CITATION: (2017) LPELR-50893 (CA)
In the Court of Appeal
In the Lagos Judicial Division
Holden at Lagos
ON FRIDAY, 9TH JUNE, 2017
Suit No: CA/L/749/2011
Before Their Lordships:
MOHAMMED LAWAL GARBA Justice, Court of Appeal
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of Appeal
JAMILU YAMMAMA TUKUR Justice, Court of Appeal
CHRISTIAN IHEANYICHUKWU NWANGUMA – Appellant(s)
(Practicing under the name and style of CHRIS EMMANUEL & Co)
1. THE CHAIRMAN, ECONOMIC AND FINANCIAL CRIMES COMMISSION, MRS. FARIDA WAZIRI
2. ECONOMIC AND FINANCIAL CRIMES COMMISSION – Respondent(s)
LEADING JUDGMENT DELIVERED BY JAMILU YAMMAMA TUKUR, J.C.A.
The appellant lodged a petition dated November 6, 2008 with the respondents, against Stanbic IBTC Bank PLC and IBTC Assets Management Ltd, on behalf of one Ozoemena Ugwokeh-Omene (the appellant’s client) and the respondents duly commenced investigation in the month of December, 2008.
Acting on the belief that the investigation had been concluded and that the respondents were willfully failing to furnish it with the investigation report, the Appellant instituted an action at the High Court vide an originating summons.
The learned trial judge in its judgment held the appellant’s action as unfounded and dismissed his claim on the grounds that the 2nd respondent had discretion as to whether to prosecute persons or make the outcome of its investigation public.
Dissatisfied with the judgment, the appellant appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
The appeal was determined on the appellant’s issues, as the respondents did not file any brief. The issues are as follows:
1. Whether the Court below was right to have dismissed the appellant’s originating summons without considering and evaluating the appellant’s written address dated 15/11/2011 as well as the entire affidavit evidence placed before it.
2. Whether having regard to the facts and circumstances of his suit, the court below was right to have dismissed the appellant’s originating summons by holding that same is misconceived in law.
3. Whether this suit taken as a whole, amounts to an abuse of court process.
On issue 1, learned counsel to the appellant argued that the trial court heard and determined the appellant’s originating summons without considering and evaluating the appellant’s written address. He submitted that the trial judge in its judgment wrongly stated that the written address of the appellant did not make reference to any judicial authority, whereas the written address properly before the Court, dated 15th January, 2011 made reference to the case of FAWEHINMI V. I.G.P. (2002) 7 NWLR (Pt. 767) at pp 697-698, paras H-A. He further maintained the trial court erroneously placed reliance on the written address dated February 5, 2010 which did not contain reference to any judicial authority, but had been withdrawn and substituted with the one dated January 15, 2011.
Counsel then asserted that the failure of the trial court to evaluate the correct written address, amounts to making a case different from that put forward by the appellant, which is a denial of the appellant’s constitutional right to fair hearing as guaranteed by SECTION 36 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, and thus a miscarriage of justice. He relied on the case of VICTINO FIXED ODDS LTD V. OJO AND 2 ORS (2010) 3 S.C. (PT. 1); (2010) LPELR-3462(SC).
On issue 2, appellant’s counsel argued that the exercise of the respondents’ discretion in the instant case was not done in the public’s interest, as it was not done for the purpose of protecting public safety, public order, public morality, public health, or for the purpose of protecting the rights and freedom of other persons. He relied on NYAME V. F.R.N (2010)3 S. C. (PT. 1) 135.
He submitted that the policies and decisions of the respondents must be consistent with the general policies, practices, and procedures of the controlling and supervising ministry, that is the ministry of justice and that no discretion could be properly exercised on undisclosed facts as the respondents have sought to do in this appeal, as their actions would lead to self-help and anarchy on the part of the public who do not see full and proper prosecution of petitions that have merit.
Learned Counsel relying on the case of FAJEMIROKUN V. COMMERCIAL BANK NIG. LTD (2009) 2-3 SC (PT. 1) P. 32 PARA 35; (2009) LPELR-1231(SC) submitted that the police, the agency of state which the 2nd Respondent could be equated with, is obliged to produce excerpts of its investigation upon proper request by the public.
On issue 3, counsel to the appellant argued that the court below erred in law, in considering the additional ground orally canvassed by the respondents, to the effect that the appellant’s action is an abuse of court process, as such procedure is a clear breach of the rules of court, that the court ought not to have considered it. He cited the case of OWNERS OF NV ARABELLA V. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 4-5 SC (PT. 11) 189; (2008) LPELR-2848(SC).
He argued that the respondents cannot be heard to say that Exhibit H (a letter) attached to the appellant’s further affidavit in support of the originating summons was merely calculated to annoy and embarrass the respondents, on the grounds that the said letter addressed to the 1st respondent was a follow up to previous ones, and was never published or advertised.
RESOLUTION OF ISSUES
On issue 1, the court explained the importance of the written address of a counsel, as it is an important part of a party’s case, which must be considered by the Judge before coming to a conclusion. See the case of ONYEAKARUSI V. NWADIOGO (2016) LPELR-40932(CA).
The court held that the trial court was well abreast with the arguments canvassed in the written address that was properly before it and took them into consideration in reaching his decision. The court maintained that the trial court properly evaluated the evidence before it.
On issue 2, the court stated the position of the law as to the powers of the 2nd respondent (EFCC) to investigate and prosecute crimes. The Court explained that such powers are discretionary in nature.
The court then referred to the case of Dododo v. E.F.C.C. (2013) 1 NWLR Page 468, pp. 510-511, paras A-D, per Nwodo (JCA) who stated thus:
“The 1st and 2nd respondents under the enabling statutes creating them are vested with police powers. Consequently, they enjoy the status of the powers vested in the police which encompasses the duty to examine a complaint or petition, investigate and prosecute if necessary. The power to prosecute is discretionary not a ministerial duty. However, it is my view that the power to examine the complaint is an obligatory function. When a petition or complaint is made to the statutory body their duty to look at the complaint cannot be suppressed. This is because the complainant can then challenge the refusal to exercise the discretion or that it was not well exercised after reading the contents. The EFCC is under duty to communicate their decision to investigate or not to him… Every person in this country has a right to report a crime which he has reasonable belief has been committed by a person or about to be committed when that alleged crime is reported, it remains an allegation, until the statutory body conferred with the power to examine and investigate the complaint arraigns the person. The reporter has a right to be informed of the result of his complaint.”
Thus, the court relying on Dododo v. E.F.C.C. (supra) held that the 2nd respondent (EFCC) is under a duty to furnish the appellant with its investigative report.
The court then held that the trial court was wrong in holding that the entire claim of the Appellant is misconceived in law, as the part relating to the investigative report is founded on good law.
On issue 3, the Court explained that abuse of court process involves the improper use of the judicial process by a party in litigation to interfere with the due administration of justice, especially with the main aim of causing the irritation and annoyance of his opponents.
That for an action to constitute abuse of court process, the actions of the claimant should be such that is not akin with one seeking justice or one who has a bonafide right he sincerely wants to protect. Citing the case of R-BENKAY NIGERIA LTD V. CADBURY NIGERIA LTD (2012) LPELR-7820 (SC).
The court aligned with the submissions of the appellant’s counsel to the effect that Exhibit H cannot be held to be proof that the suit was instituted with the main aim of causing irritation and annoyance to the 1st respondent. That the matter as instituted at the trial Court manifestly displays cogent reasons and actionable claims.
The appeal succeeded in part in light of the resolution of issue 2 in favour of the appellant and in which the said issue is the substratum of the appeal. Accordingly, the court ordered the 2nd respondent to avail the appellant of its investigation report pursuant to the appellant’s petition dated November 6, 2008.
Chinedu Ezeoke and Co. settled the Appellant’s Brief – For Appellant(s)