and establish the existence of a prima facie or
substantve violaton of criminal statutes enforceable by the
Commission, and in the event, criminal infracton is established ,
trigger its investgaton powers to interrogate the integrity of the
civil/contract arrangement.
Background
The 1st & 2nd Respondents as the applicants at the lower Court,
were customers of the Appellant bank since 1994. The relatonship
contnued untl 2003 when the 1st & 2nd Respondents suspected some
discrepancies in the management of their account with the
Appellant. They engaged a banking consultant to investgate their
claims, and it was allegedly discovered that the Appellant had
illegally over charged the 1st & 2nd Respondents, to a tune of
N10,776,921.19K, refund of which they demanded. The 1st & 2nd
Respondents though not convinced, mutually agreed with the
Appellant that the mater be referred to the Chartered Insttute of
Banker’ss Commitee on ethics and professionalism for arbitraton.
While the mater was pending at the arbitraton commitee, the
Appellant reported the 1st Respondent to the Financial Malpractces
Investgaton Unit (FMIU) of the Nigeria Police Force, CID Annex,
Lagos State.
Consequently, Policemen from Lagos State arrived Port Harcourt;
arrested and detained the 1st Respondent on 18th April, 2005. The
1st Respondent was not granted bail untl the Policemen made him pay
N2,000,000.00K to the Appellant.
The police further directed the 1st Respondent to appear before
them at Lagos on 10th May, 2005. In the mean tme, the 1st & 2nd
Respondents approached the
Federal High Court, Port Harcourt in suit no. FHC/PH/CS/385/2005
between H.R.H EZE (DR) PETER OPARA & 1 OR VS DIAMOND BANK & 4 ORS
for leave to apply for enforcement of their fundamental rights.
With the fundamental rights applicaton, FMIU police investgaton,
and Arbitraton proceedings at he Banking Ethics Commitee pending,
the Appellant stll proceeded to petton the EFCC afer instgatng the
arrest and detenton of the 1st Respondent with the
Police department. The EFCC proceeded to invite the 1st
Respondent for investgaton of the petton lodged by he
Appellant.
At the hearing of the fundamental rights applicaton suit, the
trial Court dismissed the applicaton and the reliefs therein to
wit:
- A declaraton that the invitaton of the 1st Applicant by the 2nd
Respondent at the behest of the 1st Respondent is unlawful and a
violaton of his fundamental right to liberty and dignity of his
person and a contnuaton of the harassment of the Applicants by the
1st Respondent in view of a pending acton in this Court in suit
no
FHC/PH/CS/385/2005 between the Applicants and Diamond Bank
Limited and 4 Ors.
- A declaraton that the 2nd Respondent by the enabling Act
establishing it, lacks the statutory Power to functon as a debt
collector on behalf of the 1st Respondent or anybody for that mater
in maters of commercial contract.
- An order of Court restraining the Respondents from disturbing
orInterfering with the right to liberty of the 1st Applicant
through further threat of invitaton ‘sarrest’s detenton, intmidaton
and unnecessary interrogaton or in any other way or manner
whatsoever.’s’s
Dissatsfied with the ruling of the Federal High Court, the 1st &
2nd Respondents appealed against that decision. The Court of Appeal
in its judgment allowed the appeal and granted all the reliefs. It
is against the decision of the Court of Appeal above, that the
Appellant appealed to the Supreme Court. The Supreme Court in its
judgment unreservedly reprimanded the Appellant bank and the
EFCC:
“From the foregoing, it is my view that the partes having
mutually agreed to refer the mater to the Chartered Insttute of
Banker’ss – sub-commitee on ethics and professionalism, the
Appellant should not have gone ahead to report the mater to
Financial Malpractces Investgaton Unit, force C. I. D. annex, Lagos
since the Banker’ss Commitee directed the partes to stay away from
any further acton pending the determinaton of her investgaton, and
this was clearly understood and agreed by both Partes. As if that
was not enough, the Appellant again reported the mater to the
Economic and Financial Crime Commission EFCC (3th Respondent). This
amounted to an abuse of process. It is important for me to
pause and say here that the powers conferred on the 3rd Respondent,
i.e the EFCC to receive complaints and prevent and/or fght the
commission of Financial Crimes in Nigeria pursuant to Secton 6(b)
of the EFCC Act (supra) does not extend to the investgaton and/or
resoluton of disputes arising or resultng from simple contracts or
civil transactons in this case. The EFCC has an inherent duty to
scrutnize all complaints that it receives carefully, no mater how
carefully crafed by the complaining party, and be bold enough to
counsel such complainants to seek appropriate/lawful means to
resolve their disputes. Alas! The EFCC is not a debt recovery
agency and should refrain from being used as
such…..I say this now and again, our security
agencies, partcularly the police, are not debt recovery
agencies.
ENDORSING THE SUPREME COURT DECISION
The ratonale behind the Supreme Court decision is grounded first
in common sense ever before it takes its root in law. The message
was clear and without any room for conjectures: all security
apparatus of government are outrightly forbidden by law from
extending the applicaton and enforcement of their powers to the
realm of civil transactons. In specific reference to the EFCC, the
investgatory and prosecutorial powers donated to the Agency by the
EFCC Act, cannot be competently appropriated to invoke the
jurisdicton conferred on the Agency in respect of economic and
financial crimes, on civil causes, maters, disputes arising from
purely commercial transactons.
It is my humble but respectul view that there exist in law
legitmate exceptons to the contrary. By virtue of secton 38
of the EFCC Act, the Commission is empowered to receive
pettons from members of the public alleging economic or financial
crime; and in line with the Supreme Court’ss chronological
descripton of the procedure for initatng a response to the petton
received, the EFCC is under obligaton to thoroughly determine and
scrutnize the petton NOT to principally ensure
that the mater rests in the realm of civil jurisdicton far from its
reach, but to determine if the actvity complained of has in the eye
of the law violated any criminal statute it is obligated to
enforce. This, the author respectully submits, consttutes the
benchmark for scrutnizaton of all pettons that come before it. This
is so because, inevitably, pettons on simple contracts, civil
disputes, and transactons under the guise of criminal complaints
will find their way to the Commission; the very fact that they
appear to be simple contracts or civil disputes so called, cannot
at this point oust the jurisdicton of the EFCC untl the
scrutnizaton process concludes that no provision of any criminal
statutes enforceable competently by the EFCC has been
violated. That remains the blueprint for detectng the
existence of a substantal infracton of the criminal laws.
APPLYING AND RECONCILING THIS DISTINCTION WITH THE
LAW
It is trite that civil contractual arrangements are an
expression of the element of choice of partes to freely bind
themselves on any specific mater. [Jukok Int’l Ltd v
Diamond Bank PLC (2016) 16 NWLR Pt 1507 55 (CA), Kolawole v L.A.O
Nig. Ltd(2016) 13 NWLR Pt 1529 274 CA]. Civil
contracts are ordinarily created to execute and accomplish a
predetermined objectve, and therefore, in the course of the
operaton and executon of the contract, certain acts or omission may
consttute breach of terms agreed. Whilst ordinary contractual
breach will not justfy the applicaton and enforcement of coercive
powers of the State, [Iheanacho v Nig Police Force
(2017) 12 NWLR Pt 1580; Mclarence v
Jennings (2003) 3 NWLR Pt 808 470; Afribank Nig plc v Onyima (2004)
2 NWLR Pt 858], certain other breaches would
either disclose prima facie or substantal criminal intent or
criminal actvity as the motvaton for the breach thereof,
perpetuated within the penumbra of the civil transacton; yet other
contracts may in their formaton , object or purpose, establish a
potental violaton of existng criminal law provisions,
thereby, justfying criminal interrogaton of the contract
arrangement. Below are circumstances that emphasize this
distncton.
- Ordinary Breach of contract or Non Criminal breach of contract:
here, the Supreme court decision applies absolutely as there is no
criminal intent that can be reasonably and prudently
established. - Criminal Breach of Contract or Breach of Contract with criminal
intent: here, the contract is ex-facie legal but the drafsman
contemplates that certain prohibited criminal acts/ofences will be
done in performance of a purely civil transacton, thus, ofences
like criminal conversion, criminal breach of trust, criminal
misappropriaton, Fraud, Obtaining by False Pretense can
conveniently be perpetuated within the precincts of the civil
contract. Here, respectully, the Supreme Court decision does not
apply. (West Constructon Co Ltd v Santos Batalha [2006]
9 NWLR Pt 986 595; [2006] 4 S.C Pt 1 88; Pat-Acholonu JSC [2006]
LPELR-SC.
168/2002, p.27 para A-F) ( John Shipping Corp v
Joseph Rank Ltd [1956] 1 ALL ER 683
- Contract to execute or accomplish illegal actvity proscribed by
statute (Illegal Contract/ Contract Ex- facie Illegal): here, any
act criminally proscribed in the statutes can be a subject mater of
a contract leaving the Supreme Court decision inapplicable. Thus,
there is no stressing the obvious that a civil contract arrangement
will be deemed illegal if its creaton or object, directly or
indirectly, is the commission of a criminal ofense known to law.
Under this category, contract to defraud the revenue: tax evasion
(Miller v Karlinski 1945 63 TLR 85);
commit a crime (Berg v Sadler&Moore 1937 2 KB 158;
1937 1 ALL ER 637) (Brown Jenkins Co ltd v Percy Dalton London ltd
1957 2 ALL ER 844). These type of contracts justfy
criminal interrogaton on the basis that they violate criminal
statutes and are transparently reprehensible judged by prudent
standards, and therefore are undeserving and unworthy of the
protecton and enforcement of law, but on the other hand, deserving
of criminal inquisiton.
- Frustraton of Contacts by the various lawfully recognized
means: here, the contract is frustrated and incapable of being
executed and therefore compromised, rendering it a breach of
contract if partes dispute that the other has made a legitmate
claim to invoke the principle due to unforeseen events . Here, the
Supreme Court decision applies but with the excepton that the toga
of illegality afectng the contract is manifested in an
unforeseeable event that legitmately frustrates the executon of the
contract. - Contractual breach that is both civil and criminal in nature:
here, the Supreme Court decision will not apply to deter the
Commission from setting its investgaton process in moton. However,
this may be subject to a temporary Court Order commanding the
maintenance of status quo which the EFCC is a party to or an order
of court directng the commission to maintain status quo in respect
of the mater pending a stated event.
From the above circumstances described as civil transactons, It
cannot be the intendment of the Supreme Court that the scrutnizaton
process of civil pettons so called is punctuated once they have
been so determined to be civil arrangements. For that understanding
will not only reveal its absurdity, it will disturb the long line
of precedent decisions in favour of the principle that an enabling
law deriving its legitmacy from the Consttuton cannot be construed
to defeat the obvious ends of justce or the mischief for which the
enabling legislaton was set in moton. (Ifezue v
Mbadugha & anor [1984] LPELR–1437
SC). Assuming but not conceding the absurdity, the
understanding will amount to the Supreme Court afrming the powers
of the Commission and in another breadth decimatng the very powers
it afrms as being already duly granted by law. It must be
contended that the investgatory powers of the EFCC will as a mater
of law extend to illegal civil contracts/transactons whose object,
purpose, performance or executon violates existng criminal law
provisions within the exclusive competence of the
Commission.
The Author afrms that the apex court decision is a consttutonal
reference point for the validaton of the statutory limits of the
applicaton of coercive enforcement powers of the State exercised
through the investgaton and prosecuton powers of the EFCC,
(Iheanacho v Nig Police Force supra),
but in the same vein, argues that the decision does not and
cannot decimate the competence of the EFCC to scrutnize complaints
including civil maters, disputes, or transactons, in order to
detect, determine and establish the existence of a prima facie or
substantve violaton of any criminal laws within her
jurisdicton, and in the event any criminal infracton known to law
is established, trigger her investgaton powers to interrogate the
integrity of the contract arrangement accordingly. However, in the
absence of any established criminal intent and actvity at the
conclusion of the scrutnizaton process of the civil
transacton, the EFCC is under legal obligaton to counsel
complainant to seek appropriate alternatve means outside the
criminal justce system to resolve the dispute. In conclusion, by
virtue of secton 17 of the Advanced Fee Fraud Act,
and sectons 21, 22, 24, 25, 26, 28, 29, & 30 of
the EFCC Act, the EFCC is permited by law to consttute
itself into an ASSET RECOVERY AGENCY against all assets,
monies, and propertes acquired in contraventon of extant criminal
laws, and to recover and return same to their rightul owners or to
the public purse.
Ubaka Victor Onyemelukwe is a Legal Practtoner in
Abuja.
[1] Ubaka Victor Onyemelukwe is a
Consttutonal Lawyer, Research Scholar, and a former Federal
Prosecutor with the Economic and Financial Crimes Commission, EFCC,
Head quarters, Abuja, under the NYSC program 2017/2018
session. He is a 2016 Graduate from the prestgious University of
Lagos ; an expert on Civil and Criminal Asset Forfeiture, and
currently a commercial law Associate at DeepLaw Associates
Firm, Abuja.