By Editor
ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC) v. WOLFGANG REINL (2020) LPELR-49387 (SC)
In the Supreme Court of Nigeria
On Friday, 24th January, 2020
Suit No: SC.428/2018
Before Their Lordships:
OLUKAYODE ARIWOOLA, JSC
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC
AMINA ADAMU AUGIE, JSC
PAUL ADAMU GALUMJE, JSC
UWANI MUSA ABBA AJI, JSC
Between
ECONOMIC AND FINANCIAL CRIMES COMMISSION
(EFCC)
-Appellant(s)
And
WOLFGANG REINL
– Respondent(s)
LEAD JUDGMENT DELIVERED BY KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
FACTS OF THE CASE
The brief facts of the case, as pleaded by the respondent in his affidavit in support of his originating motion are as follows: That he was an Austrian national married to a Nigerian woman, and has lived in Nigeria for over 20 years. That he has taken up residency in the country and has his businesses investments here. That on December 28, 2015, five men who identified themselves as operatives of the appellant, stormed his home and with a search warrant and informed him that his presence was required at the appellant’s office in respect of an allegation of money laundering concerning contracts awarded to his companies by the office of the National Security Adviser. He denied any fraudulent dealing and informed the operatives that in fact he had outstanding payments due to him in respect of completed contracts, which had been verified by the office of the National Security Adviser. He averred that in spite of investigations, which confirmed that there was no wrong doing on his part, the appellant ordered his detention at their facility on December 28, 2015, where he remained without being charged to Court until February 5, 2016.
In the course of executing the search warrant in his home, various documents belonging to his businesses, his international passport and items belonging to his wife and brother-in-law, such as their mobile phones, were confiscated. He averred that access to his bank accounts was restricted and he was placed on a watch list and no fly list. That the confiscation of his international passport and restriction of access to his bank accounts had damaged his reputation, affected his business and traumatized him.
The appellant on the other hand contended that the respondent was merely arrested for questioning following its investigation into the ill-fated arms deal by the office of the National Security Adviser, pursuant to which it was discovered that huge amounts of money were traced to companies in which the respondent is the alter ego. It denied detaining the respondent or confiscating his international passport.
The respondent filed an originating motion at the High Court of the Federal Capital Territory (FCT) for the Enforcement of his Fundamental Rights. The appellant also filed a Preliminary Objection challenging the jurisdiction of the High Court to entertain the suit. The High Court found no merit in the appellant’s objection and thus found in favour of the respondent in the substantive suit. The appellant’s appeal to the Court of Appeal was unsuccessful hence a further appeal to the Supreme Court.
Issues for determination
The Court determined the appeal on the following issues: 1. Whether the learned Justices of the Court of Appeal did not err in law in upholding the decision of the trial Court when they held that the trial Court had jurisdiction to entertain suit number HC/FCT/CV/849/2016. 2. Whether the learned Justices of the Court of Appeal were right in law in upholding the decision of the trial Court when they held that the amended originating motion dated March 7, 2016 was accompanied with a statement as required by FREP Rules, 2009. 3. Whether the learned Justices of the Court of Appeal were right in law in upholding the decision of the trial Court when they held that the Appellant detained the Respondent for five weeks from December 28, 2015 till February 5, 2016 when there was no shred of evidence at the trial Court and the lower Court to that effect. 4. Whether the learned trial Judge did not err in law when he acted on the amended originating motion filed on March 7, 2016 which formed the basis of his decision when the said amended originating motion was incompetent having been amended and filed without the leave of the Court.
Appellant submission
On the first issue, the appellant submitted that the Economic and Financial Crimes Commission (EFCC) is an agent of the Federal Government, having been created by an Act of the National Assembly via the EFCC (Establishment) Act, 2004. He referred to Sections 1(i) and 6(b) and (h) of the Act. He submitted that by the combined effect of Sections 251 and 257 of the 1999 Constitution, as amended, exclusive jurisdiction is vested in the Federal High Court in the civil causes and matters set out in Section 251(1)(a) to(s) thereof, which includes suits seeking to challenge the administration management and control of the Federal Government or any of its agencies. He submitted that the suit falls within the exclusive jurisdiction of the Federal High Court notwithstanding the provisions of Section 46(1) and (2) and Section 272(1) of the Constitution which gives the state High Courts, the Federal High Court and the High Court of the FCT concurrent jurisdiction in matters of enforcement of fundamental rights.
On the second issue, the appellant submitted that by Order II Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009, it is mandatory that an applicant’s originating motion shall be supported by a statement setting out the name and address of the applicant, the relief sought and the grounds upon which the reliefs are sought. He submitted that non-compliance with the mandatory provisions of Order II Rule 3 and Order IX of the Fundamental Rights (Enforcement Procedure) Rules 2009 renders the suit a nullity or incompetent. He relied on Madukolu V. Nkemdilum (1962) 1 ALL NLR 587 @ 595; Drexel Energy and Natural Resources Ltd. & Ors V. Trans International Bank & Ors. (2008) LPELR -962 (SC) @ 40-43 F-C.
On the second issue, the appellant submitted that notwithstanding its denial in its counter affidavit, the two lower Courts found and held that it unlawfully detained him without any evidence to that effect. He submitted that the onus was on the respondent to prove not only that it was the five operatives who went to his house that detained him but also that he was detained for the period alleged by CSPs Sharu and Madaki. He submitted further that there is no evidence that the respondent’s international passport was confiscated. He submitted that there is no burden on the appellant to prove the negative. He referred to the case ofOhochukwu Vs A.G. Rivers State & Ors. (2012) LPELR -7849 (SC) @ 37E. He submitted that the two lower Courts wrongly placed the burden on the appellant to prove that it did not detain the respondent.
Respondent submission
On issue one, the respondent submitted that the appellant misconceived the effect of Sections 251 and 257 of the constitution. He submitted that there is nothing in those Sections, which suggests that being an agency of the Federal Government of Nigeria, the appellant cannot be sued for the enforcement of fundamental rights in the High Court of the Federal Capital Territory or the High Court of a State. He noted that the substance of the respondent’s claim was his right to personal liberty and freedom of movement. He submitted that contrary to the appellant’s contention, what the respondent was challenging was his detention by the appellant from December 28, 2015 to February 5, 2016 and not the administration or management and control of the EFCC; nor the operation and interpretation of the constitution as it affects the EFCC, nor is it seeking a declaration or injunction affecting the validity of any executive or administrative action or decision by the Commission.
He submitted that the learned appellant’s counsel misconceived the decision of the Supreme Court in Jack V. University of Agriculure, Makurdi (2004) 1 SC (Pt.1) 100 @ 111-112.
On issue two, the respondent submitted that contrary to the appellant’s contention, the provisions of Order II Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 were duly complied with. He submitted further that by virtue of Order IX Rule 1 (wrongly stated as Order VI Rule 1), any non-compliance with the requirement as to time, place or manner or form shall be treated as an irregularity and may not nullify such proceedings except as they relate to (i) mode of commencement of the application and (ii) the subject matter is not within Chapter IV of the Constitution or the African Chapter on Human and Peoples Rights, (Ratification and Enforcement) Act.
On issue three, the respondent submitted that there was sufficient evidence in the respondent’s supporting affidavit to prove that his fundamental rights were breached by the appellant. He noted that the respondent filed a reply to the appellant’s counter affidavit wherein he deposed to the fact that his detention was widely reported in the print and news media and copies of the publications were attached thereto as exhibits. He submitted that the averments were not challenged. He referred to other documents exhibited to the application, which further established the fact of his detention. The respondent noted that the lower could held that having admitted that it arrested the respondent on December 28, 2015, the burden shifted to the appellant to show when he was released. He submitted that the weighty averments in the respondent’s affidavit, not materially denied or challenged by the appellant, are deemed admitted.
Resolution of issues
In resolving issue one, the Court held that the appellant’s conception of the import of Section 46(1) of the Constitution is erroneous. The provisions are clear and should be given their natural and ordinary meaning. That a careful examination of the respondent’s claim shows clearly that he is not challenging any administrative or executive act or the management and control of the appellant. He is alleging infringements of his fundamental rights guaranteed under the Constitution. The Court held that the case of Jack v. University of Agriculture, Makurdi (2004) 1 SC (Pt.1) 100 @ 111-112, interpreted Section 46(1) of the 1999 Constitution to the effect that where both the State High Court and the Federal High Court exist in a State, they have concurrent jurisdiction in matters pertaining to fundamental rights. Thus, it is an error to hold that when a suit in respect of matters of fundamental right was brought against the Federal Government or any of its agencies, Section 230(1) (s) of the 1979 Constitution (as amended) prevailed over Section 42(1). That there is no ambiguity in the provisions of the Constitution or of the Fundamental Rights (Enforcement Procedure) Rules regarding which Court has jurisdiction to entertain an application for the Enforcement of fundamental rights. The Court adopted the view in Jack v. University of Agriculture Makurdi (Supra) that so long as the enforcement of the applicant’s fundamental right is the main claim in the suit and not an ancillary claim, the Federal High Court and State High Courts, including the High Court of the FCT, have concurrent jurisdiction to entertain it.
In resolving issues two against the appellant, the Court endorsed the findings of the Court of Appeal in toto that statement accompanying the originating motion, having incorporated into it the facts contained in the affidavit in support of the said motion as the grounds for the reliefs sought, clearly complied with the requirements of Order 2 Rule 3 of the Fundamental Rights Enforcement (Procedure) Rules 2009. That since the appellant has not shown that it has suffered a miscarriage of justice by the incorporation of the facts contained in the affidavit in support of the originating motion as grounds for the relief sought, his complaints go to no issue.
In resolving issue three, the Court relied on the findings of the Court of Appeal that since the appellant’s counter-affidavit did not respond to the depositions that its officials confiscated and detained his international passport and other documents and have placed him on watch list and no fly list, the said depositions were admitted as true and correct.
The Court held that it cannot fault the reasoning of the lower Court and that the appellant has failed to satisfy the Court that the reasoning is perverse or that any special circumstances exist to warrant interference with the concurrent findings of the two lower Courts. This issue was resolved against the appellant.
On issues four, the Court held that the since the issue is attacking the decision of the learned trial Judge based on an amended originating motion purportedly filed without the leave of that Court. All the complaints under this issue relate to the proceedings of the trial Court, the Supreme Court lacks jurisdiction to entertain complaints arising from the decision of the trial Court as the appellate jurisdiction of the Supreme Court is limited by Section 233(1) of the Constitution to hear and determine appeals from the Court of Appeal. In the circumstances, the issue was found to be incompetent and was struck out.
HELD
On the whole, the Court found no merit in the appeal and accordingly dismissed same.
Appearances:
I. Audu Esq. Legal Officer EFCC -For Appellant
Afam Osigwe Esq., with him Ikechukwu Odanwu Esq.,
Uche Amulu Esq., Abass Sanni Esq.
& Hannatu Bahago Esq. -For Respondent
Compiled by LawPavilion
In the Supreme Court of Nigeria
On Friday, 24th January, 2020
Suit No: SC.428/2018
Before Their Lordships:
OLUKAYODE ARIWOOLA, JSC
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC
AMINA ADAMU AUGIE, JSC
PAUL ADAMU GALUMJE, JSC
UWANI MUSA ABBA AJI, JSC
Between
ECONOMIC AND FINANCIAL CRIMES COMMISSION
(EFCC)
-Appellant(s)
And
WOLFGANG REINL
– Respondent(s)
LEAD JUDGMENT DELIVERED BY KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
FACTS OF THE CASE
The brief facts of the case, as pleaded by the respondent in his affidavit in support of his originating motion are as follows: That he was an Austrian national married to a Nigerian woman, and has lived in Nigeria for over 20 years. That he has taken up residency in the country and has his businesses investments here. That on December 28, 2015, five men who identified themselves as operatives of the appellant, stormed his home and with a search warrant and informed him that his presence was required at the appellant’s office in respect of an allegation of money laundering concerning contracts awarded to his companies by the office of the National Security Adviser. He denied any fraudulent dealing and informed the operatives that in fact he had outstanding payments due to him in respect of completed contracts, which had been verified by the office of the National Security Adviser. He averred that in spite of investigations, which confirmed that there was no wrong doing on his part, the appellant ordered his detention at their facility on December 28, 2015, where he remained without being charged to Court until February 5, 2016.
In the course of executing the search warrant in his home, various documents belonging to his businesses, his international passport and items belonging to his wife and brother-in-law, such as their mobile phones, were confiscated. He averred that access to his bank accounts was restricted and he was placed on a watch list and no fly list. That the confiscation of his international passport and restriction of access to his bank accounts had damaged his reputation, affected his business and traumatized him.
The appellant on the other hand contended that the respondent was merely arrested for questioning following its investigation into the ill-fated arms deal by the office of the National Security Adviser, pursuant to which it was discovered that huge amounts of money were traced to companies in which the respondent is the alter ego. It denied detaining the respondent or confiscating his international passport.
The respondent filed an originating motion at the High Court of the Federal Capital Territory (FCT) for the Enforcement of his Fundamental Rights. The appellant also filed a Preliminary Objection challenging the jurisdiction of the High Court to entertain the suit. The High Court found no merit in the appellant’s objection and thus found in favour of the respondent in the substantive suit. The appellant’s appeal to the Court of Appeal was unsuccessful hence a further appeal to the Supreme Court.
Issues for determination
The Court determined the appeal on the following issues: 1. Whether the learned Justices of the Court of Appeal did not err in law in upholding the decision of the trial Court when they held that the trial Court had jurisdiction to entertain suit number HC/FCT/CV/849/2016. 2. Whether the learned Justices of the Court of Appeal were right in law in upholding the decision of the trial Court when they held that the amended originating motion dated March 7, 2016 was accompanied with a statement as required by FREP Rules, 2009. 3. Whether the learned Justices of the Court of Appeal were right in law in upholding the decision of the trial Court when they held that the Appellant detained the Respondent for five weeks from December 28, 2015 till February 5, 2016 when there was no shred of evidence at the trial Court and the lower Court to that effect. 4. Whether the learned trial Judge did not err in law when he acted on the amended originating motion filed on March 7, 2016 which formed the basis of his decision when the said amended originating motion was incompetent having been amended and filed without the leave of the Court.
Appellant submission
On the first issue, the appellant submitted that the Economic and Financial Crimes Commission (EFCC) is an agent of the Federal Government, having been created by an Act of the National Assembly via the EFCC (Establishment) Act, 2004. He referred to Sections 1(i) and 6(b) and (h) of the Act. He submitted that by the combined effect of Sections 251 and 257 of the 1999 Constitution, as amended, exclusive jurisdiction is vested in the Federal High Court in the civil causes and matters set out in Section 251(1)(a) to(s) thereof, which includes suits seeking to challenge the administration management and control of the Federal Government or any of its agencies. He submitted that the suit falls within the exclusive jurisdiction of the Federal High Court notwithstanding the provisions of Section 46(1) and (2) and Section 272(1) of the Constitution which gives the state High Courts, the Federal High Court and the High Court of the FCT concurrent jurisdiction in matters of enforcement of fundamental rights.
On the second issue, the appellant submitted that by Order II Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009, it is mandatory that an applicant’s originating motion shall be supported by a statement setting out the name and address of the applicant, the relief sought and the grounds upon which the reliefs are sought. He submitted that non-compliance with the mandatory provisions of Order II Rule 3 and Order IX of the Fundamental Rights (Enforcement Procedure) Rules 2009 renders the suit a nullity or incompetent. He relied on Madukolu V. Nkemdilum (1962) 1 ALL NLR 587 @ 595; Drexel Energy and Natural Resources Ltd. & Ors V. Trans International Bank & Ors. (2008) LPELR -962 (SC) @ 40-43 F-C.
On the second issue, the appellant submitted that notwithstanding its denial in its counter affidavit, the two lower Courts found and held that it unlawfully detained him without any evidence to that effect. He submitted that the onus was on the respondent to prove not only that it was the five operatives who went to his house that detained him but also that he was detained for the period alleged by CSPs Sharu and Madaki. He submitted further that there is no evidence that the respondent’s international passport was confiscated. He submitted that there is no burden on the appellant to prove the negative. He referred to the case ofOhochukwu Vs A.G. Rivers State & Ors. (2012) LPELR -7849 (SC) @ 37E. He submitted that the two lower Courts wrongly placed the burden on the appellant to prove that it did not detain the respondent.
Respondent submission
On issue one, the respondent submitted that the appellant misconceived the effect of Sections 251 and 257 of the constitution. He submitted that there is nothing in those Sections, which suggests that being an agency of the Federal Government of Nigeria, the appellant cannot be sued for the enforcement of fundamental rights in the High Court of the Federal Capital Territory or the High Court of a State. He noted that the substance of the respondent’s claim was his right to personal liberty and freedom of movement. He submitted that contrary to the appellant’s contention, what the respondent was challenging was his detention by the appellant from December 28, 2015 to February 5, 2016 and not the administration or management and control of the EFCC; nor the operation and interpretation of the constitution as it affects the EFCC, nor is it seeking a declaration or injunction affecting the validity of any executive or administrative action or decision by the Commission.
He submitted that the learned appellant’s counsel misconceived the decision of the Supreme Court in Jack V. University of Agriculure, Makurdi (2004) 1 SC (Pt.1) 100 @ 111-112.
On issue two, the respondent submitted that contrary to the appellant’s contention, the provisions of Order II Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 were duly complied with. He submitted further that by virtue of Order IX Rule 1 (wrongly stated as Order VI Rule 1), any non-compliance with the requirement as to time, place or manner or form shall be treated as an irregularity and may not nullify such proceedings except as they relate to (i) mode of commencement of the application and (ii) the subject matter is not within Chapter IV of the Constitution or the African Chapter on Human and Peoples Rights, (Ratification and Enforcement) Act.
On issue three, the respondent submitted that there was sufficient evidence in the respondent’s supporting affidavit to prove that his fundamental rights were breached by the appellant. He noted that the respondent filed a reply to the appellant’s counter affidavit wherein he deposed to the fact that his detention was widely reported in the print and news media and copies of the publications were attached thereto as exhibits. He submitted that the averments were not challenged. He referred to other documents exhibited to the application, which further established the fact of his detention. The respondent noted that the lower could held that having admitted that it arrested the respondent on December 28, 2015, the burden shifted to the appellant to show when he was released. He submitted that the weighty averments in the respondent’s affidavit, not materially denied or challenged by the appellant, are deemed admitted.
Resolution of issues
In resolving issue one, the Court held that the appellant’s conception of the import of Section 46(1) of the Constitution is erroneous. The provisions are clear and should be given their natural and ordinary meaning. That a careful examination of the respondent’s claim shows clearly that he is not challenging any administrative or executive act or the management and control of the appellant. He is alleging infringements of his fundamental rights guaranteed under the Constitution. The Court held that the case of Jack v. University of Agriculture, Makurdi (2004) 1 SC (Pt.1) 100 @ 111-112, interpreted Section 46(1) of the 1999 Constitution to the effect that where both the State High Court and the Federal High Court exist in a State, they have concurrent jurisdiction in matters pertaining to fundamental rights. Thus, it is an error to hold that when a suit in respect of matters of fundamental right was brought against the Federal Government or any of its agencies, Section 230(1) (s) of the 1979 Constitution (as amended) prevailed over Section 42(1). That there is no ambiguity in the provisions of the Constitution or of the Fundamental Rights (Enforcement Procedure) Rules regarding which Court has jurisdiction to entertain an application for the Enforcement of fundamental rights. The Court adopted the view in Jack v. University of Agriculture Makurdi (Supra) that so long as the enforcement of the applicant’s fundamental right is the main claim in the suit and not an ancillary claim, the Federal High Court and State High Courts, including the High Court of the FCT, have concurrent jurisdiction to entertain it.
In resolving issues two against the appellant, the Court endorsed the findings of the Court of Appeal in toto that statement accompanying the originating motion, having incorporated into it the facts contained in the affidavit in support of the said motion as the grounds for the reliefs sought, clearly complied with the requirements of Order 2 Rule 3 of the Fundamental Rights Enforcement (Procedure) Rules 2009. That since the appellant has not shown that it has suffered a miscarriage of justice by the incorporation of the facts contained in the affidavit in support of the originating motion as grounds for the relief sought, his complaints go to no issue.
In resolving issue three, the Court relied on the findings of the Court of Appeal that since the appellant’s counter-affidavit did not respond to the depositions that its officials confiscated and detained his international passport and other documents and have placed him on watch list and no fly list, the said depositions were admitted as true and correct.
The Court held that it cannot fault the reasoning of the lower Court and that the appellant has failed to satisfy the Court that the reasoning is perverse or that any special circumstances exist to warrant interference with the concurrent findings of the two lower Courts. This issue was resolved against the appellant.
On issues four, the Court held that the since the issue is attacking the decision of the learned trial Judge based on an amended originating motion purportedly filed without the leave of that Court. All the complaints under this issue relate to the proceedings of the trial Court, the Supreme Court lacks jurisdiction to entertain complaints arising from the decision of the trial Court as the appellate jurisdiction of the Supreme Court is limited by Section 233(1) of the Constitution to hear and determine appeals from the Court of Appeal. In the circumstances, the issue was found to be incompetent and was struck out.
HELD
On the whole, the Court found no merit in the appeal and accordingly dismissed same.
Appearances:
I. Audu Esq. Legal Officer EFCC -For Appellant
Afam Osigwe Esq., with him Ikechukwu Odanwu Esq.,
Uche Amulu Esq., Abass Sanni Esq.
& Hannatu Bahago Esq. -For Respondent
Compiled by LawPavilion