Commercial Crime: an accusation is not a charge

• AIG-IMOUKHUEDE v. UBAH & ORS
COURT OF APPEAL (LAGOS DIVISION) (NDUKWE-ANYANWU; IKYEGH; IYIZOBA, JJ.CA)The 1st & 2nd Respondents entered into a business arrangement with the 5th Respondent which involved the 5th Respondent securing financing from Access Bank Plc. The 5th Respondent alleged that the 1st and 2nd Respondents diverted proceeds of sale and engaged in criminal activities such as making spurious subsidy claims and money laundering. Reports were lodged with the Police and the Presidential Committee on Verification and Reconciliation of Subsidy Payments to Petroleum Product Marketers. The Appellant was at the material time the Managing Director of Access Bank and the Chairman of the Presidential Committee.
The Police commenced investigation of the reports. The 1st and 2nd Respondents filed an application at the Federal High Court under the Fundamental Rights Enforcement Procedure Rules claiming several reliefs including damages. The Appellant and 3rd to 5th Respondents filed preliminary objections. The trial court heard all the preliminary objections together with the substantive application and dismissed all the preliminary objections and gave judgment for the respondents granting the reliefs claimed but awarded reduced damages.
Dissatisfied, the Appellant appealed.
An issue raised was:
“Was the applicants’ Suit, in any event, not premature, in the context of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) considering the fact that (a) charging the applicants for a criminal offence is a condition precedent to the activation of their right under and pursuant to this Section; and (b) the applicants have not been charged for any criminal offence at any time material to this Suit and did not claim at all to have been so charged?”Learned counsel for the Appellant on this issue submitted that the suit was premature in the context of Section 36(5) of the 1999 Constitution which stipulates that:
“Every person who is charged with a criminal offence shall be presumed to be innocent until proved guilty”
Counsel argued that the condition precedent to the applicability of that section is that a person must be “charged with a criminal offence”. The 1st and 2nd Respondents did not claim that they were charged with any criminal offence at any material time.
In reply, learned counsel for the 1st & 2nd Respondents submitted that in construing and or interpreting the provisions of Chapter IV of the Constitution, the Courts are enjoined to consider the overall objectives of the Fundamental Rights and Enforcement Procedure Rules and to interpret the provisions of Chapter IV of the Constitution including section 36(5) expansively and purposefully with a view to advancing and realizing the rights and freedoms contained therein. Counsel submitted that the appropriate interpretation to give to the phrase “charged with a criminal offence” as used in Section 36(5) is “accused of a criminal offence.”
Learned counsel further submitted that contrary to the Appellant’s contention that the suit is premature because the 1st and 2nd Respondents have not yet been charged with any crime, section 46 (1) of the Constitution states that “Any person who alleges that any of the provisions of the Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.” Therefore, the 1st and 2nd Respondents need not wait until they are charged to court before they can institute this action for the enforcement of their fundamental right.
Unanimously allowing the appeal, the Court of Appeal held that:
“Section 36(5) provides that when a person is “charged with a criminal offence he shall be presumed innocent until he is proved guilty.” No mention was made of investigation process. Mr. Usoro SAN is right that the investigation process cannot be imported or smuggled into the interpretation of the section. Such an attempt cannot be rightly upheld by any court of law. The case of Lafia Local Government v. Governor of Nasarawa State (supra) cannot be interpreted to sanction the unlawful importation of such extraneous matter into the very clear and unambiguous provision of the Constitution.
…The submissions of Mr. Usoro SAN above are sound and unimpeachable expositions of the law. The attempt by Mr. Oluyede to stretch the language of section 36 (5) of the Constitution to cover investigations is futile. Further, his attempt to fall back on section 46 (1) of the Constitution claiming they could sue to pre-empt the breach of the fundamental rights of the 1st & 2nd respondents is also futile. Section 36 (5) is explicit and unambiguous in stipulating that it is only when a person “is charged with a criminal offence” that he “shall be presumed innocent until he is proved guilty”. The condition precedent for the activation of that right is the arraignment or charging of the person “with a criminal offence”. The right in Section 36(5) cannot be activated until the person is charged. 1st and 2nd respondents had not yet been charged to court. The alleged criminal offences were still under investigation when the suit was filed.
Section 36(5) does not apply. These points are so recondite and were fully argued by the appellant in the written addresses in support of his Preliminary Objection and the substantive suit. I am of the view that the learned trial Judge erred in not addressing this important issue in his judgment. Pursuant to Section 15 of the Court of Appeal Act and having considered all the relevant arguments as canvassed by the parties, I hold that the 1st & 2nd respondents suit was premature in the context of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999.”
Counsel:
Paul Usoro, SAN with Oladimeji Saruni; Taofik Adeleda and O. O. Amadi for the Appellant.
Ifeoma Esom for the 1st and 2nd Respondents.
Chief G. O. Obla, SAN with Olusola Folarin and M. R. Obla for the 3rd & 4th Respondents.
N. O. Olaiya, with K. Udemezue, C. O. Onumaegbu and J. C. Umeh for the 5th Respondent
This summary is fully reported at (2014) 11 CLRN
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