The Illegality of the Freezing of the ENDSARS Protesters Accounts – By Douglas Ogbankwa Ogbankwa, Esq.
This treatise shall examine the Law on the subject matter and give an opinion on the Paradox of the use of Power by the Federal Government in tracking International Terrorism Funds.
Mere payments of money into accounts of individuals is not proof of money laundering or the alleged plot to destabilize Nigeria.
In these days of International Commerce and International Co-operation, there is a preponderance of International Transactions. The Defence of the Chief Judge of the Federal High Court that the freezing of the accounts of the ENDSARS Protesters was done to protect the Nigerian Economy is an argument in the reverse, as the Freezing of the accounts is destroying the Nigerian Economy. How can an International Investor bring his money to a Country he is not sure the Government will wake up one morning walk up to a Court, with out the Owner of the Money being given an Opportunity to be heard, the Court Grants an Order freezing your account in this 21st Century. This sounds ludicrous!
The Law on the Matter
Every Citizen of Nigeria has a right of Freedom of Association, Freedom of Expression and Freedom of Speech.
Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) provides as follows:
Every person shall be entitled to assembly freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any association for the protection of his interests
This is a Constitutional Right that is sacrosanct and inalienable and it can not be derogated by any other Law except the Constitution itself. The ENDSARS Protesters have a right to Associate and Protest and mobolize funding for same even if it is from International Organizations and International Friends. It is within the Law for there to be diaspora remittances.
Section 1(1) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) provides thus:
This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria
This means the CBN Act from where the CBN purportedly derived its powers to clamp down on the Finances of Citizens of this Country with out given them Fair Hearing as guaranteed in Section 36 (1) of the Constitution of Federal Republic of Nigeria, 1999 (As Amended), is null and void to the extent of its inconsistency with the Constitution. This is Trite Law, as there is a plethora of Authorities on this score!
The use of an Ex Parte Order to freeze the Accounts of Freeborns of this Country are in all intents and purposes against the Principle of Fair Hearing as Guaranteed by the Constitution. The alleged sponsors of the ENDSARS Protests are entitled to be heard before such a weighty decision can be made against them.
Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) boldly asserts that:
In the determination of his civil right and duties, including any question or decision by or against any government or authority, a person shall be eligible to a fair hearing within a reasonable time by a court or other tribunal established by law..
The Principle of Fair Hearing which is one of the twin pillars of the Principle of Natural Justice emanates from the Garden of Eden, when even the Almighty God that is all knowing and all present still asked Adam to defend himself and give him time and an Opportunity to do so!
In establishing the inalienable nature of the Principle of Fair Hearing, the Court of Appeal of the Federal Republic of Nigeria in the Watershed case of Uzowolu (Oduah) & Ors. v. Akpor & Ors. (2014) LCN/6777 (CA) per the Hon .Justice Mohammed Musa Saulawa (JCA ), succinctly and rightly so stated thus:
Characteristically, a party’s right to fair hearing is of fundamental and constitutional significance, thus cannot be compromised or whittled down by the court for whatever reason. Thus, as cherishingly enshrined in Section 36 of the 1999 Constitution (Supra) et al, the fundamental right to fair hearing is sacrosanct. Thus, any decision of court thereby reached consequent upon breach or denial of fair hearing tantamount to a nullity, thus liable to be set aside. As aptly held by the Supreme 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… Any Judgment or ruling based on a breach of the Constitution will not be allowed to stand on appeal. See FBN PLC 15 NWLR (Pt. 1216) 247 @ 303 paragraphs A – H.Thus, flowing from the above dictum of the Apex Court, a hearing can only be seen to be fair indeed when all parties to the dispute 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 indomitable principles of natural justice. See OTAPO VS. (Pt. 58) 587 @ 605; OGUNDOYIN VS ADEYEMI (2001) 13 NWLR (Pt. 730) pg. 403; U.B.A. LTD V. ACHORU (1990) 6 NWLR (Pt. 156) pg. 254; MOHAMMED V. KANO NATIVE AUTHORITY (1968) 1 ALL NLR pg 424; SALU V. EFEBON (1994) 6 NWLR (Pt. 348) pg 23; MOHAMMED V. OLAWUNMI (1990) 2 NWLR (Pt. 133) pg. 458; UNION BANK OF NIGERIA V. NWAOKOLO (1995) 6 NWLR (Pt. 400) pg. 127; BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt. 622) pg. 290; OKAFOR V. A.G., ANAMBRA STATE (1991) 6 NWLR (Pt. 200) pg. 659. See Page 303 – (2010) 15 NWLR (Pt. 1216)
The Position above aptly encapsulates the the illegality being perpetrated by Federal Government in Freezing the said Accounts. The Owners of the Accounts should have been allowed to defend themselves. They are entitled to punitive compensations and damages against the Federal Government and Public Apology.
The Court of Appeal Per Helen Moreneke Ogumiwunju has 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. 1474) 442
This Explains why the President of the Nigerian Bar Association, the intrepid, charismatic and ebullient Olu Akpata Esq., there represented at the opening of the Legal Year of the Federal High Court expressed the displeasure of the Nigerian Bar at the Freezing of the Accounts of the ENDSARS Protesters, stating the action does not conform with the Law
There is no other Judicial Precedent that says otherwise. In other words, the Law as it is in Nigeria today is that you can not freeze an account that is not an established proceed of crime by Ex Parte Orders. The CBN has not told us the crime those victims whose Accounts were frozen have committed. We see the Treasury Department of the United States freezing funds meant for terrorism in the United States and before they do so they show the trail of Transactions that establishes the facts that those funds are terrorism funds.
I am also lost why the CBN has become suddenly active in tracking International funds in the Money Market.
Boko Haram Funding has been going on in Nigeria for over a decade. I have not seen any news Reports where the CBN has freezed Funds meant for the Boko Haram.
Why do Nigerian Government use brazen powers to crush helpless and weak Nigerians that pose no threat to the Country and treat the real enemies of the State with kid gloves.
Nigerian Government majors in minor and minors in major.
I call for the immediate defreezing of those accounts and payment of compensation to the victims .Our Courts should stop giving Orders that are against our Constitution. The Courts are protectors of Liberties not an Official Arm that rubber stamps every action of Government, some which are not in conformity with our Laws.
The Hallmark of Democracy is Freedom and Respect for Fundamental Human Rights.
Peace is not just the absence of war, but the Presence of Justice – Martin Luther King 11.
About the Author.
Douglas Ogbankwa Esq., (email@example.com) is the immediate past Publicity Secretary of the Nigerian Bar Association’, Benin Branch-the Lion Bar and the Convener of the Transparent Bar Initiative and Vanguard for the Independence of the Judiciary.
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