Cosmas Maduka V. Dr Patrick Ifeanyi Ubah & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE E. IYIZOBA, J.C.A. (Delivering the Leading Judgment)

By an originating motion dated the 4th day of January, 2013 and brought under the Fundamental Rights (Enforcement Procedure) Rules 2009, the 1st and 2nd Respondents as Applicants claimed the following reliefs against the Appellant (as 4th Respondent) and 3rd – 5th Respondents:

“1. A DECLARATION that the persecution and public condemnation of the Applicants, camouflaged by the 1st and 2nd Respondents as an “investigation” of allegations made by the Presidential Committee on verification and Reconciliation of Subsidy Payments to Petroleum Product Marketers under the control and Chairmanship of the 3rd Respondent and allegations made by the 4th Respondent, a co-director with the 3rd Respondent in Access Bank Plc (over ongoing civil contractual disagreements with the Applicants) and who have both expressed a determination, by all means available to them, to damage the Applicants’ reputation and business, is a prosecutorial misconduct, malicious process, misfeasance in public office and breach of the Applicants’ fundamental rights protected by Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. A DECLARATION that the declared conclusion of the 2nd Respondent, in his Police Interim Investigation Report “dated 2nd November 2012 that “at the conclusion of investigation, suspects will be arraigned for a prima facie case of money laundering, stealing and criminal conspiracy to commit felony”. (In the surrounding circumstances of the complaint and facts revealed by the said Report including the fact that the matter was an entirely civil contractual dispute between the Applicants and the Complainant, the 4th Respondent, a co-director in Access Bank Plc with the 3rd Respondent) is a prosecutorial misconduct, malicious process, misfeasance in public office and breach of the Applicants fundamental right protected by Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
3. A DECLARATION that the declared conclusion of the 2nd Respondent, in his Police Interim Investigation Report dated 3rd November 2012 that “at the conclusion of these ongoing actions, a consolidated investigation report will be submitted on a prima facie case of conspiracy to commit felony, money laundering, forgery, stealing, obtaining under false pretences, and economic sabotage against Capital Oil & Gas, Ifeanyi Patrick Uba and those found to have conspired, colluded, or aided the culprits”. In the surrounding circumstances of the compliant and the facts revealed in the said report, is a prosecutorial misconduct, malicious process, misfeasance in public office and breach of the Applicants’ fundamental right protected by Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
4. A DECLARATION that the said Police Interim Investigation reports issued by the 2nd Respondent to the 1st Respondent, dated respectively 2nd and 3rd November 2012 being incurably tainted by prosecutorial misconduct, malicious process, misfeasance in public office and breach of the provisions of Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), are invalid, ultra vires, null and void and cannot therefore be used for the purpose of any proceedings against the Applicants.
5. A DECLARATION that as the complaints made against the Applicants by the Presidential Committee on verification and Reconciliation of Subsidy, Payments to Petroleum Product Marketers under the control and Chairmanship of the 3rd respondent and by the 4th Respondent (in respect of the purely civil contractual disputes between him and the Applicant(s) are tainted by malice on law enforcement agency whatsoever is at liberty or can validly act on the complaints.
6. AN ORDER nullifying and setting aside the said Interim Investigation Report of 2nd and 3rd November 2012 issued by the 2nd Respondent and addressed to the 1st Respondent.
7. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st and 2nd Respondents by themselves, their subordinates, officers, servants, agents and privies from further intimidating, harassing, arresting, detaining the Applicants or instituting or continuing any criminal process or proceedings whatsoever against them on the basis of any complaint from the Presidential Committee on Verification and Reconciliation of Subsidy Payments to Petroleum Product Marketers under the control and Chairmanship of the 3rd respondent and/or by the 4th Respondent.
8. COMPENSATORY DAMAGES IN THE SUM OF 10 BILLION NAIRA to be paid by the Respondents severally and jointly for the injury suffered by the Applicants as a result of the unlawful acts of the Respondents including the breach of the 1st Applicant’s fundamental right to liberty, pursuant to Section 35 of the Constitution of the Federal Republic of Nigeria, resulting from his detention in the Ikoyi office of the 2nd Respondent from the 9th to the 19th of October 2012″.

The said originating motion was supported by an affidavit of 49 paragraphs deposed to by the 1st Respondent. In opposition to the originating motion, the Appellant filed two processes:

1. Preliminary objection alleging non-service of the originating process;
2. A counter-affidavit of 7 paragraphs with one exhibit, COSM in opposition to the originating motion.

The facts of the case as set out in the Appellant’s brief are that sometime in July 2011, the 1st Respondent approached the Appellant in his capacity as the President of Coscharis Motors Limited to assist him revive the debt ridden ailing business of the 2nd Respondent. After preliminary discussions, Coscharis Motors Ltd entered into joint business relationship with the 1st and 2nd Respondents for the importation of Premium Motor Spirit (PMS).

Under the arrangement, it was the responsibility of Coscharis Motors Ltd to source for fund to finance the PMS importation while the 1st and 2nd Respondents were to provide logistics, handling and sale of the product. In furtherance of the said joint business arrangement, Coscharis Motors Ltd obtained banking facilities from Access Bank Plc for the importation of the PMS for which 10 (ten) Letters of Credit were opened.

A joint account in the name of Coscharis Motors Ltd and the 2nd Respondent was opened at Access Bank Plc where the 1st and 2nd respondents would pay-in proceeds of sale of the PMS imported via the joint venture.

It was alleged that the 1st and 2nd Respondents received the shipments relating to the Letters of Credit (L/Cs) but only paid the proceeds of 6 L/Cs into the joint account opened at Access Bank Plc. The proceeds of the consignment relating to the remaining 4 (four) L/Cs were diverted by the 1st and 2nd Respondents. All efforts by Coscharis Motors Ltd to get the 1st and 2nd Respondents produce the proceeds relating to the remaining 4 L/Cs or account for the where about of the consignment were rebuffed.

At different times, the 1st and 2nd Respondents would admit having received the shipments but at others, they would claim that the shipments were still with the shippers in London. Finally a trip to London with the 1st respondent revealed that the shipment had been made and received by 1st and 2nd Respondents. Angered and confused at the antics of the 1st and 2nd Respondents, Coscharis Motors Ltd petitioned the Nigeria Police Force, Anti-fraud Unit Milverton Road, Ikoyi complaining of the 1st and 2nd Respondents conduct in diverting the proceeds relating to the remaining 4 letters of credit.

The Nigeria Police as the body statutorily empowered to investigate criminal allegations invited the 1st and 2nd Respondents and officers of Coscharis Motors Ltd to enable it investigate the complaint. Alleging that their fundamental rights had been violated by the complaint made by the Appellant and the police action in investigating same, the 1st and 2nd Respondents by an originating motion dated 4/01/13 applied to the court below for the enforcement of their Fundamental Rights under the Fundamental Rights (Enforcement Procedure) Rules 2009 claiming the reliefs set out above.

In the preliminary objection, the appellant alleged that the originating motion filed by the 1st and 2nd Respondents was not served on him even though an affidavit of service was deposed to by the bailiff attached to the lower court to the effect that he served the Appellant with the originating process at No. 1, Happy Home Avenue, Mazamaza, Lagos, an address not borne out of any record before the lower court and different from Access Bank Headquarters, Plot 999c Danmole Street, Victoria Island, endorsed on the originating processes by the 1st and 2nd Respondents as the address for service of the Appellant.

In the preliminary objection the appellant prayed the lower court to decline jurisdiction against him on ground of non service. The 1st and 2nd Respondents filed no counter-affidavit to the affidavit in support of the Appellant’s Notice of Preliminary Objection. The Appellant also filed a counter-affidavit to the originating application of the 1st and 2nd Respondents.

The lower court heard the preliminary objection of the appellant and those of the 3rd-5th respondents together with substantive motion. After listening to argument of counsel, the Learned trial judge over-ruled the preliminary objections and entered judgment for the 1st and 2nd Respondents granting all the reliefs they claimed but reducing the damages awarded to N10 million.

Dissatisfied with the judgment, the appellant filed a notice of appeal with five grounds of appeal at Pages 586-592 of the Records. In his brief of argument settled by Osita Mbamalu Esq. two issues were formulated out of the five grounds of appeal as follows: