By Associate Professor Ibrahim Abdullahi, SAN
Judicial activism was displayed by the oracles of the law (the Supreme Court of Nigeria) in its land mark decision in the case of DR JOSEPH NWOBIKE, SAN VS FEDERAL REPUBLIC OF NIGERIA Suit No. SC/CR/161/2020 decided on the 20th of December 2021. This decision has attracted diverse commentaries on the actual purport of the judgment, some of which were actually outside the actual context of the decision of the apex court. The intention of this write up however is not to make a critique of such commentaries but to look at the limitations set forth on the powers of the Economic and Financial Crimes Commission (EFCC) in relation to its investigative and prosecutory powers as can be garnered by the reasoning of the apex court in the case under consideration as well as suggest an antidote for the EFCC, the Legislature, Law Reform Commission, Attorney Generals of States and the Courts.
The EFCC is a body created by statute to carry out functions ascribed and specified in its Establishment Act 2004. NIMPAR, J.C.A. at Pp. 23-28, Paras. B-E in the case of OBIWUSI v. EFCC & ANOR (2018) LPELR-44536(CA) held that the powers of the EFCC include the powers of the Police and they are wide and cuts across several legislations promulgated to fight financial crimes. This definition was arrived at based on the literal interpretation of Sections 6 and 7 and other enabling provisions of the Economic and Financial Crimes Commission Act. This has been the interpretation given before the apex court decision delivered on the 20th of December 2021 in the case of DR JOSEPH NWOBIKE, SAN VS FEDERAL REPUBLIC OF NIGERIA Suit No. SC/CR/161/2020.
The EFCC had in the past delved into cases outside its mandate particularly cases that are purely civil in nature. However, a bird’s eye view of the powers of the EFCC under its Establishment Act 2004 will reveal that a threshold limit is set on the powers or extent of powers of EFCC to investigate, enforce and prosecute offenders vis-a-vis any other law or regulation. It is in this respect that the EFCC is not by law allowed to dabble into enforcement of civil contracts and agreements, or to engage in recovery of debts, under the pretext of carrying out its lawful duties. In the case of OMUMA MICRO-FINANCE BANK NIG. LTD v. OJINNAKA (2018) LPELR-43988(CA), MBABA, J.C.A. at Pp. 15-17, Paras. F-A posited thus;
We have held, several times, that one who procures the Police or any law enforcement agency, to dabble in a purely civil contract, to recover debt for the party to an agreement, must be ready to bear the consequences of such unlawful act of the Police/law enforcement agency, acting in abuse of their powers. See the case of Anogwie & Ors vs Odom & Ors (2016) LPELR-40214 CA; Ogbonna vs. Ogbonna (2014) LPELR- 22308; (2014) 23 WRN 48, and Abah vs UBN Plc & Ors 2015 LPELR -24758 CA, where it was held: “We have stated repeatedly that the Police or any Law Enforcement Agency, for that matter, including the Economic and Financial Crimes Commission (EFCC) is not allowed to dabble into enforcement of civil contracts and agreements, or to engage in recovery of debts, under the pretext of doing lawful duties.” See the case of Oceanic Securities International Ltd vs Balogun & Ors (2013) ALL FWLR (Pt. 677) 653; Ibiyeye & Anor vs. Gold & Ors (2012) ALL FWLR (Pt. 659) 1074. And in the case of Skye Bank Plc vs. Njoku & Ors (2016) LPELR-40447 (CA), it was held: “…a party that employs the Police or any law enforcement agency to violate the fundamental right of a citizen should be ready to face the consequences, either alone or with the misguided agency… The Police have no business helping parties to settle or recover debt…” See again Ogbonna vs Ogbonna (2014) 23 WRN 48.
The recent decision of the Supreme Court of Nigeria in the case of DR JOSEPH NWOBIKE, SAN VS FEDERAL REPUBLIC OF NIGERIA has further exposed the need for the EFCC to be alert to its statutory responsibilities within the confines of ONLY Economic and Financial Crimes as defined under section 46 of the EFCC (Establishment) Act as well as the need for legislative activism. From the decision of the apex court; the following limitations as it affects the investigative and prosecutorial powers of the EFCC can be discerned:
- That the investigative and prosecutory powers of the Commission under Sections 6 and 7 of the EFCC Act is limited to Economic and Financial Crimes provided in the Act and as defined under section 46 of the Economic and Financial Crimes Commission (Establishment Act) 2004.
- That the EFCC being a coordinating agency for combating corruption in Nigeria does not confer it the unfettered powers to initiate prosecution in respect of all offences in Nigeria. The apex court while appraising the powers of the Economic and Financial Crimes Commission (EFCC) stated at pages 15 – 16 of the judgment thus;
… Indeed, the effect of the combined provisions of sections 6(b), 7(1)(a) & (2)(f) and 13 (2) of the EFCC (Establishment) Act 2004, leaves no doubt that the EFCC has the power to investigate, enforce and prosecute offenders for any offence whether under the Act or any other Statute, in so far as the offence relates to commission of Economic and Financial Crimes…
However at page 22 of the said judgment, the Supreme Court held thus;
…I think it is at this stage improper to import and encompass all criminal offences under the Economic and Financial Crimes Commission (Establishment) Act 2004. The Criminal Offences Contemplated by the Convention must be offences fitting the statement of purpose of the Convention, the Criminal offences must not be at large as to include every conceivable criminal offence…
- That by the preamble to the United Nations Convention against Corruption which gave rise to and compelled the enactment of the Economic and Financial Crimes (Establishment) Act 2004, the purpose is to curb Corruption and International transfers of illicit acquired assets. Thence, the EFCC can no longer hide under sections section 46 of the Economic and Financial Crimes (Establishment) Act 2004 to prosecute all kind of cases whether emanating from a State or Federal Law as its powers are now regulated by the global action against the fight against corruption as regulated by the United Nations Convention against Corruption of which Nigeria is a signatory. At page 21 of the judgment, the Supreme Court posited thus;
“…The United Nations Convention against Corruption, particularly Article 15 provides for domestication and criminalization of offences under the Convention by State Parties. In line with this obligation therefore, Nigeria enacted the EFCC Act”
- That the investigative and prosecutory powers of the EFCC are not at large and open ended. In refusing to adopt a literal interpretation in the determination of the exact scope of the expression “any form of corrupt malpractices” as used under the EFCC Act 2004 holding that doing so will mean that the powers of the EFCC will be at large and open ended and by that interpretation, it will mean that every criminal activity committed will fall within the scope of Corrupt Malpractices and consequently be regarded as an economic crime which is not the contemplation of legislature, the apex court per Tijjani Abubakar JSC stated the position of the law thus;
… I have given a careful consideration to the natural, ordinary and plain interpretation of the expression “corrupt malpractices” which is not defined under the EFCC (Establishment) Act. If the literal meaning is adopted, it means that the powers of the EFCC will be at large and open ended, because by that interpretation, every criminal and illicit activity committed will fall within the scope of “corrupt malpractices” and consequently be regarded as an economic and financial crime, which the EFCC will be empowered to investigate, so doing will make a pigmy of other legislations and render them barren and sterile, this is certainly not the intention of the legislature necessitating the establishment of the EFCC and enacting the Act…
- That section 46 of the EFCC Act can only accommodate the specific class of offences that follows the particular classes of offences mentioned before “Any form of Corrupt Malpractices” and not to expand its scope. In this regard, in interpreting section 46 of the EFCC (Establishment Act) 2004, and applying the ejusdem generis rule of interpretation, the apex court held at page 23 of the Judgment thus;
In Section 46 of the EFCC (Establishment) Act under consideration, the general words that call for interpretation are “any form of Corrupt malpractices” following the particular words “… embezzlement, bribery, looting”. An application of the ejusdem generis rule to the interpretation of the words “any form of corrupt malpractices” does not lend credence to the position taken by the Respondent. Indeed, the words, “any form of corrupt malpractices” must be construed within the context of the specific class which it follows, and must be confined to the particular class. In my humble view therefore, the legislature thought it proper and for right and good reasons, to place the general expression “any form of Corrupt malpractices” to come after the offences “… embezzlement, bribery, looting” and same must be confined to such specific words and not to expand, extend or elongate it to accommodate any corrupt malpractices at large.
It logically follows that any offence which is not an economic and financial crime nor fall within the interpretation given by the Supreme Court of Nigeria in respect to offences fallen within “Any Form of Corrupt Malpractices” falls outside the powers of the EFCC to investigate and prosecute.
- That any investigation and prosecution and or continued investigation and prosecution of a Defendant by the EFCC which is not erected on any pedestal whatsoever will be deemed not to have been initiated by due process of the law and thence affects the requisite jurisdiction of a court of law and a worthless exercise in futility which will amount to a complete nullity. In the case of UBA PLC & ORS V. ADEMOLA (2008) LPELR-5066(CA), SHOREMI, J.C.A. at pages 12-13, paras F-G posited thus;
Jurisdiction is the life wire of a Court as no Court can entertain a matter where it lacks jurisdiction. Issue of jurisdiction can be raised at any time even on appeal to the Supreme Court. Because of its decisive nature See DAIRO V. U.B.A. – (2007) All F.W.L.R. Part 392 page 1846 al Pages 1872 – 1873 H-B.
The apex court has spoken. The recent decision of the court in DR JOSEPH NWOBIKE, SAN VS FEDERAL REPUBLIC OF NIGERIA is a decision of the apex court and by the doctrine of judicial precedent, all courts are bound to follow and apply same. In the case of OKONJO VS DR. MUDIAGA ODJE & ORS (1985) 10 S. C 267 AT PAGES 268 – 269, ESO JSC stated inter alia as follows:
“In the hierarchy of the court in this country, as in all other free Common Law countries, one thing is clear, however learned a lower court considers itself to be and however contemptuous of the lower court, that lower court is still bound by the decision of the higher court … I hope it will never happen again whereby the court of Appeal in this country or any lower court for that matter, would deliberately go against the decision of this court and in this case, even to the extent of not considering the decision when those of this court were brought to the notice of that court. This is the discipline of the law. This is what makes the law certain and prevents it from being an ass… Those who think that they are very knowledgeable than the court, if they have listening ears, let them hear and take care. I have gone far because the learned justice of the Court of Appeal and in the University of Ilorin Vs Adeniran, who claims or assert to be torn between the two judgment of this court should please take notice and come to terms with the principle or doctrine of Stare Decisis precedents and hierarchy of the courts, which are clear and unambiguous.”
It is conceded that the established position is that criminal investigations and prosecutions are carried out by security operatives and or agencies based on the strength of the information at the disposal of the agencies investigators. Based on the recent decision of the apex court, the burning question is; what are the options/antidote available to the EFCC, the Legislature, Law Reform Commission, Attorney Generals of States and the Courts?
The following options/antidote are in the opinion of the writer open:
- Operatives of the EFCC should always endeavour to ascertain the type of transaction that gave rise to a compliant leading to an investigation and eventual prosecution. Where the matter between the parties is a contractual transaction devoid of any criminal acts that can conveniently fall within the purview of section 46 of the EFCC Act as interpreted by the Supreme Court of Nigeria and for which parties could have ventilated their grievances through other lawful means other than calling on the EFCC to interfere, then the EFCC should take the honourable path of declining to entertain such complaints.
- The EFCC operatives should always convince themselves that there are basis to suspect that an offence within the enabling Act has been committed or about to be committed. The writing or presenting of a petition against another does not ipso facto obviate the requirement and the need for the EFCC to so convince itself. See the cases of DUMBELL V. ROBEBTS (1994) 1 ALL E.R. 326 AT 326; OKORODUDU V. OTERI (1970) ANLR 199 AT 203.
- The EFCC must not allow itself to be used by overzealous personalities and or politicians for vindictive purposes where time and money and indeed taxpayer’s money will then be expended in helping business men or politicians to settle scores instead of the EFCC devoting itself to its mandate under the enabling Act. The latest tactics of using the EFCC for purposes other than that which is enjoined by law is unconstitutional, unwarranted, unethical, and degrading.
- The EFCC should as a matter of urgency look at its dockets of cases and honourably withdraw all cases pending before the courts for which they do not have the requisite investigative and prosecutorial powers to entertain and allow other relevant agencies carry out their mandate as enjoined by law. This will ensure that friction is eroded and greater synergy created in an atmosphere of mutual respect.
- On the part of the legislature, there is the urgent to prevent proliferation of legislations on the same subject matter leading to identical and conflicting institutional frameworks.
- There is the urgent need for the Reform Commission to be alive to its responsibilities as far as law reforms are concerned and possibly propose a review.
- The Attorney Generals of States should take the leverage of the apex court’s decision to ensure that all cases not falling within the purview of the EFCC are promptly taken over for the purposes of prosecution if need be.
- The Courts can equally under their inherent powers raise suo motu such jurisdictional issues while giving parties the right of address on the issue suo motu raised, for the purposes of ensuring that they do not dissipate their energy in entertaining matters for which the prosecuting agency or agencies have no investigative and prosecutory powers.
Abdullahi SAN can be reached at firstname.lastname@example.org