Aigboje Aig-imoukhuede 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)

This is an appeal against the judgment of Aneke J of the Federal High Court sitting in Lagos delivered on the 18th day of February 2013. The facts that led to the suit as deduced from the Record of appeal substantially abridged are as follows:

There was an arrangement between the 1st & 2nd Respondents in this appeal but the Applicants in the Lower Court Dr. Patrick Ifeanyi Ubah and his company Capital Oil and Gas Ltd on the one hand and the 5th Respondent herein but 4th Respondent in the Lower Court, Cosmas Maduka, a director in Access bank whereby a loan facility was obtained by Cosmas Maduka in the name of his company Coscharis Motors Limited from Access Bank to enable the parties finance the business of importation of petroleum products, Premium Motor Spirit (PMS) into Nigeria for profit sharing under the Petroleum Support Fund Scheme.

The subsidy payments by the Federal Government Petroleum Products Pricing and Regulatory Agency (PPPRA) for the PMS deliveries into Nigeria were also domiciled with Access Bank. Cosmos Maduka alleged that out of the 10 LCs opened and paid for by Access Bank from the loan facility, six were executed as agreed. Problems arose with respect to the remaining four. The products were not delivered as agreed. He alleged that it was later discovered that they were fraudulently brought into the country and the proceeds diverted.

It was further alleged that the applicants by their actions committed various criminal offences inter alia, diversion of proceeds of sale, spurious subsidy claims and money laundering. Reports were lodged with the Police and the Presidential Committee on Verification and Reconciliation of Subsidy Payments to Petroleum Product Marketers (hereinafter referred to as the Presidential Committee). The Police commenced investigation of the reports. It so happened that the appellant herein, Aigboje Aig-Imoukhuede who at the material time was the Managing Director of Access Bank was appointed the Chairman of the Presidential Committee.

The contention of the 1st and 2nd Respondents/ applicants at the Lower Court was that they committed no crime; that the matter was a purely civil matter and that the Appellant herein used his position as the chairman of the Presidential Committee to fight the private cause of his bank and to hound the Applicants.

They consequently filed this suit under the Fundamental Rights Enforcement Provisions. The Appellant was the 3rd Respondent at the Lower Court and was jointly sued with the 3rd – 5th Respondents herein by originating summons filed on 4/1/13 claiming as follows:

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 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, 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 the facts revealed in 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 Ubah and those found to have conspired, colluded, or aided the culprits” in the surrounding circumstances of the complaint and the facts revealed in the said Report, 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 Applicants fundamental right protected by 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 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 Applicants) are tainted by malice no 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 Reports 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 offices of the 2nd Respondent from the 9th to the 19th of October 2012.

The 1st and 2nd Respondents/Applicants had filed a Statement and a 49-paragraph Affidavit in Support of the Originating Motion with a number of Exhibits and a written address.