HRH Eze (Dr) Peter Opara & Anor V. Diamond Bank Plc & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI,EKO,J.C.A: (Delivering the Leading Judgment)

The Appellants’ application for enforcement of their fundamental rights, brought pursuant to the Fundamental Rights (Enforcement procedure) Rules, was, on 23rd January, 2007, dismissed by the Federal High court (coram I.N. Buba, J) sitting at port Harcourt. Aggrieved by this dismissal order, in the suit no FHC/PH/CS/5087/2006, the Appellants promptly filed their joint Notice of Appeal containing only one ground of appeal, to wit:

The learned trial Judge erred in law by disregarding order 1, Rule 2 (1) of the Fundamental Rights

(Enforcement Procedure) Rules, 1979 and holding that the applicants’ Exhibit V – the 2nd Respondents invitation letter to the 1st Applicant is (sic) does not show that the Applicants Fundamental Rights are likely to be infringed upon the face of the invitation.

PARTICULARS OF ERROR

1. The court failed to conjunctively consider the initial arrest and detention of the 1st applicant, the fraudulent allegation contained in the petition of the 1st respondent to the 2nd respondent and the invitation letter of the applicant by the 2nd Respondent, but only looked at the invitation letter to hold that there was no likelihood of the violation of the applicant fundamental rights.
2. The court was wrong when it overlooked the Counter Affidavit of the 1st Respondent which from all intents and purposes alluded that the Applicants were owing the 1st Respondent hence, its reason to petition the Applicants and therefore taking a civil matter of simple contract to the 2nd Respondent to enforce when it is not a debt collector viz-a-viz Exhibit EFCC ‘A’ of the 2nd Respondent.

The facts are that the Appellants, as the applicants at the lower court, were customers of the 1st Respondent bank since 1994.

The relationship continued until 2003 when the Appellants suspected some discrepancies in the management of their account with the 1st Respondent. They engaged a banking consultant to investigate, and it was allegedly discovered that the 1st Respondent had illegally over charged the Appellants, in the management of their account, to a tune of N10,776,921.19 which they demanded refund of. The 1st Respondent, though not convinced, mutually agreed with the Appellant’s banking consultant that the matter be referred to the chartered Institute of Bankers’ committee on ethics and professionalism for arbitration. The matter was still pending there for arbitration when the 1st Respondent reported the Appellants to the Financial Malpractices Investigation unit of the Nigeria Police Force C.I.D Annex, Lagos. Consequently, policemen from Lagos came to port Harcourt, and arrested and detained the 1st Appellant on 18th April, 2005. The 1st Appellant was not granted bail until the policemen made him pay N2,000,000.00 in favour of the 1st Respondent. The police further directed the 1st Appellant to appear before them at Lagos on 10th May, 2005. In the mean time the Appellants approached the Federal High court, Port Harcourt in suit no FHC/PH/CS/385/2005 for leave to apply for enforcement of their fundamental rights. Exhibit ‘U’ contains the order granting the leave sought. The Appellants, in their supporting affidavit, aver in this suit –

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

The 2nd Respondent’s letter Exhibit ‘V’, inviting the 1st Appellant’ as Managing Director of the 2nd Appellant, 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 depositor’s fund reported by Diamond Bank Plc against you and your company.” The 1st Respondent’s letter of 14th March, 2005 to the Appellants had demanded from the latter payment of the outstanding sum of N44,137,700.76 plus interest thereon due from the latter to the former within 21 days failing which all necessary actions will be taken against the Appellants to recover the sum without further notice. This letter is Exhibit ‘N’. Exhibit ‘T’, the letter from the Nigeria Police Force CID Lagos, inviting the 1st Appellant to appear in Lagos on 10th May, 2005 and the Appellant’s arrest and detention in April, 2005 have some nexus or connection with the 1s Respondent’s letter Exhibit ‘N’.

The 1st Respondent’s Counter Affidavit seems to admit in paragraph 7 thereof that the Appellants “through their agents reported the matter to the Bankers sub committee’ 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 1st Respondent went – to lodge a complaint with the Financial Malpractice Investigation Unit of the 2nd Respondent which has the statutory duty to investigate transactions where Banks are being defrauded or the risk of the same exists. The (Appellants) were merely invited for an interview on routine investigation. No body has threatened to arrest them.

The Counter Affidavit of the 2nd Respondent avers that they (EFCC) are investigating the alleged fraud and obtaining by false pretences, not diversion of depositors’ funds, reported against the Appellants to them through 1st Respondent’s letter of 27th October, 2007, Exhibit “EFCC A.” The 1st Respondent’s letter, Exhibit ‘V’, inviting the 1st Appellant for interview on 11th December, 2006 had triggered the Appellants’ resolve to apply for leave to apply for the enforcement of their fundamental rights. Upon leave granted to the Appellants to bring the application to enforce their fundamental rights, the Appellants 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 any body 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.