IGP & ANOR. v. UBAH & ORS
COURT OF APPEAL (LAGOS DIVISION)
(NDUKWE-ANYANWU; IKYEGH; IYIZOBA, JJ.CA)
The 1st & 2nd Respondents entered into an arrangement with the 4th Respondent who is a director of Access Bank Plc and Coscharis Motors Limited by which Coscharis Motors Limited obtained a loan from Access Bank Plc to enable the parties finance the business of importation of Premium Motor Spirit (PMS) into Nigeria. All payments for the PMS were to domiciled with Access Bank. The 3rd respondent was the Chairman of the Presidential Committee on Verification and Reconciliation of Subsidy Payments to Petroleum Product Marketers and the Managing Director of Access Bank.
The 4th Respondent alleged that the 1st and 2ndRespondents fraudulently diverted part of the sale proceeds and Coscharis Motors Limited made a criminal complaint against the 1st and 2nd Respondents to the Appellants. Based on the complaint, the 2nd Appellant commenced an investigation culminating in the detention of the 1st Respondent.
The 1st and 2nd Respondents instituted a suit against the Appellants and the 3rd and 4th Respondents claiming several reliefs. With particular reference to the Appellants, they sought an order of perpetual injunction restraining the Appellants from further intimidating, harassing, arresting, detaining or instituting or continuing any criminal process or proceedings whatsoever against them on the basis of any complaint from the Presidential Committee on verification and Reconciliation of Subsidy Payments to Petroleum Product Marketers under the control and Chairmanship of the 3rd Respondent and/or by the 4th Respondent.
The Appellants and the 3rd & 4th Respondents filed preliminary objections in addition to substantive responses to the Originating Motion. The lower court heard the preliminary objections together with the Originating Motion. The trial court delivered judgment overruling all the preliminary objections and granting all the reliefs claimed by the 1st and 2nd Respondents.
The Appellants were dissatisfied with the judgment of the trial court and appealed to the Court of Appeal.
One of the issues raised was:
“Whether lower court in the circumstances of this case can grant order of perpetual injunction restraining the Appellants from arresting, detaining, Instituting or continuing any criminal proceedings against the 1st and 2nd respondents in connection with any criminal complaint by the 4th respondent or Presidential Committee on Verification and Reconciliation of Subsidy Payments.”
Learned counsel for the Appellants submitted that the order of perpetual injunction granted by the trial court runs contrary to the trite position of the law that no court can make an order restraining the police from investigating any criminal complaint or crime.
In response, counsel for the 1st and 2nd Respondents in his brief argued that the 2nd Appellant had concluded that the 1st and 2nd Respondents were guilty without proof and before he had completed his investigations. Furthermore, the trial court found that the 2nd Appellant’s investigation contravened the provisions of Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 and was in breach of the 1st and 2nd Respondents' fundamental right to be presumed innocent until proven guilty.
Unanimously allowing the appeal, the Court of Appeal held as follows:
“A criminal investigation remains what it is, just an investigation. If a Police investigator concludes that a suspect is guilty of the alleged crime even before conclusion of his investigation and takes the case to court without proof, all the accused needs to do after the prosecution has presented its case is to raise a no case submission and if upheld by the court that would be the end of the prosecution. Our Criminal Procedure Laws have put in place rules and regulations for the protection of the suspect during investigations. There are also relevant provisions under Chapter IV of the Constitution. The claims of the 1st and 2nd respondents do not come within any of those provisions. The 1st and 2nd respondents/applicants had come under section 36(5) of the 1999 Constitution but the section is inapplicable because they have not yet been charged to court. Once charged to Court, they are presumed innocent until proved guilty. In Okoro v. The State (1988) NWLR (Pt. 94); (1988) 12 SC (Pt. 11) 88 the Supreme Court in analyzing the presumption of innocence under Section 33(5) of the 1979 Constitution (36(5) of the 1999 Constitution) discussed how the burden can be discharged. It opined that the burden can be discharged when the essential ingredients of the offence charged have been established and the accused person is unable to bring himself within the defences or exceptions allowed under the law or Statute creating the offence.
This goes to support the view that the section does not apply at the stage of investigation but applies only after the accused has been charged to court. The order of perpetual injunction restraining the appellants is unconstitutional because it is an interference with the powers given by the Constitution to Police Officers to investigate and prosecute crimes. See Attorney Genera/Anambra State v. Chief Chris Uba (2005) 15 NWLR (Pt 947) 44; where Bulkachuwa JCA held:
‘For a person, therefore to go to court to be shielded against criminal investigation and prosecution is an interference with powers given by the Constitution to law officers in the control of criminal investigation. The plaintiff has no legally recognizable right to which the court can come to his aid. His claim is not one the court can take cognizance of for it has disclosed no cause of action. The plaintiff cannot expect a judicial fiat preventing a law officer in the exercise of his constitutional power.’
It is indeed trite that no court has the power to stop the Police from investigating a crime and whether to or how it is done is a matter within the discretion of the Police."
Ifeoma Esom for the 1st and 2nd Respondents.
Paul Usoro, SAN with Oladimeji Saruni, Taofik Adeleda and O. O. Amadi for the 3rd Respondent.
N.O. Olaiya with K. Udemezue, C. O. Onumaegbu and J. C. Umeh for the 4th Respondent.
This summary is fully reported at (2014) 11 CLRN
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