Category: Law

For over a week now, several Nigerians have been protesting over cases of assault, unjustified arrest, extortion, brutality, and killing of peaceful protesters by members of the Nigerian Police Force. We at The Legal Standpoint also join our voice with other united voices of Nigerians to call on the Nigerian government to quickly and manifestly hearken to our pleas.

Since #EndSar is a global protest which affects every Nigerian, this week’s publication centers on legal snippets surrounding the protest.

1. As stated last week, engaging in a peaceful protest is a constitutional right of citizens. See Here

2. Peradventure someone got hit by a stray bullet or intentionally shot at during the protest and still alive, by virtue of Section 1 and 2(2)(a) of the Compulsory Treatment and Care for Victims of Gunshot Act 2017 (The Act), every hospital in Nigeria whether private or public shall receive and treat gunshot or bullet wound victims with or without police clearance and such an individual must be attended to even without the payment of an initial monetary deposit.

Furthermore, there is a duty of care on every person, including, the security agent, to make sure they render every possible assistance to the person with a gunshot wound and ensure such an individual is taken to the nearest hospital for immediate treatment. The Act further states that any person or authority inclusive of the police, other security agent or hospital who stands by and fail to render assistance and this results in the unnecessary death of a gunshot victim shall be liable to imprisonment for 5 years or a fine of ₦500,000.00 or both.

3. While exercising this constitutional guaranteed right to a peaceful protest, if a protester’s rights are violated, such an individual can bring an against the violator in a competent Court of Law.

Thank you and see you next week.

#EndSars#EndPoliceBrutality💪🏿✊🏿

When it comes to protests, not only is Nigeria way too big, we are also twice as tall. Starting from the #RemovalofFuelSubsidy, to the #RevolutionNow, leading to the #EndSarCampaign and #NomeansNo, protests are endemic to the Nigerian sociopolitical space. Being one of the methods of political participation, protests provide the opportunity for citizens to openly ventilate their waves of anger on certain political, economical, and/or social issues that they do not agree with. More often than not, they also signal a clarion call for accountability and responsibility on part of the leaders. After all, had it been things were normal, protests would have been reduced to the barest minimum.

In addition, while some governments seek to underfmine the longevity of protest movements by acquiescing to protesters’ demands, whereas others choose to quash them with force. The latter has been on a recurring situation in Nigeria. The vast majority of unprovoked attacks on protesters are totally unwarranted especially where the protests are entirely peaceful, devoid of rancor or any form of violence, and constitute no security risk nor a violation of any known law.

In Nigeria, citizens’ right to a peaceful protest is drawn from the right of Expression, Peaceful assembly, and Movement as enshrined in Sections 39 and 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Articles 10 and 11 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act. Just like every other right, the Right of Freedom of Association and Assembly are qualified rights, that is, they have exceptions. The exceptions are assemblies that are violent, leading to the breakdown of law and order in society will not be allowed by the Law enforcement agencies whose primary responsibility is the maintenance of law and order.

THE FACT OF THE CASE
The All Nigeria Peoples’ Party had requested the Inspector-General of Police to issue police permits to its members to hold unity rallies throughout the country to protest the rigging of the 2003 elections. The request was refused by the police chief without any reason. The ANPP decided to hold the rallies. The first rally which held in Kano on the 22nd of September 2003 which was attended by the party’s presidential candidate, General Muhammadu Buhari, and other leaders of the ANPP was violently disrupted by the police on the ground that the organizers had not obtained a police permit.

THE ONE MILLION NAIRA QUESTION
The relevant issue that came up for determination was whether a permit is needed before one can engage in a rally and protest paying cognizance to S. 1(1)(2) of the Public Order Act. For clarification sake, these sections will be summarized. S.1 of the Act empowered the Governor of each state to direct the conduct of all assemblies, meetings, and processions on the public roads or places of public resort in the State and prescribe the route by which and the times at which any procession may pass. S.2 states that any person who is desirous of convening or collecting any assembly or meeting or of forming any procession in any public road or place of public resort shall, unless such assembly, meeting or procession is permitted by a general licence granted under subsection (3) of this section, first make application for a licence to the Governor not less than 48 hours.

From this aforementioned, it is obviously seen that the provisions of the Police Order are contrary to that of the Constitution. Based on the Supremacy Clause embedded in S.1(3) of the Constitution, If any other law is inconsistent(in this case, the Police Order Act) with the provisions of this Constitution, the Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void. See Abacha &Ors v. Fawehinmi (2000) LPELR -14 SC.

THE JUDGMENT
The court held per Adekeye JCA (as he then was) that “Public Order Act should be promulgated to compliment sections 39 and 40 of the Constitution in context and not to stifle or cripple it. A rally or placard carrying demonstration has become a form of expression of views on current issues affecting government and the governed in a sovereign state. It is a tread recognized and deeply entrenched in the system of governance in civilized countries – it will not only be primitive but also retrogressive if Nigeria continues to require a pass to hold a rally. We must borrow a leaf from those who have trekked the rugged path of democracy and are now reaping the dividend of their experience.

Recalling that the British colonial regime had introduced and imposed the Public Order Ordinance to stop the Nigerian people from protesting against foreign domination and exploitation Justice Adekeye was compelled to ask “…how long shall we continue with the present attitude of allowing our society to be haunted by the memories of oppression and gagging meted out to us by our colonial masters through the enforcement of issuance of permit to enforce our rights under the Constitution?”

On the fear usually expressed by the Police that a peaceful protest might be hijacked by hoodlums leading to a breach of the peace, the Court was of the view that “If as speculated by law enforcement agents that breach of the peace would occur, our Criminal Code has made adequate provisions for sanctions against breakdown of law and order so that the requirement of permit as a conditionality to holding meetings and rallies can no longer be justified in a democratic society.”

This stamp of approval given by the Appeal Court, in this case, is also similar to the decision given by the Ghanaian Supreme Court in the celebrated case of NPP V IGP 1992-1993(585-2000) 2 HRLRA 1 where the Court came to the unanimous decision that “I wish to add a few words to demonstrate that police permits are colonial relics and have no place in Ghana in the last decade of the twentieth century – the Public Order Decree that provided that the holding of all public processions and meetings should be subject to the obtention of prior police permission was unconstitutional because it was inconsistent with article 21(1) (d) of the 1992 Constitution, which granted every citizen the freedom of assembly, including freedom to take part in processions and demonstrations.”

In view of the aforesaid judicial pronouncement, the authorities of the Nigeria Police Force have recognized the fundamental right of Nigeria to protest peacefully without police permit. Hence, Principle 6 of the Nigerian Police Code of Conduct states that the Police shall: Maintain a neutral position with regard to the merits of any labour dispute, political protest, or other public demonstration while acting in an official capacity. However, the Police are, sometimes, governed by this principle, and most times, they conspicuously and unapologetically violate it.

Fundamental Rights are guaranteed by the Constitution. Hence, they can only be abridged or restricted by a procedure permitted by law. As such, if a police officer has information that any rally or demonstration may lead to a breakdown of law and order, he/she is advised to apply for an injunctive relief in a competent Court of law.

In conclusion, this landmark decision restricts the power-drunk members of the SARS and other law enforcement agencies who always seek to escape punishment by hiding under the cloak of the Police Order Act. By extension, the right to protest peacefully within the ambits of the law is one that cannot be taken away in a democratic society bounded by the rule of law.

Thank you. See you next week.

Perhaps, one of the best features of modern day banking is the duty of secrecy that financial institutions owe their customers. It is one of the implied terms of contract between the customer and the banker that the former’s account will not be divulged to a third party and transactions conducted through the bank account must be kept private from unauthorised persons. However, this duty of care is not cast in stone as there are situations where the bank will depart from this duty without any accompanying liability provided such departure is within the purview of the Law. These are commonly known as the Tournier’s exceptions which are:
(a) where discourse is under the compulsion by Law.
(b) where there is a duty to the public to disclose.
(c) where the interests of the bank requires disclosure.
(d) where the disclosure is made by the express or implied consent of the customer. As held per Bolaji-Yusuff in Fidelity Bank v Onwuka (2007) LPELR-42839(CA) (PP 48-51, Paras E-E) a Court order forms as an extension to the first requirement. It is on this basis that informs this analysis.

Pursuant to Section 6 and 7 of the Economic and Financial Crimes Commission (Establishment, etc.) Act 2004 (hereinafter referred to as the EFCC Act), the Commission is legally empowered to undertake investigations against any person, corporate body, or institutions regarding all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures, market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scams among others.

Law enforcement agencies, such as for example the EFCC, are creations of the Law. Hence, they must be compelled to operate within the bounds of the laws that created them. S.34 of the EFCC Act expressly states the procedures the Commission should comply with prior to freezing the account of any person who is suspected of keeping illegal funds in a bank account. These have been highlighted as:
(a) the procedure may be made by the Chairman of the Commission or any officer authorized by him.
(b). where it has been satisfied that the money in the account of a person is made through the commission of an offence.
(c). if these two aforementioned requirements are fulfilled, then they can apply to the Court ex-parte for power to issue a freezing order. An ex parte order is one that is made without the other party being made aware of it. (in this instance, the customer).
(d). upon the issuance of such order from the Court, such authorized officers of the commission may then direct the bank or other financial institutions to place a restriction on the said account. (A Post No Debit Order).

Overtime, it is disheartening that the Commission fulfilled other requirements leaving out the third one by issuing directives to banks without waiting to get a valid Court order. The banks, on the other hand, often acted on this directive by freezing the account without getting a Court order. Some financial institutions will not even inform affected customers until such an individual’s credit card got rejected while performing a transaction. Disappointment will then meet frenzy😥. As a defence, the banks often justify their actions by advocating that they do not want to obstruct the investigation by the law enforcement agents since, by virtue of S. 168(2) of the Evidence Act, all the actions of a public officer are presumed to be regular. Such a flimsy defence has been discountenanced by the Courts.

It is important to note that there may be counterarguments by legal writers that the EFCC, in addition to other law enforcement agencies, does not need a Court order before issuing a directive to a financial institution. They are most likely to rely on the use of the modal auxiliary verb ‘May‘ in S.34 of the EFCC Act. The writer humbly submits that this is erroneous. Generally, ‘May‘ in everyday simple language means something that you can choose to do or not. It does not stipulate a mandatory act. However, as stated in Ataye Farms Ltd v Nigeria Agricultural Bank Ltd (2003) FWLR (Pt.172), where the word “may” is used in a statute, the context in which the word appears must be looked into before it can be said to be mandatory or directory. The rationale as given by Per Odilli (JCA) in O.R.L. v. N.C.C is to ensure that justice will not be a slave to grammar. Hence, the context of usage will determine whether ‘May‘ will be interpreted as either mandatory or not. Considering the context in which the word is used in S.34 of the EFCC Act, the word should be interpreted as mandatory in view of the provisions of S. 34(2). The effect of the provision of S.34(2) is that the Chairman or any authorized officer’s discretion in directing the bank to freeze the account is dependent on a prior Court order. Hence, a Court order becomes the foundation in which an EFCC directive to the bank is being built on. This makes ‘May’ mandatory. The absence will automatically lead to a violation of the customer’s rights.

This constant violation of the Law by the Commission came to an head in the 2019 case under review of GTB v Adedamola & Ors (supra) before the Court of Appeal where the Court held that the EFCC has no power to direct the commercial banks to freeze the account of its customers without a valid Court Order. The Court even went further to state that: ”even if the applicant was alleged to have committed a criminal offence, the EFCC cannot, on its own, direct the bank to place a restriction on his accounts in the bank without an order of court. The law allows the EFCC to come to court even with an ex parte application to obtain an order freezing the account of any suspect that has lodgements suspected to be proceeds of crime. No law imposes a unilateral power on the EFCC to deal with the applicant this way”.

In addition, it also held that: “the Economic and Financial Crimes Commission has no powers to give direct instructions to Bank 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. I must add that, the judiciary has the onerous duty of preserving and protecting the rule of law, the principles of rule of law are that both the governor and the governed are subject to rule of law. The Courts must rise to the occasion speak and frown against arrogant display of powers by an arm of Government. It is in the interest of both Government and citizens that laws are respected, as respect for the rule of rule promotes order, peace, and decency in all societies, we are not an exception. Our Financial institutions must not be complacent and appear toothless in the face of brazen and reckless violence to the rights of their customers.

This decision has also been affirmed in the case of Olagunju v EFCC (2019) LPELR -48461 (CA). It is noteworthy that until this decision is reversed by the Supreme Court, it remains the law.

By a way of recommendation, whenever there is a specific provision regulating the procedure of doing a particular act, that procedure must be followed. Thus, while we commend the EFCC for carrying out its duty under the law, we further advise that such duty must stricto sensu follow the provisions of the law. They should not become a law unto themselves cutting down the fabrics of the Rule of Law holding our democracy as a nation.

In conclusion, this analysis pointed out the duty of confidentiality a bank has for its customers and the exceptions. It proceeded further by averring that the enabling power of the EFCC to investigate a crime and the importance of an exparte Court order before an account can be frozen.

Thank you for reading. See you next week and Happy New Month❤.