LEGAL IDEAS FORUM

Freezing of Account via Exparte Order:Is the law on the side of CBN or the EndSars protesters BY O. G Chukkol, ACIArb (UK)

The interim Order obtained by the Central Bank of Nigeria (CBN) to freeze the accounts of 20 persons alleged to be members of EndSars protesters has elicited mixed reactions and views across the country. Some argued that the CBN governor who obtained the order is not a juristic personality and even went as far as arguing that the order was in contravention of right to property and fair hearing of the affected persons. Others also questioned the non-joinder of the affected banks in the suit. Those in the other divide do not see anything illegal about it. To them, the order was properly obtained. Attempt will be made to analyze the position of the law with the aid of statutes and decided cases. The points will be taken one after the other.
WHETHER GOVERNOR OF THE CBN IS A JURISTIC PERSONALITY
Juristic person simply means person (whether natural or artificial) that can sue and be sued. The position of the law is that a body or office which is given functions or duties to perform which affects the rights or privileges of others is by implication of law vested with juridical personality that enables such a body or office to sue and be sued eo nomine. See the case of Carlen v. University of Jos [1994] 1 NWLR (PT. 323) 631
 
In the case of Access Bank v. Agege Local Govt & Anor (2016) LPELR-40491(CA), it was held that Chairman Agege Local Govt was a juristic person being a creation of a statute. The court held: “…where a body or office is created by statute, the right to sue or be sued can be inferred notwithstanding the absence of an express provision in this regard. See the case of CHAIRMAN EFCC & ANOR V. LITTLECHILD & ANOR (2015) LPELR – 25199(CA), Hence, being that the office of the Chairman, Agege Local Government is a creation of statute, he can rightly sue in that capacity”
Furthermore, in the Chairman EFCC & Anor V. Little Child & Anor (supra) , it was held that the office of Chairman of EFCC, being a creation of a statute, is a juristic person.
In African Ivory Insurance Co. Ltd V Commissioner for Insurance (1998) 1 NWLR (PT 532) 50, the Court of Appeal observed that the Commissioner for Insurance was vested with enormous powers and functions which may affect insurance companies and in the circumstance it would be unjust to hold that the commissioner could not be sued eco nomine.
Flowing from the above, there is no doubt that the governor of CBN is a juristic person. It is an office which is given functions or duties to perform which affects the rights or privileges of citizens.
FREEZING OF ACCOUNTS VIA EXPARTE ORDERS
Freezing of accounts of individuals via exparte order is not novel in Nigerian jurisprudence. We have various legislations that empower relevant authorities to freeze accounts of individuals for one reason or the other. Example by section 34 of the EFCC Act, EFCC can freeze account of an individual which is suspected to contain proceeds of unlawful act. By section 50 of its enabling Act, AMCON can freeze accounts of debtor companies via exparte orders.
There have been arguments in some quarters that exparte orders are granted only in emergency situations to protect subject matter. It is indeed a correct general statement of the law but it needs be noted that it can also be granted even when there is no emergency. The statutory provisions above present good examples of such situations. See also the case of America Specification Autos Ltd & Anor v. AMCON (2017) LPELR-44016(CA). 
WHETHER CBN HAS POWER TO FREEZE ACCOUNT OF INDIVIDUALS
In law, CBN is a banker to banks. It deals directly with banks, not individuals. CBN also exercises Supervisory power over banks. Can it therefore freeze account of individuals?
The answer is yes. Section 60B of the Banks and Other Financial Institutions (Amendment) Act, 2002 provides that “Notwithstanding anything contained in any enactment, where the governor has reason to believe that transactions undertaken in any bank account with any licence bank are such as may involve the commission of any criminal offence under any Law, he may make exparte application/or an order of the Federal High Court verifying on oath the reasons for his belief, and on obtaining such a Court order direct or cause direction to be issued to the manager of the bank where the account is situated or believed to be or in the alternative to the head office of such blink directing the bank to freeze forthwith all transactions.
In view of the above, whether the Federal High court was wrong in freezing the accounts of the EndSars protesters or not will depend on what CBN disclosed in the affidavit supporting its application before the court. If the content disclosed suspicion of offence involving those accounts, then the court may not be wrong. However, if the affidavit does not make such disclosure, then the court is most likely to be wrong.
LIFE SPAN OF EXPARTE ORDERS: WAS FEDERAL HIGH COURT LEGALLY RIGHT TO HAVE GRANTED 90 DAYS? 
The Federal High Court Abuja ordered accounts of the affected persons to be frozen for 90 days and made it renewable for another 90 days. What does the law say about life span of ex-parte orders?
Under most High Court (Civil Procedure) Rules, including that of the Federal High Court, lifespan of exparte orders do not exceed 14 days and is also renewable for period not exceeding 14 days.
However, lifespan of exparte orders under statutes/enactments are not clear. Statutes are always silent in that respect. But generally, exparte orders made under statutes (not rules of courts) can last even pending determination of either investigation or substantive suit. The only limitation is that it cannot last after determination of a suit. For instance, in the case of America Specification Autos Ltd & Anor v. AMCON (supra), the court held that under AMCON Act, exparte order can last till determination of the substantive suit. The court said, “By Sections 49 and 50 of AMCON Act 2010, a Court can issue an ex parte injunction pending the determination of the case to save the res (money or assets) from dissipation or disappearance from the jurisdiction of the Court.”
In the light of the foregoing, it is submitted that the legality of the exparte Order of the Federal High Court regarding the 90 days it granted depends on the law under which the exparte application was made. If the application was made under Federal High Court (Civil Procedure) Rules, then the court was legally wrong. However, if it was made under BOFIA, then the court may not be faulted.
WHETHER FREEZING ACCOUNTS VIA EXPARTE ORDER CONTRAVENES THE CONSTITUTIONAL RIGHTS OF THE ENDSARS PROTESTERS
As stated earlier, freezing of Bank accounts via exparte order is not novel. It has recognition under section 44(2)(k) of the constitution of the Federal Republic of Nigeria, 1999 (as amended) which is to the effect that right to own property is subject to general law “relating to the temporary taking of possession of property for the purpose of any examination, INVESTIGATION or enquiry”.
While giving life to the above constitutional provision in the case of Esai Dangabar v. F.R.N. (2014) 12 NWLR (PT 1422) 575, the Court of Appeal held that the Provision of Section 44 (2) (k) of the 1999 Constitution showed the intention of the law maker to validate any such law as Section 60B of BOFIA or section 34 of the EFCC Act which allows temporary restriction on assets of persons for the purpose of investigation.
Furthermore, in EFCC v Fayose (2018) LPELR-44131(CA), the court held that provisions as section 60B of BOFIA do not infringe on right to fair hearing. The Court of Appeal Abuja Division per Bada, JCA held in the case of Esai Dangabar v. F.R.N. (supra) that:

“Therefore, I do not see how the ex-parte order granted by the lower Court violated Appellant’s right to fair hearing because the order was in the nature of a preservatory order. The order is in my view in the interest of both parties. This is because it will prevent dealing with the properties in such a way that could render the final Judgment of the Court nugatory. The order therefore operates until the determination of the civil rights and obligations of the parties with regard to the properties under consideration, see the case of: NWUDE VS. CHAIRMAN EFCC (2005) ALL FWLR (PT. 276) PAGE 740.”

Also, in the case of Dame Patience Jonathan V FRN  (2018) LPELR-43505(CA), the court quoted 7UP BOTTLING CO. LTD VS. ABIOLA & SONS LTD (1995) 3 NWLR (PT. 383) 257 at 285 as follows:
“— the orders to be made by the Court unlike final decisions, are temporary in nature, so that, they do not determine the ‘Civil Rights and obligation’ of the parties in the proceedings as envisaged by the Constitution.
In the light of the foregoing, the rights of EndSars protesters were not infringed upon by the fact that their accounts were frozen via exparte order.
NON-JOINDER OF BANKS
ordinarily, an order of court binds only parties to it. In the instant order obtained by CBN, the affected banks were not made parties. Does that ipso facto render the order a nullity?
Well, in law, misjoinder or non-joinder of parties does not nullify a decision of court. In the case of EFCC v Fayose (supra), the court held that in freezing or attaching bank account, not all affected parties must be joined. For the avoidance of doubt, it was held as follows:

“Not only am I in total agreement with those decisions, I again agree with Mr. Oyedepo Rotimi for appellant that the procedure of interim ex-parte applications, generally, and particularly under Section 34 of the EFCC Act does not envisage or permit service of or joining the party likely to be affected by ex-parte before its grant, a position settled beyond dispute by the apex Court in 7UP Bottling Co Ltd v. Abiola & Sons Ltd (1995) 3 NWLR (PT 383) 257 @ 287.”

 

It is submitted, therefore, that faulting CBN or decision of the Federal High Court on the basis of non-joinder of the affected banks may not fly.
OBSERVATION
The reason behind the current hullabaloo about the freezing of bank accounts of the affected EndSars protesters is not far from the fact that CBN acted at a time when the EndSars protest hasn’t died down. There are also allegations that the CBN governor himself had attempted to convince the protesters to stop the protest but to no avail. The circumstance has thus, perhaps justifiably, made people suspect some kind of intimidation and attempt by government to silence people.
CONCLUSION
From the discourse undertaken, it can be seen that CBN governor is a juristic personality and has right in law to freeze account of individuals suspected to have committed crime via exparte application. Such orders are neither illegal nor in conflict with individual rights to property and fair hearing if the purpose is to investigate crime.
ABOUT THE AUTHOR
 
O . G. Chukkol is a final year student, Faculty of Law, ABU, Zaria and may be reached via 08032470318 or [email protected]mail.com 
For knowledge and Justice

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