EVALUATION OF THE DECISION OF THE SUPREME COURT IN DR. JOSEPH NWOBIKE, SAN V. FEDERAL REPUBLIC OF NIGERIA (2019) LPELR-49244 (CA)
In the landmark case of Nwobike v. FRN, the Supreme Court clearly defined and limited the scope of the powers of the EFCC. The Supreme Court clearly restated that the EFCC cannot act beyond its powers or attempt to perform the role of other agencies in investigating and prosecuting corrupt malpractices. The Supreme Court also held that the EFCC has powers under the EFCC Act over “… transfers of illicitly acquired assets and to strengthen international co-operation in asset recovery as stated in the federal law” in line with the United Nations Convention against Corruption. A sailent issue nominated for discourse in the Appeal before the Supreme Court by the learned Senior Counsel for the Appellant is therefore as follows:
- Whether, having regard to the provisions of sections 14 – 18 of the EFCC (Establishment) Act, 2004 and the decision in Emmanuel Ahmed vs. Federal Republic of Nigeria [2009] 13 NWLR (Pt. 1159) 536 at 552, the EFCC had any authority to investigate and prosecute the Appellant for the offence of attempting to pervert the course of justice charged in Counts 7, 8, 10, 11, 13, 15, 16 and 17 of the Amended Information and if not whether the trial court and court below had jurisdiction to try the Appellant or to affirm decision of the trial court.
The first issue crafted by the Appellant in the appeal questions the power of the EFCC to investigate and prosecute the Appellant for the offence of attempt to pervert the course of justice as contained in Counts 7 – 11, 13, 15 – 17 of the Amended Information.
In resolving the above issue, the Supreme Court made reference to the combined provisions of sections 6(b); 7(1)(a) & (2)(f) and 13(2) of the EFCC (Establishment) Act in concluding 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. The Court stated further that it is the submission of the Learned Counsel for the Appellant that the offences in Counts 7 – 11, 13, 15 – 17 of the Amended Information relating to attempt to pervert the course of justice are not economic and financial crimes while it is the submission of the learned Counsel for the Respondent that the counts border on acts aimed at perverting the course of justice which is a form of ‘corrupt malpractices’ as provided undr Section 45 of EFCC (Establishment) Act. The Court considered the argument in light of section 46 of the EFCC (Establishment) Act, 2004 which defines economic and financial crimes thus:
“Economic and financial crimes means the non-violent criminal and illicit activity committed with the objective of earning wealth either individually or in a group or organized manner thereby violating existing legislation governing 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 deal, smuggling, human trafficking and child labour, foreign exchange malpractice including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic wastes and prohibited goods, etc.”
The Supreme Court in determining whether the offence for which the Appellant was convicted is an economic and financial crime or not considered the words “any form of corrupt malpractices”, which the Respondent argues, accommodate an offence bordering on attempt to pervert the course of justice under section 97(3) of the Criminal Law. The Court resorted to a careful consideration of the natural, ordinary, and plain interpretation of the expression “corrupt malpractices”, which is not defined under the EFCC (Establishment) Act. The court observed that 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 which is certainly not the intention of the legislature necessitating the establishment of the EFCC and enacting the Act.
It is at this stage that the Supreme Court considered the United Nations Convention against corruption which gave rise to and compelled the enactment of the Economic and Financial Crimes (Establishment Act) 2004. The Supreme Court considerably observed that in line with the convention it would be improper to import and encompass all criminal offences under the Economic and Financial Crimes Commission (Establishment Act) 2004 because 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.
In arriving at the true intention of the legislature, the ejusdem generis rule was applied. The Supreme Court held that 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. The Court held that 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.
On this basis, the Supreme Court held that the test for ascertaining if a criminal conduct can be regarded as an economic and financial crime is such that must be a non-violent criminal and illicit activity committed with the objective of earning wealth. The court held that 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.
The Supreme court has also ruled that the EFCC lacks the authority to investigate state finances. As a result, if a governor steals money from a state where he is governor, the EFCC has no authority to prosecute him. Only the state’s attorney general or the Nigerian police, or any other agency covered by the Criminal Code, Penal Code, or any other law, can prosecute the governor.
The court also held that the EFCC has no power to look into the finances of states. Thus if a governor stole money from a state where he was governor, the EFCC has no power to prosecute that governor and that the Governor can only be prosecuted by the attorney general of the state or the Nigerian police or any other agency that is covered by the Criminal Code, Penal code or any other law.
In otherwords, states like Imo State where the Governor believes that former governor Rochas Okorocha stole from Imo State, can now use the police to investigate Rochas and prosecute him in the state High court for stealing Imo State money, if the investigation shows that he stole money.
Also the EFCC can no longer Investigate government contractors or anybody that was complicit in stealing or embezzlement of state money
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