By Charles Mekwunye

CENTRAL Bank of Nigeria, CBN, fixingtime limits for Resolution of Customers’ Complaints is morally and legally wrong, unlawful, unconstitutional and against the current prevalent mood of the nation in its fight against corruption.

In the first place, CBN has no power to make subsidiary legislation on this subject of banks negligently, recklessness or fraudulently over charging its customers in various clever ways including but not limited to:

• Excess interest charges;
• Excess management fees charges;
• Excess Team Loan Repayment charges;
• Fees charged above Bankers tariffs;
• Excess charges on restructured team loans;
• Excess penal interest charges;
• Excess COT charges.

This is because these acts of banks amount to civil wrongs, criminal offences and constitutional breaches of the rights of their customers. It is a civil wrong and amounts to breach of contract if these charges are not in accordance with the terms of the facilities granted the customer.

Offence ofstealing

It is criminal in many ways as it amounts to an offence of stealing under the Criminal Code Cap C38 Laws of the Federation of Nigeria. Section 383 provides: “(1) A person who fraudulently takes anything capable of being being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.

(2) A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents-

1. an intent permanently to deprive the owner of the thing of it; (b) an intent permanently to deprive any person who has any special property in the thing of such property; (c) an intent to use the thing as a pledge or security;

(d) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform; (e) an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; (f) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.”

(3) The taking or conversion may he fraudulent, although it is effected without secrecy or attempt at concealment. (4) In the case of conversion, it is immaterial whether the thing converted is taken for the purpose of conversion, or whether it is at the time of the conversion in the possession of the person who converts it. It is also immaterial that the person who converts the property is the holder of a power of attorney for the disposition of it, or is otherwise authorised to dispose of the property.”

When any bank unlawfully debits the customer’s accounts and takes away (money) which is a property capable of being stolen with intent to deprive the customer of it, it is stealing.

Economicsabotage

That it is done by a bank and not an individual makes no difference – as a bank is in law, a legal person and the Criminal Code simply says “a person”. It will certainly amount to financial/economic crimes under the EFCC Act, and other Acts that EFCC is empowered to enforce, particularly where the customer is a Government – Federal- State – Local or their parastatals, it could amount to a greater offence of economic sabotage of the developmental efforts of the Government.

When the bank’s unlawful actions are done with the connivance of the government officials of a particular time, for any pecuniary benefit of such government officials, it will amount to aiding and abetting a crime – corruption. Therefore setting a time limit like CBN has done is really dangerous and it will shelter, encourage and protect the perpetrators of these crimes – bankers and government officials – because we all know that some elected officials have two terms of 4 years each, that is eight years.

Therefore an elected official may connive with bank officials to fleaze the government confers with excessive charges on facilities (shared with the bank) in the first 2 years of his tenure, knowing that his immunity will cover him during his tenure and when he has left office and his immunity has expired, CBN’s time limit will continue his protection.

It is also unconstitutional because, Section 44 of the Constitution provides 44. “(1) No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things

1. requires the prompt payment of compensation therefore and
2. gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction in that part of Nigeria”

(2) Nothing in subsection (1) of this section shall be construed as affecting any general law…

(i) relating to limitation of actions”.

Therefore no one can be dispossessed of his property movable/immovable – and money is property – without due process. Therefore if any bank has unlawfully debited into a customer’s account some millions or billions of naira, the customer has the right to complain under Section 44 of the Constitution and CBN has no right to limit when the complaint can be made, inspite of the provision of section 44(2) (i) of the Constitution, as CBN is not the National / State Assembly.

The CBN is also a creation of statute, the CBN Act. It can only exercise powers granted to it under that Act and under the Banks and Other Financial Institutions Act. These statutes give CBN limited powers to issue subsidiary legislations to regulate banks. This right does not include right to limit the rights of Companies and individuals who are customers of banks. Their rights are more than banking rights. Some of these rights are constitutional, some are civil like contract or torts.

It is trite that any subsidiary legislations that is outside, beyond or ultra vires the CBN is null and void and of no effect whatsoever, which is the fate of this latest CBN regulation on time limits. There are several decisions of the appellate courts on this position. It suffices to refer to one of the latest NNPC v. FAMFA OIL LIMITED (2012) LPELR -7812(SC) where the Apex court held

“It is the principal law that provides subsidiary legislation the source of its existence.