Whether the EFCC can Investigate and Prosecute the Offence of “Attempt to Pervert the Course of Justice”

CASE TITLE:                         DR. JOSEPH NWOBIKE, SAN v. FEDERAL REPUBLIC OF NIGERIA (2021) LPELR-56670(SC)

JUDGMENT DATE:           20TH DECEMBER 2021

JUSTICES:                            OLUKAYODE ARIWOOLA, JSC

JOHN INYANG OKORO, JSC

HELEN MORONKEJI OGUNWUMIJU, JSC

ABDU ABOKI, JSC

TIJJANI ABUBAKAR, JSC

PRACTICE AREA:               GOVERNMENT AGENCY- ECONOMIC and FINANCIAL CRIMES COMMISSION

FACTS:

DR. JOSEPH NWOBIKE, SAN (Appellant) was charged before the High Court of Lagos State on an 18 Counts Information for the offences of offering gratification to a public officer contrary to Section 64(1) of the Criminal Law of Lagos State No. 11 of 2011; attempting to pervert the course of justice contrary to Section 97(3) of the Criminal Law of Lagos State; and making false information to an officer of the Economic and Financial Crimes Commission contrary to Section 39(2) of the Economic and Financial Crimes Commission (Establishment) Act, 2004.

He pleaded not guilty to all the counts and trial commenced thereafter. In its considered judgment, the High Court found the Appellant not guilty of the offence of offering gratification to a public official and making false information to an officer of the EFCC. He however, was found guilty of the offence of attempting to pervert the course of justice, and consequently sentenced to thirty (30) days imprisonment on each of the 11 counts of the offense

Dissatisfied, the Appellant appealed to the Court of Appeal. The Court of Appeal allowed the Appellant’s appeal in part by setting aside the conviction and sentence of the Appellant on 3 counts of the offense of attempting to pervert the course of justice but affirmed his conviction on the remaining 8 counts.

Still dissatisfied, the Appellant appealed to the Supreme Court.

ISSUES FOR DETERMINATION

Among other issues, the appeal was determined upon consideration of the issues thus;

1. 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.

2. Whether the Court below was right in affirming the conviction and sentence of the Appellant for the offence of attempt to pervert the course of justice under Section 97(6) of the Criminal Law, having regard to the fact, as found by the learned trial Judge (a finding against which the prosecution did not appeal) that Section 97(3) of the Criminal Law does not define the offence charged and was therefore inconsistent with Section 36(12) of the Constitution of the Federal Republic of Nigeria, 1999 (the “Constitution”) and therefore null and void.

COUNSEL SUBMISSIONS

Learned Counsel for the Appellant submitted that the counts, which border on attempt to pervert the course of justice, relate to a non-financial crime, for which the EFCC has no power to investigate and prosecute. That where a statutory body acts outside the law setting it up or conferring powers on it, such act, irrespective of the objective, will amount to a nullity. The mere fact that the EFCC is the coordinating agency for the fight against corruption in Nigeria does not confer on it the unfettered powers to initiate prosecution in respect of all offences in Nigeria.

He submitted that the learned trial Judge made a definite finding against the prosecution that Section 97 (3) of the Criminal Law of Lagos State, does not define the offence of attempt to pervert the course of justice, and since the prosecution had failed to appeal against the said finding, it is deemed to have accepted it. Thus, the Court of Appeal was in error when it went beyond the scope of the complaint in the appeal to hold that the offence of ‘attempting to pervert the course of justice’ is properly defined in Section 97(6) of the Criminal Law and the penalty of two (2) years is imposed by the law. That the fact that an offence is provided for or is known to Nigerian law does not equate it to the offence being defined under the law.

On the other hand, Learned Counsel for the Respondent submitted that the Appellant’s argument as to the meaning and limits of the ‘economic and financial crimes’ under Section 46 of the EFCC (Establishment) Act is misconceived. That the phrase “any form of corrupt malpractices” in the aforesaid section encapsulates acts aimed at subverting or perverting the course of justice, and even more so when done in the course of the Appellant’s commercial practice.

Counsel submitted that Section 97(1) of the Criminal Law prescribes the penalty of seven (7) years imprisonment for any person found guilty of conspiring to obstruct or pervert the Court of justice. That even though the said Section did not define what amounts to obstruction, prevention, perversion or defeating the course of justice, the facts and circumstances of each case will determine what acts, conducts, or omission amounts to obstruction or perversion of the course of justice.

DECISION/HELD

In the final analysis, the Supreme Court allowed the appeal and set aside the decisions of the lower Courts. The Appellant was consequently discharged.

RATIO

1. GOVERNMENT AGENCY – ECONOMIC AND FINANCIAL CRIMES COMMISSION: Whether the Economic and Financial Crimes Commission has power to investigate and prosecute the offence of attempt to pervert the course of justice

“In Section 46 of the EFCC (Establishment) Act under consideration, the general words that call for interpretation are “any form of corrupt malpractices” following the particular words “… embezzlement, bribery, looting”, 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. In my humble view therefore, the legislature thought it is 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. A fortiori, it must be pointed out, as the learned senior Counsel for the Appellant rightly argued and as conceded by the Respondent, 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. I do not think it will be safe to regard 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 result, in my view therefore, is that the Appellant has discharged the burden of showing that the definition of “economic and financial crime” in Section 46 of the EFCC (Establishment) Act admits of intention to apply the ejusdem generis rule, as only by so doing can we give effect to the meaning of “any form of corrupt malpractices” in the context of economic and financial crime. Accordingly, I am unable to accept, the submissions of learned Counsel for the Respondent that the offence of attempting to pervert the course of justice under Section 97(3) of the Criminal Law of Lagos State No.11 of 2011 is an economic and financial crime, which the EFCC is empowered to investigate and prosecute.” Per ABUBAKAR, J.S.C.

• GOVERNMENT AGENCY – ECONOMIC AND FINANCIAL CRIMES COMMISSION: Whether the Economic and Financial Crimes Commission has power to investigate and prosecute the offence of attempt to pervert the course of justice

“In the instant case, the Respondent erroneously assumed unimaginable and all-encompassing powers supposedly granted under Section 46 of the EFCC Act to prosecute the Appellant for the offence of attempting to pervert the course of justice contrary to Section 97 (3) of the Criminal Law of Lagos State No. 11 of 2011. This offence, captured in counts 7, 8, 10, 11, 13, 15, 16 and 17 of the Appellant’s amended information is clearly outside the purview of the powers granted the Respondent by the Act to investigate and prosecute offences bordering on financial crimes and thereby robs the Court of jurisdiction to determine the charge on those counts. I agree that the phrase “and any form of corrupt malpractices” in Section 46 of the EFCC Act does not refer to all forms of corrupt practices, at large. The legislature rather contemplated any other form of malpractices bordering on financial impropriety in the class of “… money laundering, embezzlement, bribery, looting” already mentioned.

The Court was therefore in error to determine the charge on counts 7-11, 13, 15-17 which were an attempt to pervert the course of justice contrary to Section 97 (3) of the Criminal Law of Lagos State. The power to investigate and prosecute an offender for violating that law is clearly outside the contemplation of the EFCC Act. The charge was not initiated by due process of law, it must therefore fail.”Per OKORO, J.S.C.