Is debtors’ list publication legal?

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Akinpelu Ayokunle

The Central Bank of Nigeria is empowered by the various provisions of the CBN Act to regulate and supervise the activities of commercial banks in Nigeria. Section 44 (a) CBN Act 2007 provides that there shall be a Committee for the co-ordination and supervision of financial institutions in Nigeria.

This provision has placed the direct supervision of banks and other financial institutions under the purview of the Central Bank of Nigeria. The supervision of the banks is to promote and maintain adequate and reasonable financial service for the public; as well as ensure high standards of conduct and management throughout the banking system. The powers of the Central Bank of Nigeria in regulating and supervising commercial banks seems unfettered as the Act provides an incidental clause to enable the Central Bank of Nigeria discharge its functions as prescribed according to law. Section 32 (1) CBN Act provides that “the Bank may, subject as is expressly provided in this Act generally conduct business as a bank, and do all such things as are incidental to or consequential upon the exercise of its power or the discharge of its duties under this Act” . It would therefore be right for the Central Bank of Nigeria to make regulations and guidelines that would ensure that the objectives of the Act are fully accomplished. This directive must be obeyed by all financial institutions and any financial institution which fails to comply with such directive is at risk of sanctions from the Central Bank of Nigeria.

In ensuring that the Central Bank of Nigeria is properly backed up through the instrumentality of law, the federal legislature has passed the Banks and Other Financial Institution Act (BOFI Act). The various provsion of the BOFI Act gives wide powers to the Central Bank of Nigeria to regulate the activities of banks and financial instutions in Nigeria. The power includes but not limited to issuance and revocation of licenses should there be a breach of the law or any regulation by any bank or financial instution, section 3 & 8 BOFI Act. Section 57 BOFI Act empowers the Governor to make regulations to give full effect to the objects and objectives of the Act, it provides as follows, (1) The Governor may make regulations, published in the Gazette, to give full effect to the objects and objectives of this Act. (2) Without prejudice to the provisions of subsection (1) of this section, the Governor may make rules and regulations for the operation and control of all institutions under the supervision of the Bank.

In light of the above provisions, the Central Bank of Nigeria is solely responsible for the supervision of banks and financial instutions in Nigeria, subject to the overall supervision of the supervising minister. The incidental power of the Central Bank of Nigeria is sufficient for legal protection as regards its directive to all banks to publish the names of debtors. It would therefore be right on the face value for the banks to obey the directive of the Central Bank of Nigeria. However, since the CBN Act and BOFI Act are not the only legislation governing conducts of citizens and institutions in Nigeria, it would be pertinent that other laws should read in consonance with the CBN Act and the BOFI Act.

The Nigerian legal system is anchored on the doctrines of English Common Law and legal tradition as a result of colonisation and of reception of English law through the legal transplant. The doctrines of common law form a substantial part of the received English Law in Nigeria and this received English Law are part of our legal and judicial system. Received English Law comprises of Doctrines of Common Law, Doctrines of Equity, and Statutes of General Application. Section 45(1) Interpretation Act provides that, “the common law of England and the doctrines of equity and the statues of general application which were in force in England on 1st January, 1900 are applicable in Nigeria, only in so far as local jurisdiction and circumstances shall permit” It would be right from the interpretation of Sec. 45 Interpretation Act to state that the doctrines of common law as part of our laws would impose a duty of confidentiality upon a banker to its customers. The duty of confidentiality was first brought to fore in the case of Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 where a bank disclosed to its customer’s employer that one of the customer’s unpaid cheques was drawn in favour of a bookmaker’s account. As a result of this disclosure, the customer’s employer did not renew his contract with the customer. In arriving at a decision, the English Court of Appeal held that confidentiality was an implied term in the customer’s contract and that any breach could give rise to liability in damages if loss results. This duty is not however exclusive and without qualification, the dutyof confidentiality can be dispensed with when required by law, public duty, bank’s interest or in circumstances where the client has consented even if impliedly to such disclosure.

The provision of exemptions from this duty cannot be a basis to act in an unrestricted manner, as the exemptions are not to be used vaguely but in regards to facts. In interpretating situations where the exemptions can be applied it would best serve the interest of the justice to apply the purposive approach rule of interpretation. The purposive approach rule considers not only the letters of the legislation vis-a-vis their true or extended meaning but it further considers the reasonings behind such legislations by looking at the history of the proceedings and the purpose the law was to achieve. In NURTW v. RTEAN (2012) 10 NWLR (Pt. 1307) 170 S.C at Page 196 paragraph A, the court stated par Fabiyi JSC “It is basic that one of the vital canons of interpretation of statutes is that a court of record should be minded to make broad interpretation or what is sometimes referred to as giving liberal approach… A court should give a holistic interpretation to a statute as required by law… A court should aim at giving a statute purposeful interpretation; I dare say”. Therefore, in establishing the occurrence of breach of this duty, it would best serve the interest of justice to scruntize the exemptions created by English Court of Appeal.

A banker is allowed to breach the duty of disclosure when such disclosure is required by law. In arriving at definition of the term “law” the Interpretation Act LFN 2004 defines “law” in Section 18 (1) Interpretation Act as “law means any law enacted or having effect as if enacted by the legislature of a state and includes any instrument having the force of law which is made under a law.” It would then be that the directive of the Central Bank of Nigeria by facial value would be sufficient to breach this duty since it was made by an instrument having the force of law. However, since the duty of confidentiality has been imposed by doctrines of common law and accepted by the Act of the Parliament, there would appear to be a conflict between the two positions. In resolving the conflict, the court has always used the hierarchial status of laws to determine which law supercedes the other in cases of legislative conflict. It cannot therefore be that a principle which has been enacted by a federal legislation would be subjugated and over-riden by a directive from the Central Bank of Nigeria made pursuant to an Act. The Court having enunicated the hierarchy of laws in Labiyi v. Anretiola (1992) 8 NWLR (pt.258) 139 would not be willing to topple the express provisions of an Act with a directive made pursuant to an Act. The English Court of Appeal further conceded that the duty of confidentiality can be circumvented at instance of public duty. Public duty must not be defined vaguely but in relation to the circumstances of fact and the law. In the case of Dododo v. EFCC (2013) 1 NWLR (Pt. 1336) 468 C.A, the Court of Appeal defined the term public as “the people of a nation or community as a whole” while the Black Law Dictionary has defined duty as a “moral obligation”. The exception would therefore be applicable in circumstances where non-disclosure would cause public hurt or injury, particulary, instances of criminal liability. In regards to all available facts, the CBN has not stated that the debtors accrued the debt through illegality, neither has it been controverted that a banker-customer relationship existed, especially as a legal transaction is strictly a private and civil affair. The exception of disclosure by reason of public duty can barely avail the Central Bank’s directive in light of the afore-mentioned. With regards to disclosure occassioned by bank’s interest, the balance of convenience would rest solely on the bank as the law is cleaar that he would assert must proof, section 135 Evidence Act. Since, the bank’s interest is dependent of the facts of each case; the legality would be hinged on the reasonable man’s test.

In futherance of the rights of the debtors to have their loan transaction carried out under strictly confidentiality, the Constitution of the Federal Republic of Nigeria has ensured the codification of rights to privacy. Section 37 Constitution of the Federal Republic of Nigeria 1999 3rd Alteration provides; “the privacy of citizens, their homes, correspondence, telephone conversation and telegraphic communications is hereby guaranteed and protected”. This provision in the constitution supercedes whatever law or directive that mandates the disclosure of personal corresspondence of a person’s account into the public space. This provision having been provided for by the constitution is of a special status as it can only be contravened under the circumstances permitted by the constitution itself and not by any directive or even an act of the parliament. Section 1(1) (3) of the constitution of Nigeria gives an overlording preference to section 37 of the constitution, section 1 (1) (3) provides “(1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria; (3) If any other law is inconsistent with the provisions of this constituion, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void.” However, the constitution has also stated instances that the provisions of Section 37 CFRN 1999 3rd amendment can be exclusively overridden. Section 45 CFRN 1999 3rd amendment permits the vioation of the provision of Section 37 CFRN 1999 3rd amendment in the interest of defence, public safety, public order, public morality, public health or for the purpose of rights and freedom of other persons. Succintly, the provisions of section 37 can be circumvented for public policy and for the purpose of ensuring the rights and freedom of other persons. Public policy has been described as actions taken to stop the obliteration of public interest or to protect public interest. Public policy is based on the test of a reasonable man as well.

The combined reading of Section 18(1), 45(1) Interpretation Act, Section 42(a), Section 23(1) CBN Act, Section 57 BOFI Act and Section 37, Section 1(1) (3) Constitution of the Federal Republic of Nigeria, would be that though the Central Bank of Nigeria has the powers to give directives for the overall goverance of banking business in Nigeria, such directive must not contradict any express provision of the law. The Court has consistently risen to the defence of the law, especially the constitution. It has even gone further to declare any contradictory act against the law to be null and void and of no effect. The position of the Court has been that that no action or directive would be allowed override the express provision of the law no matter the brilliance or good intent of such actions or directives. The publication of debtors would therefore be more of a moral exercise that cannot be hinged on any legal provision.

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