Supreme Court Whittles Down EFCC Powers in Dr Joseph Nwobike SAN V FRN SC/CR/161/2020
The Economic and Financial Crimes Commission (EFCC) was established in 2003 in response to the pressure from the Financial Action Task Force on Money Laundering (FATF), which named Nigeria amongst the 23 Countries that were not cooperating with the international community in its efforts to fight Money Laundering. However, there have been numerous concerns and agitations with respect to the extent of scope of powers conferred on the EFCC to investigate and prosecute corrupt malpractices as vested on it by the EFCC ACT, 2004.
The question relating to the extent of the powers and functions of the EFCC has sparked a lot of controversies and debates before the court. Does the EFCC have the power to prosecute all criminal offences including but not limited to state and federal offences? Are its powers limited to the ambits of Economic and Financial Crimes alone?
This is not surprising because the EFCC Act (the Act) endows EFCC with wide powers over all forms of corrupt malpractices. The provisions of Sections 6, 7, 14-18 of the Act, particularly Sections 6(b), 7(1)(a), 7(2)(f), and 13(2) gives the EFCC powers to investigate and prosecute offenders for any offence, whether under the act or any statute in so far as the offence relates to the commission of economic and financial crimes. The provisions are reproduced below to demonstrate the enormous powers of EFCC.
Section 6(b)-
The investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc.
Section 7(1)
The Commission has power to –
(a) Cause investigations to be conducted as to whether any person, corporate body or organization has committed any offence under this Act or other law relating to economic and financial crimes.
Section 7(2)
(f) Any other laws or regulations relating to economic and financial crimes, including the Criminal and Penal Code.
Section 13(2)
The Legal and Prosecution Unit shall be charged with responsibility for– (a) Prosecuting offenders under this Act;
(b) Supporting the general and assets investigation unit by providing the unit with legal advice and assistance whenever it is required;
(c) Conducting such proceedings as may be necessary towards the recovery of any assets or property forfeited under this act;
(d) performing such other legal duties as the commission may refer to it from time to time.
EFCC powers to investigate and prosecute corrupt malpractices are further widened by Section 46 of the Act which defines economic and financial crimes. The section defines economic and financial crimes as:
“…the non-violent criminal and illegal activity committed with the objectives of earning wealth illegally or in a group or organized manner thereby violating existing legislation governing the economic activities of government and its administration and includes any form of fraud, narcotic drug trafficking, money laundering, embezzlement, bribery, looting and any form of corrupt malpractices, illegal arms dealing, smuggling, human trafficking and child labour, illegal oil bunkering and illegal mining, tax evasion, foreign exchange malpractice including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic waste and prohibited goods, etc.”
The Controversies
The first major legal issue, amongst many, arises as a result of the federal structure of the country. The question is whether EFCC has the mandate to investigate and prosecute economic and financial crimes in all parts of the federation. Another central question is whether the EFCC has the power/right to investigate and prosecute offences in relation to properties of the constituent states of the federation, given the constitutional prescription of a federal system of government with its concomitant state autonomy.
The Supreme Court in Dariye v FRN (2015) 10 NWLR (PT.1467) 325 at 353-354, PARAS E-F, G Ondo State v. A.G Federation (2002) 9 NWLR (Pt. 772) 222 at 300 and finally in Nyame v FRN [201 01 7 NWLR (PT.1193) 344 at 403 PARAS 11-G, put the issue to rest when it held inter alia:
“It is not a defence known to law that an accused person cannot be prosecuted by the authority with prosecutorial powers on the ground that the prosecutor is not the owner of the stolen items. Criminal offence is an offence against the state. A prosecutor need not have an interest in the subject matter of the complaint before he can prosecute an accused person. He is protecting the state and its citizens and every prosecutor or authority or agency vested with the powers to prosecute should be encouraged to carry out their duties, provided that the due process is maintained and followed.”
A major issue that has lingered is the power of EFCC to investigate and prosecute any form of corrupt malpractices as prescribed by section 46 of the EFCC Act. The opportunity came in Dr Joseph Nwobike SAN v The Federal Republic of Nigeria FRN SC/CR/161/2020.
Supreme Court Whittles Down the Powers of EFCC
On December 20, 2021, the Supreme Court of Nigeria in SC/CR/161/2020; Dr Joseph Nwobike SAN Federal Republic of Nigeria interpreted section 46 of the Act in relation to the powers of the EFCC’s powers to investigate and prosecute the offence of attempting to pervert the course of justice as provided in Section 97(3) of the criminal law of Lagos No.11 of 2011. It was the contention of the Appellant that the offence of attempting to pervert the course of justice was not an economic and financial crime and as a result, EFCC lacked the powers to investigate and prosecute the offence. The submission of the Respondent was that to the extent that the offence of perverting the course of justice is a form of ‘corrupt malpractices’, it is an economic and financial crime which the EFCC can prosecute.
The Supreme Court held that having regard to the provisions of Sections 6, 7, 14-18 of the EFCC Establishment Act, particularly in Sections 6(b), 7(1) (a), 2(f), 13(2), the EFCC has powers to investigate, enforce and prosecute offenders for any offence, whether under the Act or any statute in so far as the offence relates to the commission of economic and financial crimes. The apex court, however, held that the issue of whether or not the offence of attempting to pervert the cause of justice falls within the ambit of Section 46 particularly with respect to the wording ‘any form of corrupt malpractices’ which was not defined by the Act required a thorough examination of the section. Section 46 of the Act provides that economic and financial crimes:
“ …means the non-violent criminal and illegal activity committed with the objectives of earning wealth illegally or in a group or organized manner thereby violating existing legislation governing the economic activities of government and its administration and includes any form of fraud, narcotic drug trafficking,money laundering, embezzlement, bribery, looting and any form of corrupt malpractices, illegal arms dealing, smuggling, human trafficking and child labour, illegal oil bunkering and illegal mining, tax evasion, foreign exchange malpractice including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic waste and prohibited goods, etc.”
After giving a careful consideration to the natural , ordinary and plain interpretation of the expression “ all form of corrupt malpractices”, the Supreme Court held that:
“To this extent therefore, 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, and with all due respect, find it difficult to accept that the literal interpretation is effective in discovering the intention of the legislature with respect to ascertaining the scope of the expression “any form of corrupt malpractices” used in section 46 of 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 and by 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”
Consequently, the Apex Court adopted the ejusdem generis rule and held as follows:
“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 other form of corrupt practices” to come after the offences “embezzlement”, “bribery” and “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. A fortiori, it must be pointed out, as the Learned Senior Counsel for the Appellant rightly argued and as conceded by the Respondent, that the test for ascertaining if a criminal conduct can be regarded as an economic and financial crime is such that must be a nonviolent criminal and illicit activity committed with the objective of earning wealth. I do not think it will be safe to regard the offence of attempt to pervert the course of justice which the Appellant was convicted for, where it has not been shown that it was committed with the objective of earning wealth, and be regarded as an economic and financial crime, thereby vesting the power to investigate and prosecute in the Economic and Financial Crimes Commission.”
Conclusion
It is now very clear that the powers of EFCC to investigate and prosecute corrupt malpractices are not at large. EFCC powers to investigate and prosecute corrupt malpractices are circumscribed by the criteria set out in Section 46. The first test is that the corrupt malpractice must be an economic and financial crime. To be an economic and financial crime, it must be a nonviolent criminal and illicit activity committed with the objective of earning wealth in violation of existing legislation governing the economic activities of government and its administration.
It must be pointed out that section 46 of the Act is too wide as the legislature appears to have expanded the powers of EFCC to investigate and prosecute offences beyond economic and financial crimes. By section 46 of the Act, EFCC can investigate and prosecute “ any form of fraud, narcotic drug trafficking ,money laundering, embezzlement, bribery, looting and any form of corrupt malpractices, illegal arms dealing, smuggling, human trafficking and child labour, illegal oil bunkering and illegal mining, tax evasion, foreign exchange malpractice including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic waste and prohibited goods, etc.”
With the wide powers, it is obvious that the EFCC is being used to settle contract disagreement between parties and also as a debt collecting agent, and with this, the very essence of setting up EFCC is defeated. The EFCC exercises powers that should ordinarily be exercised by the Nigeria Police as the primary law enforcement agency with general powers of investigation and prosecution of criminal matters. In the same breath, the powers of the National Drug Law Enforcement Agency (NDLEA) powers are also being exercised by EFCC. In fact, there are a lot of powers of the EFCC which overlap with that of other agencies of government engendered by the provisions of section 46.
It is trite that the powers and functions of any statutory body are created and by its enabling legislation. Where such statutory body acts outside its enabling law, such action amounts to a nullity. Therefore, where there is statutory vagueness or ambiguity in a law as in this instance, it is the duty of the courts to adequately, competently and with caution, provide the most suitable interpretation to any such provision.
Consequently, an amendment of the EFCC Act is suggested in order to further whittle down the powers of EFCC and align its powers to investigation and prosecution of economic and financial crimes and save our courts from unnecessary backlash whenever a bold step is taken to whip EFCC in line and make EFCC focus on its mandate.
Co-Written By:
Uchechi Ofoegbu
Contributor
