Whether EFCC has power to investigate, prosecute offence of attempt to pervert course of justice

NWOBIKE v. FRN
CITATION: (2021) LPELR-56670(SC)

In the Supreme Court of Nigeria
ON MONDAY, DECEMBER 20, 2021

Suit No: SC.161/2020

Before Their Lordships:

OLUKAYODE ARIWOOLA
Justice of the Supreme Court

JOHN INYANG OKORO
Justice of the Supreme Court

HELEN MORONKEJI OGUNWUMIJU
Justice of the Supreme Court

ABDU ABOKI
Justice of the Supreme Court

TIJJANI ABUBAKAR
Justice of the Supreme Court

Between

DR. JOSEPH NWOBIKE, SAN – Appellant(s)

And

FEDERAL REPUBLIC OF NIGERIA – Respondent(s)

LEADING JUDGMENT DELIVERED BY TIJJANI ABUBAKAR, J.S.C.

FACTS
The appellant was charged before the High Court on an amended 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 201 which was counts 1, 2, 4, 5, and 6; attempting to pervert the course of justice contrary to SECTION 97(3) OF THE CRIMINAL LAW OF LAGOS STATE which was counts 3, 7 to 17; and making false information to an officer of the Economic and Financial Crimes Commission (EFCC) contrary to SECTION 39(2) OF the EFCC (ESTABLISHMENT) ACT, 2004 which was Count 18. When the charge was read to the Appellant, he pleaded “not guilty” to all the counts.

At the end of trial, the learned trial judge found the appellant not guilty of counts 1, 2, 4, 5, 6 and 18 in connection with the offence of offering gratification to a public official; and making false information to an officer of the EFCC; he was consequently discharged and acquitted of those counts. The appellant was however found guilty and convicted of counts 3, 7 to 17, to wit, attempting to pervert the course of justice, and consequently sentenced to 30 days imprisonment on each count, terms of imprisonment to run concurrently. Dissatisfied with the judgment, the appellant lodged an appeal at the Court of Appeal.

The Court of Appeal allowed the appellant’s appeal in part in a judgment. The Court of Appeal set aside the conviction and sentence of the appellant in Counts 3, 12 and 14 but affirmed his conviction in Counts 7 to 11, 13, 15 to 17 of the amended information. Still dissatisfied, the Appellant further filed an appeal at the Supreme Court.

ISSUES FOR DETERMINATION
The Supreme Court determined the appeal on the following 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.

3. Whether the Court below erred in law when it affirmed the conviction and sentence of the Appellant for the offence of attempt to pervert the course of justice under SECTION 97(3) OF THE CRIMINAL LAW, when the conduct of the appellant did not constitute an offence define the law under which he was charged.

4. Whether their Lordships of the Court below erred in law when they applied the reasonable man’s test to their interpretation or construction of SECTIONS 97(3) OF THE CRIMINAL LAW, and 36(12) OF THE CONSTITUTION, when as found by the learned trial Judge, SECTION 97(6) OF THE CRIMINAL LAW, did not disclose any offence known to law.

APPELLANT’S SUBMISSIONS
Learned Counsel for the Appellant stated that counts 7, 8, 9, 10, 11, 13, 15, 16 and 17, 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. Reference was made to SECTIONS 6, 7, 14-18 AND 46 OF THE EFCC ESTABLISHMENT ACT.

Appellant’s counsel emphasized the point that the EFCC can only investigate and prosecute offences relating to economic and financial crimes.

Appellant’s counsel contended that the learned trial Judge made a definite finding against the respondent that SECTION 97 (3) OF THE CRIMINAL LAW OF LAGOS STATE NO 11 OF 2011 does not define the offence of attempt to pervert the course of justice, and since the respondent had failed to appeal against the said finding, it is deemed to have accepted it. It was further contended that since there is no appeal against the conclusion of the trial Court, the Court of Appeal lacks jurisdiction to review, set aside and/or supplant same.

Appellant’s counsel submitted that the trial Court having concluded that the offence is not defined, the learned trial judge ought to have discharged and acquitted the Appellant on all counts relating to the offence. Citing the case of BOVOA V. FRN (2017) LPELR- 43006 (CA).

RESPONDENT’S SUBMISSIONS
Learned counsel for the respondent submitted that the phrase “any form of corrupt malpractices” in SECTION 46 OF THE EFCC (ESTABLISHMENT) ACT 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. That the appellant’s “corrupt malpractice” of attempting to pervert justice became an “economic and financial crime” within the contemplation of SECTION 46 OF THE EFCC (ESTABLISHMENT) ACT, when he sent text messages to the Court officials to influence assignment of his cases.

In response to the appellant’s argument that the offence in SECTION 97(3) OF THE CRIMINAL LAW relating to attempt to pervert the course of justice is not defined, respondent’s counsel argued that same is misconceived. He then referred to SECTION 97(1) OF THE CRIMINAL LAW, which prescribes the penalty of seven (7) years imprisonment for any person found guilty of conspiring to obstruct or pervert the Court of justice.

REPLY
Appellant’s counsel submitted that contrary to the stand of the respondent’s counsel under SECTION 46 OF THE EFCC (ESTABLISHMENT) ACT, the test of whether an offence is an economic and financial crime is whether the objective of the act which is alleged to be a crime is geared towards earning wealth illegally but that from the charge brought against the appellant. That an attempt to pervert the course of justice was not contemplated in that Section.

RESOLUTION OF ISSUES
In response to the argument of the respondent that literal interpretation should be given to the provision of SECTION 46 SUPRA and that the words “any form of corrupt malpractices” accommodate an offence bordering on attempt to pervert the course of justice under SECTION 97(3) OF THE CRIMINAL LAW, the Court disagreed with the position of the respondent and explained 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, so doing will make a pigmy of other legislations and render them barren and sterile.

That it is improper to import and encompass all criminal offences under the EFCC (Establishment Act) 2004.

The Court stated that an application of the ejusdem generis rule would be appropriate in the circumstance of the instant case. That the interpretation of SECTION 46 OF THE EFCC (ESTABLISHMENT) ACT, particularly the words “any form of corrupt malpractices” following the particular words “… embezzlement, bribery, looting” must be construed within the context of the specific class which it follows, and must be confined to the particular class.

The Court further emphasized that same must not be expanded, extended or elongated to accommodate any corrupt malpractices at large.

Thus, the Court posited that it will be unsafe 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 EFCC.

Consequently, the Court held that counts 7-11, 13, 15-17 of the amended information have no foundation, and that since the aforesaid counts are the only ones upon which the appellant was convicted and sentenced, it follows therefore that the case of the respondent was not erected on any pedestal whatsoever, it did not come before the Court initiated by due process of law. Hence, the trial Court therefore lacked jurisdiction and ought to have declined jurisdiction.

On the issue of whether the offence of attempt to pervert the course of justice constituted in SECTION 97(3) OF THE CRIMINAL LAW is defined, the Court explained that the said issue was determined by the trial Court. That the appellant dissatisfied with the finding of the trial Court on this issue, appealed to the Court of Appeal. The Court further stated that Court of Appeal however failed to consider the issue but instead reformulated the issue.

On this point, the Court explained that a Court has the inherent power, in the interest of justice, to reject, modify or re-frame issues distilled for the determination of a case before it. However, that the exercise of this power is not open-ended or limitless, the issue so formulated must be rooted in the grounds of appeal, the Court must ensure that any issue so modified, or re-formulated comes within the ambit of the complaint contained in the grounds of appeal. See: FRN V. BORISADE (2015) LPELR-24301 (SC).

The Court stated no ground of appeal upon which the issue so re-formulated by the Court of Appeal can be sustained.

The Court of Appeal having failed to determine the said relevant issue, the Supreme Court determined the issue and held that SECTION 97(3) OF THE CRIMINAL LAW does not define the offence of perversion of justice for which the appellant was charged, tried and convicted. That unless it is shown that the offence is defined under any other written law, it follows therefore that the aforesaid provision offends the provisions of and is inconsistent with SECTION 36(12) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED).

In conclusion, having resolved that the EFCC does not have the power to prosecute the offences constituted in counts 7-17 of the amended charge and that, in the light of the decision of the trial Court that SECTION 97(3) OF THE CRIMINAL LAW OF LAGOS STATE. NO. 11, 2011 does not define the manner of perversion of justice for which the appellant may be held culpable, the Supreme Court held that the appellant cannot be tried and convicted on the aforesaid counts 7-11, 13, 15-17 of the amended information and thus, the conviction of the appellant cannot be sustained.

HELD
The appeal was allowed and the appellant was consequently discharged.

APPEARANCES:
KANU G. AGABI (CON), SAN, WITH HIM, WALE AKONI, SAN, R.A. LAWAL-RABANA, SAN, UCHE NJOKU, ESQ. AND UCHENNA EDE, ESQ. – For Appellant(s)

U.U. BUHARI, ESQ., WITH HIM,
A.O. MOHAMMED – For Respondent(s)

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