By Amaka Ezeno MCLArb
Again at page 46 of the records of appeal, the Applicant said he was informed by his Bank that his account was placed under restriction by the Economic and Financial Crimes Commission, paragraphs 7 to 14 of the affidavit in support.
On 1st Respondents own showing from the paragraphs in the support, the Bank action was on Instructions because there were allegations of crime surrounding the operations of the Account. The lower Court found the action of the Appellant, 2nd and 3rd Respondents as a violation of the fundamental Right of the 1st Respondent.
The learned trial Judge at page 51 of the records of appeal said as follows: “…In this case there is no evidence that the applicant committed any criminal offence, or was even reasonably suspected to have committed any offence. The EFCC has not come up with anything suggestive that Akinshiku Roy mentioned the Applicant as having conspired to commit the alleged offence he was accused of.
Even if the Applicant was alleged to have committed a criminal offence, EFCC cannot on its own direct the Bank to place restriction on his accounts in the Bank without an order of Court. The law allows EFCC to come, even with ex-parte application to obtain an order freezing the account of any suspect that has lodgements that is suspected to be proceeds of crime. No law imposes a unilateral power on the EFCC to deal with the applicant this way.
Again Guaranty Trust Bank has no obligation to act on EFCCS instructions or directives without an order of Court…”
The above is the reasoning of the learned trial Judge. I decided to check the provisions of the law relating to the powers of the Economic and Financial Crimes Commission to issue instructions to Banks to freeze Bank accounts of Customers, I read the provisions of Section 34(1) of the Economic and Financial Crimes (Establishment) Act, 2004 , the Section provides as follows:
34 (1) Notwithstanding anything contained in any other enactment or law, the Chairman of the Commission or any officer authorized by him may, if satisfied that the money in the account of a person is made through the commission of an offence under this Act or any enactments specified under Section 7(2) (a)-(f) of this Act, apply to the Court ex-parte for power to issue or instruct a bank examiner or such other appropriate regulatory authority to issue an order as specified in Form B of the Schedule to this Act, addressed to the manager of the bank or any person in control of the financial institution where the account is or believed by him to be or the head office of the bank or other financial institution to freeze the account. (Underlining mine).
The above provisions are in accord with the decision of the lower Court. 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 law 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. Whenever there is a specific provision regulating the procedure of doing a particular act, that procedure must be followed.”
The point must be made and clearly too that the relationship of the Appellant as the customer to the Respondent is such that for as long as the Appellant has his account with the Respondent funded, the Respondent can deal with the money as it likes and does not need the permission of the Appellant to deal with the money as he pleases. This is because the money is in the custody of the Respondent and to that extent, the Respondent that is the bank can be said to be the owner of the money.
In UBA Plc vs. Yahuza (2014) LPELR-23976, this Court held: “It is trite law that customer’s monies in the hands of the banker are not in the custody or under the control of the customer and such monies remain the property in the custody and control of the banker, and payable to the customer when a demand is made. Thus, if anything happens to the money thereafter e.g. theft of money or unauthorized withdrawals, it is the banker and not the customer that bears the loss – Wema Bank Plc vs. Osilaru (2008) 10 NWLR (Pt 1094) 150.”
This power of the Respondent over the money in the bank is limited to the right of the Appellant who is the true owner of the money. The Respondent is under obligation to honour all instructions of the Appellant over his money in the Respondent’s custody. Once the Appellant gives an instruction as to withdrawal from the account of the Appellant, the Respondent is to obey.
The legal implication of this is that whatever powers the Respondent have over the money deposited by the Appellant is limited to the power of the Appellant. The Respondent is under obligation to obey all legitimate instructions of the Appellant on the accounts he has with the Respondent. Usually, instructions are given by way of cheques or withdrawal forms. Except, there are legal reasons for the refusal of the Respondent to obey the instruction given by the Appellant as contained in Exhibits C, D, E and F, the Respondent will be liable for damages.
The Respondent has no right to deal with the Appellant’s account without due instruction from the Appellant. Let me quickly say that dealing with money in the bank which include the Appellant’s money the Respondent does not need permission as the money is in the custody of the bank but in dealing with the account of the Appellant, in which case this now separates the Appellant money from all the money in the bank, the Respondent must get the permission of the Appellant.
This drives home the point that the Respondent is a debtor and agent of the Appellant as it relates to his accounts with the Respondent. See Allied Bank of Nigeria Ltd. vs. Akubueze (1997) 6 NWLR (Pt. 509) 374; Bank of the North Ltd. vs. Yau (2001) 5 SC (Pt. 1) 121. In fact, the Respondent owes the Appellant the duty to notify the Appellant if there is any status change in his account with the Respondent.
In British and French Bank Ltd. vs. Opaleye (1962) LPELR-25173 (SC), the apex Court held: “Here we are concerned with the question of moving money from one account to another. Swift, F., said in the Greenhalgh case , at p. 164: “If a banker agrees with his customer to open two or more accounts, he has not, in my opinion, without the assent of the customer, any right to move either assets or liabilities from the one account to the other; the very basis of his agreement with his customer is that the two accounts shall be kept separate, and if the customer pays bills drawn upon him not into his general account,
where they will be discounted and he will receive the benefit of being able to draw against them, but into an account in which they will only be used either to pay bills accepted by the bank or bills drawn by the customer which they are specifically to meet, I do not think a banker, any more than any other individual, can change them from the one account into the other without the customer’s assent.”
The point I am laboring to make here is to drive home the point that generally the Respondent has no right whatsoever to place a restriction on the account of the Appellant unilaterally. This is both legally and morally unacceptable. The law frowns against unilateral use of power by any person or institution hence the doctrine of separation of power was entrenched in our Constitution. This is also why the law recognizes the fact that there is no absolute fundamental right as the right of one stop where that of another begins.
To be continued in the next edition….