PAULINUS IKEDIGWE V. FEDERAL REPUBLIC OF NIGERIA
(2010)LCN/3876(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of June, 2010
CA/E/10/2009
RATIO
APPEAL: EFFECT OF ISSUES FOR DETERMINATION NOT FLOWING FROM GROUNDS OF APPEAL
The law is no doubt settled that an Issue or Issues formulated for the determination of an appeal by parties thereto must be distilled from, or must arise or flow from a competent ground or grounds of appeal. That an Issue formulated for the determination of an appeal is incompetent when does not arise from or is not related to any of the grounds of appeal. Such an incompetent Issue is not only liable to be struck out but also the argument proffered in respect of the same, discountenanced. It is also the law that though a respondent is at liberty to formulate Issue(s) for the determination of an appeal, this cannot be done at large. This is because Issues for determination derive their source from the grounds of appeal filed by an appellant; and a respondent, cannot frame an Issue not derivable from any of the grounds of appeal; except the said respondent has filed a cross-appeal or respondent’s notice from which such Issue derives their source. See SENATOR EFFIONG BOB V, CHIEF IMEH ALBERT AKPAN & ORS (2010) All FWLR (Pt. 501) 896 at 936: ABDULLAHI V. THE NIGERIA ARMY & ORS (2009) All FWLR (Pt. 500) 643 at 680 – 681; and NTOE ANDREW O. ANSA & ORS V. SUNDAY ISAAC NTUK & ANOR (2009) All FWLR (Pt. 491) 894 at 913. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
INTERPRETATION: THE CANONS OF INTERPRETATION OF THE PROVISIONS OF A STATUTE
The canons of interpretation of the provisions of a statute are settled. In this regard see the case of ABAYOMI BABATUNDE V. PAN ATLANTIC SHPPING AND TRANSPORT AGENCIES LTD & 2 ORS (2007) All FWLR (Pt. 372) 1721 at 1752 where the Supreme Court stated per Muhammad, JSC; thus: –
“Judge’s duty is to interpret and not to make the law. In the interpretation process, the Judge should be liberal and give the natural meaning of the statute where the words are clear and unambiguous”.
Another case on the interpretation of statutes is that of HON. MICHAEL DAPIANLONG & 5 ORS V. CHIEF (DR.) JOSHUA CHIBI DARIYE & ANOR (2007) All FWLR (Pt. 373) 81. In the said case the Supreme Court reiterating its position in the case of Fawehinmi vs. I.G.P. (2002) FWLR (Pt. 108) 1355, etc, stated thus at pages 128-129:-
“The proper approach to the interpretation of clear words of statutes is to follow them, in their simple, grammatical and ordinary meaning rather than look further because that is what prima facie gives them their most reliable meaning: see This is generally also true of the construction of constitutional provisions if they are clear and unambiguous even when it is necessary to give them a liberal or broad interpretation”.
Still on the interpretation of statutes is the case of ALHAJI SHEHU ABDUL GAFAR V. THE GOVERNMENT OF KWARA STATE & 2 ORS (2007) All FWLR (Pt. 360) 1415. In the case, the Supreme Court dealing on the duty of the court when it comes to statutory interpretation stated at page 1444 thus: –
“It is now settled law that the duty of the courts, is to interpret the words contained in a statute or Constitution in their ordinary and literal meaning. Certainly, it is not the duty of the court, to go outside the words used and import an interpretation which may be or is convenient to it or to the parties or one of the parties.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
WORDS AND PHRASES: MEANING OF INCLUDE
The use of the word “including” in my view definitely covers an enactment such as Cap. D 11. This is because the word “include” is used, when it is intended to enlarge the category and to bring in other things which are in line or answer the definition in the first limb but have not been specifically mentioned. See also the case of MADAM ALICE OKESUJI V. F.A. LAWAL M9911 2 SCNJ 1, PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
OLUKAYDDE ARIWOOLA (Presided) Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
AYOBODE LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
PAULINUS IKEDIGWE Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the Ruling delivered on 11th November, 2008 by the High Court of Anambra State, Onitsha Judicial Division presided over by Hon. Justice C.E. Iyizoba, dismissing the Appellant’s motion on notice in which he prayed the Court for an Order quashing the Charge preferred against him on the ground that the said Charge was not validly instituted as the Economic and Financial Commission or any of its officers have no power under the Dishonoured Cheques (Offences) Act to prefer the Charge in question. The High Court of Anambra State, Onitsha Judicial Division and the Economic and Financial Crimes Commission will hereinafter be simply referred to as “the lower court” and “the EFCC” respectively.
The facts of the instant matter as gathered from the Record of Appeal are that the Appellant was charged before the lower court for offences under the Dishonoured Cheques (Offences) Act, Cap D 11, Laws of the Federation of Nigeria, 2004. The Charge preferred against the Appellant can be found at page 2 of the Record of Appeal. It reads thus:-
CHARGE
That you Paulinus Ikedigwe sometimes in April, 2006 at Onitsha in the Onitsha Judicial Division of the High Court of Anambra State with knowledge that you had insufficient funds in your account issued to one Samuel Ogugua Okafor a FSB International Bank (now Fidelity Bank PLC) Cheque No. 02839277 dated 24th June, 2006 for the sum of N4,500,000.00 (Four million five hundred thousand naira) which said Cheque when presented for payment within three months of issuance was dishonoured due to insufficient funds in your account and thereby committed an offence contrary to section 1(1 )(a) of the Dishonoured Cheques (Offences) Act Cap D 11 Laws of the Federation of Nigeria 2007 (sic) and punishable under section 1(1)(b)(i) and (ii) of the same Act.
COUNT 2
That you Paulinus Ikedigwe sometimes in April, 2006 at Onitsha in the Onitsha Judicial Division of the High Court of Anambra State with knowledge that you had insufficient funds in your account issued to one Samuel Ogugua Okafor a FSB International Bank (now Fidelity Bank PLC) Cheque No. 02839278 dated 24th June, 2006 for the sum of N4,500,000.00 (Four million five hundred thousand naira) which said Cheque when presented for payment within three months of issuance was dishonoured due to insufficient funds in your account and thereby committed an offence contrary to section 1(1 )(a) of the Dishonoured Cheques (Offences) Act Cap D 11 Laws of the Federation of Nigeria 2007 (sic) and punishable under section 1(1)(b)(i) and (ii) of the same Act.
COUNT 3
That you Paulinus Ikedigwe sometimes in April, 2006 in the Onitsha Judicial Division of the High Court of Anambra State with knowledge that you had insufficient funds in your account issued to one Samuel Ogugua Okafor a FSB International Bank (now Fidelity Bank PLC) Cheque No. 02839276 dated 27th August, 2006 for the sum of N4,500,000.00 (Four million five hundred thousand naira) which said Cheque when presented for payment within three months of issuance was dishonoured due to insufficient funds in your account and thereby committed an offence contrary to section 1(1 )(a) of the Dishonoured Cheques (Offences) Act Cap D 11 Laws of Federation of Nigeria 2007 (sic) and punishable under section 1(1)(b)(i) and (ii) of the same Act.”
One Sa’ad Hanafi Sa’ad of the EFCC signed the Charge.
After the Appellant had pleaded to the Charge, he filed on 13/6/2008 a motion on notice dated 12/6/2008 in which he prayed for: –
“An Order of this Honourable Court quashing Charge No. 0/10c/2007 Federal Republic of Nigeria vs. Paulinus Ikedigwe, that is, the present proceedings, on the ground that same is null and void in law and it cannot be initiated by the Economic and Financial Crimes Commission or any of the officers of the said Commission.”
The Respondent opposed the motion on notice in question and for this purpose filed a counter affidavit in response to the supporting affidavit of the Appellant’s motion on notice. The lower court in its Ruling delivered on 11/11/2008 in the said motion, having first stated that Section 3(2) of the Dishonoured Cheques (Offences) Act, Sections 6(m) and 46 of the Economic and Financial Crimes Commission (Establishment) Act, 2004 must all be read together with Section 174(1)(b) or 211(1)(b) of the 1999 Constitution in order to determine whether the Economic and Financial Crimes Commission has power to initiate criminal proceeding before the High Court without first obtaining the fiat of the Attorney-General, further proceeded to say:-
“I certainly agree with Counsel for the Respondent that the intendment of Sections 174 and 211 of the 1999 Constitution as it relates to Section 3(2) of the Dishonoured Cheques (Offences) Act is to show clearly the powers of the Attorney-General in relation to criminal prosecutions and nothing more.
Section 144(1)(b) (sic) recognizes the competence of other persons and authorities to undertake criminal prosecutions as well.”
The lower court ended the Ruling thus:-
“In conclusion therefore, by virtue of the provisions of the Economic and Financial crimes Commission Act and Section 174(1)(b) of the 1999 Constitution, the Economic and Financial Crimes Commission through its legal officers have the competence to initiate this prosecution before the High Court without first obtaining the Attorney General’s fiat. This application is misconceived. It is hereby dismissed.”
The Appellant being dissatisfied with the Ruling of the lower court lodged an appeal against the same by a Notice of Appeal dated 17/11/2008 and filed on the same date. The Notice of Appeal contains two grounds of appeal. They read thus: –
“GROUND ONE: Error-in-law: The learned trial court erred in law when it held that an officer of the Economic and Financial Crimes Commission had the competence and authority to initiate and undertake the charge brought under the Dishonoured Cheques (Offences) Act.
PARTICULARS
1. The accused person was arraigned under before the trial court for issuing dishonoured cheque under the Dishonoured Cheques (Offences) Act.
2. The Economic and Financial Crimes Commission and its officers were established under the Economic and Financial Crimes Commission (Establishment) Act 2004.
GROUND TWO: Error-in-law: the learned trial court erred in law when he applied he (sic) decision of the Supreme Court in Federal Republic of Nigeria v. George Oshahon & 7 Ors (2006) 25 NSCQR 512 to the present case by holding that an officer of the Economic and Financial Crimes Commission could initiate and undertake the prosecution of an offence of issuing dishonoured cheques under the Dishonoured Cheques (Offences) Act.
PARTICULARS
1. The decision of the Supreme Court in Federal Republic of Nigeria v George Osahon & 7 Ors (2006) 25 NSCQR 512 relates to the general powers of members of the Nigeria Police under the Police Act.
2. An officer of the Economic and Financial Crimes Commission and not a member of the Nigeria Police Force initiated the charge.”
In compliance with the practice and Rules of this Court, parties duly filed and exchanged written briefs of argument. Appellant’s Brief of Argument dated 12/1/2009 and filed on the same date as well as Appellant’s Reply Brief of Argument dated 20/2/2009 and filed on the same date were settled by Onyechi Araka; while the Respondent’s Brief of Argument dated 10/2/2009 and filed on the same date was settled by Sa’ad Nanafi Sa’ad. The appeal was entertained on 18/3/2010 and learned counsel for the Appellant and Respondent respectively, adopted and relied upon the Briefs of Argument filed on behalf of their clients as their arguments in the appeal.
The Appellant formulated a sole Issue for the determination of the appeal in his Brief of Argument. The Issue reads thus:-
“Whether the Economic and Financial Crimes Commission or any of its officers has powers to institute and prosecute criminal proceeding under the Dishonoured Cheques (Offences) Act.”
The Respondent likewise formulated a sole Issue for the determination of the appeal in its Brief of Argument. The Issue reads thus:-
“Whether the present complainant Federal Republic of Nigeria, not being the Attorney-General has no locus standi to prosecute the charges against the Accused Person/Appellant.”
In his Reply Brief of Argument, the Appellant submitted that the sole Issue formulated for the determination of the appeal by the Respondent in its Brief of Argument was not distilled from the grounds of appeal and/or is not in any way related to the said grounds. The Appellant in the circumstance contended that the Respondent’s Brief of Argument is incompetent.
The law is no doubt settled that an Issue or Issues formulated for the determination of an appeal by parties thereto must be distilled from, or must arise or flow from a competent ground or grounds of appeal. That an Issue formulated for the determination of an appeal is incompetent when does not arise from or is not related to any of the grounds of appeal. Such an incompetent Issue is not only liable to be struck out but also the argument proffered in respect of the same, discountenanced. It is also the law that though a respondent is at liberty to formulate Issue(s) for the determination of an appeal, this cannot be done at large. This is because Issues for determination derive their source from the grounds of appeal filed by an appellant; and a respondent, cannot frame an Issue not derivable from any of the grounds of appeal; except the said respondent has filed a cross-appeal or respondent’s notice from which such Issue derives their source. See SENATOR EFFIONG BOB V, CHIEF IMEH ALBERT AKPAN & ORS (2010) All FWLR (Pt. 501) 896 at 936: ABDULLAHI V. THE NIGERIA ARMY & ORS (2009) All FWLR (Pt. 500) 643 at 680 – 681; and NTOE ANDREW O. ANSA & ORS V. SUNDAY ISAAC NTUK & ANOR (2009) All FWLR (Pt. 491) 894 at 913.
Before now, the sole Issue formulated by the Respondent for the determination of the instant appeal in its Brief of Argument has been re-produced. What the Issue raises is whether the Complainant in the Charge preferred against the Appellant (i.e. the Federal Republic of Nigeria) has the locus standi to prosecute the Appellant, the said Complainant not being the Attorney-General. I have hereinbefore stated the facts of the instant matter and particularly what the Appellant’s motion on notice before the lower court is all about. The Appellant by his motion in question never challenged the competence of the Charge preferred against him on the ground that the said Charge could not or cannot be preferred in the name of the Federal Republic of Nigeria. Neither is it the complaint of the Appellant that he cannot be prosecuted for an offence under the Dishonoured Cheques (Offences) Act, Cap. D 11, Laws of the Federal Republic of Nigeria 2004. The grouse of the Appellant with the Charge preferred against him is that the proceeding based on the said Charge is incompetent, null and void as the Charge preferred against him inasmuch as it was initiated by the EFCC or its officer, has not been initiated by the appropriate authority under the law he was charged. In other words, that it is the Attorney-General of the Federation; or the Attorney-General of Anambra State (to whom the power of the Attorney-General of the Federation under the Dishonoured Cheques (Offences) Act has been delegated or any of the officers of the aforementioned Attorneys-General) that can prefer the instant Charge against him. The question of the locus standi of the Federal Republic of Nigeria to initiate the instant criminal proceeding against the Appellant in my considered view simply has no basis whatsoever having regard to the two grounds of appeal contained in the Notice of Appeal filed by the Appellant and which grounds have been re produced hereinbefore. In the circumstance, I cannot agree more with the Appellant as submitted in his Reply Brief of Argument that the Issue for the determination of the appeal as formulated by the Respondent is incompetent as the same was not distilled from, and/or does not arise or flow from the grounds of appeal in the instant appeal. Accordingly, the sole Issue formulated by the Respondent for the determination of the instant appeal, is hereby struck out and the argument proffered in relation to the same discountenanced.
This however does not portend the automatic success of the Appellant’s appeal. This is because the absence of a respondent’s brief does not relieve the court of the duty of considering the surviving Issue in the instant appeal, i.e. the Appellant’s Issue for determination of the appeal on its merit before deciding the outcome of the appeal. See FEDERAL AIRPORT AUTHORITY & ORS V. GREENSTONE LTD & ANOR (2009) All FWLR (Pt. 500) 741 at 750-751.
APPELLANT’S SOLE ISSUE FOR DETERMINATION OF THE APPEAL
Dwelling on the Issue, the Appellant made the point that the instant appeal is not about whether or not he can be charged to court under the Dishonoured Cheques (Offences) Act (hereinafter simply referred to as “Cap. D 11”); but that he is by the instant appeal challenging the power of the EFCC as established under the law to institute a charge under Cap. D11.
The Appellant said that the EFCC is a creation of the EFCC (Establishment) Act, Cap E 1 Laws of the Federation of Nigeria 2004 and that Section 6 of the Act defines the functions of the EFCC, while Section 7 sets out the general powers of the EFCC. Reference was also made to Sections 14 – 26 as defining offences under the EFCC Act (hereinafter to be simply referred to as “CapE1”).
Section 3(2) of Cap D11 was referred to as delegating to the Attorneys-General of the States the power to prosecute offenders under the Act in respect of offences committed in their respective States and that such delegation of power cannot preclude the Attorney-General of the Federation from exercising any of the powers to which the subsection relates.
It is the submission of the Appellant that the lower court was wrong to have applied the decision of the Supreme Court in the case of Federal Republic of Nigeria v. Osahon (supra) to the instant case, given its peculiar circumstances. It is the further submission of the Appellant that the instant case does not challenge the power of a police officer to institute and prosecute any criminal proceeding pursuant to Section 23 of the Police Act but that it seeks to question specifically the power of the EFCC or its officers to institute and undertake criminal proceedings under Cap D 11. The Appellant said to the effect that while police officers pursuant to the Police Act have general powers of prosecution in Nigeria, the EFCC’S power of prosecution is limited, specified and circumscribed by the law that established it. It is the submission of the Appellant that it is in realisation of the various powers exercisable by different bodies or authorities/institutions that the 1999 Constitution in Section 174(1) empowered the Attorney-General of the Federation “to take over and continue any such criminal proceedings that may have been instituted by any other authority or person. Having set out in extenso the provisions of Sections 6 and 7 of Cap E 1, the Appellant submitted that a reading together of the said provisions with the provision of Section 3(2) of Cap D 11 glaring showed that the EFCC or its officers have no power at all to institute the Charge preferred against him under Cap D 11. This according to the Appellant is the more so as the provisions of Cap E 1 has not created an exception to the clear, specific and unequivocal provisions of Cap D 11. It is the submission of the Appellant that if the law makers had intended that the EFCC should undertake prosecution under Cap D 11, power in that respect would have been included in Section 7(2) of Cap E 1. This is against the backdrop that the Dishonoured Cheques (Offences) Act had been in existence prior to the promulgation of Cap E 1. The Appellant submitted to the effect that if the Court should hold that Cap D 11 was not intentionally left out in Cap E 1, this would amount to reading into the law, that which the law maker did not intend and thereby arrogating to the EFCC powers which the enabling Act did not give it. The Appellant further said that this would amount to vilifying the doctrine of separation of powers. The cases of Kotoye v. Saraki (1994) 7 NWLR (Pt. 357) 414 at 469; and Wowo & Anor v. Ndako & Ors (2008) Vol. 1 SCLR 166 at 196 were cited on interpretation of statutory provisions and the Court was urged to hold that the EFCC does not have the power to institute a Charge bordering on Dishonoured Cheques (Offences) Act.
Dwelling further on the inapplicability of the case of Federal Republic of Nigeria v. Osahon (supra) to the instant one, the Appellant said that it should be appreciated that though a lower court in the judicial hierarchy is by the principle of stare decisis bound by the decision of a higher court, it is however the ratio decidendi of such a decision that is binding. The Appellant further said that for the ratio decidendi in one case to be applicable in another case, the facts of the two cases must be similar. The cases of UBA v. Stahlbau Gmb H & Co Kg (1989) 6 SCNJ (Part I) 1 at 21; and Clement & Anor v. Iwuanyanwu & Anor (1989) 4 SCNJ (Part II) 213 were relied upon. It is the submission of the Appellant that the lower court was wrong in applying the case of Federal Republic of Nigeria v. Osahon (supra) when the there were no similar common facts in the instant case and that of Osahon and particularly in the light of the fact that the powers of the EFCC to prosecute criminal proceedings are limited unlike that of the Police as donated by Section 23 of the Police Act. The Appellant concluded by submitting to the effect that as the EFCC has no power to institute criminal proceedings under Cap D 11, it followed that the institution of the instant Charge (i.e. Charge No. 0/10c/2007) is a nullity in line with the decision of the Supreme Court in Madukolu v. Nkemdilim (1962) All NLR 581.
The Court was urged to resolve the Issue under consideration in favour of the Appellant and thereby allow the appeal and reverse the decision of the lower court.
As earlier stated the lower court in its Ruling delivered on 11/11/2008 in the motion brought by the Appellant concluded that the EFCC or its officers have the competence to initiate the instant prosecution before it without first obtaining the fiat of the Attorney-General by virtue of the provisions of the EFCC Act and Section 174(1)(b) of the 1999 Constitution. The lower court arrived at the conclusion upon a reading together of Section 3(2) of the Dishonoured Cheques (Offences) Act and Sections 6(m) and 46 of the EFCC Act, 2004. In its Ruling, the lower court equally stated that the issue raised in the application before it, had been settled by the Supreme Court in the case of Federal Republic of Nigeria v. Osahon (supra).
It is my considered view that the lower court concluded that the EFCC or its officers have the competence to initiate the instant prosecution because Section 174(1)(b) of the 1999 Constitution empowers the Attorney-General of the Federation to take over and continue any criminal proceedings that may have been instituted by any other authority or person. I am however in no doubt that the reasoning of the lower court in this regard begs the question as to whether or not the EFCC has the power to prefer a Charge under Cap. D 11, in the first place. This is because if there is no competence in the first place for the EFCC to initiate a Charge under Cap. D 11, there would in that situation be nothing that the Attorney-General can take over or continue to prosecute. This not only clearly show that the issue raised in the application before the lower court is clearly different from that considered in the case of Federal Republic of Nigeria v. Osahon (supra) but also that the lower court totally missed the point when it held that the issue raised in the application before it, has been settled in the aforementioned case.
Against the backdrop of the above, I am of the considered view that all that has to be done for the purpose of resolving the sole Issue for determination in the instant appeal, (which put simply is whether or not the EFCC pursuant to the provisions of Cap E 1, can validly prefer a Charge under Cap D 11), is just to consider the provisions of both enactments i.e. Cap. D 11 and Cap. E 1, particularly the provisions of the EFCC Act (i.e. Cap. E 1) relating to the power and functions of the EFCC.
Cap. D11, is stated to be an Act making it an offence for any person in Nigeria to induce the delivery of any property or to purport to settle a lawful obligation by means of a cheque which when presented within a reasonable time is dishonoured on the grounds that no funds or insufficient funds were standing to the credit of the drawer of the cheque and for matters connected therewith. The offences and punishments in relation to dishonoured cheques are set out in Section 1. Section 3(1) of the Act stipulates summary trial for offences in relation to dishonoured cheques in the High Court of the State where the offence was committed and by Section 3(2) the power of the Attorney-General of the Federation in relation to the institution and conduct of criminal proceedings for offences under an enactment is conferred on the Attorney-General of the State in which any offence under the Act is committed. Cap. D 11, is indisputably a Federal legislation, hence the vesting of the power to prosecute offences or offenders there under in the Attorney-General of the Federation and which power is under the same law delegated to the Attorneys-General of the States in respect of the offences committed under the Act in their respective States.
But is this to say that any other authority such as the EFCC is by law precluded from enforcing the provisions of Cap. D 11 by prosecuting offences or offenders there under? This is against the backdrop that prosecution is undoubtedly one of the means of enforcing a penal enactment.
The EFCC is indisputably a distinct and separate legal entity conferred with prosecutorial powers vis-a-vis the Attorney-General of the Federation and/or of a State. This much is clear from the provision of Section 1 of Cap. E 1, which read thus: –
“1. Establishment of the Economic and Financial Crimes Commission
(1) There is established a body to be known as the Economic and Financial Crimes Commission (in this Act referred to “the Commission”) which shall be constituted in accordance with and shall have such functions as are conferred on it by this Act.
(2) The Commission –
(a) shall be a body corporate with perpetual succession and a common seal;
(b) may sue and be sued in its corporate name and may, for purposes of its functions, acquire, hold or dispose of property (whether moveable or immovable);
(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.”
Section 6 of Cap. E 1, sets out the functions of the EFCC. The Section reads thus:-
“The Commission shall be responsible for-
(a) the enforcement and 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, future market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc;
(c) the co-ordination and enforcement of all economic and financial 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 to eradicate the commission of economic and financial crimes;
(f) the adoption of measures which include co-ordinated preventive and regulatory actions, introduction and maintenance of investigative and control techniques on the prevention of economic and financial related crimes;
(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 extent of financial loss and such other losses by government, private individuals or organisations;
(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 monitoring international economic and financial crimes in order to identify suspicious transactions and persons involved;
(v) maintaining data, statistics, records and reports on persons, organisations, proceeds, properties, documents or other items or assets involved in economic and financial crimes;
(iv)(sic) 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 extradition, deportation and mutual legal or other assistance between Nigeria and any other country involving economic and financial crimes;
(1) the collection of all reports relating to suspicious financial transactions, analyse and disseminate to all relevant agencies;
(m) taking charge of, supervising, controlling, co-ordinating all the responsibilities, functions and activities relating to current investigation and prosecution of all offences connected with or relating to economic and financial crimes;
(n) the co-ordination of all existing, economic and financial crimes investigating units in Nigeria;
(o) maintaining a liaison with the office of the Attorney-General of the Federation, the Nigerian Customs Service, the Immigration and Prison Service Board, the Central Bank of Nigeria, the Nigerian Deposit Insurance Corporation, the National Drug Law Enforcement Agency, all government security and law enforcement agencies and such other financial supervisor institutions involved in the eradication of economic and financial crimes;
(p) carrying out and sustaining rigorous public enlightenment campaign against economic and financial crimes within and outside 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.”
Section 7 of Cap. E 1 deals with the special powers of the EFCC. The Section provides thus: –
“(1) the Commission has power to –
(a) cause investigations to be conducted as to whether any person, corporate body or organisation has committed an offence under this Act or any 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 properties are not justified by his source of income.
(2) In addition to the powers conferred on the Commission by this Act, the Commission shall be the co-ordinating agency for the enforcement of the provisions of –
(a) the Money Laundering Act, 2004; 2003 No7,1995 No. 13;
(b) The Advance Fee Fraud and Other Related Offences Act, 1995;
(c) the Failed Bank (Recovery of Debt and Financial Malpractices in Banks) Act, as amended;
(d) the Banks and Other Financial Institutions Act, 1991 as amended;
(e) the Miscellaneous Offences Act; and
(f) any other law or regulation relating to economic and financial crimes, including the Criminal Code and Penal Code.
Section 46 of Cap. E 1, is titled “Interpretation”. There under economic and financial crimes” is defined as meaning: –
“the non-violent criminal and illicit activities committed with the objectives of earning wealth illegally either individually or in a group or organised 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 practices, 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”.
The canons of interpretation of the provisions of a statute are settled. In this regard see the case of ABAYOMI BABATUNDE V. PAN ATLANTIC SHPPING AND TRANSPORT AGENCIES LTD & 2 ORS (2007) All FWLR (Pt. 372) 1721 at 1752 where the Supreme Court stated per Muhammad, JSC; thus: –
“Judge’s duty is to interpret and not to make the law. In the interpretation process, the Judge should be liberal and give the natural meaning of the statute where the words are clear and unambiguous”.
Another case on the interpretation of statutes is that of HON. MICHAEL DAPIANLONG & 5 ORS V. CHIEF (DR.) JOSHUA CHIBI DARIYE & ANOR (2007) All FWLR (Pt. 373) 81. In the said case the Supreme Court reiterating its position in the case of Fawehinmi vs. I.G.P. (2002) FWLR (Pt. 108) 1355, etc, stated thus at pages 128-129:-
“The proper approach to the interpretation of clear words of statutes is to follow them, in their simple, grammatical and ordinary meaning rather than look further because that is what prima facie gives them their most reliable meaning: see This is generally also true of the construction of constitutional provisions if they are clear and unambiguous even when it is necessary to give them a liberal or broad interpretation”.
Still on the interpretation of statutes is the case of ALHAJI SHEHU ABDUL GAFAR V. THE GOVERNMENT OF KWARA STATE & 2 ORS (2007) All FWLR (Pt. 360) 1415. In the case, the Supreme Court dealing on the duty of the court when it comes to statutory interpretation stated at page 1444 thus: –
“It is now settled law that the duty of the courts, is to interpret the words contained in a statute or Constitution in their ordinary and literal meaning. Certainly, it is not the duty of the court, to go outside the words used and import an interpretation which may be or is convenient to it or to the parties or one of the parties.”
It is my considered view against the backdrop of the settled canons of interpretation stated above, that offences under the Dishonoured Cheques (Offences) Act (i.e. Cap D 11) conveniently qualify as financial crimes in the light of the definition of economic and financial crimes as set out under Section 46 of Cap. E 1 and which definition has hereinbefore re-produced.
This is particularly so given the very broad meaning of economic and financial crimes as including amongst others “any form of fraud” as well as the use of the word et cetera (i.e. etc) at the end of the definition.
Aside from the above, it is also my considered view that given the provision of Section 7(2)(f) of Cap. E 1, which relates to the special powers of the EFCC and which has been hereinbefore re-produced, the EFCC can eminently prosecute offences under Cap. D 11. The provision in question not only makes the EFCC the co-ordinating agency for the enforcement of the provisions of the enactments specifically set out thereunder but also any other law or regulations relating to economic and financial crimes including the Criminal Code and Penal Code. The use of the word “including” in my view definitely covers an enactment such as Cap. D 11. This is because the word “include” is used, when it is intended to enlarge the category and to bring in other things which are in line or answer the definition in the first limb but have not been specifically mentioned. See also the case of MADAM ALICE OKESUJI V. F.A. LAWAL M9911 2 SCNJ 1, in this regard. The submission of the Appellant to the effect that the non-inclusion of Cap. D 11 in Section 7(2) of Cap. E 1 evinced the intention of the law makers not to make the said Cap. D 11 subject to the powers of the EFCC clearly overlooks the provision of Section 7(2)(f) (supra).
The conclusion that I have reached from all that has been said above, is that Cap. D11, i.e. the Dishonoured Cheques (Offences) Act is an enactment that falls within the purview of the EFCC Act, i.e. Cap. E 1.
Having found Cap. D 11, as an enactment that falls within the purview of the EFCC Act, it is also my considered view that the EFCC eminently has the competence to prosecute offences thereunder by virtue of the provisions of Section 6(c) and (m) of Cap. E. 1 which respectively provide to the effect that the EFCC has the responsibility for co-ordinating and enforcing all economic and financial crimes laws and enforcement functions conferred on any other person or authority: and that the EFCC shall take charge of, supervise, control, co-ordinate all responsibilities, functions and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes. (Underlining provided by me).
The situation in the instant case is different from that in the case of AMADI V. FEDERAL REPUBLIC OF NIGERIA (2009) All FWLR (Pt, 462) 1103 where the EFCC had to be given the fiat of the Attorney-General of Lagos State in order to prosecute offences under the Criminal Code of Lagos State. In the instant case, the offences which the EFCC set out to prosecute are offences under or created by a Federal enactment. The EFCC Act itself is a Federal enactment. The Act as already stated, not only vests the EFCC with the responsibility for co-ordinating and enforcing all economic and financial crimes laws and enforcement functions conferred on any other person or authority; but also empowers the EFCC to take charge of, supervise, control, co-ordinate all responsibilities, functions and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes. The EFCC having been vested with powers in this regard, in my considered view is eminently competent to initiate proceedings under Cap. D 11, despite the provision of Section 3(2) of the said enactment which delegated the power of the Attorney-General of the Federation to initiate proceedings thereunder to the Attorneys-General of the States where offences under the Act are committed. And this, the EFCC being an artificial person must necessarily do through its officers and without first procuring the fiat of the Attorney-General of the Federation and/or the State. In the circumstances, the Charge preferred against the Appellant and which forms the foundation of the instant proceedings is very valid.
In conclusion the sole Issue for the determination of the appeal as formulated by the Appellant is resolved against him. Consequently, the appeal is found to be lacking in merit and is hereby dismissed. The Ruling of the lower court inasmuch as it concluded that the EFCC through its officers has the competence to initiate the instant prosecution before the High Court without first obtaining the Attorney-General’s fiat is upheld.
OLUKAYODE ARIWOOLA, J.C.A.: I had the privilege of reading the draft of the leading judgment of my learned brother, Lokulo-Sodipe, JCA just delivered. I am in agreement with the reasoning therein and the conclusion arrived thereat. I therefore adopt them as my own. Accordingly, I too consider the appeal lacking in merit and is hereby dismissed.
I abide by the consequential order in the said leading judgment.
JUMMAI HANNATU SANKEY, J.C.A.: I agree.
Appearances
Onyechi Araka with E. OnyishiFor Appellant
AND
C. Ifezulike (Miss)For Respondent
