Inspector General Of Police & Anor 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 case was commenced on the 8th day of July, 2013 in the Federal High Court, Lagos Division by the 1st and 2nd Respondents by Originating Motion under the Fundamental Rights Enforcement Procedure Rules 2009.

The 1st & 2nd Respondents Dr. Patrick Ifeanyi Ubah and his company Capital Oil and Gas Ltd entered into an agreement with the 4th Respondent herein Cosmas Maduka, a director of 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.

It was alleged that the 1st and 2nd Respondents fraudulently diverted the proceeds of the four LCs. Coscharis Motors Limited then made a criminal complaint, Exhibit CP1, to the 2nd Appellant against the 1st and 2nd Respondents bordering on the offences of false pretences, fraud, stealing, forgery and money laundering with respect to the remaining 4 letters of credit established by Access Bank in favour of the 1st and 2nd Respondents.

According to the complaint, the 1st and 2nd Respondents were to pay the proceeds of the sale of the petroleum products into Access Bank. The failure of the 1st and 2nd Respondents to pay the proceeds of sale into Access Bank prompted the complaint by Coscharis Motors Ltd. Based on the said criminal complaint Exhibit CP1, the 2nd Appellant commenced investigation of the 1st and 2nd Respondents and in the course of the said investigation the 1st Respondent was detained.

It so happened that the 3rd Respondent herein, AIGBOJE AIG-IMOUKHUEDE who at the material time was the Managing Director of Access Bank was appointed the Chairman of the Presidential Committee on Verification and Reconciliation of Subsidy Payments to Petroleum Product Marketers (hereinafter referred to as 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 3rd respondent herein used his position as the chairman of the Presidential Committee to fight the private cause of his bank and to hound the Applicants through the appellants. The 1st and 2nd Respondents instituted the suit against the appellants herein and the 3rd and 4th Respondents 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 appellants and the 3rd & 4th Respondents herein as Respondents in the lower court filed preliminary objections in addition to substantive responses consisting of counter affidavits and written addresses to the Originating Motion. The lower court heard the preliminary objections together with the Originating Motion. After perusing all the processes filed before it and listening to all counsel involved in the case, the court delivered judgment over-ruling all the preliminary objections and granting all the reliefs claimed by the 1st and 2nd Respondents above but reducing the damages awarded to N10Million.

Prior to these Proceedings, the 1st Respondent herein had also instituted a suit under the Fundamental Rights (Enforcement Procedure) Rules for unlawful detention covering the same period of 9th of October to 19th of October before Abang J. also of the Federal High Court Lagos. On the disclosure that the 1st and 2nd Respondents remand was based on the order of a Magistrate Court, Abang J. struck out the suit. The 1st Respondent did not appeal against the decision of Abang J.

The appellants herein being dissatisfied with the judgment of the lower court filed a Notice of appeal with 9 grounds of appeal out of which they formulated 5 issues for determination as follows:

i. Whether lower court in the circumstances of this case can grant order of perpetual injunction restraining the Appellants from arresting, detaining, Instituting or continuing any criminal proceedings against the 1st and 2nd Respondents in connection with any criminal complaint by the 4th Respondent or Presidential Committee on Verification and Reconciliation of Subsidy Payments.

ii. Whether based on the evidence before the lower court, there was a breach of the 1st Respondent’s fundamental human rights arising from his detention between 9th to 19th October, 2012 that will warrant the award of N10 Million as damages in favour of the 1st Respondent for the unlawful breach of his fundamental right.

iii Whether the lower court was right to have refused to consider the issue of whether or not Exhibits COG3 and COG4 were public documents which require certification in accordance with section 105 of the Evidence Act 2011 before same can be admissible and relied on by the lower court. (Ground 6).