Fundamental Right Enforcement

SUIT NO: HOW/ 977/2022 -MISS. EMMANUELLA ONYINVECHI ONUOHA VS. FINCA MICROFINANCE BANK LTD, AMARA BLOSSOM- BEFORE HIS LORDSHIP: – HON. JUSTICE INNOCENT M. NJAKA – delivered ON THE 3RD DAY OF OCTOBER 2023- Fundamental Rights and Debt Recovery- Burden of Proof- Requirement for Substantiating Claims- Lack of Specific Evidence- Credibility of Allegations- Balancing Rights- Protecting Both Parties’ Interests- Encouragement of Mediation- Promoting Amicable Resolution-Constitutional Rights- Reminder of Guaranteed Protection- Establishing a Fair Payment Plan- Ensuring Repayment without Hardship

Admin Editor

IN THE HIGH COURT OF IMO STATE OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

ON THE 3RD DAY OF OCTOBER 2023

BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA

SUIT NO: HOW/ 977/2022

IN THE MATTER OF AN APPLICATION BY MISS. EMMANUELLA ONYINYECHI ONUOHA FOR THE ENFORCEMENT OF HER FUNDAMENTAL HUMAN RIGHTS.

BETWEEN

MISS. EMMANUELLA ONYINVECHI ONUOHA        APPLICANT

AND

  1. FINCA MICROFINANCE BANK LTD  }        RESPONDENTS
  2. AMARA BLOSSOM

JUDGMENT

This is an originating motion filed in the High Court of Imo State, Nigeria, by Miss. Emmanuella Onyinyechi Onuoha, seeking the enforcement of her fundamental human rights. This motion is based on the Fundamental Rights (Enforcement Procedures) Rules 2009, the Constitution of the Federal Republic of Nigeria, 1999, and the inherent jurisdiction of the court. Miss. Emmanuella Onuoha is seeking protection from alleged rights violations and inappropriate actions by the respondents in the context of a loan transaction.

The applicant is requesting the following declarations and orders from the court:

  1. A declaration that the monetary/loan transaction between the applicant and the 1st respondent, as evidenced in a written document, is a purely civil business transaction.
  2. A declaration that the intimidation, harassment, threats to life, and threats of arrest of the applicant and guarantors over the loan transaction constitute a violation of their rights as enshrined in the Nigerian Constitution and the African Charter on Human and Peoples’ Rights.
  3. A declaration that the respondents have no right or authority to harass and intimidate the applicant and her guarantors as if they are wanted criminals.
  4. A declaration that the liability of the applicant’s guarantors can only arise after judicial determination of the applicant’s inability to pay her debt.
  5. An order of perpetual injunction restraining the respondents from further violating the applicant’s and guarantors’ rights to human dignity, personal liberty, freedom of movement, and association under the guise of enforcing the loan agreement.
  6. An order restraining the respondents from depositing or cashing the applicant’s cheques at any bank in Nigeria for the purpose of debt recovery.
  7. An order directing the respondents to use lawful civil means for debt recovery and prohibiting the use of crude, criminal, or illegal methods.

The grounds upon which the applicant is seeking the requested reliefs in her application are as follows:

  1. The persistent threats, harassment, embarrassment, intimidation, and the pursuit of guarantors by the respondents constitute violations and threats of further violations of the applicant’s and her agents’ rights to dignity of the human person, personal liberty, fair hearing, private and family life, as well as freedom of movement. These rights are guaranteed by sections 34, 35, 36, 37, and 41 of the 1999 Constitution of the Federal Republic of Nigeria.
  2. The respondents, their agents, or privies do not possess the legal right to arrest, detain, or threaten to arrest and detain the applicant and her guarantors.
  3. The applicant and her guarantors are entitled to protection against further violations of their rights by the respondents. Without restraining the respondents, there are reasonable grounds to believe that the rights of the applicant and guarantors will continue to be violated under the pretext of enforcing debt recovery in a crude manner.
  4. There is a genuine and imminent danger that if the requested reliefs are not granted urgently, the applicant and her guarantors will endure further unjust hardships and losses due to the respondents’ abuse of power.

AFFIDAVIT EVIDENCE

Miss. Emmanuella Onyinyechi Onuoha, the applicant, has submitted an affidavit outlining the facts supporting her application in this case. Miss. Onuoha is a businesswoman and operates “ELLA’S SAMMY ENTERPRISE,” which is situated at a specific location. The 1st respondent is a financial entity incorporated in Nigeria, engaging in banking and related businesses, including providing loans. The bank has branches nationwide, including one in Imo State. The 2nd respondent was her account officer at the 1st respondent bank and played a role in her business relationship with the bank. She has been conducting business with the respondents for over two years, involving loan transactions where she has consistently repaid both the principal and interest as per the agreed terms.

On December 14, 2021, the 1st respondent granted her a loan of N350,000 with an agreed repayment plan, and she provides an “INDIVIDUAL LOAN CONTRACT” as evidence. The loan was conditional on providing two guarantors and three blank cheques, which she fulfilled. Initially, she met the repayment schedule, but her business suffered due to circumstances beyond her control, including issues with a supplier (Golden Guinea Breweries) that ceased distribution. Despite these setbacks, she continued to make partial payments, demonstrating her commitment to repaying the loan. She alleges that the respondents have subjected her to harassment, threats, embarrassment, and intimidation. She claims they extracted a “PAYMENT AGREEMENT” from her under coercion. The respondents have threatened to lodge her blank cheques as “DUD CHEQUE” and have also threatened to imprison her guarantors. She reports that the respondents have made unscheduled visits to her family house and have attempted to lock up her guarantor’s business premises.

The threats and harassment have escalated to the point where she and her guarantors receive frequent threatening calls, causing distress. She asserts that she has no intention of evading her responsibilities and is willing to repay her debt. The level of harassment and intimidation has made her fearful for her safety and the safety of her guarantors and family members.

The respondents’ actions have made her life unbearable, and she feels unable to move freely in her community. Miss. Onuoha is seeking a civil and fair approach to debt recovery by the respondents that respects her constitutionally guaranteed rights. She believes that her rights to dignity, personal liberty, fair hearing, private and family life, and freedom of movement, as protected by the Nigerian Constitution, are being violated by the respondents. She requests the court’s intervention to stop the respondents from continuing their wrongful acts and threats.

In summary, Miss. Onuoha’s affidavit provides a detailed account of her business relationship with the respondents, the loan transaction, her challenges, and the alleged harassment and threats she has experienced, emphasizing her desire for a fair and lawful resolution to the debt issue.

The affidavit evidence is accompanied by the written submission of the Applicant’s counsel in support of the motion on notice.

According to the counsel, the central issue for determination in this case is whether, based on the facts presented in the affidavit evidence, it is in the interest of substantial justice to grant the reliefs sought by the Applicant.

The counsel argues that Order II Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules 2009 allows any citizen whose life or liberty is threatened or infringed upon by individuals or law enforcement agents to enforce their fundamental rights through an application like the one in question. Section 46(1) of the Nigerian Constitution allows any person who alleges a contravention of their fundamental rights to apply to a High Court for redress. The counsel emphasizes that this section applies to both singular and plural cases. Section 46(1) should be considered special and fundamental because it grants access to an aggrieved party to seek redress in a High Court where an alleged contravention of their fundamental rights has occurred or is about to occur. The case of GRACE JACK vs. UNIVERSITY OF AGRICULTURE MARKUDI is cited to support this point.

The counsel contends that the actions of the Respondents, such as threats, arrests, detentions, intimidation, and harassment, constitute gross violations of the Applicant’s and guarantors’ rights, including dignity of human person, personal liberty, fair hearing, private and family life, and freedom of movement, all of which are protected by sections 34, 35, 36, 37, and 41 of the 1999 Constitution.

It is argued that the onus of proving the lawfulness of the actions that violated the Applicant’s rights lies with the Respondents, citing relevant legal authorities.

The counsel concludes by asserting that the actions of the Respondents are unconstitutional and have resulted in violations of the Applicant’s and guarantors’ rights under Nigerian law. They respectfully request the court to grant the Applicant’s requested reliefs.

EVIDENCE of RESPONDENTS

The joint counter affidavit of the 1st and 2nd respondents is deposed to by Maria Vincent, the Mbaise Branch Manager of the 1st respondent, FINCA Micro Finance Bank Limited, and is authorized to depose to this affidavit on behalf of the respondents.

The respondents are involved in banking and loan facilities, with the 2nd respondent serving as the Account Officer of the Applicant. The respondents contend that the grounds, facts, and reliefs presented by the Applicant in her application are false and misleading. The respondents argue that the Applicant is not entitled to the reliefs sought in her application. The respondents acknowledge certain facts presented by the Applicant but dispute others. They claim that the Applicant has defaulted in her loan repayments. The respondents assert that the current loan facility granted to the Applicant is for N400,000 and has a maturity date of January 16, 2023, not N350,000 as claimed by the Applicant.

The respondents explain that due to the Applicant’s history of defaulting on loan repayments, they required two guarantors for the current loan, whereas, in the past, only one guarantor was needed. The respondents maintain that the loan was granted to the Applicant on June 16, 2022, not in January 2022 as the Applicant claimed, which they argue contradicts her own statements. The respondents argue that the Applicant failed to inform them of any issues with her business partners, specifically Golden Guinea Breweries, when the current loan was granted. The respondents dispute the amount of repayment made by the Applicant and claim that she has not honored her loan repayment schedule.

The respondents deny any harassment, intimidation, or threats towards the Applicant, her family members, or guarantors. They assert that they have acted within their rights and ethical standards as a reputable organization. The respondents argue that they have not threatened to arrest or prosecute the Applicant, but they have contacted guarantors in accordance with their policies when the Applicant defaulted on her loan agreement. The respondents deny any attempts to lock up the Applicant’s guarantors’ business premises and assert that their actions have been aimed at reminding the Applicant of her obligations.

The respondents reject the allegations of threats to the Applicant’s children and argue that their visits were solely for loan repayment reminders and to assess the status of the business used as collateral. The respondents state that their policy allows for visits to the houses or business premises of borrowers during working hours (from 10 am to 4 pm) to monitor the progress of the business and check the status of collateral. They deny conducting visits at arbitrary hours as alleged by the Applicant. The respondents clarify that their practice includes visiting the borrower’s business premises to verify collateral, assess the borrower’s financial situation, and ensure the proper use of the loan. The respondents strongly deny the allegations of threatening the Applicant’s children, putting the Applicant’s life at risk, or involving the Applicant’s community members. They assert that their staff maintains high ethical standards and professionalism.

The respondents emphasize that they have been civil in their interactions with the Applicant and are fully aware of the legal means available for debt recovery. They maintain that they are a reputable institution with a commitment to ethical conduct.

The respondents claim to have given the Applicant ample time to make her repayments and have refrained from taking legal action despite her partial payment. They accuse the Applicant of bringing a frivolous lawsuit to avoid her repayment obligations. The respondents contend that the Applicant’s allegations of breaching her fundamental rights are baseless and that she should have sought understanding and communicated her situation to them rather than rushing to court. The respondents argue that the Applicant’s legal action is an attempt to avoid her loan repayment, which would have negative consequences for the 1st Respondent.

The respondents request that the court dismiss the Applicant’s application for the enforcement of her fundamental rights, asserting that they have not breached her rights. They urge the court to order the Applicant to fulfill her obligation by repaying her loan to the 1st Respondent. The respondents state that the Applicant’s failure to repay the loan has adversely affected the business operations of the 1st Respondent. Finally, they emphasize that they have not conducted themselves unlawfully in their interactions with the Applicant and request the court to dismiss the application.

In summary, the joint counter affidavit strongly refutes the allegations made by the Applicant and argues that the Respondents have acted within their rights and in accordance with their policies as a financial institution. They request the court to dismiss the Applicant’s application

The joint counter affidavit of the 1st and 2nd Respondent is accompanied by counsel address. According to the counsel the key issues before the court are:

  1. Whether the Applicant has provided sufficient evidence to support the claim that his fundamental rights were breached by the Respondents.
  2. Whether the Applicant is entitled to the claims made against the Respondents.

Issue A: The Applicant bears the burden of proving that his fundamental rights were infringed. The Respondents contend that the Applicant failed to provide evidence to substantiate his claims of harassment and threats. The Respondents’ practice of visiting borrowers’ premises to verify collateral and check financial status does not constitute a breach of fundamental rights. The Applicant did not establish that the Respondents violated his rights to personal liberty, freedom of movement, or any other rights as outlined in the Constitution. The judicial authorities cited by the Applicant are not relevant to this case.

Issue B: Since the Applicant did not prove the infringement of his fundamental rights, the Respondents argue that he is not entitled to the reliefs sought. They assert that the Applicant brought the action in bad faith to evade loan repayment.

The Respondents presented evidence of the Applicant’s outstanding debt to support their position.

The counsel for the Respondents urges the court to hold that the Applicant failed to prove his case. Determine that the Respondents were merely carrying out their duties as per the loan agreement. Reject the Applicant’s claim that his fundamental rights were infringed. Dismiss the application with substantial costs.

In conclusion, the Respondents’ counsel contends that the Applicant has not established a valid case for the infringement of his fundamental rights and should not be granted the reliefs sought

RESOLUTION

The constant fact here is that there was a loan agreement between the Applicant and the Respondents. It is also not contested that the Applicant has defaulted in repayment of loan extended to her.

The crux of the mater is the complaint on how the Respondents have set out to recover the loan extended to the Applicant.

The Applicant alleges that the Respondents threatened, harassed, and intimidated her over a civil transaction, resulting in a violation of her fundamental rights. She claims that her children were also affected by these actions. It should be noted that fundamental rights provisions are enforceable against the government, functionaries and individuals – THERESA ONWO V. NWAFOR OKO (1996) 6 NWLR (PT. 456) 584; AND ACB V. OKONKWO (1997) 1 NWLR (PT. 480) 194. Companies can also commence proceedings to enforce a fundamental right – ONYEKWULUJE V. BENUE STATE GOVERNMENT (2005) 8 NWLR (PT. 928) 614.

Fundamental right issues can also be seen in cases of debt recovery. This is normally seen where parties to a contract employ the use of force to recover debts owed to them. In such situations, there is bound to be an infringement on the rights of one party, usually the debtor. Usually the culprit is the Police The Court in MR. PAULINUS OKAFOR & ANOR v. THE ASSISTANT INSPECTOR GENERAL OF POLICE AIG ZONE II ONIKAN & ORS(2019)LPELR-46505(CA) held that the resort to the police by parties for recovery of debts, outstanding under contractual relationship, has been repeatedly deprecated by the courts – “I believe that the EFCC rather than advising the 1st Respondent to use legal means to recover the alleged debt, allowed its coercive powers to be used by the 1st Respondent to harass, intimidate and brutalize the Appellant in a purely business relationship. By so doing, Appellant’s fundamental rights were violated, and the trial court was wrong to justify the breaches”. Also, the Court has a duty to protect the fundamental rights of citizens and must not permit any violation for whatever reason, unless as stipulated by law33.

In ECONOMIC & FINANCIAL CRIMES COMMISSION v. DIAMOND BANK PLC & ORS (2019) LCN/4822(SC, it was held that the powers conferred on the Economic and Financial Crimes Commission (EFCC) to receive complaints and prevent and/or fight financial crimes in Nigeria pursuant to section 6(b) of the Economic and Financial Crimes Commission (Establishment) Act does not extend to investigation and/or resolution of disputes arising or resulting from simple contracts or civil transactions as in this case. Also, the Court stated that the EFCC, the Nigeria Police Force and other security agencies are not debt recovery agencies and should refrain from being used as such. The court also stated that the Appellant’s action constituted an infringement of fundamental right and the 2nd and 3rd Respondents rightly commenced their suit for enforcement of their fundamental right

Here the allegation of harassment and threat is made not against the police but the bank and her staff. The Respondents deny the allegations made by the Applicant and contend that they were only carrying out their duties as specified in the loan agreement. They argue that their visits to the Applicant’s business premises were routine checks.  The law is settled that he who asserts a fact must prove the existence of that fact, otherwise he would not be entitled to the judgment of the Court. The law is trite that he who asserts must prove. See S. 131 (1) of the Evidence Act 2011. The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side and in this case, it was the appellant. “Affirmati Non Neganti Incumbit Probatio” is a Latin maxim that means “the burden of proof is upon him who affirms – not on him who denies.”. The burden is therefore on the applicant who asserts that her fundamental rights have been infringed upon to prove same. MRS. BETTY DAREGO V. A.G. LEVENTIS (NIGERIA) LTD & 3 ORS LER[2015] CA/L/481/2011

The evidence lacks specific instances or proof of these alleged threats, harassment, and intimidation. There is no mention of dates or days these incidences happened. There is no mention of familiar or strange phone numbers that called the applicant or her guarantors in respect of this loan transaction. Without concrete evidence, the court questions the credibility of these claims. It lacks concrete evidence or specific instances to substantiate these claims. As such, her case relies heavily on her narrative and does not meet the burden of proof required in legal proceedings. The Applicant’s evidence relies heavily on her affidavit and claims of threats, harassment, and intimidation. While the affidavit provides a detailed narrative, it lacks concrete proof or specific instances of these allegations.

It is important to note that there is need for balancing the rights of the Respondents to recover the loan extended to the Applicant with the Applicant’s right to have her fundamental rights protected

In this instance both parties are hereby reminded of their obligation to conduct themselves in accordance with the law. The Respondents should adhere to legal procedures and ethical practices in the recovery of loans, ensuring that they do not infringe upon the fundamental rights of the Applicant.

In addition to that, the parties are encouraged to engage in mediation or negotiation to reach an amicable resolution. This could involve renegotiating the terms of the loan, if necessary, to make it more manageable for the Applicant.

The Applicant’s right to be free from threats, harassment, intimidation, or any actions that violate her fundamental rights is constitutionally guaranteed. The Respondents are reminded of their obligation to respect these rights.

Since the loan is not disputed the parties should work with the assistance of the lawyers to establish a reasonable and fair payment plan that takes into account the Applicant’s financial capacity. This plan should ensure that the Applicant can repay the loan without undue hardship.

I found that there is no substantial evidence of fundamental rights violations by the Respondents, the Applicant’s fundamental rights claim is accordingly dismissed

I so hold.

I.M.Njaka

Judge

3-10- 2023

Appearance:

Nick U Amaechi for the Applicant

NC Eke holding the brief of Dr. MK Osadare for Respondents

Previous post HOW/927/2022- Chima Ohahuna, Chukwuebuka Ohahuna VS Obilobi Boniface Okere, Commissioner of Police Imo State O/C Anti –Kidnapping Squad Department, Imo State Police Command, IPO Bube James – BEFORE HIS LORDSHIP: – HON. JUSTICE INNOCENT. M. NJAKA- delivered ON THE 3RD DAY OF OCTOBER 2023- Violation of Fundamental Rights and Unlawful Detention- Legality of Arrest and Complaint Validity-Entitlement to Declarations and Compensation-Arrest in lieu
Next post SUIT NO: HOW/ /2023 – ENGR. PASCHAL CHIDI OKEREKE VS. ELEPHANT GROUP PLC – BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA- delivered ON THE 3RD DAY OF OCTOBER 2023-Jurisdiction- Contract enforcement- Order 2 Rule 3 of the Imo State High Court Civil Procedure Rules 2018- initiating actions related to breach of contract -These options include the judicial division where the contract was formed, where it should have been performed, where the defendant resides, or where the defendant carries on business-
Close

Related Post

BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA- SUIT NO. HOW/977/2023 – EMMANUEL T. OKPARA ESQ. AND GREEN AFRICA AIRWAYS LIMITED & ANOR – Violation of Transparency Obligations and Data Subject Information- Section 37 of the Nigerian Constitution- Nigeria Data Protection Regulation (NDPR)- Nigeria Data Protection Act 2023 (NDPA)- Is the fundamental right enforcement relief, in this case, the main relief or ancillary relief?- The court may grant only the reliefs that can be accommodated or covered under the Fundamental Right Enforcement procedure- a breach of the provisions of the Nigeria Data Protection Act, 2023 (NDPA) and the Nigeria Data Protection Regulation, 2019 (NDPR) can constitute an interference with the right to privacy as guaranteed under Section 37 of the Constitution of the Federal Republic of Nigeria, 1999- What right to privacy entails- Section 97 of Sheriffs and Civil Process Act, does not apply to fundamental right enforcement proceedings.

November 26, 2024

BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA – SUIT NO: HOW/386/2023- NZE ANTHONY MGBEMERE & ORS V. PASTOR IKEDI EKWONYE & ORS -In the absence of Counter Affidavit of the Respondents, the onus is still on the Applicants to prove their case- The general position of the law in Nigeria is that parties are expected to file all their evidence and submissions before the final hearing of a matter- However, the courts have also recognized the need for some flexibility, especially in the interest of doing substantial justice

November 26, 2024

SUIT NO: HOW/194/2023- PROFESSOR BENARD ODOH VS. 1. INSPECTOR GENERAL OF POLICE 2. COMMISSIONER OF POLICE EBONYI STATE 3. THE STATE SECURITY SERVICE EBONYI STATE – BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA- delivered ON THE 3RD DAY OF OCTOBER 2023- the importance of protecting fundamental rights, especially in cases involving political persecution-Duty of the party alleging violation of fundamental rights to present material facts before the Court.-principles related to arrests and detentions-arrests should be based on sufficient evidence -the Court to protect individuals’ rights when they are violated-duties and responsibilities of the Nigeria Police and the Department of State Services (DSS) in maintaining law and order and safeguarding national security-The importance of cooperation and coordination between law enforcement and security agencies and underscores the need to respect and protect human rights.

October 8, 2023

SUIT NO: HOW/653 /2022 HON. JOHN NWAIGBO VS 1. MR. NORBERT OGONNA 2.MR. MARCEL NWOSU & 12Ors- BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA- delivered ON THURSDAY, THE 9TH DAY OF FEBRUARY 2023- in appropriate circumstances, rights can be enforced against private individuals. This principle is supported by various legal precedents, including the case of AKWA SAVINGS AND LOANS LTD. V. UDOUMANA & ORS, which established that the provisions in Chapter IV of the Constitution are enforceable not only against the State but also against artificial persons, such as private companies – citizens have a legal duty to report crimes they witness and to assist the police in investigations. This duty is imposed by law and is not subject to personal discretion. Failure to report a crime is considered an offense- the age-long rule and custom of Umuezealaopi Progressive Union, which requires members to seek the union’s resolution before involving the police or taking a matter to court – while such a rule may be acceptable in civil matters, it contradicts the law when it comes to criminal matters- Reporting a crime to the police is a civic duty, and any action taken against an individual for reporting a crime is considered illegal- right to freedom of association works both ways, meaning that individuals have the right to associate freely with others, but this does not obligate others to associate with them.- it is not the court’s role to interfere with the rules and regulations of voluntary associations, except when they violate the law or principles of natural justice.

September 27, 2023