The Powers of the EFCC to Investigate and Prosecute Offences Under the CBN Act, Including: Naira Abuse; Spraying of Naira (Notes); Etc. Have No ‘doubt’

By: Hameed Ajibola Jimoh, Esq.

There have been in public circulation various opinions with regard to the financial crimes allegations made against Bobrisky and Cuban Chief Priest just of recently. Some opinions opined that the Economic and Financial Crimes Commission—hereinafter referred to as the EFCC—lacks the powers to investigate and prosecute such crimes and allegations. I wish to, with due respect, defer from these opinions with the clear provisions of the law.

To that extent, it is my humble submission that the EFCC indeed has the statutory powers to investigate and prosecute such crimes and or offences under the Central Bank Act, especially section 21 of the CBN Act (but not restricted to this section 21 of the CBN Act in the present circumstances), including: naira abuse; spraying of naira; etc. and these powers, in my humble view, have no ‘doubt’! Hence, the purpose of this article is to guide the public away from misleading opinions with due respect to the opposing views and to set the position of the law straight on the subject matter.

THE POWERS OF THE EFCC ON FINANCIAL CRIMES

Section 1(c) of the EFCC Act, 2004:PART I—ESTABLISHMENT OF THE ECONOMIC AND FINANCIAL CRIMES COMMISSION, ETC1: Section 1(2) (c) ‘is the designated Financial Intelligence Unit (FIU) in Nigeria, which is charged with 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’; (capitalization of ‘ALL’ and underlining are mine for emphasis).Section 6. PART II: FUNCTIONS OF THE COMMISSION 6: The Commission shall be responsible for (a) the enforcement and the due administration of the provisions of this Act; (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 scams, etc. (capitalization of ‘ALL’ and underlining are mine for emphasis.) Section 7. 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; (underlining is mine for emphasis);(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 2003; 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.; (Underlining is mine for emphasis).Section 46.

“Economic and Financial Crimes” MEANS THE NON-VIOLENT CRIMINAL AND ILLICIT ACTIVITY COMMITTED WITH THE OBJECTIVES OF EARNING WEALTH ILLEGALLY either individually 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 deal, smuggling, human trafficking and child labour, illegal oil bunkering and illegal mining, tax evasion, foreign exchange malpractices including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic wastes and prohibited goods, ETC. (capitalization of underlined words and the underlining are mine for emphasis).From the above clear provisions of the EFCC Act, it is my humble submission that the powers of the EFCC is not restricted to THE NON-VIOLENT CRIMINAL AND ILLICIT ACTIVITY COMMITTED WITH THE OBJECTIVES OF EARNING WEALTH ILLEGALLY rather, the EFCC powers includes ‘all financial crimes’ under the CBN Act (‘all’ in my humble submission is universal and not limited or restricted). From my observations, those who canvassed the opinions that the EFCC lacks the powers to prosecute on Naira abuse or spraying of money made their opinions (even though they admitted that the act of Naira abuse or spraying of money is a financial crime under the Central Bank of Nigeria Act-herein after referred to as the CBN Act-but their contest is that such is not ‘with the objectives of earning wealth illegally’). With due respect to them, whereas, they failed to avert their minds to the following words in the said section 46 of the EFCC Act which provides ‘AND INCLUDES’, and ‘ETC.’. They also failed to avert their minds to the provisions of sections 6 and 7 of the EFCC Act to the effect that the EFCC actually has limitless powers general and special on ‘economic and financial crimes’ in Nigeria. They also failed to avert their mind to the underlined words in sections: 1, 6; 7 and 46 of the EFCC Act jointly and or respectively.

Importantly, on the use of the word ‘ETC.’ as used in the section 46 of the EFCC Act (supra), in my humble submission, the rules of interpretation of the ejusdem generis would apply for the last word ‘ETC.’ used in section 46 of the EFCC Act (supra) to be construed to include (expansively) those financial crimes criminalised by the section 21 of the CBN Act (including any other economic and financial crimes that the CBN Act criminalised) including: Naira abuse, spraying of Naira notes, etc. In my humble legal submission, statutorily, Section 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), empowers the Courts with the authority to interpret the Constitution and every other law to achieve justice. In doing this, therefore, there are tools known as Canons of Interpretation that guide the courts in their quest for interpretative justice. One of the canons relevant to this discourse is the ‘Ejusdem Generis’ rule. ‘Ejusdem Generis’ is a Latin phrase for ‘of the same kind‘.

As a canon of interpretation, it means that where particular words are followed by general words, the general words are limited to the same thing as the particular words unless something to show a wider sense is intended. In the case of Buhari vs. Yusuf (2003) 14 NWLR (pt. 841) at 486–487, the court, per Uwaifo, JSC (as he then was), stated the position of the rule as follows: “Ejusdem generic rule is an interpretative rule which the court would apply in an appropriate case to confine the scope of general words that follow special words used in a statutory provision or document within the genus of those special words. Furthermore, Black’s Law Dictionary 8th Edition defines the rule thus: Under the ejusdem generic canon of statutory construction, where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated.” Putting it in context, if a law refers to students of the Department of Botany, Zoology, Chemistry, Physics, and other students, a court might use ejusdem generis to hold that such other students would not include students from the Faculty of Law because the list included departments in the Faculty of Science.

The Ejusdem rule came up for judicial pronouncement in Okewu v. Federal Republic of Nigeria (2012), 9 NWLR (pt 1305). In that case, the appellant was caught on March 13, 1997, in Ibadan with 58 bags of Indian hemp, otherwise known as cannabis sativa, weighing 408 kilograms, which is an offence contrary to Section 10(h) of the National Drug Law Enforcement Agency Decree No. 48 of 1989.That aforementioned provision provides that “any person who, without lawful authority, knowingly possesses the drugs popularly known as cocaine, LSD, heroin or any other similar drug shall be guilty of an offence under this Act and liable on conviction to be sentenced to imprisonment for a term not less than fifteen years and not exceeding twenty-five years. The appellant contended that, since Indian hemp is grown or cultivated as a plant while cocaine, LSD, and heroin are drugs that are manufactured through chemical processes in laboratories, they do not fall in the same class and as such, he submitted that Indian hemp cannot be classified as any other similar drug within the provisions of Section 10(h) of the NDLEA Decree. The Court rejected this argument and held that Cannabis sativa, otherwise known as Indian hemp, falls within the phrase “any other similar drug” used in Section 10(h) of the National Drug Law Enforcement Agency Decree. The Court further held that a narcotic is an addictive drug, especially an opiate that dulls the senses and induces sleep. It is also a drug that is controlled and prohibited by law. Cocaine, LSD, heroin, and Indian hemp, otherwise known as cannabis sativa, are substances that are known to alter users perceptions or consciousness. These are all narcotic drugs and are prohibited by law. The trial tribunal was therefore right when it held in the instant case that Indian hemp falls within the ambit of the phrase “any other similar drug used in section 10(h) of the National Drug Law Enforcement Agency Decree No. 48 of 1989 (as amended), under which the appellant was charged, convicted and sentenced by the trial tribunal.This principle held in Okewu’s case has also been judicially reinforced in a similar case of Chukwuma v. F.R.N. (2011), 13 NWLR (Pt. 1264) 391.

Furthermore, in my humble submission and for emphasis, if Section 46 of the EFCC Act is divided into its parts as contained therein, it would be as follows:Section 46. “Economic and Financial Crimes” ‘MEANS THE NON-VIOLENT CRIMINAL AND ILLICIT ACTIVITY COMMITTED WITH THE OBJECTIVES OF EARNING WEALTH ILLEGALLY either individually 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 deal, smuggling, human trafficking and child labour, illegal oil bunkering and illegal mining, tax evasion, foreign exchange malpractices including counterfeiting of currency, theft of intellectual property and piracy, open market abuse, dumping of toxic wastes and prohibited goods, ETC. (capitalization of underlined words of ‘AND INCLUDES; and ETC. and the underlining are mine for emphasis).’

It is important to note the use of the word ‘means’ as distinct from the word ‘includes when defining a particular word in a statute. The EFCC Act in defining what Economic and Financial Crimes are in section 46 of the EFCC Act, used the expression ‘means’ (i.e. in my humble submission, to cover the entire section 46 of the Act) and then the definition followed breaking the content or provisions of section 46 in two different parts the second part to start from ‘AND INCLUDES’. In the case of Rabiu v. Kano State (1980) LPELR – 2936 (SC), the Supreme Court held that where a statute defines a word simply as ‘means so and so’, the definition is meant to be explanatory and prima facie restrictive but where the word is so defined to ‘include’ so and so then the definition is clearly intended to be extensive (meaning, ‘not limited to the lists that have been mentioned in that particular Act and in this instance, means not limited to the lists mentioned in the second part of the section 46 which begins from ‘AND INCLUDES’; and as stated in Nutter v. Accrington Local Board of Health (1879) 4 QBD 375 at 385-6, “the interpretation clause is not restrictive”.In Utih & Ors v. Onoyivwe & Ors (1991) LPELR – 3436 (SC), the apex court held inter alia as follows “It is important to note that the expression “Chieftaincy dispute” “means” in S.165(1). When this is the expression, and the word “means” is used, the expression is restricted to the scope indicated in the definition section – See R v. Britton (1967) 2 Q.B. 51. It is different when the word “includes” is used. In this case it is enlarging the meaning of the expression occurring in the body of the relevant statute or Constitutional provision.”Therefore, on the question to ask, is ‘is naira abuse’ or’spraying of naira notes’ not a financial crime or offence under the CBN Act? The answer is (in my humble submission) in the affirmative! So, with due respect, these powers of the EFCC are without any doubt! Furthermore, in my humble submission, one of the major functions of the Court is to interpret and apply the laws to the cases brought before it.

Over the years, the courts have formulated some basic rules of interpretation and in my humble submission, the understanding of these basic rules will also assist in formulating as well as proffering sound legal opinions and advice as may be required. To this extent, one critical interpretation rule that is important in the context of the subject matter of this paper is that ‘It is a general principle of law that statutes must be read and interpreted as a whole. Thus, where a section of a statute is sought to be interpreted, the Court should consider other sections.’. This principle was applied in the cases of Tegwunor v. State (2008) 1 NWLR (Pt. 1069) 630 at 656 and Rotimi Ameachi v. INEC (supra) at page 314, paragraphs G–HH. Therefore, those opinions against the EFCC powers, the subject matter of this paper, could not have restricted their consideration and interpretation of the EFCC Act to just a part of the provision of Section 46 of the EFCC Act, while disregarding the other part therein contained (as indicated above), which says ‘‘AND INCLUDES’, in the section and ‘ETC.’ at the last line of the said section. With due respect, too, they could not have disregarded the clear provision of Section 6 of the EFCC Act (supra), which provides, thus (for emphasis): 6: The Commission shall be responsible for (a) the enforcement and the due administration of the provisions of this Act; (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 scams, etc. (capitalization of ‘ALL’ and underlining are mine for emphasis).

With respect to those opinions too, they could not have disregarded the clear provisions of section 7 of the EFCC Act (supra) on the Special Powers of the Commission, which provides thus (for emphasis):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(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 2003; 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. (Underlining is mine for emphasis).

Therefore, it is in my humble submission that the powers being exercised by the EFCC on naira abuse, spraying naira notes, etc. are part of the ‘SPECIAL POWERS’ of the Commission and same are well covered by sections: 1; 6; 7; and 46 of the EFCC Act, jointly and respectively. Furthermore, one relevant interpretation rule to the subject of this paper is that ‘It is also a trite principle of law that the Court and the parties are not allowed to read into the provisions of the statute or legal document’. See the cases of Kwara State Independent Electoral Commission v. PDP (2005) 6 NWLR (Pt. 920) 25 at 53 – 54 and Nnabude v G.N.G (W/A) Ltd (2010) 15 NWLR (Pt. 1216) 365 at 385.

Therefore, in my humble submission, with due respect to those opinions, there is nothing in the EFCC Act that restricts or limits the powers of the EFCC as a Commission to only THE NON-VIOLENT CRIMINAL AND ILLICIT ACTIVITY COMMITTED WITH THE OBJECTIVES OF EARNING WEALTH ILLEGALLY; rather, the powers of the EFCC shall include ‘ALL’ (with emphasis) ‘economic and financial crimes’ under the CBN Act as in the instance discourse.

To this extent, the appellate court has also cleared the air when it affirms the powers of the EFCC Act pursuant to sections: 6 and 7 of the EFCC Act in the case of ABIODUN V. FRN (2019)LPELR-46754(CA), where the Court had determined on the Powers of the Economic and Financial Crimes Commission, thus “The Economic and Financial Crimes Commission (Establishment) Act, 2004, particularly in Sections 6 and 7 thereof, contain copious provisions as to the extent and scope of the Commission’s powers to investigate and prosecute every form of financial crime in Nigeria, including those governed by the criminal and penal code. This was why the Supreme Court, in the case of Alao v. FRN (2018) LPELR-43905(SC), held that the EFCC has power to investigate and prosecute all offences connected with or relating to economic and financial crimes. This Court in MUSTAPHA v. FRN (2017) LPELR-43131(CA) (Pp. 87-93, Paras. B-B) per Garba, JCA, stated the law succinctly thus: “Now, there is no dispute and doubt in this appeal as what the functions and special powers of the EFCC are under the provisions of Section 6 and 7 of the EFCC Act, for they were stated and restated in the cases of Ahmed vs. Federal Republic of Nigeria (supra), Nyame vs. Federal Republic of Nigeria (2010) 7 NWLR (1193) 344, (2010) E.C.L.R. 240 and more recently, in Kalu vs. FRN (2016) 9 NWLR (1516) 1. From these decisions and more generally, the EFCC is empowered to investigate and prosecute all economic and financial crimes as defined in Section 46 of the EFCC Act and created and punished under other penal statutes, including those enacted by the States of the Federation. In the case of Nyame vs. FRN (supra), the Apex Court made the position clear when it stated that: “both the State and Federal Government (sic) have the joint responsibility to fight corruption and abuse of office, which has been the bane of our society. Section 7(m) of the EFCC Act, 2004 empowers the EFCC to enforce any law or regulation relating to economic and financial crimes, including the Criminal Code and Penal Code.” See: AUDU v. FRN (2018) LPELR-45642(CA); and NWEKE v. FRN (2016) LPELR-41525(CA).

From the foregoing, it is clear that Appellant’s arguments under this issue has no leg to stand on and must of necessity fail. There is no doubt that stealing or conspiring to steal money has to do with fraudulent financial activities, which fall firmly within the purview of the EFCC.” Per TUKUR, J.C.A. (Pp. 4-6, Paras. E-C).In conclusion, I humbly submit that the powers of the EFCC to investigate and prosecute offences and or financial crimes under the CBN Act especially as provided by section 21 of the CBN Act (but not restricted to this section 21 of the CBN Act) including: acts of: spraying the Banknotes (Naira); writing on the bank notes; tearing the Banknotes (Naira); Dancing/stamping/defacing the Banknotes (Naira); Selling the new Banknotes at events; mutilation/cutting/damaging the Banknotes (Naira); rejecting the Banknotes (Naira) as legal tender when transacting commercial activities; Money Bouquet i.e. by arraigning Banknotes as attractive bunch of flowers to be presented as gift in social gathering/party/ceremony; piercing; stapling; writing; soiling; squeezing; etc.

Therefore, in my humble submission, the provisions of the EFCC including section 46 of the EFCC Act does not limit the powers of the EFCC in those regards. Furthermore, in my humble submission, in the present discourse, the provisions of the CBN Act cannot be read in isolation but must be read along with the provisions of the EFCC Act in determining whether the EFCC actually has the powers to investigate and prosecute crimes under the CBN Act including crimes relating to Naira abuse, spraying of Naira notes, etc.

Source:@Barristerng