The Economic and Financial Crimes Commission was established by an Act of the National Assembly in 2004. Its stated purpose was for the investigation, prosecution and prevention of economic and financial crimes throughout the Federation. 1 The Commission has the mandate to investigate and prosecute economic and financial crimes in all parts of the federation. 2
By the doctrine of federalism, each tier of government is expected to govern its own affairs by a set of laws made by its legislative arm. This has prompted the legally misconceived notion that a federal agency like the EFCC would lack the requisite competence to try an offence relating to a property belonging to a state government.
In this legal opinion, we shall be examining the statutory and judicial authorities on the subject whether a federal agency shall have the competence to investigate and prosecute an offence against the property of a state government.
Whether the EFCC has the power/right to investigate and prosecute the properties belonging to a state, given the constitutional guarantee of state autonomy?
It is trite that before a court can validly exercise adjudicate over a criminal proceeding, the prosecuting agency must be competent in law to undertake such an adventure.
The statutory provisions of the EFCC Act stating the functions of the Commission states as follows:
1 Section 6 of the EFCC Act.
2 Section 7(1) (a) & 13 (2) of the EFCC Act
“(a) the enforcement and the due administrction of the provisions of this Act; (b) the investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, Meg, charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc.; (c) the co-ordination and enforcement of all economic and finarcial crimes laws and enforcement functions conferred an any other person c• authority; (d) the adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorist activities, economic and financial crimes related offences or the properties the value of which corresponds to such proceeds;
(e) the adoption of measures ro eradicate the commission of economic and financial crimes;
(f) the adoption of measures which includes coordinated preventive and regulatory actions, introduction and maintenance of investigative and control techniques on the prevention of economic and financial related cr mes; (g) the facilitation of rapid exchange of scientific and technical information and the conduct of joint operations geared towards the eradication of economic and financial crimes; (h) the examination and investigation of all reported cases of economic and financial crimes with a view to identifying individuals, corporate bodies or groups involved; (i) the determination of the extant of financial loss and such other losses by government, private individuals or organizations: (j) collaborat ng with government bodies both within and outside Nigeria carrying on functions wholly or in part analogous with those of the Commission concerning –
(i) the identification, determination, of the whereabouts and activities of persons suspected of being involved in economic and financial crimes, (ii) the movement of proceeds or properties derived from the commission of economic and financial and other related crimes;
(iii) the exchange of personnel or other experts, (iv) the establishment and maintenance of a system for monitoring international economic and financial crimes in order to identify suspicious transactions and persons involved,
(v) maintaining data, statistics, records and reports on person, organizations, proceeds, properties, documents or other items or assets involved in economic and financial crimes; (vi) undertaking research and similar works with a view to determining the manifestation, extent, magnitude, and effects of economic and financial crimes and advising government on appropriate intervention measures for combating same (k) dealing with matters connected with the extradition, deportation and mutual legal or other assistance between Nigeria and any other country involving Economic and Financial Crimes; (I) The collection of all reports relating suspicious financial transactions, analyse and disseminate to all relevant Government agencies; (m) taking charge of, supervising, controlling, coordinating all the responsibilities, functions and activities relating to the current investigation and prosecution of oil offenses connected with or relating to economic and financial crimes;
“(a) the enforcement and the due administrction of the provisions of this Act; (b) the investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, Meg, charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc.; (c) the co-ordination and enforcement of all economic and finarcial crimes laws and enforcement functions conferred on any other person or authority; (d) the adoption of measures to identify, trace, freeze, confiscate or seize proceeds derived from terrorist activities, economic and financial crimes related offences or the properties the value of which corresponds to such proceeds;
(e) the adoption of measures ro eradicate the commission of economic and financial crimes;
(f) the adoption of measures which includes coordinated preventive and regulatory actions, introduction and maintenance of investigative and control techniques on the prevention of economic and financial related cr mes; (g) the facilitation of rapid exchange of scientific and technical information and the conduct of joint operations geared towards the eradication of economic and financial crimes; (h) the examination and investigation of all reported cases of economic and financial crimes with a view to identifying individuals, corporate bodies or groups involved; (i) the determination of the extant of financial loss and such other losses by government, private individuals or organizations: (j) collaborating with government bodies both within and outside Nigeria carrying on functions wholly or in part analogous with those of the Commission concerning –
(i) the identification, determination, of the whereabouts and activities of persons suspected of being involved in economic and financial crimes, (ii) the movement of proceeds or properties derived from the commission of economic and financial and other related crimes;
(iii) the exchange of personnel or other experts, (iv) the establishment and maintenance of a system for montoring international economic and financial crimes in order to identify suspicious transactions and persons involved,
(v) maintaining data, statistics, records and reports on person, organizations, proceeds, properties, documents or other items or assets involved in economic and financial crimes; (vi) undertaking resecrch and similar works with a view to determining the manifestation, extent, magnitude, and effects of economic and financial crimes and advising government on appropriate intervention measures for combating same (k) dealing with matters connected with the extradition, deportation and mutual legal or other assistance between Nigeria and any other country involving Economic and Financial Crimes; (I) The collection of cll reports relating suspicious financial transactions, analyse and disseminate to all relevant Government agencies; (m) taking charge of, supervising, controlling, coordinating all the responsibilities, functions and activities relating to the current investigation and prosecution of oil offenses connected with or relating to economic and financial crimes;
(n) the coorcination of all existing economic and financial crimes, investigating wilts in Nigeria; (o) maintaining a liaison with office of the Attorney-General of the Federation, the Nigerian Customs Service, the Immigration and Prison Service Board, the Central Bank of Nigeria, the Nigeria Deposit Insurance Corporation, the National Drug Law Enforcement Agency, all government security and law enforcement agencies and such other financial supervisory institutions in the eradication of economic and financial crimes; (p) carrying out and sustaining rigorous public and enlightenment campaign against economic and financial crimes within and outs de Nigeria and; (q) carrying out such other activities as are necessary or expedient for the full discharge of all or any of the functions conferred on it under this Act “
Paragraphs 6(b) (d) (e) (f) (g) (h) (i) (j) (m) (n) (supra) are of prime importance as they detail -he vast investigative powers of the commissioner. These provisions read together w th Section 7 and 13 of the Act shows the enormous investigative and prosecutorial powers vested in the Commission. These powers are vested without any limitations. The sections are reproduced hereunder for ease of reference:
Section 7 of the EFCC Act:
‘ 7: (1) The Commission has power to -(a) cause investigations to on 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
(b) cause investigations to be conducted into the properties of any person if tt appears to the commission that the person’s lifestyle and extent of the properties are not justified by his source of income,
Section 13 of the EFCC Act:
’13: (1) The General and Assets Investigation Units shall be charged with responsibilities for – (a) The prevention and detection of offences in violation of the provisions of this Act; (b) The arrest and apprehension of economic and financial crime perpetrato’s; (c) The investigation of assets and properties of persons arrested for committing any offence under this Act; (d) The identification and tracing of proceeds and properties involved in any offence under this Act and the forfeiture of such proceeds and properties to the Federal Government; and
(e) Dealirg with matters connected with extradition and mutual assistance in criminal matters involving economic and tirancial ottences.
(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 rewired; (c) Conducting such proceedings 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 tc time. (3) There shall be appointed for each of the Units a principal officer who shall be known by such designation as the Commission may determine.
In the light of the above statutory provisions, it is our humble submission that the Commission is vested with vast prosecutorial powers on economic and financial crime, over any person (natural or artificial) in every part of Nigeria. It is a notorious principle of law that where a law desires to exclude its application to a class of persons, it must be so expressly stated.
The Nigerian Courts, in exercising their constitutional role of interpreting statutes have held that the powers to prosecute an offence is not determined by the ownership of the property alleged to have been stolen.
In the case of DARIYE v FRN (2015) 10 NWLR (PT.1467) 325 at 353-354, PARAS E-F, the issue raised by the Appellant was whether the EFCC has the power to prosecute the matter, given that the subject matter was not the property of the individual but the property of the Plateau State Government. The Supreme Court per Sylvester Ngwuta JSC (of blessed memory) in rejecting the contention of the Appellant held as follows: “Issue 3 is whether or not the respondent has powers to prosecute the appellant ii view of the fact that the subiect matter of the charge does not belong to the Federal Government but is the property of the Plateau State Government. First, as rightly pointed out by the learned senior counsel for the Respondent, the offences are charged under the provisions of the Penal Code which is a Federal legislation. It is a Federal indictmert and the Attorney-General of the Federation by himself or through an agent may prosecute for the offences alleged. The owner of the subiect matter of the charges is immaterial. What is material is that a Federal enactment has been violated. See S. 174(11 of the Constitution of theF ederation, 1999 as amerded for the exercise of the power of the Attorney-General of the Federation. Subsection 3 provides “In exercising his powers under this section, the Attorney-General of the Federation shall have regard to the public interest and the need to prevent abuse of legal process….” It follows from the above and this was the opinion of this court in A.G of Ondo State v. A.G Federation (20021 9 NWI R (PT 779) 777 of 308 that “generally speaking, power to prosecute for an offence is not determined by the ownership of the property allegedly stolen or misappropriated…”
The determining factors are:
(a) Who can exercise prosecution pow, over the offence,
(b) The nature of the offence charged and, (a) Where the offence was committed – the venue.
The offences in the indictment against the appellant are financial crimes and under S.13 (2) of Economic and Financial Crimes Act, 2004 the Commission has powers to prosecute the appellant. The institution of proceeding against any person before cny court in Nigeria other than a Court Martial is not the exclusive prerogative of the A.G. Federation and/or his counterparts it the states. S. 174 (1) (b) and (c) and S.211 (1) (b)&(c). It is my view that the Respondent has powers to prosecute the Appellant directly or through an agent. I resolve the issue against the Appellant.”
Similarly, in the case of Nyame v FRN [201 01 7 NWLR (PT.1193) 344 at 403 paras 11-G, the Supreme Court had earlier stated this position in the judgement of Adeleke JSC at paragraphs A-G: “Generally speaking, power to procecute for an offpnce is not determined by the ownership of the property allegedly stolen or misappropriated. The determining factors are namely: a) Who can exercise prosecutorial power over tne offence. b) The nature of the offence charged. c) Where the offence is committed. The Federal Government created the Economic and Financial Crimes Commission by an Act of the National Assembly in 2004. Section 6 of the Act Provides that the Economic and Financial Crimes Commission shall be responsible for – 1) Enforcement and due administration of the provisions of the Act. 2) The investigation of all the financial crimes including advanced fee fraud, money laundering, counterfeiting, illegal charge transfers, future marker fraud, fraudulent encashment of negotiating instruments, computercredit card fro! id, confine, scam etc.
By virtue of section 7 (1) (a) and 2 (f) of the Economic and Financial Crimes Commission Act 2004, the commission has the power cause investigations to be conducted as to whether any person, corporate body or organisation has committed an offence under the act or other law relating to Economic and Financial Crimes The Commission shall be the coordinating agency for the enforcement of the provisions of any other law or regulation to Economic and Financial, including the Criminal Code and Penal Code. The Economic and Financial Crimes Commission has power under section 13(2) of the Act to prosecute offences so long as they are financial crimes.”
See also A.G Ondo State v. A.G Federation (2002) 9 NWLR (Pt. 772) 222 at 300.
Finally, in the case of NYAME v. FRN (2010) 7 NWLR (PT.1093) 344 at 429, PARAS E-G, the Supreme Court put a note of finality to the issue 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.”
It is submitted from he foregoing statutory and judicial authorities that the Economic and Financial Commission has the mandate to investigate and prosecute any allegation of economic or financial crime by any person in Nigeria, notwithstanding the person in whom the ownership of the property is vested. The statutory and judicial authorities have created no derogations to the powers of the Commission to investigate and prosecute economic and financial crimes in Nigeria.
Footnotes
Mahmoud & Co.
