- May 2, 2019
- Posted by: Stephen Azubuike
- Category: Case Law Blog
GTB Plc v. Adedamola  5 NWLR (Pt. 1664) 30 at 43, paras. E-F, per Abubakar, JCA:
“Before freezing customer’s account or placing any form of restraint on any bank account, the bank must be satisfied that there is an order of court. By the provisions of Section 34(1) of the Economic and Financial Crimes Commission Act, 2004, the Economic and Financial Crimes Commission has no power to give direct instructions to banks to freeze the account of a customer without an order of court, so doing constitutes a flagrant disregard and violation of the rights of a customer.”
The point must be made consistently that EFCC is not a court of law. Where EFCC deems it necessary to move against the account of any person suspected of crime, due process must be followed. In ensuring that there is no confusion as to what is expected of the EFCC in such circumstance, Abubakar, JCA explained:
“Where there is allegation of commission of crime against a customer of a bank in relation to the funds in his account, the Commission is empowered by law to set in motion the process of investigating any such funds perceived to be derived from proceeds of crime. In conducting the investigation, the Commission is required to observe due process and satisfy the requirements of the law, the Commission or its officers must go to court and obtain an ex parte order before freezing the account, any failure to follow due process will render the action taken by the Commission a violation of the rights of the customer.”
An ex parte order is an order obtained through the filing of an ex parte motion. It is called ex parte because upon the motion being filed, EFCC is not obliged to serve same on the other party. It is enough if the application is brought to the attention of the court. The Court is permitted by law to consider it and grant same (if necessary) without hearing the person to be affected. The purpose of such interim order is basically to preserve the subject matter (in this case, the money in the suspicious account) from being disposed off. Usually, such orders are only to last for a short period (pending the hearing and determination of a motion on notice). Thus, in many cases, the ex parte motion is to be accompanied by a motion on notice which would be served on the person affected, thereby giving him opportunity to be heard. The motion on notice would then be seeking for an order that will last till the case is ultimately heard and decided. The court will rule on the application, one way or the other, after hearing both sides.
The facts of the case are that EFCC directed the Appellant to freeze the account of the 1st Respondent for the purpose of investigation. This was on the basis that there is a reasonable suspicion that the account is housing some proceeds of money laundering. The Appellant obeyed and placed restrictions on the account. The 1st Respondent filed a fundamental rights action against the Appellant and EFCC to secure the release of his account and for damages. The action succeeded. The Appellant appealed. After due consideration, the appeal was dismissed by the Court of Appeal who had no difficulty in concluding that, “The Appellant’s appeal is obviously bereft of a scintilla of merit and therefore deserves to be dismissed, it is hereby dismissed.”
It is a well-known fact that our financial institutions are always ever ready to cooperate with the EFCC even against all odds. The reason for this is not unconnected with the fact that the Commission has all the capacity to disrupt the business of any uncooperative organization by ruthless investigations and probing of its internal affairs. Nobody wants ‘trouble’.
Nevertheless, it is only expected that the EFCC should be given all the necessary cooperation they require to carry out their statutory mandate of checking economic and financial crimes. But this must be in line with the law and must not be at the detriment of bank customers. The cooperation must not be given at all cost. Banks owe their customers some level of duty of protection.
The Court of Appeal had some words of advice for the Appellant and for all other financial institutions in this regard. If only they will listen. Abubakar, JCA preached:
“Our financial institutions must not be complacent, reticent and toothless in the face of brazen and reckless violence to the rights of their customers. Whenever there is a specific provision regulating the procedure of doing a particular act, that procedure must be followed.”
Need I say more? I need not!