Freezing Order: What does the law say?

The issue of obtaining freezing orders is becoming a major problem in our society today.

 



Some Law enforcement agencies as well as some Banks sometimes do not get a freezing order before freezing the account of individuals.

The law is clear on its position regarding freezing order on a person’s account.


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The body conferred with power to adjudicate on matters by either the Constitution or statute with regards to some subject matters.

There are many statutes that empowers different authorities to approach the Court to freeze accounts and assets of individuals to preserve the res, pending the determinations, among other reason.

Some of these statutes include; Section 29 & 34 of Economic and Financial Crimes Commission (Establishment Act) 2004 which allows the EFCC to approach the Court for an interim order of forfeiture and freezing order on banks or other financial institutions and such order may only be discharged where the defendant is discharged and acquitted.

Also, Section 50 of AMCON Act (As Amended), 2019 allows AMCON to obtain an order exparte to freeze the debtor or debtor company’s account and such order may subsist till judgment or a final determination of the action, unless expressly discharged by the court.

Similarly, Section 8 of the Recovery of Public Property (Special Provisions) Act allows Court to make an interim attachment in a pending trial where Prima facie case has been made out against the person whose property is the subject of the attachment or freezing order. In like manner, the CBN is empowered by Section 60B of the Banks and Other Financial Institutions (Amendment) Act, 2002 empowers the Court to freeze the account of company and individual exparte, where the governor believes that transactions undertaken in any bank are such as may involve the commission of any criminal offence under any Law.

The act of freezing an account without a freezing order is not an act that is proper. The cases of Gana v. SDP & Ors. (2019) LPELR- 47153SC at 43, G.T.B Plc v. Adedamola (2019) 5 NWLR (pt.1664) 30 at 43, emphasizes on the importance of freezing orders where EFCC directed GTB to freeze the account of the Appellant without first obtaining the Court order, the Court held that ‘before freezing customer’s account or placing any form of restrain on any Bank account, a bank must be satisfied that there is an order of court.

By the provisions of Section 34(1) of the Economic and Financial Crimes Commission Act, 2004 the EFCC has no power to give direct instructions to Banks to freeze the account of a customer without an order of court, so doing constitutes a flagrant disregard and violation of the rights of a customer.

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