First Bank Of Nigeria Plc. & Ors. V. Attorney-general Of The Federation & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering the Leading Judgment)

The Appellants as Applicants in the Federal High Court before Hon. Justice B. F. M. Nyako brought an application pursuant to Order 1 Rule 2 (3) of the Fundamental Rights (Enforcement procedure) Rules, 1979 seeking for nine reliefs against the Respondents after the Appellants had been arrested and detained from the 9th of September, 2004 to 10th September, 2004 at Lugbe Police station, Abuja. The 2nd to 4th Appellants complained that they were only released after they were compelled by the 3rd Respondent, at the instance of the 2nd Respondents to write an undertaking to refund the sum of N600 million to the 2nd Respondent within some number of days.

Their application was initiated by a petition written on 5th July 2004 (Exhibit ‘EFCC 1′) by the 2nd Respondent to the 4th Respondent who was the Chairman of the 3rd Respondent upon a complaint that the sum of N2.34 (Two Billion, Thirty-Four million Naira) by the Federal Government of Nigeria as advanced payment through known Guarantors Banks including the 1st Appellant, for dredging of the Lower Niger River in 1998/1999 in which the 2nd Respondent became the beneficiary, was irregularly released by the banks (including 1st Appellant) to the contractors in violation of the terms of the advance payment guarantee entered into by the banks.

The reliefs sought by the Appellants from the lower court at pages 43 – 44 of the Record of Appeal are as follows:-

1. “A declaration that the claim of the 2nd Respondent to a refund of the sum of N500 million for an alleged non-performance by Julius Berger Nigeria Plc and Nigeria Westminister Dredging and Marine Limited 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 Better Plc and Nigerian Westminister 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 who as between the 2nd Respondent and Julius Berger Nigeria Plc and Nigeria Westminister Dredging and Marine Limited is a civil and not a criminal matter.
4. A declaration that the 3rd – 5th Respondents have 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 the 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 2nd – 5th Applicants’ 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, irregular, unconstitutional, null and void.
7. An order setting aside the undertaking extracted forcefully and under duress from the 2nd Applicant on the 10th September, 2004 by the 3rd – 5th Respondents as a condition for the bail of the 2nd – 5th Applicants for being unknown to law, unconstitutional, irregular, null and void.
8. An order of injunction restraining the Respondents either by themselves, their agents, privies, assigns or anybody howsoever described from further arresting, detaining, threatening, 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 for the unlawful and unconstitutional arrest and/or detention of the Applicants as claimed in the statement of facts attached to this application.”

The 2nd Respondent filed a preliminary objection praying the court to strike out its name from the suit on the ground that there was no allegation disclosed by the Applicants that the 2nd Respondent has infringed or about to infringe the Appellants’ fundamental human rights. The learned trial Judge consolidated both the preliminary objection and the main application whereby she struck out the name of the 2nd Respondent from the suit and dismissed the entire application of the Appellants on the 29th of August, 2005.

The Appellants being dissatisfied with the judgment of the court at pages 192 – 206 of the Record of Appeal filed a Notice of Appeal against the whole decision of the court and later an Amended Notice of Appeal pursuant to the order of this Honourable. Court on 16th April 2012, containing six grounds of appeal; to wit:-

1. The learned trial Judge erred in law when he struck out the 2nd Respondent as a party to this suit.
2. The learned trial Judge erred in law when he held that there was no evidence before him showing that the 2nd Respondent did more than merely lodging a complaint against the Appellants to the 3rd – 5th Respondents.
3. The learned trial Judge erred in law when he struck out reliefs 1, 2, 3, 5, 7 and 8 in the Applicants Motion on Notion on the ground that they are not cognizable under the Fundamental Rights Enforcement Procedure Rules.
4. The learned trial Judge erred in law when he held that the 3rd – 4th Respondents have a right to arrest and detain the Appellants in this case.
5. The learned trial Judge erred in law when he held that the case before him borders on a contract scam to warrant the arrest and detention of the Appellants by the Respondents,
6. The learned trial Judge erred in law in dismissing the Appellants case in its entirety.

The learned counsel for the Appellant Oluwale Aladedoye Esq. in Amended Brief of Argument deemed as properly filed and served 19/11/12 formulated four issues for determination namely:-

(i) Whether the learned trial Judge was not wrong to have struck out the 2nd Respondent as a party to this suit having regard to the materials and evidence before the court. (Grounds 1 & 2).

(ii) Whether the learned trial Judge was not wrong to have struck out reliefs 1, 2, 3, 6, 7 and 8 (which are declaratory and injunctive reliefs) in the Appellants’ motion on Notice on the ground that these reliefs are not cognizable under the fundamental rights enforcement procedure rules having regard to the materials before the court. (Ground 3).

(iii) Whether the learned trial Judge was not wrong to have justified the arrest and detention of the Appellants by the Respondents on the ground that the case before him borders on contract scam having regard to the materials and evidence placed before the court. (Grounds 4 & 5).

(iv) Whether the learned trial Judge was not wrong to have dismissed the Appellants’ case having regard to the materials and evidence before the court. (Ground 6).

Folabi Kuti Esq. of learned friend to the 1st Respondent in his Amended Brief of Argument formulated two issues for determination:-

a) Whether in the circumstances of this case the learned trial Judge was right in holding that the declaratory reliefs sought by the Appellants/Applicants were not cognizable under the Fundamental Rights Enforcement Procedure Rules? (Ground 3 of the Notice of Appeal).

b) Whether there was any evidence to support the findings of the learned trial Judge that the instant case borders on a contract scam, thus warranting the arrest and detention of the Appellants by the 3rd – 5th Respondents?