A Federal High Court in Abuja has reduced the period that the Independent Corrupt Practices and Other Related Offences Commission (ICPC) can freeze suspicious bank accounts to 72 hours, saying that allowing the Commission to freeze accounts for up to one year, as provided by the ICPC Act, is “totally unreasonable and usurps the powers of the Court”.
Delivering judgement in a suit filed by the Lawyers Network Against Corruption (LNAC), Justice James Omotosho held that although the rights of citizens to movable property and the privacy of their bank accounts are not absolute, allowing the ICPC to freeze an account for up to one year is likely to lead to abuse of powers by the Commission as “power corrupts and absolute power corrupts absolutely.”.
The judgement arose in a suit filed by Abuja-based lawyer, Mr. Ezenwa Anumnu, on February 21, 2024, on behalf of the LNAC complaining that the ICPC and its Chairman have unilaterally directed that the bank accounts of citizens be frozen without court orders or recourse to the courts and that they have ordered banks and financial institutions to withhold the monies and properties of Nigerians found guilty of committing any criminal offence indefinitely without any court order.
Complaining that these directives have resulted in untold hardship and caused injustice to innocent Nigerians, the LNAC asked the court to make:
· A declaration that having regard to section 36(1) and (2) of the 1999 Constitution, as amended, the ICPC is not empowered to make an order restraining dealings on money or property of a person that is in the custody of a bank or other financial institution;
· A declaration that Section 45(1) of the ICPC Act, 2020, is inconsistent with Section 36(1) and (2) of the 1999 Constitution and is, therefore, invalid, null and void; and
· An order of perpetual injunction restraining the ICPC and its Chairman, either by themselves, their agents, or their privies, from making any order restraining dealings on money or property of a person in custody of the bank or other financial institution.
In his judgment, Justice Omotosho noted that every citizen of Nigeria has a fundamental right to own movable and immovable property in Nigeria pursuant to Section 44(1) of the Constitution. However, although the right is guaranteed, it is not absolute and can be curtailed under several circumstances.
He noted that the idea behind section 44(2)(k) of the Constitution is to give enforcement agencies the power to seize properties suspected of being instruments or proceeds of crime. This helps them carry out thorough investigations and prepare cases for prosecution.
Observing that Section 45(1) of the ICPC Act empowers the ICPC to simply order banks to freeze bank accounts under investigation, the judge however wondered if the provision is consistent with the provisions of the Constitution.
He cited Section 36 of the Constitution, which guarantees each person the right to a fair hearing, and explained that the provision “entails that before decisions are made concerning a person, he must be afforded the opportunity to be heard”. He stressed that the provision “emphasizes the need for granting persons the opportunity to make representations before decisions are made and where a law gives no such opportunity, it is liable to be invalidated.”
Justice Omotosho said although the ICPC Act is quite clear on the powers of the ICPC Chairman to direct banks to freeze bank accounts, the Courts are of the view that only Courts of Law can make sure of orders.
According to him, allowing the ICPC Chairman to “give directives to banks to freeze accounts without a court order is capable of working injustice to the owners of such accounts” adding that “This power is liable to be abused as the freezing may last longer than is necessary and throughout such freeze, the owners of the accounts will be left in limbo which may cripple their personal or commercial interests.”
Rejecting the argument of ICPC’s lawyer, Mr L.C. Iledunnu, that the order to freeze a bank account may be varied by the ICPC Chairman and lapses after 12 months, the judge said: “A year in the life of a person or a business is a long time and asking them to wait for that long may be inimical to progress,” especially because the investigation may not lead to a charge being filed, which would have wasted the time of the owner of the accounts.
But Justice Omotosho acknowledged the duty of the ICPC to fight crime in Nigeria, saying it is sacrosanct and must be balanced against the rights of citizens.
He noted that the drafters of the Money Laundering Act had also granted powers to freeze accounts to the Economic and Financial Crimes Commission (EFCC), which has similar duties as the ICPC, but pointed out that it could only be for 72 hours.
Justice Omotosho reasoned that the drafters intend to ensure that withdrawals cannot be made on a suspected account for at least 72 hours, pointing out that “Without this power, a person with a suspected account can easily transfer or use up the funds in the account before the Commission approaches a Court.”
He ruled that “Freezing an account for up to one year, as argued by the Respondent’s counsel, is unreasonable and usurps the powers of the Court. Furthermore, it is likely to lead to an abuse of powers by the Respondents. As the saying goes, power corrupts and absolute power corrupts absolutely.”
Noting that Nigeria is battling with the scourge of corruption and unjust enrichment, the judge said this makes it imperative that the ICPC should have some powers to checkmate the issue as soon as it discovers corruption, instead of slowing down the process.
He therefore held that the ICPC Chairman has the power to freeze suspected bank accounts under Section 45(1) of the ICPC Act but ruled that such orders are only valid for 72 working hours after which they will lapse until extended by a court of law where an investigation has not been completed.
