Security agencies and liability of judgment debts

The recent decision by a Federal High Court in Lagos, which awarded damages against the agent of the security operatives for masterminding the unlawful detention of a citizen in a civil dispute has opened a new vista in the enforcement of the fundamental rights in Nigeria.

Justice Musa Kurya in that landmark judgment delivered in suit No: FHC/L/878/2013 between Mrs. Omowunmi Adebayo and The Economic and Financial Crimes Commission (EFCC) and others, ordered an agent of the Commission, Gbenga Ogunsakin to personally pay Mrs Adebayo N500, 000 in damages for violating her fundamental human rights.

The judge said: “An order is hereby made for the release forthwith of the unlawfully impounded vehicle, Nissan Micra car with Plate No EPE 07.

Finally, general damages for the sum of five hundred thousand naira (N500,000) only is hereby ordered in favour of the applicant and against the second respondent only for misleading the first respondent (EFCC) to invoke its powers against a trespasser, who had only breached a civil contract.

This is the judgment of this court.” In the past, award of damages usually go against the Institution which the operative represents. This has compounded the judgment debt of government agencies and Institutions such as the Police and others to an alarming rate.

But Justice Kurya, departing from the ‘norm’decided that the judgment sum must be paid by the agent who misled its organisation by detaining the applicant beyond what the law prescribes.

The facts of the matter is that sometimes in 2012, the third respondent who is the complainant and a staff of the Federal Training Centre Alagbon, Ikeja Lagos entered into a building contract with the Applicant’s husband.

When the relationship went sour, the complainant petitioned the EFCC that the applicant had obtained the sum of N6million from her. Therefore, the EFCC swung into action to recover the said money paid under the contract that was breached.

EFCC attached the applicants vehicle and detained her. She was offered bail but she could not produce sureties who could effect her release on bail, until about 14 days when she was able to produce sureties for her release.

Aggrieved, she approached the courts in a motion seeking some reliefs. The motion on Notice was brought pursuant to section 34(1) 35(1)(3)(5a) and 6 of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Order 2 Rules 1, 2, 3, 4, and 5 of the Fundamental Rights (Enforcement Procedure) Rules 2009 and under the inherent jurisdiction of the court by the applicant’s counsel, Kayode Bankole and Associates.

The motion was supported by 22 paragraph affidavit, deposed to by Mrs Adebayo, the applicant with a statement of the Applicant and a written address.

Counsel to the first and second respondents (EFCC and Ogunsakin), in response to the applicant’s Originating Motion dated June 21, 2013 filed a 27 paragraph counter affidavit dated August 21, 2013 deposed to by one Adamu Nma with four exhibits attached marked EFCC 1, 2, 3 and 4.

It was also accompanied by a written address. Counsel for the first and second respondents moved in terms and urged the Court to dismiss the applicant’s application with substantial cost in favour of the first and second respondents.

On their own part, Counsel to the thrid respondent (the complainant) filed an 18 paragraph counter affidavit dated the April 08, 2014. They also filed a written address which they adopted as their argument before the court.

But the court held that the fundamental enforcement action has nothing to do with the third respondent. In his decision, the judge asked: “What are exactly the duties or role of the EFCC?

After the establishment of the EFCC, can there be a financial tort to which a party can seek for redress that is the refund of his money by way of a civil suit?

From the above two issues the Learned Counsel to the 1st and 2nd respondents proceeded to argue that the 1st respondent is a Federal Government Agency established under the provision of the EFCC Act 2004 by virtue of the provisions of section 6, 7 1(a) and (b) and 2(f) which provides that: ‘‘The commission shall have powers to cause investigation to be conducted as to whether any person, corporate body or organization has committed an offence under the Act or other law relating to Economic and Financial Crimes.”

Justice Kurya stated that the Learned Counsel pointed out that Section 7(2)(f) gave the commission the powers to investigate any other law or regulation relating to Economic and Financial Crimes, including the Criminal and Penal code. “I will like to answer the above (a-d) four questions before proceeding to answer the issues for determination. A. An offence is defined as any act which contravenes the criminal law of the state in which it occurs. B. A crime is an act or omission which is prohibited by criminal law and punished usually by fine or imprisonment.

Anastatius Uwakwe vs. The State (1974) sc. 374/(1974) All NLR 557. C. What are exactly the duties and role of the EFCC? “From the above, an offence and/or crimes are defined as an act or omission in contravention of or prohibited by criminal law and punished usually by fine or imprisonment.

The Economic and Financial Crimes Commission Act 2004 has defined Economic and Financial Crimes to mean ‘‘The non-violent Criminal and illicit activity committed with the objective of earning wealth illegally either individually or in a group of organized manner thereby violating existing legislation governing the economic activities of government and its administration and includes any form of fraud, narcotic drug trafficking, money laundering, embezzlement, bribery looting and any form of corrupt malpractices, illegal arms, deal, smuggling, human trafficking and child labour, illegal oil bunkering and illegal mining, tax evasion, foreign exchange malpractice including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic wastes and prohibited goods etc.

The functions of the Commission is the enforcement and due administration of the provision of the Act, which includes the investigation of all Financial Crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers future market fraud, fraudulent encashment of negotiable instrument, computer credit fraud, contract scam, etc.

I am of the view that a breach of contract between private individuals was not contemplated as a crime, fraud or offence which would confer jurisdiction on the operatives of the EFCC to investigate into.

As can be gathered from the above definitions, while the intension of an offence and/or crime is to punish the offender by fine or imprisonment, the intension of a civil suit is compensation.

To place the complainant in the position he would have been if the other party had not breached the terms of the agreement. The Commission is Economic and Financial Crimes Commission and not Economic and Financial Torts Commission. “The husband to the applicant collected N6m from the complainant to build a house for her. The husband to the applicant did not honor his own part to build the house.

The question is at what point in time was a crime committed? Is it when they entered into a contract to build a house? When the money was advanced or when it was discovered that the house was infact not built thereby occasioning a breach of contract?”, the judge queried.

The judge held that the EFCC ought to have advised the petitioner to pursue her claim by way of a civil suit. “Where does the EFCC get the power to defend Gbenga Ogunsakin, the 2nd Respondent herein? I am of the view that the EFCC was not established by the Government to take over cases where citizen could have recovered their claims under conversion, retinue or breach of contract.

Except cases of theft, where it’s the duty of the State to protect property, in such circumstances, the victim or petitioner or individual should be allowed to proceed to sue by way of civil suit for the recovery of his money obtained with no consideration, otherwise, the EFCC would end up acting upon a private petition, arresting persons for Tortious acts against their neighbours, prosecuting them using State right, and only to have the persons punished or the EFCC goes further to force the person so convicted to return the money he had obtained, the EFCC would be seen to be recovering the victims money, thereby becoming debt recovering agents”, he stated.

The judge stated that whenever the EFCC does the right thing at the right time to the right authority, no one would come to the court to call them names such as “Debt Recovery Agents”. “It’s only when they use their office to the advantage of an individual, to get his money refunded that they are called Debt Recovery Agents.

In such a situation, the EFCC would have to defend the second respondent as in this case, thereby going ultra vires their powers. “Is it the duty of the EFCC to defend private persons” as was held in the case of Nnamdi Azikiwe University.

Nwafor (1999) I NWLR pt 5685 pg 116 @135 per Salami JSC where it was held that proper test for determining whether an allegation is a criminal nature or not, one must look at the allegation itself and not the explanation offered in response. “Consequently, judgment is hereby entered in favour of the applicant against the respondent. Accordingly, the declaration sought A-E are hereby granted” , the judge declared.