Fundamental Rights Jurisprudence (4) Melrose V EFCC

By EBUN-OLU ADEGBORUWA, SAN

INTRODUCTION

The third part of this article which was published last week dwelt extensively on the facts of the case of Melrose General Services v Economic and Financial Crimes Commission (2025) 1 NWLR (Pt.1972) page 1, being the decision of the Supreme Court, which established authoritatively the onus of proof in fundamental rights cases.

This is not the first time that the apex court has interpreted the conduct of law enforcement agencies in relation to the infringement of the fundamental rights of citizens.

In Director, State Security Service & Anor. v Olisa Agbakoba (1999) 3 NWLR (Pt.595) 314, the Respondent, a legal practitioner, was at the material time also the president of a non-governmental human rights body based in Nigeria known as the Civil Liberties Organisation (CLO).

In his capacity as President of the CLO, he was involved in international activities which were aimed at enhancing the growth of non-governmental organisations (NGOs) concerned with human rights.

The respondent was invited by the Netherlands Organisation for International Development and Cooperation (NOVIB) to attend a conference which was scheduled to take place between 22nd and 25th April, 1992.

On 21st April, 1992, the respondent intending to attend the conference went to Murtala Mohammed International Airport at Ikeja, Lagos.

However, he could not board the plane to the Hague because he was stopped by officers of the Nigerian State Security Service (SSS). The officers impounded his passport without giving any reason for doing so and merely directed that he should report the next morning to the headquarters of the SSS at No. 15A, Awolowo Road, Ikoyi, Lagos, for further action. On keeping the appointment on that day, the respondent was informed that the Director of the SSS whom he was to report to was not available. Thereafter other appointments were given to the respondent but on each of such occasions he was not able to meet the Director.

During one of such visits to the headquarters, the respondent was directed by an official of the SSS to forward his complaints to the Attorney-General of the Federation, which he did through a letter dated 29th April, 1992.

The respondent subsequently filed an action at the High Court wherein he deposed in the affidavit that the seizure of his passport had caused him embarrassment and adversely affected his human rights activities. It was as a result that he brought the motion on notice before the High Court.

The appellants did not file a counter-affidavit despite several adjournments granted at their request. The trial court took only the address of the respondent and in its ruling dismissed his case on the grounds, inter alia, that the respondent did not establish that he has a legal right to his passport especially bearing in mind the words contained in the passport under the title "caution" where it is stated: "This passport remains the property of the Nigerian Government and may be withdrawn at any time."

Aggrieved by the ruling, the respondent appealed to the Court of Appeal which allowed the appeal and set aside the High Court's ruling. In its judgment, the Court of Appeal held, inter alia, that the right to hold a passport is a necessary concomitant of the exercise of the right to freedom of movement enshrined in section 38 (1) of the 1979 (now section 41 of 1999) Constitution which includes the right of ingress to and egress from Nigeria.

The appellants who were not represented at the hearing of the appeal at the Court of Appeal appealed to the Supreme Court, which held that the right to hold a passport is intrinsically tied to the right to freedom of movement.

Furthermore, the apex court held that once a citizen has shown that any of his fundamental rights has been infringed, the burden is on the infringing body or authority or person to establish that the denial of the right was justified by law.

In this case, the respondent showed by affidavit evidence that his right to the possession of his passport, and therefore to freedom of movement, had been infringed but the appellants failed to discharge the burden on them that the seizure of the passport was justified by law.

In that case, it was held that the act of seizure of the respondent's passport by the State Security Service (SSS) did not only amount to unwarranted interference, but it was clearly illegal.

DECISION OF THE SUPREME COURT IN MELROSE V EFCC

Held, (allowing the appeal by a majority decision of 3 to 2, Ogbuinya, J.S.C. and Abiru, J.S.C. both dissenting):

Propriety of Criminalizing Contractual Transactions

On whether use of section 17 of Advance Fee Fraud And Other Fraud Related Offences Act, 2006 to recover money lawfully paid under contract is unconstitutional:

The use of section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 and similar legislations to recover or retrieve money paid to a consultant for the satisfactory execution of its contractual obligation under a contract is a gross abuse of legal process and violates the provisions of section 44 (1) of the Constitution of the Federal Republic of Nigeria, 1999 against compulsory acquisition of movable property or interest in such property.

Per AGIM, J.S.C. at pages 101-102, paras. C-B:

“The concurrent decision that because the payment to the appellant did not follow the process the payment to GSCL BIZPLUS followed, it is reasonable to suspect that it is the proceeds of unlawful activity is as perverse as it is absurd in the face of exhibits MSG2, MSG3 and MSG4 and having regard to the facts that the NGF that paid the appellant has not complained that appellant fraudulently or unlawfully obtained the payment from it by any false pretense, that the NGF that engaged the appellant to verify and reconcile the generated data in GSCL BIZPLUS report and other documents, did not complain that the appellant did not do the job or that it falsely represented GSCL BIZPLUS work as its own, that the NGF that made the payment did not complain that its established payment process was not followed and that the appellant was not in a position to violate the NGF payment process since it did not pay itself and there is no audit query that NGF established payment process was violated by NGF in the payment to the appellant. In any case, the appellant having completed the work it was engaged by NGF to do in exhibits MGS2, MGS3 and MGS4, it cannot be denied entitlement to the money NGF contractually agreed to pay for the job. Assuming NGF did not follow its established payment process in making the payment, this cannot be a reasonable basis for suspecting that money paid by NGF to the appellant upon being satisfied with the appellant’s performance of its contractual obligation in the written contract between them as evidenced in exhibits MSG2, MSG3 and MSG4, is the proceeds of an unlawful activity. The propriety or reasonableness of NGF entering into a contract with the appellant to verify and reconcile the data in GSCL BIZPLUS report submitted to NGF is as only NGF or its auditors can decide. If it has chosen to spend its money contracting another consultant to have a second look at the data in the report submitted to it by an earlier consultant, so be it. This administrative discretion cannot be questioned or faulted. Such discretion cannot be a reasonable basis for suspecting that the money paid to the second consultant is the proceeds of unlawful activity under the Advance Fee Fraud Act, the Money Laundering Act of 2004, the Economic and Financial Crimes Commission Act of 2004 or any other law enforceable under the Economic and Financial Crimes Commission Act of 2004. Such suspicion is false and absurd.”

Legality of Engaging Law Enforcement Agencies for Debt Recovery

On whether action for debt recovery or enforcement of contract permitted under section 17 of Advance Fee Fraud and Other Fraud Related Offences Act, 2006:

Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 and similar legislations are not debt recovery or contract enforcement mechanisms. In this case, assuming the appellant breached its contract with the Nigeria Governors Forum, section 17 of the Advance Fee Fraud Act and Other Fraud Related Offences Act cannot be used as a tool to secure the performance of the contract or to recover monies paid under the contract or settle other disputes because those are not a part of the purpose of the section.

Issuance of Order of Interim Forfeiture of Property

On condition precedent for order of interim forfeiture of property under section 17(1) of Advance Fee Fraud And Other Fraud Related Offences Act, 2006:

An order of interim forfeiture of property under section 17 (1) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 cannot be validly granted as a matter of course. The requirement of reasonable suspicion under section 17 (1) of the Act is that the suspicion should not be baseless or whimsical or less than reasonable. The applicant must adduce evidence of circumstances including available information that justify or provide reasonable basis for suspecting that the property is the proceeds of an activity that is made unlawful by the provisions of any of the legislations listed in section 17 (1) of the Act. The reasonableness of the suspicion is determined by whether the circumstances suggest the breach of any of the provisions in the statutes listed in the sub-section. If the facts and circumstances relied on for the application do not suggest or show breach of any of the provisions of any of the statutes listed in section 17 (1) of the Act, there would be no reasonable basis for suspecting that the facts amount to unlawful activity and there would be no reasonable basis for suspecting that a property derived from such circumstances is the proceed of an unlawful activity and an order of forfeiture cannot be made. If the applicant fails to adduce such evidence that shows that the suspicion is reasonable, then the application for an order of interim forfeiture of property made pursuant to section 17 (3) of the Act should be refused. In this case, the 1st respondent sought and obtained the interim order of forfeiture of the appellant’s money. But it did not show that the circumstances and facts relied on for the application for the order were unlawful under the provisions of the legislations listed in section 17 (1) of the Advance Fee Fraud and Other Fraud Related Offences Act as there was no evidence that there was a breach of any of those statutes. In the circumstance, there was, clearly no basis for the grant of the interim order of forfeiture of the appellant’s money in its bank account.