Justice James Tsoho of the Federal High Court, sitting in Ikoyi, Lagos, on Monday stopped the Financial Reporting Council of Nigeria (FRCN) from further investigation of the suspended Central Bank of Nigeria (CBN) governor, Mallam Sanusi Lamido Sanusi.
Specifically, the court held that the FRCN which had earlier indicted the suspended CBN governor, lacks the powers to investigate him.
Delivering judgment in a suit filed by Sanusi challenging the powers of the FRCN and its Executive Secretary, Mr. Jim Osayande Obase to probe him, Justice Tsoho who upheld all the prayers of Mr. Sanusi, declared that the
action taken by the council was biased, malicious, premeditated, frivolous, deliberately skewed, malafide and an abuse of executive power.
Before the judgement, Justice Tsoho had earlier dismissed an application by FRCN that the judge lacked jurisdiction to entertain the suit, ruling that the matter before him was a fundamental right issue which the court could adjudicate upon.
It would be recalled that Sanusi had approached the court seeking to restrain the FRCN from investigating him. In a suit filed by his counsel, Kola Awodehin (SAN), he prayed the court for a declaration that the FRCN, by constituting itself into an investigating body in the manner expressed in some newspaper publications of March 24, went beyond its powers.
Sanusi had also prayed the court to declare that the conduct, actions and decision of the defendant were ultra vires. The suspended CBN governor also stated that the FRCN’s declaration in a briefing note dated June 7, 2013, and submitted to the President, were beyond their powers as contained in the FRCN Act, 2011.
The suspended CBN governor therefore prayed the court to hold that the defendant, having reached a conclusion faulting his activities as Governor of CBN, as demonstrated in the briefing note and newspaper publications, could no longer conduct any objective investigation on the same matter.
Other prayers sought by Sanusi were:
• “A declaration that the defendant’s recommendation regarding the plaintiff in briefing note date June 7, 2013, that he be removed from office as CBN Governor, were ultra vires their powers under the FRCN Act 2011;
• “A declaration that the proposed investigation as advertised in the Punch newspaper of March 24, in the circumstance of having reached a conclusion in the briefing note of June 2013, before embarking on the investigation, is tantamount to a breach of natural justice;
• “A declaration that the defendants do not have the power to conduct investigation as advertised in the newspaper;
• “An order restraining the defendants or any person, body, agent, or privies, under its authority, or pursuant to the FRCN Act, from conducting and continuing any investigation or inquiry as advertised;” and
• “An order setting aside or nullifying any report, conclusion or recommendation, based on any purported investigation conducted, as advertised in the Punch Newspaper.”
Joined in the suit were FRCN and its Executive Secretary.
Resolving all the four questions formulated for determination in the operating summons in the affirmative, the court observed that the defendants had misunderstood the essence of the plaintiff’s case by thinking it was premature.
Text of the judgment:
FHC/L/CS/414/14 Mallam Sanusi Lamido Sanusi V. FRC & Anor.
Mrs. Comfort Osondu, an employer of the 1st Defendant, represented the 1st Defendant.
Oluwadamilola Awoniyi (Mrs.) led Abiola Olawole, Adepeju Jaiyeoba (Mrs.), Anu Ogunro Esq., the undersigned and Latifat Obitayo for the Plaintiff.
Tony Nwaneri Esq., with A. Oloyode Esq for the Defendants.
Before delving into the crux of the ruling on the notice of preliminary objection filed by the Defendants, the court decided to consider three issues he thought would be germane to the determination of the notice of objection. They are: (1) admissibility or otherwise of the Briefing Note to the President; (2) the propriety of the Plaintiff’s affidavit in opposition to the NPO; and (3) the propriety or otherwise of the Defendants’ further affidavit.
On (1) above, the court ruled that the Briefing Note to the President which originated from the 1st Defendant is a public document and that the only secondary evidence of the Briefing Note admissible by virtue of the Evidence Act is the certified true copy of same. Having not exhibited a certified true copy of the Briefing Note, the Court held that the Briefing Note was inadmissible since it was not addressed to the Plaintiff but the President and generated for the purpose of the public having access to it.
With respect to (2) above, the Court was of the view that since the Defendants did not file any affidavit in support of their notice of preliminary objection, it was procedurally improper for the Plaintiff to file an affidavit in opposition to the notice of preliminary objection. The court therefore struck out the Plaintiff’s affidavit dated 7.04.14 on the score that the Defendants’ preliminary objection was anchored on law alone creating no room for issues to be joined on facts.
Finally, the Court on (3) above held that the Defendants breached procedure by filing a further affidavit without the leave of the Court first sought and obtained. The referenced further affidavit was struck out.
Having resolved the foregoing preliminarily, on the merit of the notice of preliminary objection, the Court held that section 66 subsections 3 and 4 of the Financial Reporting Council Act 2011 (FRC Act) relied on by the Defendants in their preliminary objection was misplaced. The Court held that section 66 (3) & (4) FRC Act derives its force from section 28(1) FRC Act which is for the proposition that the Directorate of Inspection and Monitoring shall monitor compliance with auditing, accounting, etc. According to the Court, the Plaintiff’s grievance is not against any decision of the Directorate of Inspection and Monitoring, but against the report of the 1st Defendant which formed the fulcrum, as evinced in the opening paragraph of the suspension letter, for the suspension of the Plaintiff. In the premise, the Court came to the conclusion that the Defendants having breached the spirit and intendment of section 66(3) & (4) FRC Act by not giving the Plaintiff opportunity to defend himself before making representation to the President of the Federal Republic of Nigeria, cannot rely on the same section to undermine the Plaintiff’s action. The Court underscored that it is erroneous for the Defendants to think that, assuming section 66 (3) & (4) is applicable, it is incumbent on the Plaintiff to comply with same. Indeed, the Defendants have a corollary obligation to observe section 66(3) & (4).
On the above score, the Court held that the Plaintiff has the right to immediately apply to the Court to protect himself from the investigation of the Defendants, who have issued damning report about him that led to his suspension. Therefore, the Plaintiff’s action was held to be regular and competent, whilst the notice of preliminary objection was adjudged misconceived and therefore dismissed by the Court.
Judgment on the Originating Summons
Having recapped the salient facts for the Originating Summons (OS), the Court re-echoed verbatim the issues for determination raised by the Plaintiffs which incidentally were equally adopted and argued by the Defendants in their written address opposing the OS. The issues for determination are:
1. whether in the light of the provisions of Sections 7, 8, 11, 28, 58(2), 62, & 63 of the Financial Reporting Council of Nigeria Act 2011, the acts of the Defendants in investigating the Plaintiff and the Central Bank of Nigeria for purposes other than those related to or connected with its objects, functions and powers under the Financial Reporting Council of Nigeria Act, are not ultra vires;
2. whether, having not given the Plaintiff prior hearing opportunity before the Defendants’ made far reaching statements, findings and conclusions on the rights, personality, and integrity of the Plaintiff in the Briefing Note, the Defendants contravened the common law rules of natural justice, the fair hearing safeguards of the Financial Reporting Council of Nigeria Act and to the extent applicable, the provisions of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria ( As Amended);
3. Whether, following from the conduct of the Defendants, the Defendants have not shown a pre-determination to condemn the Plaintiff, bias and prejudice towards the Plaintiff; and are thus unable and incapable of conducting an independent, impartial, investigation of the Plaintiff and the Central Bank of Nigeria?
On ISSUE ONE, the Court reproduced in principal parts the nitty-gritty of the case of the Plaintiff and Defendants respectively. Having done that, the Court in a terse decision on the issue held that the Defendants failed to comply with laid down procedure for conducting investigations. Again, the Court was emphatic that the Defendants did not act within the FRC Act nor the rules of natural justice in issuing the Briefing Note which formed the basis for the suspension of the Plaintiff, as indicated in the opening paragraph of the suspension letter. The Defendants did not respect the spirit of the FRC Act in section 67 which requires that when an investigation by the 1st Defendant discloses an offence has been committed, that such may be reported to the appropriate authority. Based on that nonobservance, the Court held that the Defendants cannot rely on section 67 FRC Act. In any case, section 67 FRC Act is not useful where the Defendants have prejudged the Plaintiff in their Briefing Note. Lastly on issue one, the Court held that the fore-knowledge by the Defendants of the facts sought to be investigated by them will raise bias in the mind of the Court. In that respect, the Court held that the Defendants acted ultra vires their power to investigate the Plaintiff or even the Central Bank of Nigeria as they purport to do.
With respect to ISSUE TWO, the Court observed that the hallmark of the Plaintiff’s case on the second issue is anchored on the Briefing Note which was held inadmissible for non-certification as a certified true copy. However, the Court noted that the affidavit in support of the OS demonstrated in copious parts that the Defendants conducted some investigation and issued a report which culminated in the suspension of the Plaintiff as the Governor of the Central Bank of Nigeria. In that vein, His Lordship, relying on the affidavit evidence, reasoned that to require the Plaintiff to submit to any investigation of the Defendants subsequently on the matters underlying his suspension would be tantamount to submitting to jeopardy. This is anchored on the fact that he would be submitting to preventable harm. Like the proverbial cockroach that will never be innocent in the company of fowls, a sensible man will not submit to such an investigation, as prevention is always better than cure. The second issue was resolved in the affirmative and in favour of the Plaintiff.
On issue three, the Court opined that the determination of issue two effectively resolves issue three and therefore same was answered in the affirmative and favourable to the Plaintiff. The Court held that there is evidence of bias and prejudice against the Plaintiff and stated that the Defendants in that vein would be unable to conduct an impartial and independent investigation. The Court in categorical terms held that the Defendants are disqualified from investigating the Plaintiff and even the Central Bank of Nigeria, as investigating the latter which ultimately impact on investigating the activities of the Plaintiff’s tenure as Governor. The Court also reasoned that disqualifying the Defendants from investigating the Plaintiff and the Central Bank will ensure the avoidance of a jaundiced report that would amount to the Federal Government inflicting injustice on the Plaintiff.
Having said, the Court, whilst concluding, underpinned that the Defendants misunderstood the essence of the Plaintiff’s case by thinking it was premature. On the whole, the Court held that the Plaintiff’s case is to invoke the Court’s jurisdiction to call the Defendants to order. The Court resolved all four questions formulated for determination in the OS in the affirmative, whilst granting all reliefs sought by the Plaintiff.
After delivering the ruling and judgment, the counsel for the Plaintiff and Defendants respectively appreciated the Court for the industry exhibited in the ruling/judgment and for their depth.