Rejoinder: ‘’46m Accounts Without Bank Verification Number: FG Trying To Reap Where It Hasn’t Sown – Ebun-Olu Adegboruwa,” By Okoi Obono-Obla
I read with amusement the statement credited to senior legal practitioner, Ebun-Olu Adegboruwa in an interview published in the online edition of the journal Nigerian lawyer titled ‘’46m Accounts without Bank Verification Number: FG trying to reap where it hasn’t sown’’.
In the first place, I find disconcerting and outrageous Ebun-Olu Adegboruwa commentary on a matter that is before a Court of competent jurisdiction.
It is elementary that when a mater is before a Court of competent jurisdiction and the parties have submitted to jurisdiction nobody is required to pass a comment or say anything that will be prejudicial to the fair hearing of the matter.
Has Ebun-Olu Adebgoruwa (a seasoned Legal Practitioner in his frenzy and obsession to oppose) forgotten so quickly and easily such elementary principle to the extent that he would term an Order made by a Court of competent jurisdiction, illegal?
Is it not settled law that an Order of a Court of competent jurisdiction is deemed proper and good till it is set aside by an appellate Court or the Court that issued the Order, on the ground that it was made without jurisdiction?
The proposition by Ebun-Olu Adebgoruwa that the Order of Interim of Forfeiture of the accounts of Nigerians issued by the Court against the accounts of those who have woefully and illegally failed to link their accounts with Bank Verification Number (after three years) amounts to infringement of Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is hollow and therefore non sequitor, with due respect.
It is elementary and trite that the fundamental rights entrenched in Chapter IV of the Constitution are not limitless.
Indeed, Section 45 (1) of the Constitution to a large extent circumscribes these rights in certain circumstances.
Section 45 (1) of the Constitution provide thus:
‘’Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society (a) in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom or other person’’.
Accordingly, the National Assembly enacted the Money Laundering (Prohibition) Act, 2007.
Section 3 (1) (a) (b) (i) (ii), (2) & (3) of the Money Laundering (prohibition) Act provide thus: ‘A Financial Institution and a Designated Non-Financial Institution shall –
(a) verify its customer’s identity and update all relevant information on the customer –
(i) before opening an account for, issuing a passbook to, entering into fiduciary transaction with, renting a safe deposit box to or establishing any other business relationship with the customer, and
(ii) during the course of the relationship with the customer;
(b) scrutinize all on-going transactions undertaken throughout the duration of the relationship in order to ensure that the customer’s transaction is consistent with the business and risk profile.
(2) An individual shall be required to provide proof of his-
(a) identity, by presenting to the Financial Institution or Designated Non-Financial Institution a valid original copy of an official document bearing his names and photograph or any other identification documents as the relevant regulators may from time to time approve;
(b) address, by presenting to the Financial Institution or Designated Non-Financial Institution the originals of receipts issued within the previous 3 months by public utilities or any other documents as the relevant regulatory authorities may from time to time approve.
(3) A body corporate shall be required to provide proof of its identity by presenting its certificate of incorporation and other valid official documents attesting to the existence of the body corporate.
In the division of governmental responsibilities between the Federal Government and the States, banking is the exclusive responsibility of the Federal Government of Nigeria.
In other words, the regulation of banking is the exclusive responsibility of the Federal Government of Nigeria.
Accordingly, the Federal Government regulates the Banking Industry through the instrumentality of the Central Bank of Nigeria, which is the Regulator of the Banking Industry in the Federal Republic of Nigeria.
In pursuance of the regulatory regime and framework of the Central Bank of Nigeria, the Central Bank of Nigeria issued in 2014 – The Regulatory Framework for Bank Verification Number (BVN) Operations and Watch-List for the Nigerian Financial System.
The Preamble to the Regulatory Framework for Bank Verification Number (BVN) Operations and Watch-List for the Nigerian Financial System, provide thus:
“In exercise of the powers conferred on the Central Bank of Nigeria (CBN), by Sections 2 (d) and 47 (2), of the CBN Act, 2007, to promote and facilitate the development of efficient and effective systems for the settlement of transactions, including development of the electronic payment systems; Central Bank of Nigeria hereby issues the Regulatory Framework for the Bank Verification Number (BVN) Operations and Watch-List for the Nigerian Financial System…”
Section 2 (d) of the Central Bank of Nigeria Act provide thus:
‘’The principal objects of the Bank is to- promote a sound financial system in Nigeria’’.
Section 47 (2) of the Central Bank of Nigeria Act provide thus:
Notwithstanding subsection (1) of this section and in furtherance of the provisions of section 2(d) of this Act, the Bank shall continue to promote and facilitate the development of efficient and effective systems for the settlement of transactions including the development of electronic payment systems).
I would like Egbun-Olu Adegboruwa to answer the following questions:
- Can Ebun-Olu Adegboruwa seriously argue that that Central Bank of Nigeria regulation or directive on BVN premised on Sections 2 (d) and 47 (2) of the Central Bank of Nigeria Act does not have the power of law?
- If the Bank Verification Number is a lawful Directive of the Central Bank of Nigeria, why would any genuine, honest and law abiding bank customer or account holder disobey a Directive that he or she must link his or her account with a Bank Verification Number?
- Why would any genuine, honest and law abiding bank customer or account holder, not take advantage the window given by the Central Bank of Nigeria since 2014 to link his or her account with a Bank Verification Number?
- Does Ebun-Olu Adegboruwa honestly believe the Honourable Attorney-General of the Federation or the Federal Government of Nigeria will allow these 45 million accounts holders who have refused, failed and or neglected to link their account with a Bank Verification Number to continue to operate these suspicious accounts?
- Has it occur to Ebun-Olu Adegboruwa that these bank accounts that are not linked to BVN can be used to launder money, siphon public funds or even be used to finance terrorism and other criminal activities?
- Is Ebun-Olu Adegboruwa aware that the raging Pension Fund fraud was made possible by the existence of such dubious accounts?
Indeed by virtue of Section 6 (1) (a) (b) (c) & (d) of the Money Laundering (Prohibition) Act, Commercial Banks and non-financial Institutions are obligated to report to the Central Bank of Nigeria; the Economic and Financial Crimes Commission; the National Drug Law Enforcement Agency and other regulatory and judicial authorities such suspicious accounts.
Section 6 (1) (a) (b) (c) & (d) of the Money Laundering (Prohibition) Act provide thus: Where a transaction-
(a) involves a frequency which is unjustifiable or unreasonable;
(b) is surrounded by conditions of unusual or unjustified complexity;
(c) appears to have no economic justification or lawful objective; or
(d) in the opinion of the Financial Institution or Designated Non-Financial Institution involves terrorist financing or is inconsistent with the known transaction pattern of the account or business relationship, that transaction shall be deemed to be suspicious and the Financial Institution involved in such transaction shall seek information from the customer as to the origin and destination of the fund, the aim of the transaction and the identity of the beneficiary.
By Section 6 (2)b (a) (b) & (c) of the Money Laundering (Prohibition) Act, a Financial Institution or Designated Non-Financial Institution shall within 7 days after the transaction referred to in subsection (1) of section 6 (1) (a) (b) (C) & (d) –
(a) draw up a written report containing all relevant information on the matters mentioned in subsection (1) of this section together with the identity of the principal and, where applicable, of the beneficiary or beneficiaries;
(b) take appropriate action to prevent the laundering of the proceeds of a crime or an illegal act; and
(c) send a copy of the report and action taken to the Commission.
More importantly, Section 6 (7) of the Money Laundering (Prohibition) Act, where it is not possible to ascertain the origin of the funds within the period of stoppage of the transaction, the Federal High Court may, at the request of the Commission, or other persons or authority duly authorized in that behalf, order that the funds, accounts or securities referred to in the report be blocked.
This is precisely what the Honourable Attorney-General of the Federation acting pursuant to his constitutional powers vested on him by the combined provisions of Sections 150 (1) and 174 of the Constitution of the Federal Republic of Nigeria (supra) has done by approaching the Federal High Court to obtain an order blocking these accounts pending when the owners of these accounts would come to Court to explain why they have refused, failed and or neglected to link these accounts with BVN since 2014.
I submit that the argument by Ebun-Olu Adegboruwa that the Honourable Attorney-General of the Federation cannot institute an action because the Federal Government and the Honourable Attorney General of the Federation are not privy to the contract between the Banks and account holders are indeed lame and misconceived.
Undoubtedly, this matter is not in the realm of the law of contract; it is rather in the sphere of Criminal Law.
Assuming (without conceding), that it is in the realm of contract, the Honourable Attorney-General of the Federation (traditionally and constitutionally) by virtue of his position as the guardian and custodian of public interest has the power to intervene in view of the fact that the holders of these accounts have unjustifiably or unreasonably failed to link these accounts to BVN since 2014.
These accounts are deemed abandoned because of the failure of the holders to link with BVN since 2014.
It is settled that the State (Government) can take ownership of any property that is abandoned (bona vacantia) by the owner in public interest.
Property is generally deemed to have been abandoned if it is found in a place where the true owner likely intended to leave it, but is in such a condition that it is apparent that he or she has no intention of returning to claim it.
Abandoned property generally becomes the property of whoever should find it and takes possession of it first, although some states have enacted statutes under which certain kinds of abandoned property – usually cars, wrecked ships and wrecked aircraft – escheat, meaning that they become the property of the State.
Escheat is a Common Law Doctrine that transfers the property of a person who died without heirs to the Crown or State. It serves to ensure that property is not left in “limbo” without recognized ownership. It originally applied to a number of situations where a legal interest in land was destroyed by operation of law, so that the ownership of the land reverted to the immediately superior feudal lord.
It follows that since the purported owners of these accounts have refused to link their accounts with BVN and hence can no longer operate the said accounts, they are deemed abandoned property under the doctrine of bona vacantia which means they can become the property of the Federal Government of Nigeria.
Abandonment in law connotes the surrender, relinquishment, disclaimer or cession of property or of rights.
Voluntary relinquishment of all right, title, claim and possession with the intention of not reclaiming it.
The giving up of a thing absolutely without reference to any particular person or purpose.
For example vacating property with the intention of not returning so that it may be appropriated by the next comer or finder.
The voluntary relinquishment of possession of a thing by its owner with the intention of terminating ownership but without vesting it in any other person. The relinquishing of all title possession or claim or a virtual, intentional throwing away of property.
It goes without saying that the proposition by Ebun-Olu Adegboruwa that the request by the Federal Government of Nigeria to forfeit the accounts of those who have refused to comply with the lawful directive of the CBN that all accounts should be linked with BVC infringe on the right to ownership of property, is not well founded or thought out.