INNOSON/GTB TANGO: IS THE EFCC RACING AGAINST THE LAW? BY: Johnmary Chukwukasi Jideobi, Esq.

Dr. Innocent Ifediaso Chukwuma presenting INNOSON military brand to the Nigeria's Chief of Army Staff, General Buratai

It is no longer news that on Tuesday, the 19^th day of December, 2017, operatives of the Economic and Financial Crimes Commission [henceforth in this write-up referred to as the EFCC or the Commission] stormed the Enugu residence of the Chief Executive Officer [CEO for short] of the INNOSON (Nig.) Ltd., arrested him and whisked him away to Lagos. Arising from the said now infamous arrest, many divergent reactions sprung up in different quarters. Loads of accounts have been given of the said encounter. Given the conflicting accounts being dished out by different elements concerning the entire saga, one is cautious not to place reliance on such contradictory accounts [most of which lack respect for objectivity] obviously projected by the agents of the parties in hostility with a view to advancing the interests of their principals. Yet, this writer must rely on facts to properly analyse the legal implications of the whole tango. Facts are the fountainhead of the law [Facta sunt legis fonte vim hauriens] Today’s Cars Ltd v. Lasaco Assurance Plc & Anor (2016) LPELR-41260(CA) (Pp. 24-25, Paras. F-A), per Ogakwu, J.C.A., and the principles of law we intend to rely upon must be intimately related to the prevailing facts for the said legal principles to be applicable, Adegoke Motors vs. Adesanya (1989) 3 NWLR (PT 109) at 265-266. We shall now attempt a synopsis of the undulating facts culminating in the arrest of the INNOSON Boss on the 19^th December, 2017. In doing this, we very confidently [for good reasons] rely on the factual chronology handed down by the Nigerian Supreme Court in its Ruling of Friday, 15^th day of May, 2017 which is now reported as GTB PLC v. INNOSON (Nig.) Ltd [2017] 16 N.W.L.R. (Pt. 1591) S.C. 181; (2017) LPELR-42368(SC). We shall equally adopt the narratives of other courts as may be found in their judgments to the extent that such facts are indisputably relevant for the dispositive issues in controversy to be wholly and effectually resolved.

THE FACTUAL BACKGROUND:

In the suit of Innoson Nigeria Limited, as the plaintiff, at the Federal High Court, Ibadan, the Nigeria Customs Service and the Attorney-General of the Federation were the defendants. In the final judgment delivered on 20th December, 2010, the Federal High Court, in favour of Innoson Nigeria Ltd, ordered the defendants (hereinafter called the judgment debtors) to pay:

"i. Seven Hundred Million, Two Hundred and Twenty Two Thousand Naira (N700,220.000.00) only

ii. 22% interest on the said sum from the commencement of the action per annum until the date of judgment; and

iii. 22% interest per annum on the said sum from the date of judgment until final liquidation of the judgment sum."

The Guarantee Trust Bank (GTB for short) was one of the 5 banks moneys belonging to the Nigeria Customs Service were traced to. The Nigeria Customs Service was one of the GTB’s Customers. Instead of the GTB bank [as the garnishee] turning over the money of the Nigerian Customs in its custody [in deference to the tenor of both the garnishee order nisi and garnishee order absolute] decided as the garnishee to unite in an unholy alliance with the Federal Government of Nigeria to frustrate the payment to INNOSON of the sum which the Court has adjudged due to it. Interestingly, neither the Nigerian Customs Service (NCS) nor the Federal Government of Nigeria [represented by the Attorney-General of the Federation] appealed against the decision given in favour of INNOSON. Somewhat curiously, the said GTB fought this matter [to which it was never a party ab initio] up to the Supreme. Seeing through the façade of conspiracy between the GTB and the FGN, the Supreme Court in the Leading Ruling most adroitly delivered by Eko, J.S.C made this revealing pronouncement:

“Let me further state, at the risk of repetition, that neither the Nigeria Customs Service nor the Attorney-General of the Federation, who are the Judgment Debtors, have not appealed the Judgment or Order of the Federal High Court directing them to pay to the Respondent herein -

"a) N700,220,000.00 as damages;

b) 22% interest per annum on the said sum on the said sum of N700,220.000.00 from the date of the commencement of the suit to the date of the judgment;

c) 22% interest per annum on the judgment sum from the date of Judgment until final liquidation of the judgment sum.???

The mischievous purpose of the leave sought to raise fresh issues through the additional grounds of appeal is the use of this appeal against the garnishee order absolute to secure a downward review of the judgment debt against the judgment debtor. It is a sheer proxy war the Appellant has embarked upon on behalf of the apparently unwilling Judgment Debtors. While we are hearing the voice of Jacob, we are certainly touching the hand of Esau. This has led to the material contradictions in the stance of the Appellant in this application, who has consistently engaged itself in double-speak, when it suits it, or an outright material non-disclosure or suppression of material facts.”[emphasis supplied by us].

After this scathing strictures slammed against the GTB, the Supreme Court peremptorily entered an order dismissing the application of GTB.

Following unconscionable massive deductions from the current account of INNOSON Nig. Ltd. domiciled with the GTB, in 2012 [after failed negotiations for amicable resolution of the issues between the feuding parties], INNOSON sued GTB at Federal High Court [Awka Division] in Suit No: FHC/AWK/CS/139/2012. In its well-considered judgment [following a grueling forensic contest] the Federal High Court sitting in Awka awarded the sum of N4.7billion to INNOSON Motors against GTB. The Court also ordered GTB to pay 22 % (percent) interest on the Judgment debt until all its indebtedness to INNOSON has been liquidated. GTB’s appeal to the Enugu Division of the Court of Appeal [in Appeal No: CA/E/288/2013] met a brick wall as that Court ordered it to firstly pay, into an interest yielding account, in the Name of the Chief Registrar of the Court, the judgment debt of over Six Billion Naira. The GTB filed an affidavit making a case of the possibility of its collapse in the event it pays the judgment debt slammed against it at the suit of INNOSON. The GTB appealed to the Supreme Court [against the Court of Appeal Ruling] which is now awaiting the determination of that Court. At the last count, both the party on the run [the GTB] and the party in pursuit [INNOSON] are now awaiting the outcome of their contest at the Supreme Court of Nigeria. Instructively, the available and verifiable records of the courts in relations to these cocktail of cases would readily justify the factual account which we have just outlined.

THE OBJECTIVE OF THE ARTICLE:

The above factual narrative represents [in summary] the concatenation of the circumstances resulting in the arrival of the EFCC on the scene on that fateful 19^th day of December, 2017. It is against the backdrop of this factual synopsis that we now proceed to the substance of this engagement by first stating its mission. It has come to light, following his arrest, that the Economic and Financial Crimes Commission [henceforth called the EFCC for short] had earlier filed criminal charges against the INNOSON Boss prior to his arrest on the 19^th day of December, 2017. The charge was dated 30 November, 2017 and filed at a Lagos High Court. The dispositive issues the present engagement focuses on are the patently unlawful arrest of the INNOSON Boss and the hiatuses that adorn the face of the charges which are purported to have been brought against him before the High Court of Lagos State of Nigeria. After a clinical survey of these identified issues accentuated for consideration, the writer will examine the impact of the outcome of the said two issues on the case which the EFCC proposes to establish against the INNOSON Boss. In paddling the canoe of this enterprise, we shall strictly be guided by the jurisprudential beacons offered by both scholastic and juristic authorities, which in their aggregate, represent the law as it stands in Nigeria today.

THE ARREST OF 19^th DECEMBER IS UNLAWFUL:

That the liberty guaranteed every citizen of this country could be tampered with or curtailed in certain defined circumstances admits of no contention, Section 35(1) (c ), of the Constitution, Bamaiyi v. State (2001) 8 N.W.L.R. (Pt. 761) 670 but rather finds solid justification under our Constitution which is the fon et origo [the fountain and origin] of all our laws, Echeazu v. Commissioner of Police (1974) N.W.L.R. 308 at page 314. In other words, personal liberty of an individual within the contemplation of section 35(1) of the Constitution is a qualified right, Dokubo-Asari V. Federal Republic of Nigeria (2007) 12 NWLR (PT 1048). 320. However, the same Constitution that permits derogation from the liberty of the citizen equally imposes corresponding responsibility on the arresting authority which must be peremptorily adhered to. For instance, Section 35(3) of the amended 1999 Constitution of the Federal Republic of Nigeria [henceforth called the constitution in this write-up] imposes a duty on the arresting authority in this lucid language:

Any person who is arrested or detained shall be informed in writing within twenty-four hours (and in a language that he understands) of the facts and grounds for his arrest or detention.

The ever-rigid demand of the law is that any state authority [including the EFCC in the instant case] that either arrests or detains a citizen shall inform the arrested or detained citizen in writing within twenty-four hours (and in the language that he understands) of the facts and grounds of his arrest or detention. It is noteworthy that the Constitution uses the word “shall” in emphasizing the duty yoked on the arresting authority. Interestingly It is no longer in doubt that the word 'shall' when used in a statute or rule of court, makes it mandatory that the rule must be obeyed. In other words, generally, the term 'shall' is a word of command and denotes obligation and this gives no direction, it imposes a duty. In Achineku v. Ishagba (1988) 4 NWLR (Pt.89) 411 the court had this to say about the use of the word shall in a statute.

 "The word shall in its ordinary meaning is a word of command and one which has always or which must be given a compulsory meaning as denoting obligation. It has a pre-emptory meaning and it is generally imperative and mandatory. It has the invaluable significance of excluding the idea of discretion to impose a duty which may be enforced."

The Court in Honourable Commissioner for Education, Akwa Ibom State & ORS v. Harrikok Engineering Company Ltd & Anor (2013) LPELR-21399(CA) has this to teach us:

The use of the word "shall" in the provisions imports a command and what is legally mandatory thereby excluding expressly, any form of discretion in the filing of every application therein.

It is not in doubt [as INNOSON has continued to maintain] that the EFCC [the arresting authority herein] did not and has not [at the time of the writing of this piece] informed the INNOSON Boss [in writing as mandatorily demanded by the Constitution] of the facts and grounds for his arrest or detention. This alone makes signposts and establishes the illegality of the arrest of Dr. Innocent Ifediaso Chukwuma by the EFCC.

It is pertinent at this juncture to recall the statement made by the GTB in the wake of INNOSON’s arrest. According to the GTB, as “a law abiding corporate citizen” it reserves the right to “report any untoward/criminal activity to the appropriate law enforcement agencies for investigation…” The law supports the GTB on this position. Indeed, in Fajemirokun v. CBN Ltd (2009) 21 WRN 1 @ 10, it was held by the Supreme Court that:

It is the duty of citizens of this country to report cases of commissions of crime to the police for their investigation and what happens after such report is entirely the responsibility of the police. The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide.

However the matter does not end there. There is yet another side to it. In view of the above position, one would have thought that the GTB had petitioned the EFCC which would have formed the facts and grounds for the arrest it proceeded to make against the INNOSON Boss. Unfortunately, up till the present day, the EFCC is yet to cite the petition presented to it by the GTB. Even when such a petition is presented to the Commission, it has a duty to firstly investigate, a duty recognized even by the GTB which reserves the right to “report any untoward/criminal activity to the appropriate law enforcement agencies for investigation…”. In accentuating this duty of investigation imposed on the arresting authority, which ordinarily ought to precede arrest, the Court per Nwodo, J.C.A. [of blessed memory] in Onah v. Okenwa (2011) All FWLR (Pt. 565) 357; (2010) 7 NWLR (Pt. 1194) 512 has this to teach:

Every person in Nigeria who feels an offence has been committed has a right to the Nigeria Police Force. Once that right of complaint to the police who are custodians of order in the society is exercised, the right shifts to the police to exercise statutory powers under Section 4 of the Police Act. The power conferred on the police under the Police Act includes investigation, arrest, interrogation, search and detention of any suspect. In the process of investigation, the police is enjoined to look at the facts contained in the complaint carefully before proceeding to arrest or detain the persons complained against. This is the rationale for shifting the onus of justification of attest and detention on the police. [emphasis supplied by us]

Against the background of the foregoing legal analysis, a cocktail of question springs up: was there any petition to the EFCC against INNOSON? Who authored the petition? On which date was the petition written? Did the EFCC ever investigate the petition? If yes, was INNOSON invited over to make some explanations regarding the content of the petition?

What is more, there is no evidence on record that the EFCC ever invited INNOSON Boss to take his statement regarding any incriminating petition against him. This alone has set up for a grand failure whatever criminal charge(s) the EFCC might file or is claiming to have filed against INNOSON Boss. The reason is simple. The Supreme Court has loudly insisted that in criminal trials, the statement of the accused made to the arresting/detaining authority must peremptorily be obtained and exhibited since that forms the very foundation of his [the accused] defence. This principle came to light in Olayinka vs. The State (2007) 30 NSCQR (Pt.1) 149 where Tabai, J.S.C. [delivering the Leading Judgment of the Court] admirably enunciated the proposition thus:

On the 19/12/84, the Appellant testified to the effect that his earlier statement(s) to the Police was torn and in its place Exhibit "A" was dictated to him. The assertion may not be true. But the implication of the assertion is that the said statement or statements contained materials exculpatory of the Appellant. It is, at this juncture, necessary to emphasise that the statement of an accused person made to the Police, if not confessional, is the very foundation of his defence. In the instant case therefore, the prosecution had a duty to make the said statement or statements available to the Court. The Appellant might have raised his defence or defences therein and the court would have had the opportunity to examine them. In the absence of these statement or statements the Appellant cannot be held to have had a fair trial guaranteed him under the Constitution. [emphasis supplied by us]

There is yet another side of the coin on this illegal arrest. It is the claim of the EFCC that its operatives were encircled and manhandled by some INNOSON factory workers. Assuming, arguendo [without conceding], that this ever happened, both the INNOSON Boss and his factory workers did not commit any offence known to law in the prevailing circumstances as have been excavated above. In this connection, the old English case of Christie vs. Leachinsky [1947] AC 573, [1947] UKHL 2, [1947]1 All ER 567, [1947] 63 TLR 231, comes to mind; therein the House of Lords, among others, emphatically held thus:

Police officers must at common law give a detained person a reason for his arrest at or within a reasonable time of the arrest. Under ordinary circumstances, the police should tell a person the reason for his arrest at the time they make the arrest. If a person’s liberty is being restrained, he is entitled to know the reason. If the police fail to inform him, the arrest will be held to be unlawful, with the consequence that if the police are assaulted as the suspect resists arrest, he commits no offence, and if he is taken into custody, he will have an action for wrongful imprisonment. [emphasis supplied by us]

In his illuminating contribution, Lord Viscount Simon forcefully opined [while summarising a police officer’s powers of arrest at common law] that:

“(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized”

THE CHARGES AGAINST INNOCENT CHUKWUMA:

To round up, we now quickly discuss the charge brought against Dr. Innocent Chukwuma. Without plunging into the nitty-gritty of the counts, a cursory look at the charge sheet very sadly reveals that the EFCC is in serious misconception of the law of documentary credit or the complex web of transaction it guides.

In this arrangement, there are four parties and four contracts, namely,

(a) The contract between the buyer and his local Bank, the issuing bank which does not involve any transaction for the carriage of goods;

(b) the contract between the issuing bank and the confirming bank, which is founded on document;

(c) there is the contract between the confirming bank and the overseas supplier - seller also founded on documents;

(d) there is the contract between the buyer and the seller.

It has been stated that the very and essential nature of a Letter of Credit transaction is that parties deal only in documents and not in goods - see Article 8, Uniform Customs and Practice Documentary Credits (1974 Ed.). Again credits are separate transactions from the sales or other contracts on which they may be based. Banks are not in any way bound by such other contracts. For the above propositions, support is found in See Asburg Park and Ocean Grove Bank v. National City Bank of New York 35 N.Y.S. 2nd 935,989.; Equitable Trust Co. of New York v. Dauson Partner. Ltd., (1927) 27 ULR. 49, 52 and Bank Metti Iran v. Barclay. Bank D.C. O. (1951) 2 Lloyds Rep. 367,376. We are informed by the outcome of our clinical and fastidious reading of the authorities on this score that even though the name of the GTB was endorsed on the goods INNOSON imported [as the consignee], it still, in law, does not pass the title in the goods to the GTB [it being INNOSON’S issuing Bank] since the said documents was a collateral for the Letter of Credit (LC) it [the GTB] issued for the benefit of INNOSON. There is indeed a striking convergence of scholastic views on this proposition of the law. See The Law of Bankers Commercial Credits, Gutteridge and Megrah 7th Ed. p.77, ; Sarna, Letters of Credit at p.121 and Professor E. P. Ellingers, Documentary Letters of Credit, at p. 155. Indeed, there is equally remarkable unanimity of juristic opinion on this score for which the authorities of U.C.M. v. Royal Bank of Canada (1983) A.C. at p. 183 and Akinsanya v. U.B.A. Ltd. (1986) NWLR (Pt. 35)273 are referred to and strongly recommended [gratis] to anybody offering legal advice to the EFCC. The said criminal charges brought against INNOSON Boss are doomed from inception.

SUMMARY:

In view of the near-exhaustive factual analysis so far attempted, festooned with a galaxy of entrancing judicial authorities, it is no longer any difficulty for any uncommitted mind to appreciate the unconstitutionality of the arrest of Chief (Dr.) Innocent Ifediaso Chukwuma, effected in Enugu by the EFCC operatives on the 19^th day of December, 2017 and his subsequent detention in far-flung Lagos, ENE & ORS v. BASSEY & ORS (2014) LPELR-23524(CA). The EFCC having not carried out the now impugned arrest in the manner trenchantly consecrated by the law, has no valid claim in law assuming its personnel were assaulted on the day of the star-crossed arrest by INNOSON factory workers in putting up a resistance to an illegality, Christie vs. Leachinsky (supra). It is equally evident that the only reason why the EFCC did not confront the INNOSON Boss with any criminal petition against him or cite it as the fact and ground of his arrest was that such a petition never existed or assuming one existed, the content would have been against the claim of the EFCC, Section 167(d) of the Evidence Act, 2011; CHUKWUEMEKA EZEUKO (ALIAS DR. REV. KING) v. THE STATE (2016) LPELR-40046(SC). More importantly, the foundation of whatever criminal case the EFCC might bring against INNOSON is already destroyed for the inexplicable refusal of the EFCC to offer INNOSON Boss the opportunity of making a statement regarding the petition against him which statement would have formed the foundation of his defence, Olayinka vs. State (supra). Elsewhere, it has been noted that the EFCC somewhat curiously filed a criminal charge dated the 30^th day of November, 2017 but upon a sober scrutiny of the stamp of the Court affixed on the face of the process bears out the fact that the said charges were eventually filed on the 12^th day of December, 2017 [one week before the melee in Enugu occurred]. By filing a criminal charge against a citizen, the legal implication is that the Court was now seized of the matter as the dominus litis. This effectively precludes any of the combatant [both the accuser and the accused] to desist from any further step capable of foisting a fiat accompli on the court or in any way undermining the judicial proceedings that has been set in motion. Obi vs. INEC (2007) 11 N.W.L.R. (Pt. 1046) page 565 In circumstances not too dissimilar with the one we are currently grappling with, the Supreme Court in Ojukwu vs. Military Governor of Lagos State (1986) 2 NWLR (PT 18) 621 forcefully re-emphasised that “once a dispute has arisen between a person and the government or authority and the dispute has been brought to before the Court, thereby invoking the judicial powers of the State, it is the duty of the government to allow the law take its course or allow the legal and judicial process to run its full course. The action the Lagos State Government took can have no other interpretation than the show of the intention to pre-empt the decision of the Court. The Courts expect the utmost respect of the law from the government itself which rules by the law.” Instead of awaiting the arraignment and the hearing of the bail application of the defendant, the Commission jumped the gun by arresting a man already before the court with the absurd result that instead of the normal bail pending trial usually granted by the Court, the Commission is now pretending to have granted an “administrative bail” to the INNOSON Boss. In any event, under which law did the EFCC purportedly grant the INNOSON Boss administrative bail where the charge sheet shows that he is already placed [purportedly] before the Court. By what alchemy did the EFCC arrive at such egregious practice that has no antecedent in our criminal law practice? So much questions for the Commission. What does it say about our criminal justice system? How disappointing! We must make haste to acknowledge that issues surrounding unlawful arrest, without more, cannot vitiate an otherwise valid criminal trial but the pitfalls have been highlighted for reasons that are too obvious to discerning minds.

END:

What is more, all this lapses betray an institution of the state that is regrettably on an unholy mission without the slightest support of the law. That the EFCC knows or ought to know of the existence of legal disputes involving GTB/INNOSON all of which are now pending before the Supreme Court speaks eloquently to the sacrilegious disdain in which the Commission [EFCC] holds the proceedings of the courts. It becomes most worrisome when it is remembered that the Commission is a creature of a Statute validly made by the Legislature. Indeed, abuse of prosecutorial powers can have no better example, Mohammed Abacha v. State (2002) 5 NWLR (Pt 761) 437. This nauseating proclivity has been roundly condemned time and again by our superior courts, Connelly v. Director of Public Prosecutions (1964) A.C. 1254, 1301, 1302; (1964) 48 Cr. App. R. 168, 268269, 219, 280. Setting the law in motion against a man for reasons that available documents accompanying the charge cannot explain and sustain has been frowned on by the Courts, R. v. Rutland and Sorrell (1945) 1 All E.R. 85, 87. Of old, it has been said that the judicial power which is conferred on the Courts is intended to be used in deciding issues in genuine cases or controversies. This powers of courts to prevent abuse of process includes the power to safeguard an accused person from oppression and prejudice such as would result if he is sent to trial pursuant to an information which discloses no offence with which he is in any way linked, Ikomi v State (1986) 3 NWLR (Pt.28) 340. This cannot be otherwise since controversies are settled so that no accused person will be oppressed either directly or indirectly through act of prosecution; if not we shall have persecution in place of prosecution, Okoli v. The State (1992) 6 NWLR (pt. 247) 381. It is for this reason that an accused person, despite the power to file indictment on an information, should not be indicted to face trial that from the outset it was clear he should not face, Abacha v. State (supra); Egbe v. The State (1980) 1 NCR, (ALR) 341; Enuma v. The State (1997) 1 NWLR (Pt. 479) 115, 121, 122. It has now come to light that the underlying transaction forming the springboard of the charges which the EFCC seeks to press against the INNOSON Boss is that of Letters of Credit of which its undulating nuances and somewhat windy complexities have been neatly and comprehensively delimited and thrashed by the Supreme Court, Akinsanya v. U.B.A. Ltd (supra). The EFCC should humble itself and go back into the repository of law reports preparatory to its filing any criminal charge whose root is traceable to the intricate web of complex commercial transaction which Letters of Credit somewhat epitomizes. That way, a monumental embarrassment of international dimension would be spared us. Little wonder then that in rounding up the debate of Senators who took turn to lampoon the uniformed mission of the EFCC at INNOSON’s residence, the Nigerian Senate President, Dr. Olubukola Saraki aptly concluded:

“I think this does not speak well for the country. How would a private commercial transaction now become the focus of EFCC? I think this is the area where our focus should be. I don’t think you have heard where FBI interferes in the affairs of Citibank and Fords Motors, or the financial crimes agency in the United Kingdom interfering in an issue between Barclay’s Bank and a customer. Honestly, we are just making a mockery of ourselves and we really need to be able to do the right things.”[emphasis supplied by the writer]

Last word: the banker/customer relationship between GTB/INNOSON has lured the EFCC into a dangerous race against the extant laws of the land.

We find here a convenient place to stop.

Johnmary Chukwukasi Jideobi, Esq. is a Criminal Defence Attorney, Managing Partner at Gold Standard Attorneys and Co-Founder, Justice Without Borders Network. You can reach him on: 08131131942 OR [email protected]