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 Freedon 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 protected]) 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.