ATM DISPENSE ERROR: COURT RULES THAT THERE IS CAUSE OF ACTION AGAINST FCMB ALTHOUGH ATM USED WAS THAT OF ANOTHER BANK

FCMB Ltd and UBA Plc were sued in May, 2016 by Barrister Timothy Tion; customer of FCMB Ltd, over non-dispense of cash when he attempted to withdraw money at the ATM of UBA Plc in February, 2016. The defendant banks filed their respective statements of defence in response to the suit by Barrister Tion. The 1^st defendant (FCMB Ltd) also filed a preliminary objection urging the court to strike off its name from the case as the plaintiff has not disclosed any cause of action against her on the ground that the ATM where the disputed transaction occurred belongs to 2^nd defendant (UBA Plc.) and not FCMB Ltd. Specifically, the 1^st defendant in her P.O. contended:

1.That  the  transaction  that  gave  rise  to  this  suit  took  place  at  the ATM  Stand  of  the  2^nd  defendant  and  not  the  1st  defendant’s  as clearly  stated  in  paragraph  5  of  the  statement  of  claim.

2.  That  the  1^st  defendant  has  its  ATM Stand  for  the  use  of  its  various customers  including  the  plaintiff  and  the  plaintiff  wilfully  decided  to  use  the  2nd  defendant’s  ATM.

3.  That  the  report  from  the  2^nd defendant  showed  that  the  2^nd defendant’s  ATM  paid the plaintiff the  said  N8,000  and the  1^st defendant  passed  same  information  to  the plaintiff.

4.  That  there  is  no  paragraph  of  the  statement  of  claim  that  disclosed a cause  of  action  against  the  1^st defendant  in  this  suit.  This  can  be clearly shown from Paragraphs  5  to  46  of  the  statement  of  claim particularly  paragraphs  30  and  32  of  it.

The plaintiff also filed a reply in response to the P.O. filed by 1^st defendant. Hearing of arguments of parties on the P.O. took place on the 17^th October, 2016. The court on 27^th October, 2016 dismissed the preliminary objection. Itodo J. on page 3 of the ruling stated thus:

The plaintiff, see paragraph 6’and 7 of his statement of claim, said that even though the 2nd defendants ATM. produced the sum of N8 ,000.00, which he viewed, before he could reach out to collect same, the machine retracted the money into its bowels, but nonetheless the 1^st defendant debited his account with it upon report to that effect from 2^nd defendant.        It is clear that the plaintiff is saying that he was not paid the sum and that the 1^st defendant ought not to have debited his account as the report to that effect from the 2^nd defendant to it was incorrect. It, of course stands to reason that if the plaintiff was indeed not paid his account should not be debited. This in my view appears to be the basis for suing the 1st defendant. On the other hand, if the plaintiff was paid, then he has no case against either of the defendants. It may be added that it was immaterial where the plaintiff chose to carry out his transaction.

The Plaintiff is to file his replies to the statements of defence filed by the defendants and his additional statement on oath after which a date would be fixed for pre-trial conference.

A CALL FOR AMENDMENT OF NIGERIA’S CONSTITUTION SO AS TO ENABLE THE SUCCESS OF PRESIDENT BUHARI’S CORRUPTION FIGHT

This whole episode of the arrest of alleged corrupt judges to me boils down to the thinking to the President that the Judiciary and lawyers who represent persons being tried for corruption related offences are frustrating his fight against corruption. Thus as recent as July, 2016 the President speaking on the role of the Judiciary in the fight against corruption at an international workshop at the National Judicial Institute (NJI), Abuja said:

“It (the Judiciary) does have a role to play in the fight against corruption by enforcing the applicable laws. Critically important also, is the sacred duty of the judiciary to ensure that criminal justice administration is not delayed. I am worried that the expectation of the public is yet to be met by the Judiciary with regard to the removal of delay and the toleration of delay tactics by lawyers. When cases are not concluded the negative impression is given that crime pays.

So far, the corruption cases filed by government are not progressing as speedily as they should in spite of the Administration of Criminal Justice Act of 2015 essentially because the courts allow some lawyers to frustrate the reforms introduced by law. This certainly needs to change if we are to make success in our collective effort in the fight against corruption…the Judiciary is under a duty to keep its house in order and to ensure that the public, which it serves, sees this. Thus, we cannot expect to make any gains in the war against corruption in our society when the Judiciary is seen as being distant from the crusade…The Judiciary must fight delay of cases in court as well as it fights corruption in its own ranks, perceived or otherwise. We expect to see less tolerance to delay tactics used by defense lawyers or even the prosecution in taking cases to conclusion”. (underlining mine)

This thinking of the President appears to be in accord with the thoughts of the former chairman of the EFCC, Nuhu Ribadu. Ribadu  in a paper titled; Obstacles To Effective Prosecution Of Corrupt Practices And FinancialCrime Cases In Nigeria, presented at the  1st  Stakeholders  Summit  On  Corrupt  Practices And  Financial  Crimes  In  Nigeria  organized  by  the House  Of  Representatives  Committee  On  Anti-Corruption,  National  Ethics  And  Values,  at  the International Conference Centre, Trade Fair Complex, Kaduna, 23rd – 25th November, 2004, said:

“It  is  important  to  state  here  that  the  fundamental  rights  of citizens  guaranteed  by  the  Constitution  are  meant  to  protect those  citizens  who  themselves  are  law  abiding  and  have  not infracted  the  provisions  of  the  Constitution  itself.  It  is  indeed inequitable to violate the fundamental law and turn around to seek  its  protection  of  your  own  right  without  simultaneously atoning for your wrongs.  On  the  other  hand,  there  are  some  provisions  of  the Constitution which seem to have over protected the accused against  the  state.  Section  35(2)  gives  a  right  to  any  person arrested  or  detained  to  remain silent or avoid answering any question  until  after  consultation  with  his/her  lawyers.  Section 36(11) also provides that any person tried for a criminal offence shall not be compelled to give evidence at the trial. When  these  rights  are  claimed,  they,  many  a  times,  lead  to over  protection  of  the  accused  person  while  restricting  the means  of  protecting  the  rest  of  the  society  in  the  sense  of making it difficult to prove a case against them”. (underlining mine)

With due respect to Ribadu, how many arrested persons are aware of or where aware of are allowed to enjoy the right in section 35(2) referred to when it is public knowledge that the law enforcement agencies in Nigeria use torture to extract statements or confessional statements from accused persons. Insisting on the enjoyment of that right may be an invitation for torture by law enforcement agencies.

Ibrahim Magu, acting Chairman of the EFCC also shares the same view with that of the President quoted above. According to Magu:

“We must tell ourselves the truth: there are lawyers within the fold of the NBA who ought not to be among your noble ranks. Those people are not fit to be called ministers; rather, they are vandals of the temple of justice…One of the big challenges we have in the effective prosecution of the war on corruption is that of very senior lawyers who Nigeria has been very kind to; those who went to good schools here when Nigeria was good, many of them on government scholarship; those who Nigeria has given so much opportunity. When we have corruption cases, cases of people who have stolen food from the mouths of our children; when we have cases of people who have stolen money meant to build hospitals and buy drugs; when we have cases of people who have stolen all the money meant to buy guns for our soldiers to fight Boko Haram, when we have all these cases of wicked people who have stolen Nigeria’s money, they run to these same senior lawyers, give them part of the stolen money and mobilise them to fight us, to delay us in court and to deny Nigerians of justice. These are the people who do not want justice for the common man.”(underlining mine)

It is clear from Magu's comments that he expects that once the EFCC charges an alleged looter to court, such a person should NOT be entitled to legal representation and the courts should find the person automatically guilty.

It is worthy to note here that the President was also a beneficiary of this delay tactics which he, Ibrahim Magu and others have now suddenly realized is an impediment to trial of government cases against alleged looters. No less a personality than that of Wole Olanipekun SAN, who represented the President and APC pro bono in the run up to general elections of 2015 disclosed this in a recent interview he granted to Gbenro Adeoye of the Punch Newspaper, published on its website on 8^th October, 2016. Olanipekun described how the legal team “employed all the tactics available, employable and allowable in the legal profession” and concluded that but for those tactics the election which produced the President won’t have held. It is poignant to quote Olanikepun thus:

“Would Buhari have been President if we had not done that (employed all the tactics available, employable and allowable in the legal profession)? What could be more technical than that? They filed action against Buhari, we looked at it; we raised objections and we were dragging that. Is that not technicality? And some people will now accuse me when I do it for other people that I’m defending looters. But when you do it for them, it is right; that is double standard. And what baffles me is that some high lawyers, who should know better, also accuse some lawyers of defending looters?”(underlining mine)

Chief Godwin Obla SAN, who disagrees with the President’s remarks at an international workshop at the National Judicial Institute (NJI), Abuja quoted above said:

“I do not think that his (the President’s) opinion as to whether time is wasted or time is not wasted reflects the true position of the law. The truth of the matter is that there are procedural challenges in our laws and some of us have repeatedly spoken about it…The fact that someone is facing trial does not mean that we’d abridge their right to actually defend themselves. They have the right to defend themselves; and at times in the course of doing so they rely on unorthodox techniques of delaying trial, but it is within their right and it is within the confines of the law…Mr. President cannot indict the judiciary, just as he is complaining that it is actually taking long for criminal cases to be decided, Nigerians are also saying that it is taking too long for the promises that he made to be fulfilled. It is not a one-way traffic. The law does not work in the way it works in the military. This is a democracy. The courts have tried, they’ve brought out certain practice directions, they are making certain levels of progress but it is not overnight. If we want to make substantial progress we must invest in practical amendment to our procedural rule of the court.” (underlining mine)

It must be noted that I am not ignorant of the fact that there are certain corrupt elements in the legal profession and the Judiciary; both of which are situated within the larger corrupt Nigerian society. To that extent I agree with the thinking of the President and Ibrahim Magu but it is the  suggestion and insistence by the President and Ibrahim Magu through their utterances that any person defending within the boundaries of the law, a person accused of looting our commonwealth is corrupt or a beneficiary of the corrupt wealth or that such accused persons should not be entitled to legal representation and when the Judiciary insists on the enforcement of the rights of accused looters, they(the Judiciary) are frustrating the corruption fight, that irks me. We are not in a military administration for goodness sake.

In view of the foregoing I have concluded that it is the opinion of the President and his anti-corruption czars, Ibrahim Magu of EFCC, the DSS, majority of Nigerians including many lawyers through their utterances in the media and elsewhere that corruption (economic and financial crimes) especially by politically exposed persons and high ranking government officials or appointees cannot be fought in Nigeria within the limits of the law or by following the rule of law or principles of democracy as provided by Nigeria’s Constitution.

Therefore, it is my suggestion that the President having received such overwhelming support by the majority of Nigerians for his corruption fight as it seems, should without delay initiate the process of amending section 36(5) of the 1999 Constitution (as amended) which provides that EVERY PERSON WHO IS CHARGED WITH A CRIMINAL OFFENCE SHALL BE PRESUMED TO BE INNOCENT UNTIL HE IS PROVED GUILTY. The section should be amended to the effect that any person accused of corruption should be PRESUMED GUILTY UNTIL HE IS PROVED INNOCENT BY MILITARY TRIBUNAL. Military tribunals set up by the President and not the courts should try corruption cases!

The President may also wish to amend Section 36(6)(c) which provides that every person who is charged with a criminal offence shall be entitled to defend himself in person or by legal practitioners of his own choice. In this regard the section will be amended to the effect that every person charged with a corruption related offence SHALL NOT BE ENTITLED TO BE DEFENDED BY A LEGAL PRACTITIONER BUT SHALL DEFEND HIMSELF IN PERSON BEFORE A MILITARY TRIBUNAL SET UP BY THE PRESIDENT.

I have earlier quoted the President as saying “… (the Judiciary) does have a role to play in the fight against corruption by enforcing the applicable laws.” Sections 36(5) and 36(6)(c) of the Constitution are applicable laws in Nigeria which the Judiciary and lawyers insist that they should be applied even in trial of alleged looters but since such insistence is inferred as frustrating the corruption fight and such has been sold to Nigerians who have bought it hook, line and sinker, I do not think it would be difficult for the President to achieve the amendment of the Constitution to do away with those sections of the Constitution.

Although the process for amending the 1999 Constitution (as amended) may seem cumbersome but having received the support of teeming Nigerians for his corruption fight methinks even the legislature who are supposedly representing the people will not waste time in doing the necessary that will ensure the amendment since it is now the wish of the majority of Nigerians who they claim to represent.

However, until these amendments are done, the President and his DSS, EFCC and other law enforcement agencies should comply with the existing APPLICABLE laws and should not see anybody (e.g. judges who berate the DSS or EFCC for disobeying court orders, lawyers representing persons accused of corruption related offences etc.) who insist that the existing applicable laws be obeyed as supporting corruption or frustrating the acclaimed fight against corruption.