7th January, 2023
BY KAYODE OLADELE
I have the privilege of reading the interview granted by Mr. Olisa Agbakoba, SAN on the 5th day of January, 2023 in respect of the relevance of the EFCC in Nigeria. Before I proceed in my response to the view expressed by Mr. Agbakoba, SAN, it is pertinent to state that the Economic and Financial Crimes Commission (EFCC) is a Nigerian law enforcement agency established to investigate and prosecute economic and financial crimes, such as advance fee fraud, money laundering and misapplication and misappropriation of public funds, etc. The EFCC was established in 2003, partially in response to pressure from the Financial Action Task Force on Money Laundering (FATF), which named Nigeria as one of 23 Countries non-co-operative in the international community’s effort to fight money laundering.
With due respect, Mr. Agbakoba SAN’s position is more of legal sophistry rather than legal substance. His position does not represent the correct position of the law as it runs contrary to the long-settled position of the law as handed down by the superior courts of law including the Apex Court in Nigeria. It is settled law that Nigeria operates a co-operative federalism as opposed to dualist federalism and under co-operative federalism as practiced in Nigeria, some agencies are common agencies for both the Federal and State Government.
Indeed, the EFCC is a common agency for both the Federal and State Economic and Financial Crimes, and as such, it qualifies as “any other authority” to institute criminal proceedings under section 174(1)(b) and section 211(1)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The Federal Government of Nigeria is not synonymous with the Federation of Nigeria, or the Federal Republic of Nigeria. The Federal Republic of Nigeria (or the Federation) is the repository of the sovereignty of the people of Nigeria, whereas the Federal or State Governments, in contradistinction, are donees of the powers and authority of the people. In other words, the Federation of Nigeria or the Federal Republic of Nigeria, is distinct and separate from the Federal Government of Nigeria which often, is a product of periodic elections. See SHEMA V. F.R.N (2018) 9 NWLR (PT. 1624) 337 @ 398, paras. A-C.
Again, these statutory provisions have been given judicial considerations by the Supreme Court and the Court of Appeal, in line with my position and contrary to Mr. Agbakoba’s views or submissions on this issue. A few will suffice. In the celebrated case of AMADI vs. F.R.N. (2008) 18 NWLR (PT. 1119) 259 @ 274-277, the Supreme Court per Mukhtar (JSC) (as she then was) held succinctly, thus:
“In reply, the learned counsel for the respondent has argued that Nigeria is a Federation (as stipulated in section 2 of the 1999 Constitution of the Federal Republic of Nigeria), consisting of Federal and State Governments, and each tier of government has its powers defined in the Constitution. He referred to section 174 of the said Constitution, cases of Queen vs. Owoh and Others (1962) NSCC 416: (1962)2 SCNLR 409 and Anyebe vs. State (supra). According to him, it is based on the authorization required in these cases that the respondent having been granted power of delegation, Exhibit ‘A’, is empowered to prosecute the appellant for forgery and uttering under Criminal Code Law of Lagos State.
No doubt that section 211 of the Constitution (supra) empowers a State Attorney-General to institute and undertake criminal proceedings in respect of an offence under any law of the House of Assembly. Subsection (2) of the said section stipulates thus:-
“(2)The powers conferred-upon the Attorney-General of a State under subsection (1) of the section may be exercised by him in person or through officers of his department.”
At this juncture, it is imperative that I reproduce a pertinent excerpt of the letter of authorization. It reads: –
“I therefore have his further instructions to inform you that in the spirit of our collective resolve to reverse the country’s negative image, he does formally delegate his prosecutorial powers in relation to offences under the Criminal Code Law and Criminal Procedure Law of Lagos State to both the Attorney-General of the Federation and the Economic and Financial Crime Commission effective from the date of this letter”.
First, it is the argument of learned counsel for the appellant that the delegation of the above letter offended the spirit of the provision of section 211 of the Constitution (supra), which confers power of delegation only on officers of the states Attorney-General, and as such the purported delegation to the Federal Attorney-General and the Economic and Financial Crimes Commission was invalid, null, and void. Learned counsel for the respondent has argued that the use of the word ‘may’ in the said section 211 (supra) does not restrict the delegation of the Attorney-General’s powers to only officers of his department, and that this court has in the past held that an Attorney-General’s powers under section 174 and 211 of the Constitution of the Federal Republic of Nigeria cannot be questioned even by the court. He relied on the cases of Nafiu Rabiu V. State (1980) NSCC 291 (1981) 2 NCLR 293, State v. hon (1983) NSCC, 69; (1989) E SCNLR 94, and Ibrahim and Anor v. State (1986) 1 NSCC 231; (1986) 1 NWLR (Pt. 18) 650. I endorse the argument of the learned counsel for the respondent and hold that Exhibit “A” is valid. As for the argument that exhibit A specified the delegates and that it did not empower Mr. Hassan, learned counsel for the Respondent has replied that the charges against the appellant at the lower court were not defective because the prosecutor of the Economic and Financial Crimes Commission on behalf of the Federal Republic of Nigeria qualifies as authority under section 211 (1)(b) of the 1999 Constitution. Learned counsel cited the case of Comptroller Nigeria Prison Service vs. Adekanye (2002) 15 NWLR (Pt. 790) page 318, and F.R.N. vs. Osahon (2006) 5 NWLR (Pt. 973) page 361, and further submitted that Nigeria operates co-operative federalism as opposed to dualist federalism, and under cooperative federalism as practiced in Nigeria, some agencies are common agency for both the Federal and State Government. Indeed, the EFCC is a common agency for both the Federal and State Economic and Financial Crimes, and as such it qualifies as any other authority to institute criminal proceedings under section 211(1)(b) of the 1999 Constitution. That being the case Mr. Hassan being a staff of the EFCC who signed the charge was competent to do so. Any staff of EFCC can exercise the power delegated to the EFCC in exhibit W. That is why I am in fact in agreement with the learned Justice of the Court of Appeal when in his judgment he stated the following:
“The position in criminal trial is different. In view of the high premium attached to speedy disposal of criminal cases, the Attorneys-General of the States delegate their powers to the various State Commissioners of Police who institute and prosecute criminal matter in the name of such commissioners of Police. Such powers are also delegated to the Federal Board of Internal Revenue, Nigeria Customs Service and lately EFCC by the Attorney-General of the Federation. This arrangement is made possible subject to the provisions of section 174 (1)(b)(c) and 211(1 )(b)(c) of the Constitution of the Federal Republic of Nigeria 1999 which provide that the Attorney-General of the Federation or State, as the case may be, shall have power to take over and continue any such criminal proceedings Instituted by any other authority or person, and to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person. (Italics mine).
That is the correct position of the law. The learned justice has put it down succinctly and he did not err in doing so”.
The above position was further reinvigorated in the celebrated case of SHEMA V. F.RN (2018) 9 NWLR (PT. 1624) 337 @ 398, PARAS. A-C, where the Supreme Court stated succinctly thus:
“In the co-operative federalism practiced in Nigeria, the EFCC is a common agency empowered to investigate and prosecute offenders for both the Federal and state economic and financial crimes, and as such it qualifies as “any other authority or person” empowered by section 211 (1) (b) of the Constitution to institute or initiate criminal proceedings. EFCC is the co-ordinating agency for the enforcement of the provisions of any other law or regulation on economic and financial crimes, including the Criminal Code and Penal Code. The Commission has powers under section 13 (2) of the EFCC Act to prosecute offences so long as they are financial crimes”
In the case of AKINGBOLA vs. FEDERAL REPUBLIC OF NIGERIA (2012) 9 NWLR (PT. 1306) 511 @ 530 – 533, the Court of Appeal relying on the Supreme Court decisions, unequivocally held that:
“Learned counsel for the appellant has argued that the Economic and Financial Crimes Commission lacked the jurisdiction to prosecute offences of stealing and obtaining under false pretences as provided in the Criminal Code of Lagos State because the said offences are not economic or financial crimes as defined in the EFCC Act. I find myself unable to accept this argument because the alleged stealing and obtaining by false pretenses occurred in Intercontinental Bank Plc., a banking and financial institution where the appellant is the Chief Executive Officer.
I agree with the submissions of learned senior counsel of the 1st Respondent that section 211(1) of 1999 Constitution as amended (which overrides sections 77, 256 and 373 of the Administration of Criminal Justice Law of Lagos State 2007) that other persons could institute criminal proceedings. The Section provides as follows:
211(1)The Attorney – General of a State shall have power:
a) To institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court martial in respect of any offence created by or under any Law of the House of Assembly.
b) To take over and continue any such criminal proceedings that may have been instituted by any other authority or person, and
c) To discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
Anybody or authority is competent to initiate criminal proceedings against an offender, once he is granted the fiat to do as we are all our brothers’ keepers. See: Fawehinmi v. Akilu (1987) 4 NWLR (Pt. 67) 797. This includes an institution such as the EFCC set up to fight corruption in all its facets and economic crimes. In Comptroller of Prisons v. Adekanye (2002) 15 NWLR (Pt. 790) 318, Belgore J.S.C. (as he then was) in interpreting section 160 of the 1979 Constitution which is similar to section 211 of the 1999 Constitution stated at page 329:
“It is clear from the provisions of section 160 of 1979 Constitution that the Attorney General’s powers of public prosecution is not exclusive: the ‘any other authority or person’ in subsection (1) can institute and undertake criminal proceedings. The Central Bank of Nigeria and the Nigerian Deposit Insurance Corporation are also authorities that can institute Criminal proceedings under Failed Banks (Recovery of Debt) and Financial Malpractices in Banks Decree 1994.”
Similarly, in F.R.N. vs. Osahon (2006) 5 NWLR (Pt. 973) 361 at 405, paras D-F, Belgore, JSC held thus:
“Police authority can, by virtue of the aforementioned Provisions of section 174 (1) of the Constitution prosecute any criminal suit either through its legally qualified officers or through any counsel they may engage for the purpose (See the Comptroller General vs. Adekanye). Any other authority or persons can definitely institute criminal prosecution. The power of the Attorney General of the Federation or of the State are not exclusive, any other person or authority can prosecute. However, the Attorney General can take over or continue the prosecution from any such authority or person. He can also discontinue by way of nolle prosequi”
Per Pats-Acholonu, JSC (of blessed memory) at page 417, paras E – F also restated the law when his Lordship said:
“The implication of the intendment of section 174(1) aforesaid of the Constitution is that the office of the Attorney General does not have the monopoly of prosecution, though it has the power to take over any case in any court and decide whether to go on with it or not.” See Pharma Deko Plc vs. N.S.I.T.F.M.B. (2011) 5 NWLR (Pt.1241) 431 at 450 – 45. See also F.R.N. v. Adewunmi (2007) 10 NWLR (Pt. 1042) 399 @ 427”
Recently, the Supreme Court knocked the bottom out of the appellant’s argument in the case of Amadi v. F.R.N. (2008) 18 NWLR (Pt. 1119) 259 at page 276, paras. C-D of the report, where Mukhtar, JSC held:
“Indeed, the EFCC is a common agency for both the Federal and the State Economic and Financial Crimes, and as such, it qualifies as any other authority to institute criminal proceedings under section 211 (1) (b) of the 1999 Constitution. That being the case, 2 Mr. Hassan, being a staff of the EFCC who signed the charge was competent to do so. Any staff of the EFCC can exercise the power delegated to the EFCC in “Exhibit A.”
Since the Attorney General of Lagos State does not have the Monopoly of initiating criminal proceedings in the Lagos State High Court under the state law, the argument of the Appellant cannot in any way stand. The point therefore is that from the foregoing even if Information was filed without the Attorney General of Lagos State signing same, that would be of no moment as the words of the provisions quoted above show that, any person or authority other than the Attorney General of Lagos than the Attorney State can sign the Information herein The EFCC has rightly initiated criminal proceedings under the state but the Attorney. General of Lagos State only has an overriding power to either take over or discontinue such action That being so it is only the Attorney General of Lagos State that can complain about the exercise of the power by the EFCC, but definitely not the Appellant herein.
Furthermore, the Economic and Financial Crimes Commission (EFCC) is expressly conferred with power under sections 6(m), 7(2) and 13(2) of the Economic and Financial Crimes Commission (Establishment) Act, 2004 to initiate criminal proceedings in any Court in Nigeria for any offence bordering on economic and financial crimes even under the Criminal Code. Section 7(2)(f) states:
“In addition to the powers conferred on the Commission by this Act, the Commission shall be the co-ordinating agency for the enforcement of the provisions of any (f) other law or regulation relating to economic and financial crimes, including the Criminal Code and Penal Code.”
Section 6 (m) of the Economic and Financial Crimes Commission (Establishment) Act 2004 is very wide with the use of the word “all” in it. For ease reference section 6(m) reads: “The Commission shall be responsible for – (m)taking charge of, supervising, controlling, co-ordinating all the responsibilities, functions and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes.”
The word “all’ as used in section 6(m) of the Economic and Financial Crimes Commission (Establishment) Act 2004 has been interpreted in the case of Braithwaite v. G.D.M. (1998) 7 NWLR (Pt. 557) 307 at 327:
“I do not think it is an exaggeration to say that the word ‘all’ in construing a statute is extremely recalcitrant, and if the word ‘all’ is to be cut down so as to exclude certain things which might come under the description, that must be done in the clearest possible language. The proper way of construing a word like the word ‘all’ in such a context as this is to say that ‘all’ means ‘all’, and it does not mean ‘some’, unless you find a compelling context which forces you to place some limitation on the word”.
“In so far as the offences the Defendants are being charged with border on Economic and Financial Crimes, the EFCC is expressly conferred with power under Sections 6(m), 7(f), 13(2) (a) and (d) and 46 of the Economic and Financial Crimes Commission (establishment) Act 2004 to initiate proceedings in any court in Nigeria for any offence bordering on Economic and Financial Crimes even under the Penal Code. See the case of Akingbola vs FRN (SUPRA)”.
“ Even where the economic crimes being charged with are state offences cognizable and punishable under the Penal Code or Criminal Code Law of any State the power to prosecute does not remain and reside exclusively with the state but with the relevant statutory agency of the Federal Government. Section 7 (2) (f) of the EFCC Act 2004 provides that the Commission shall be the coordinating agency for the enforcement of the provision of any other law or regulation relating to economic and financial crimes including the Criminal Code and Penal Code. By virtue of section 7 (1) of the Economic and Financial Crimes Commission (Establishment) Act, 2004 the Commission has power to cause investigations to be conducted as to whether any person, co-operate body or organization has committed an offence under the Act or other law relating to economic and financial crimes. By virtue of section 7 (2) (f), in addition to the powers conferred on the Commission by the Act, the Commission shall be the co-ordinating agency charged with the responsibility of enforcing the provisions of any other law or regulations relating to economic and financial crimes including the Criminal Code and Penal Code and by the provision of section 13 (2) the Legal and Prosecution Unit of the Commission shall be charged with responsibility for prosecuting the offenders”. See SHEMA V. F.RN (2018) 9 NWLR (PT. 1624) 337 @ 374, PARAS. F-G.
The Apex Court further held that the EFCC has power to investigate and prosecute offences of economic and financial crimes in any court of competent jurisdiction, with or without express delegation from the Attorney General of the State when it states pungently thus:
“A community reading of the provisions of sections 15 (5) and 211 (1) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), sections 7 (f), 13 (2) (a) and (j) and 46 of the EFCC (Establishment) Act, 2004 and section 185 (a) of the Criminal Procedure Code (CPC), Cap. 37, Laws of Katsina State, 1991 gives the EFCC power to prosecute economic and financial crimes offenders. The law evinces a clear intention that, with or without express delegation from the Attorney-General of Katsina State, the EFCC could validly prefer charges and prosecute the appellants in the name of the Federal Republic of Nigeria as a common agency of both the Attorney General of the Federation and Attorney General of Katsina State. Thus, the EFCC possesses the power to institute the criminal proceedings against the appellants in the High Court of Katsina State by filing of information”
That being the situation, it is not in dispute that the EFCC has the power to charge any Defendant for the offence committed and it can initiate proceedings in its authorized name which is the Federal Republic of Nigeria. In the case of Jibulu vs. FRN (unreported appeal No: CA/L/635/2013 it was held that flowing for above therefore even though the charge is based on a Lagos State Law, the EFCC can initiate such proceedings even without a fiat from the Attorney General of Lagos State and if so, it can do so in its authorized name and not the name of the people of Lagos. See also the cases of Attorney General of Ondo State vs. Attorney General of the Federation (2002) 9 NWLR (Pt. 772) 222, Nyame vs. FRN (2010) 7 NWLR (Pt. 1193) 394, Dariye vs. FRN (2015) 10 NWLR (Pt. 1467) 354.
It should be noted that several Defendants or accused persons have vigorously argued against the propriety or otherwise of the EFCC initiating the criminal charge against them in the name “Federal Republic of Nigeria” while being charged for state offences, without appreciating that:
a) Anybody or authority is competent to initiate criminal proceedings against an offender, once he is granted fiat to do so and this include institutions/agencies such as EFCC. See: FAWEHINMI vs. AKILU (1987) 4 NWLR (PT. 67) 797;
b) EFCC has rightly initiated criminal proceedings under the state law (Penal Code) and only the Attorney General can complain about the exercise of the power and not the Appellants;
EFCC is expressly conferred with powers under sections 6(m), 9(2) and 13(2) of EFCC (Est.) Act to initiate criminal proceedings in any court in Nigeria for any offence bordering on economic and financial crimes, even under the Penal Code. The EFCC cannot, therefore, be faulted for initiating the instant charge in the name of “Federal Republic of Nigeria”. This is because the Federal Government of Nigeria is not synonymous with the Federation of Nigeria, or the Federal Republic of Nigeria. The Federal Republic of Nigeria (or the Federation) is the repository of the sovereignty of the people of Nigeria, whereas the Federal or State Governments, in contradistinction, are donees of the powers and authority of the people. In other words, the Federation of Nigeria or the Federal Republic of Nigeria, is distinct and separate from the Federal Government of Nigeria which often, is a product of periodic elections. See SHEMA V. F.R.N (2018) 9 NWLR (PT. 1624) 337 @ 397-398, PARAS. D-A; 372, PARAS. G-A.
“Indeed, EFCC can also prosecute in any court of competent jurisdiction with the name of the “Federal Republic of Nigeria” since it is an agency of the Federal Government i.e it belongs to the Federal Government. If one disputes this argument, what of a commissioner of police? Certainly, a Commissioner of police is an agent of Federal Government. Meanwhile, we seem to be oblivious of the distinction between “Federal Republic of Nigeria” and “Federal Government of Nigeria”. While the former relates to the whole of the Federation comprising of states or Federating units and Federal Capital Territory, Abuja, the latter refers only to the government at the centre i.e. the tier or level of government at the top of the ladder of the three tiers or levels”.
We submit that if at all there is any doubt regarding the powers of the EFCC to initiate any charge in the name “Federal Republic of Nigeria”, that doubt, had been laid to rest by the Court of Appeal in the case of JINADU vs. FEDERAL REPUBLIC OF NIGERIA (CA/A/226C/2013) delivered on 28/1/2015; (2015) LPELR 24381 CA. Faced with a similar complaint from the Defendant/Accused/Appellant the Honourable Court held thus:
“Further, the authorities clearly support the stand of the trial judge, that the EFCC can institute a case in the name of the Attorney General of the Federation, and not necessarily in its name only. In AMAECHI vs. INEC & 2 ORS (2008) 5 NWLR (PT. 1080) 227 @ 307, the Supreme Court, per Oguntade, JSC held “The EFCC is statutory body created under the laws of Nigeria. Its duties include the investigation and prosecution of a class of criminal offences. In essence, once its investigation has shown prima facie that a person has committed a criminal offence, the duty of EFCC is to have such offender prosecuted in a courtof law.” There is nothing here that prevents the EFCC to prosecute such offender in the name of the “Federal Republic of Nigeria”. After all by section 1(2)(c) of the EFCC Act, the EFCC has the “responsibility of co-ordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with Economic and financial crimes in Nigeria” i.e. of the Federal Republic of Nigeria.
In NYAME vs. FRN (2010) 7 NWLR (PT. 1193) 344, the Supreme Court held at page 403 that the EFCC is the coordinating agency for the enforcement of the provisions of any other law or regulation of economic and financial crimes, including the criminal code and the penal code. The commission has the power under section 13(2) of the Act to prosecute offences so long as they are financial crimes. The Supreme Court did not say that in prosecuting the offenders, it cannot do so in the name of the Federal Republic of Nigeria. Again, the case of Edo State Board of Internal Revenue vs. Unipetrol (supra) did not lay down the law, that bodies empowered statutorily to prosecute offences, cannot do so in the name of the Federal Republic of Nigeria. At any rate, the trial judge was right, when he held, on the authorities of COMPT NPS vs. ADEKANYE (NO.1) (2002) 15 NWLR 709 AND FRN vs. ADEWUNMI (2007) 10 NWLR (PT. 1042) 399 that the power to challenge whether prosecution is indeed being carried out validly in the name of a party with his permission, lies in that party only. So here, the Appellant has no locus to challenge her prosecution in the name of the Federal Republic of Nigeria. It is only the Federal Republic of Nigeria, represented by the Attorney General of the Federation by virtue of section 174 of the Constitution of the Federal Republic of Nigeria, 1999, that can challenge the prosecution of the Appellant in the name of the Federal Republic of Nigeria”.
The EFCC and other anti-graft agencies are constitutionally relevant having been established by an Act of National Assembly made pursuant to the Powers of the National Assembly under the Constitutional of the Federal Republic of Nigeria, 1999 (as amended). What is more, the EFCC Act deals with specific or special provisions of law on Economic and Financial Crimes as opposed to the general provisions on the same subject matter under any other laws. The specific provisions of the EFCC Act take precedence over the general provisions of such other laws. This is the settled position of the law in the case of MODERN OIL NIG. LTD V. GEORGE (2014) 15 NWLR (PT. 1431) 624 where the Court held thus:
The fact that a firm is registered with the Corporate Affairs Commission will not entitle a Legal practitioner to ignore the specific provision of sections 2(1) and 24 of the Legal Practitioners Act. This is because the general provision of the law as in section 573 (1) of the CAMA is subject to the provisions of sections 2(1) and 24 of the Legal Practitioners Act.
In the light of the foregoing, it is appropriate to draw the curtains by concluding thus:“…the regime of anti-corruption law in Nigeria is meant to be symbiotically applied, implemented and given effect by both Federal and state agencies. There is much wisdom in so doing. There is a national revolt by all concerned against corruption and financial crimes, at all levels of the courts, including ours as the Supreme Curt of the land. Indigenous philosophies of Nigerians support this symbiotic, multi-institutional, pronged approach to the war against corruption and financial infelicities, more appropriately called financial crimes.
As between EFCC Act and Penal Code, or between the Federal Government of Nigeria and Katsina State of Nigeria, what matters most, and justifiably so, is that corruption and financial crimes be tracked, investigated, prosecuted and punished.
The age-long indigenous view in Southwest (and perhaps in other parts of Nigeria) is that the “Snake of financial crime” be not allowed to escape on account of gender sentiments. It matters not if the “monstrous snake” of corruption and financial crimes biting Nigeria is killed by a man or women; all that matters is the death of the “deadly snakes” of corrupt practices and financial hooliganism daily killing Nigeria and Nigerians” PER BAGE JSC (AS HE THEN WAS) AT PAGE 374, PARAS. B-E.
Therefore, viewed from any angle, with due respect, the opinion expressed by Mr. Olisa Agbakoba, SAN on this issue does not have any legal backing and therefore, unsupportable in law and practice.
KAYODE OLADELE is former Chairman, House of Representatives Committee on Financial Crimes