The Bank and other Financial Institutions Act (BOFIA) 2020, is a banking and financial institutions’ regulatory legislation that provides the framework for which banks are to be set up, operate, carry-out day-to-day banking activities and other banking and financial duties and obligations. The Act also provides for rescue tools for failing banks and for the creation of tribunals for the enforcement of eligible loans amongst other salient provisions. The Act further provides for penalties thereto, for any bank or financial institution that breaches any of its provisions or who fails to comply with any provision that requires compliance therewith.
Albeit the salient provisions of the Act, one section is noteworthy of – Section 97(1) of the Act. On a careful perusal of the Act, one will find that the Act allocates a very considerable amount of unfettered powers to the Governor. The Governor has quite a repository of power to carry-out some actions or make some decisions with respect to any bank duly licenced and incorporated in Nigeria. The Act also deposits in the Governor the power to accept the licensing of any bank with or without conditions, or the refusal of the granting of a licence and he need not give any reason for such refusal – Section 3(3). The Governor also has the power under the Act to vary or revoke any licence earlier given – Section 5. These are few of the several powers accorded to the Governor under the Act.
However, for the purpose of this discourse, Section 97(1) is highly instructive. This provision is a rather controversial one, which confers on the Governor the power to freeze any account of which he may have reasons to believe that such account is being used in the commission of any criminal offence under any law. Heavy weather has been thrown by legal commentators, writers and lawyers, that this provision leaves at the disposal of the Governor the uncluttered power to act ultra vires upon any slight apprehension or belief that he may hatch. One the other hand, some other commentators, writers and lawyers have argued that the provision provides a veritable tool for the government in power to use to fight their political enemies, since the Governor’s appointment is subject to the President’s nomination and as of a result of this dance to their whims and caprices; and that it also infringes on the right of citizens to fair hearing as provided under the constitution – Section 36, CFRN 1999.
It will be pertinent or rather germane, to reproduce in verbatim, the wordings of this rather controversial section of the Act:
S.97(1): “Notwithstanding anything contained in any other enactment, where the Governor has reasons to believe that transactions undertaken in any account with any bank, specialised bank or other financial institution are such as may involve the commission of any criminal offence under any law, the Governor may make an ex-parte application for an order of the Federal High Court verifying on oath the reasons for the Governor’s belief, and on obtaining such court order direct or cause a direction to be issued to the manager of the bank, specialised bank or other financial institution where the account is situated or believed to be, or in the alternative to the head office of such bank, specialised bank or other financial institution directing the bank, specialised bank or other Institution to freeze the account”.
The reasonable fact to be extrapolated from this section is that, upon the belief or reasonable apprehension of the Governor that any account is being used for any criminal offence, and upon application and grant of an ex-parte order by the Federal High Court, such account of any holder shall be freezed willy-nilly of that person’s right to fair hearing. From the interpretation of the cold wordings of this section, it is possible that a person may have his/her accounts frozen without being able to defend himself or herself, or even have the slightest hindsight of why the account was frozen.
This then begs for the question: what is the constitutionality or otherwise of this power vested on the Governor??
The Constitution is the grundnorm of which every other law derives their existence – AG Abia State & 35 Ors v AG Federation (2020) 6 NWLR(763) 264. It is the supreme law of the land and any other law that is inconsistent with any provision of the Constitution shall be null and void to the extent of its inconsistency – Section 1(3), CFRN 1999. Under Section 36(1) of the 1999 Constitution, the right to fair hearing are enshrined therein, and it provides thus:
36(1): in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure it’s independence and impartiality”.
It is crystal-clear from the wordings of the Constitution that a person shall(not may), be entitled to a fair hearing in the determination of his rights and obligations. The right of any person to maintain a bank account is provided under Section 44 of the Constitution which bothers on Right to Property and under Article 14 of the African Charter on Human and People’s Rights(Ratification and Enforcement) Act, CAP A9, LFN 2004.
In establishing the inalienable nature of fair hearing, the Court of Appeal of the Federal Republic of Nigeria in the case of Uzowolu(Oduah) & Ors v Akpor & Ors (2014) LCN/6777(CA), per Hon. Justice Mohammed Musa Saulawa (JCA) succinctly and rightly stated thus:
“Characteristically, a party’s right to fair hearing is of fundamental and of Constitutional significance, they cannot be whittled down by the court for whatever reason. Thus, as cherishingly enshrined in Section 36 of the 1999 Constitution (Supra), the fundamental rights to fair hearing is sacrosanct. Thus, any decision of the Court thereby reached consequent upon breach or denial of fair hearing is tantamount to a nullity thus liable to be set aside”.
As aptly held by the Court, a hearing cannot be said to be fair if any of the parties is refused hearing or denied the opportunity to be heard or to present his case. See Ogundoyin v Adeyemi (2001) 13 NWLR (Pt. 730) Pg. 403.
Flowing from the above dictum of the court, a hearing can only be seen to be fair indeed if all parties are accorded an adequate opportunity of a fair hearing. As such, if one of the parties is denied an opportunity of hearing, the hearing (of the matter) cannot in any way be qualified as fair; denial of fair hearing is undoubtedly antithetical to the well cherished principles of natural justice. See UBA Ltd v Achoru (1990) 6 NWLR (Pt. 136) Pg. 254; Mohammed v Kano Native Authority (1968) 1 All NLR pg 424; Salu v Efe Bon (1994) 6 NWLR (Pt. 348) Pg 23; Okafor v AG Anambra State (1991) 6 NWLR (pt.200) Pg. 659. The Court of Appeal had further questioned the powers of Government bodies to clamp down on citizens finances and businesses by ex-parte orders even in tax related matters in the case of Independent Television/Radio v Edo State Board of Internal Revenue (2015) 12 NWLR (pt.1479) 442.
Upon the premise of the foregoing, it is rather pertinent to submit that the power accorded to the Governor under Section 97(1) of the BOFI Act, is a questionable one vis-a-vis the Constitution of Nigeria, as it tends to be inconsistent with the provisions of the Constitution – the grund norm – which upon plethora of authorities is trite, null and void to its extent of inconsistency – Federal Republic of Nigeria v Osahon (2006) LPELR- – 3174(SC). The Court should waste no time in exercising their duties by pronouncing null and void any provision of any legislation made by the legislature, which is inconsistent with the wordings of the Constitution – FRN v Kalu(2020). This same rule also should be applied the very provision of Section 97(1) of the BOFI Act.