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CaseLaw

Diamond Bank V. HRH EZE OPARA (2018) CLR 3(n) (SC)

Judgement delivered on 9th day of March, 2018

Brief

  • Efcc and other security agencies
  • Abuse of court process
  • Fundamental Rights
  • Appeal by interested party
  • Issue for determination
  • Section 6(b) of the EFCC Act 2002

Facts

The application for enforcement of their fundamental rights filed by the 1st and 2nd Respondents at the Federal High Court, Port-Harcourt Division, which led to this appeal, was prompted by a letter of invitation written by the 3rd Respondent Economic and Financial Crimes Commission (EFCC) against the 1st and 2nd Respondents on the issue of bank fraud and diversion of funds to other use.

FACTS OF THE CASE

The facts are that the 1st & 2nd Respondents as the applicants at the lower Court, were customers of the Appellant bank since 1994. The relationship continued until 2003 when the 1st & 2nd Respondents suspected some discrepancies in the management of their account with the Appellant. They engaged a banking consultant to investigate, and it was allegedly discovered that the Appellant had illegally over charged the 1st & 2nd Respondents, in the management of their account, to a tune of N10,776,921.19K refund of which they demanded. The 1st & 2nd Respondents though not convinced, mutually agreed with the banking consultant that the matter be referred to the Chartered Institute of Banker's Committee on ethics and professionalism for arbitration.

The matter was still pending there for arbitration when the Appellant reported the 1st Respondent to the Financial Malpractices Investigation Unit of the Nigeria Police Force CID Annex, Lagos. Consequently, policemen from Lagos came to Port Harcourt, arrested and detained the 1st Respondent on 18th April, 2005. The 1st Respondent was not granted bail until 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 time, 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. Exhibit 'U' contains the order granting the leave sought. The 1st & 2nd Respondents, at paragraph 28 of their supporting affidavit, aver in the suit as follows:

  • 28
    "That the matter is still pending in the Federal High Court 2 and instead of waiting for the judgment of the Court, 1st Respondent, in disregard of the Court, petitioned us again to EFCC on spurious claims when it is owing us just to use its right to intimidate us."

    • The 3rd Respondent's letter, Exhibit "V" inviting the 1st Respondent, as Managing Director of the 2nd Respondent, to appear in Lagos before her officer in charge of Bank Fraud, Team 3 on 11th December, 2007 states that "the Commission is investigating a case of Bank Fraud/Diversion of depositors fund reported by Diamond Bank Plc against you and your company."

    The Appellant's letter of 14th March, 2005 to the 1st & 2nd Respondents had demanded from the latter, payment of the outstanding sum of N44,137,700.76K plus interest thereon due from the latter to the former within 21 days failing which all necessary actions will be taken against the 1st & 2nd Respondents to recover the sum without further notice. This letter is Exhibit 'N', Exhibit 'T' is the letter from the Nigeria Police Force CID Lagos inviting the 1st Respondent to appear in Lagos on 10th May, 2005 and 1st Respondent's arrest and detention in April, 2005 have some nexus or connection with the 1st Respondent's letter Exhibit 'N'.

    The Appellant's Counter Affidavit seems to admit in paragaph 7 thereof that the 1st & 2nd Respondents "through their agents reported the matter to the Bankers subcommittee on ethics and professionalism" for arbitration and that "the committee - is yet to finally adjudicate on the matter." Paragraph 6 of the said Counter Affidavit also admits that the Appellant went to lodge a complaint with the Financial Malpractice Investigation Unit of the 3rd Respondent which has the statutory duty to investigate transactions where Banks are being defrauded or the risk of the same exists. The 1st & 2nd Respondents were merely invited for an Interview on routine investigation. Nobody has threatened to arrest them.

    The Counter Affidavit of the 3rd Respondent avers that they (EFCC) are investigating the alleged fraud and obtaining by false pretence, not diversion of depositors' funds, reported against the 1st & 2nd Respondents to them through Appellant's letter of 27th October 2007, Exhibit "EFCC A". The letter, Exhibit 'V', inviting the 1st Respondent for interview on 11th December, 2006 had triggered the 1st & 2nd Respondents resolve to apply for leave to apply for the enforcement of their fundamental rights. Upon leave granted to the 1st & 2nd Respondents to bring the application to enforce their fundamental rights, the 1st & 2nd Respondents filed, vide the originating motion on 6th December, 2006, an application seeking orders enforcing their fundamental rights.

    They sought 3 reliefs, namely:

    • i
      "A declaration that the invitation of the 1st Applicant by the 2nd Respondent at the behest of the 1st Respondent is unlawful and a violation of his fundamental right to liberty and dignity of his person and a continuation of the harassment of the Applicants by the 1st Respondent in view of a pending action in this Court in suit no FHC/PH/CS/385/2005 between the Applicants and Diamond Bank Limited and 4 Ors.
    • ii
      A declaration that the 2nd Respondent by the enabling Act establishing it, lacks the statutory Power to function as a debt collector on behalf of the 1st Respondent or anybody for that matter in matters of commercial contract.
    • iii
      An order of Court restraining the Respondents from disturbing or Interfering with the right to liberty of the 1st Applicant through further threat of invitation 'arrest' detention, intimidation and unnecessary interrogation or in any other way or manner whatsoever."

    The parties were heard on the 1st & 2nd Respondents' application on 19th January, 2007. The learned trial Judge in his Ruling delivered on 23rd January, 2007 dismissed the application.

    Dissatisfied with the ruling of the Federal High Court, the 1st & 2nd Respondents appealed against that decision. The lower Court in its judgment dated 3rd March, 2011 allowed the appeal and granted all the reliefs.

    It is against the decision of the Court of Appeal above that the Appellant has now appealed to this Court.

Issues

  • 1
    Whether the Court of Appeal was right when it held that the complaint to...
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