By Festus Ogun
The
Economic Financial Crime Commission (EFCC) has Wednesday announced that
it uncovered foreign currencies and naira notes that are worth about N15
billion in a four-bedroom apartment in Ikoyi, Lagos. The funds have
been reported to be proceeds of unlawful activity while investigations
are said to be ongoing. As laudable as this development is, it is
rather very depressing that the owner of the huge money is yet to be
named or identified.
First, there is need to state from onset
that the EFCC has been doing much of arrests than prosecuting. Every now
and then, we hear series of news that the anti-graft agency has
arrested suspected economic and financial looters. But, it is always
very surprising that it usually ends at that. The number of news of
arrest we read in papers is far more than the number of the suspects
that were or will be later brought to book. Maybe the effect of
Section 36(5) of the 1999 Constitution of The Federal Republic of
Nigeria (herein referred to as 1999 Constitution) which provides that
“every person who is charged with a criminal offence shall be presumed
to be innocent until proven guilty” is what has caused the failure to
ensure the prosecution of financial and economic criminals parading the
streets of our society.
It need to be made clear that the writer
is not saying that the anti-graft agency should ensure that it jails all
suspected looter by all means. No. That is not the spirit of law. The
law provides that prosecutors should ensure justice and not just ensure
jail terms are meted. But, does it mean this all of those suspected
looters that have been arrested are saints?
By virtue of Section
6 of the EFCC (Establishment) Act 2004, the classical reason why the
commission was established is to fight corruption prevailing in our
society. How did they go about this? The above section of the Act has
provided for the series of functions imposed on the commission. For the
purpose of this piece however, two of the functions will be highlighted
below.
Section 6(h) of the EFCC (Establishment) Act provides
that: “the commission shall be responsible for the examination and
investigation of all reported cases of economic and financial crimes
with a view to IDENTIFYING individuals, corporate bodies or groups
involved” (emphasis supplied by me).
Section 6(j) (i) of the Act
has also provided that the function of the EFCC is to ensure “the
IDENTIFICATION, DETERMINATION OF THE WHEREABOUTS AND ACTIVITIES OF
PERSONS SUSPECTED OF BEING INVOLVED IN ECONOMIC AND FINANCIAL CRIMES”
(emphasis supplied by me).
With the sacrosanct provisions of
the Act that established the EFCC highlighted above, it is very clear
that the EFCC power and function is not all about doing arrests. Of
utmost importance is also the identification and apprehension of the
suspected looters by the EFCC. The duty imposed on them by law has not
been successfully carried out; since in the instant case the suspected
looters are yet to be identified.
The EFCC, as a matter of
urgency should be more up and doing in the dispensation of their duties.
For about 4 days after the huge sum was recovered, the EFCC is yet to
get who owns or is linked with the money. The agency is yet to make any
arrest as to persons suspected to have connections with the money. Does
this sense any form of efficiency at all?
While the EFCC has
told the citizens the usual story that “investigation” is ongoing, it
will be trite to submit that if the investigation lingers for about a
week without it identifying the owner of that huge sum, the functions
imposed on the EFCC by the law has appeared not fulfilling.
Many
have opined on social media that the EFCC may not at the end of it all
identify the owner of the money for plethora of reasons. If this comes
true, then, it is a hint that the EFCC is not in fact complying with the
law that creates it – section 6 of the Act. And if the agency itself is
not complying with its establishment law, it will be reasonable to
submit that it lacks locus standi to bring to book erring citizens.
More
importantly, there is need to state clearly that forfeiting trillions
of naira is not just the interest and the reason while the EFCC was
created. The EFCC was established in order to ensure that justice is
done on those that have been found guilty of embezzling and
misappropriating public funds. Uncovering money is not the deal,
ensuring that those that have committed offences established by the Act
are convicted is the main task.
And that is why the Act
expressly provides for the identification and apprehension of the
suspected looters – Section 6 (h), (j) (i) of the EFCC Act. As such, the
onus is on the EFCC to ensure that the owner of the N15 billion is
identified, as provided by its law. And this must, as a matter of fact,
be done as quickly as possible since “vigilantibus non dormientbus jura
subveniunt” – delay defeats equity. Therefore, if the EFCC decides to
sleep on their right and duty for too long a time, there is possibility
the owner of the money may be undiscovered for life. See the case of
NWAKOBI V. NZEKWU (1964) 1 W.L.R. 109.
Having said much on the
duty of the EFCC to identify the owner of the huge money, there is also
need to address the rights of the owner to claim the money. It is not a
crime to own any amount of money once the means of getting it is legal.
Equally, there is no law compelling citizens to keep large amount of
money in banks. It is only a matter of choice. And as such, it is at the
discretion of citizens to exercise the right to keep money in banks or
not, no matter the amount.
Section 44 of the constitution grants
on citizens of Nigeria the right to own moveable property. And
subsection (1) of the same section provides in part that “no moveable
property or any interest in an immovable property shall be taken
possession of compulsorily and no right over or interest in any such
property shall be acquired compulsorily in any part of Nigeria…” With
this provisions, it will be apt to say that the yet to be known owner of
the N15 billion has the right to own the money and nobody can deprive
such owner of it.
However, since in law for every rule there is
an exception, so also are exceptions to this provision. Section 44 (2)
(k) of the Constitution provides that: “nothing in subsection (1) of
this section shall be construed as affecting general law relating to the
temporary taking of possession of property for the purpose of any
examination, investigation or enquiry”. The effect of this subsection is
that it is reasonable and justifiable for the EFCC to TEMPORARILY
deprive the owner of the N15 billion for the purpose of investigation.
The
yet-to-be-known owner has all the legal right to reclaim the money.
First, because the law has stated expressly that the seizure is only
temporary; secondly, because the purpose of the seizure is for
investigation. All that the owner has to do is to show up and the onus
is on the prosecution i.e. the EFCC to prove that he got the money
through any illegal means that’s within the web of the EFCC act. The
duty of the owner is therefore to disprove the allegations, if there is
any and if the allegations are not false. And if the allegations have
not been proven beyond reasonable doubt as provided by Section 36(5) of
the Constitution, the accused or owner will go scot-free with the huge
amount of money.
But, all these will be applicable only where the
owner has no skeleton in the cupboard. This is because; it is a settled
law that he who comes into equity must come with clean hands. This
means that the owner of the money who wants to claim it must ensure that
he has conducted himself in a fair and proper manner. He must also show
that his past record in the transaction is clean; for he who has
committed iniquity shall not have equity. See VIATONU V. ODUTAYO (1950)
19 N.L.R. 103.
Thus, should the owner have a clean hand on the
matter, he should go forward to exercise his right to claim the money.
But if otherwise, since any reasonable man will not come forward to face
the consequence, the EFCC should ensure that the owner of the money is
brought to book as imposed by Section 6 (h) and (j) (i) of the EFCC
(Establishment) Act, 2004.
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