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HomeJudiciaryEFCC Prosecution Powers not exclusion of States- a rejoinder to Agbakoba SAN

EFCC Prosecution Powers not exclusion of States- a rejoinder to Agbakoba SAN

By Abiodun

The internet space was let loose after reading the judicial opinion credited to one of the greatest judicial experts, a former President of the Nigerian Bar Association (NBA), Olisa Agbakoba SAN that the Economic and Financial Crimes Commission, EFCC, lacks constitutional backing to query states’ accounts.

The learned silk submitted that the National Assembly had not amended section 214(1) of the constitution of Nigeria’s federal republic, a legal instrument establishing the Nigeria Police Force to incorporate EFCC’s function.

Agbakoba said the Supreme Court, in many of its decisions, has held that federalism means two autonomous and independent governments and, if that is correct, the EFCC lacks the right to go to the state and examine their accounts.

The learned Silk did not supply us with the citation of the cases to understudy the rationale behind such decision by the Apex Court.

However, a thorough research to see if there is any decision of the court that limits the EFCC from querying the states’ accounts is yet to be pronounced by any court of competent jurisdiction except the recent Court of Appeal decision that was delivered on September 22nd 2022 that set aside the Federal High Court’s judgement barring EFCC from placing freezing order or restrictions on state government’s accounts.

The Court of Appeal in its unanimous decision validated the power of the Economic and Financial Crimes Commission (EFCC) to direct banks, without the backing of a court order, to freeze the accounts of state governments for the purpose of investigations.

I’m not aware if that decision had been set aside by the Supreme Court and by the judicial precedence, the decision of the Court of Appeal still remains evergreen.

EFCC in the discharge of its role as an agency of government with the mandate to fight against financial crimes is mandated by the law to implement the provisions of other laws that are related or have-some correlation with the duties of the commission with respect to investigation, arrest and prosecution of persons accused of financial impropriety, economic mismanagement, misappropriation and other forms of financial crimes.

With all due respect to the SAN Sir, the position of the learned silk that federalism means two autonomous and independent governments does not tally with the situation in discourse and need to be discountenanced.

The Supreme Court in Dr Joseph Nwobike SAN v The Federal Republic of Nigeria FRN 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.

Section 6(j) of the EFCC Act 2004 provides for collaboration with government bodies both within and outside Nigeria carrying on functions wholly or in part analogous with those of the Commission concerning.

Furthermore, by provision of Section 7(1), the Commission has power to –

(a) cause investigations to be conducted as to whether any person, corporate Commission body or organization has committed any offence under this Act or other law relating to economic and financial crimes

(b) cause investigations to be conducted into the properties of any person if it appears to the commission that the person’s lifestyle and extent of the properties are not justified by his source of income;

(2) The Commission is charged with the responsibility of enforcing the provisions of –

(a) the Money Laundering Act 2004; 2003 No.7 1995 N0. 13

(b) the Advance Fee Fraud and Other Fraud Related Offences Act 1995;

(c) the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks

Act 1994, as amended;

(d) The Banks and other Financial Institutions Act 1991, as amended; and

(e) Miscellaneous Offences Act

(f) Any other law or regulations relating to economic and financial crimes, including the Criminal code of penal code.

The word ‘Person’ was defined in the case of KASANDUBU vs. ULTIMATE PETROLEUM LTD (2008) 7 NWLR (PT. 1086) CA 274 to mean both artificial and natural persons and includes sole or public bodies-corporate or incorporate.

More importantly, the word ‘person’ is the decision of the Supreme Court in the case of UNIVERSITY OF JOS vs. IKEGWUOH (2013) 9 NWLR (PT. 1360) 478, the phrase; ‘any person’ used in Section 2 of the Act was held to apply to both natural persons or human beings or persons sued in their natural names, and also artificial persons, public bodies or body of persons, whether sued by their official titles or not. See also ADIO SULEIMAN vs. KWARA STATE POLYTECHNIC (2006) LPELR-11648(CA).

It is important to state that no section of the entire EFCC Act made an exclusion of the state. The word any person used is general and must be giving it direct and true meaning and the only reason a sitting governor cannot be charge is due to the immunity clause as provided for in Section 308 of the 1999 Constitution.

Is the SAN saying the other laws that are relating to economic and financial crimes as stated in Section 7(2) of the EFCC act also not binding on the state? Is SAN aware that not only the Police are empowered by law to prosecute?

From the angle of jurisprudence, specifically under the Pure Theory of Law, Professor Hans Kelson is of the view that law is a system of norms accepted by society to be binding. Each of these norms traces its validity to a higher norm until it gets to the grundnorm. The grundnorm is the norm from which other norms get their validity.

The offence of Money Laundering is unlawful because it can be traced to the provision of the Money Laundering Act and that Law is valid because it was enacted by the legislature.

The legislature’s powers to make laws are valid because it is provided for under S.4 of the 1999 Constitution. The Constitution is also valid because it originates from the people and is accepted by them.

If the power of EFCC is restricted to the federal agency alone, then what is the essence of Section 19 of the EFCC Act that grants the Federal High Court, the High Court of a state, and the High Court of the Federal Capital Territory jurisdiction to try offenders under the Act?

As stated in IBRAHIM SHEHU SHEMA & ORS v. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR-44425(CA), the Court held that the powers and duties of the Economic and Financial Crimes Commission are stated in the Economic and Financial Crimes Commission (Establishment) Act of 2004, Section 13 (2) charged the Legal and Prosecution Unit of the Economic and Financial Crimes Commission with the power to prosecute offenders under the Act and Section 7 (2) (f) empowered the Economic and Financial Crimes Commission to enforce any law or regulations relating to economic and financial crimes including the Penal Code.

I’m sure the SAN has not got adequate time to read the entire provisions of the EFCC very well to understand that the commission is not only the agency established by an act of the National Assembly that has authority over the state. Another case study is the Federal Inland Revenue Service on the collection of Tax.

The power given to the EFCC under the Act is enormous and the wisdom of using ‘any other’ in section 7(2f) gives unlimited power as life goes on.

Abiodun is a final-year student, at Baze University, Abuja.

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