First Bank Of Nigeria Plc & Ors V. Attorney-general Of The Federation & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

The Application for the enforcement of their fundamental rights filed by the Appellants at the Federal High Court, which led to this Appeal was triggered by a Petition written by the second Respondent to the third Respondent [Economic and Financial Crimes Commission (EFCC) against the first Appellant regarding a Bank Guarantee that it issued.

The Petition dated 5/7/2004, and addressed to “The Chairman, Economic and Financial Crimes Commission”, is headed as follows

COMPLAINT

FOR THE RECOVERY OF ADVANCE PAYMENT MADE BY GOVERNMENT TO CONTRACTORS THROUGH THEIR BANKERS/GUARANTORS REGARDING THE LOWER RIVER NIGER DREDGING CONTRACT: 1998/1999

The second to fifth Appellants were invited by the third Respondent to a Meeting at its office in Abuja; but things did not go down well, and they were subsequently detained at the Lugbe Police Station and Airport Police Station both in Abuja from 9/9/2004 to 10/9/2004.

Disgruntled by their detention under dehumanizing conditions, Appellants sought and were granted leave by

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the Federal High Court to apply to enforce their fundamental rights, and pursuant thereto, they filed a Motion on Notice where they prayed for the following

1. A DECLARATION that the claim of the 2nd Respondent to a refund of the sum of N600 Million for an alleged non-performance by Julius Berger Nig. Plc. and Westminster Dredging and Marine Ltd., of a contract for the dredging of the lower River Niger under an Advance Payment Guarantee issued by the 1st Applicant in spite of disputed claims of Julius Berger Nigeria Plc. and Nigerian Westminster Dredging and Marine Ltd., against the 2nd Respondent is a dispute referable to the civil Court only in accordance with the Constitution.
2. A DECLARATION that the 2nd Respondent having returned the Advance Payment Guarantee issued by the 1st Applicant is no more entitled to ask the 1st Applicant to refund any money.
3. A DECLARATION that the dispute as to who is owing as between the 2nd Respondent and Julius Berger Nigeria Plc. and Nigerian Westminster Dredging and Marine Ltd., is a civil and not a criminal matter.
4. A DECLARATION that the 3rd5th Respondents have

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no jurisdiction to arrest or detain the 2nd 5th Applicants over a contractual matter or at all.

5. A DECLARATION that the arrest and detention of 2nd-5th Applicants between 9th September and 10th September 2004 at Lugbe Police Station and the Airport Police Station, Abuja, by the 3rd 5th Respondents at the instance of the 2nd Respondent constitutes a violation of the 3rd 5th Respondents’ fundamental rights guaranteed under Sections 34, 35 and 41 of the 1999 Constitution and Articles 1, 4, 5, 6 and 12 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. 10 Laws of the Federation of Nigeria, 1990 and is, therefore, illegal and unconstitutional.
6. A DECLARATION that the action of the 3rd 5th Respondents forcing the 2nd Applicant to issue an undertaking to pay the sum of N600 Million within a month as a condition for bail of the 2nd 5th Applicants after detaining them for two days is unknown to law, unconstitutional, null and void.
7. AN ORDER setting aside the undertaking extracted forcefully and under duress from the 2nd Applicant on

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10/9/2004 by the 3rd 5th Respondents as a condition for bail of the 2nd 5th Applicants for being unknown to law, unconstitutional, irregular, null and void.

8. AN ORDER of injunction restraining Respondents either by themselves, their agent, privies, assigns or anybody howsoever described from further arresting, detaining, harassing or molesting the Applicants over the contractual transaction between the 2nd Respondent and the 1st Applicant’s customers or enforcing the undertaking issued by the 2nd Applicant or demanding or further demanding from the 1st Applicant.
9. Aggravated and exemplary damages against the Respondents jointly and or severally in favour of each of the Applicants as claimed in the Statement of Facts attached to this Application.

Upon being served, the second Respondent entered a CONDITIONAL Appearance and also filed a Notice of Preliminary Objection praying that the action be struck out on the ground that it does not disclose a cause of action against it. In his Judgment delivered on 29/8/2005, the learned trial Judge, B. F. M. Nyako, J., treated the Preliminary Objection as the second Respondent’s defence, and held as follows