Spraying Naira Notes: Why the EFCC Lacks the Jurisdiction to Prosecute Offenders

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By Carrington Osarodion Omokaro, Esq

Few weeks ago, the Economic and Financial Crimes Commission (EFCC) arrested one Okuneye Idris Olanrewaju A.K.A Bobrisky for spraying naira notes to the floor at a social function where he was being praised by a musician. The Charge against Bobrisky marked FHC/L/244c/2024 comprised four counts of naira abuse and two counts of suspected money laundering. The counts which bothered on money laundering were struck out by the judge. Bobrisky was eventually convicted and sentenced to six months in the correctional centre.

On the 16th day of April, 2024, it was trending on the internet that the EFCC are set to arraign cubana chief priest on the 17th day of April, 2024 for abuse of naira. I glossed over it when I first saw it. Few moments later, I came across a whatsapp status wherein the writer queried the prosecutorial powers of the EFCC to prosecute on Naira Abuse and envisaged same being challenged in court, also adding that nothing in the CBN Act defers to the EFCC regarding the prosecution. At that point, I remembered a particular Supreme Court case I read in the past. I then said to myself that indeed, it seems like the EFCC lacks the power to prosecute offenders for spraying the Naira notes. Before going into the reason for my assertion, it is necessary to know, though very briefly, how and why the EFCC was established.

HOW THE EFCC WAS ESTABLISHED

The Economic and Financial Crimes Commission, was established by an Act of the National Assembly on the 12th day of December, 2002 by the administration of the President Olusegun Obasanjo. Following the appointment and confirmation by the Senate, of the pioneer Executive Chairman, Mallam Nuhu Ribadu and other administrative officers, the Operational activities of the Commission commenced on April 13, 2003.

The establishment of the Commission was partly in response to pressure from the Financial Action Task Force (FATF) on Money Laundering, also known by its French name Grouped’actionfinanciere (GAFI.) GAFI is an intergovernmental organization founded in 1989 on the initiative of the g7 (Group of Seven), an inter-governmental political forum consisting of Canada, France, Germany, Italy, Japan, the United Kingdom and the United States of America to develop policies to combat money laundering.

FATF had ranked ranked Nigeria as one of the 23 countries that were non-cooperative in the combined efforts to fight money laundering globally. It is worthy of note that there were identified inadequacies in the 2002 Establishment Act.

UNITED NATIONS CONVENTION AGAINST CORRUPTION VIS A VIS ECONOMIC AND FINANCIAL CRIMES (ESTABLISHMENT ACT) 2004

The United Nations General Assembly Resolution 58/4 of 31st October, 2003, brought the Convention into force. The United Nations Secretary General Kofi Anan (of blessed memory) stated inter alia as follows

“…The adoption of the United Nations Convention against corruption will send a clear message that the international community is determined to prevent and control corruption. It will warn the corrupt that betrayal of public trust will no longer be tolerated. And it will reaffirm the importance of core values such as honesty, respect for the rule of law, accountability and transparency in promoting development and making the world a better place for all

The Convention introduces a comprehensive set of standards, measures and rules that all countries can apply in order to strengthen their legal and regulatory regimes to fight corruption. It calls for preventive measures and the criminalization of most prevalent forms of corruption both in public and private sectors. And it makes a major breakthrough by requiring member states to return assets obtained through corruption to the country from which they were stolen.

These provisions – the first of their kind – introduce a new fundamental principle, as well as a framework for stronger cooperation between states to prevent and detect corruption and to return proceeds. Corrupt officials will in future find fewer ways to hide their illicit gains. This is a particularly important issue for many developing countries where corrupt high officials have plundered the national wealth and where new Governments badly need resources to reconstruct and rehabilitate their societies….”

The purpose of the convention is clearly stated in its preamble wherein lots of concerns where highlighted. Part of which was that illicit acquisition of personal wealth can be particularly damaging to democratic institutions, national economies and the rule of law. Also, that if there is no measure put in place to prevent, detect and deter in a more effective manner inter-national transfers of illicitly acquired assets, international cooperation in asset recovery will be weakened.

The United Nation Conventions against Corruption, particularly in Chapter 3, ranging from Article 15 to Article 42 but precisely from Article 15 to Article 25 provides for domestication and criminalization of offences under the convention by State parties. It was in line with this obligation therefore that the Economic And Financial Crimes (Establishment Act) 2004 was enacted. The 2004 act was signed into law on the 4th day of June, 2004 by President Olusegun Obasanjo (as he then was) .

SIGNIFICANCE OF THE HISTORY PRECEDING THE LEGISLATION

Before going into the issue proper, I know that most people who will eventually read this may wonder why I had to go the extra mile in making reference to the preamble of the UN Convention against corruption  vis a vis the EFCC Act. Well, let me at this juncture answer that query. That is if there will be any though. Now, the focus of this article is to justify why the EFCC lacks jurisdiction to prosecute offenders for spraying money. In such circumstance, reference has to be made to the History of the Body (EFCC) to ascertain the reason for their creation and the scope of their powers. It is also necessary to ascertain the mischief aimed by the legislation (EFCC Act).

 In the case of IFEZUE v. MBADUGHA & ANOR (1984) LPELR- 1437 (SC), the Apex court in dealing with how the courts interpret the laws using the history behind the law stated as follows

“To properly ascertain the mischief aimed by a legislation it is sometimes helpful to look into the history of the legislation. It is not permissible for the courts in England to construe an Act of Parliament by the motives which influenced the legislature in passing the Act, but it is permissible for the courts to look into the history preceding the legislation in order to see whether the terms of the enactment are such as fairly carry out [sic} the object of the legislation with a view to giving effect to what the legislature intended.”

So for the above stated reason, same way the courts cannot construe and act by the motives, I will not do so too. I will only do what the courts are entitled to do. The history as to why the EFCC Act came into force is very necessary, so as to ascertain the object of the act and what the legislature actually intended while they were enacting the EFCC Act. By stating the history, the reason/objective for the enactment of the EFCC Act I believe is no longer in doubt.

THE EFCC CAN ONLY PROSECUTE OFFENCES BOTHERING ON “ECONOMIC AND FINANCIAL CRIME”

At this point, it is very important to find out the meaning of “Economic and Financial Crime”. I would have made recourse to the dictionary to find out what it actually means but it seems I am not permitted to do that. Reason being that the EFCC Act under S. 46 has already provided a definition. It is rudimentary law that once a word or phrase/expression is judicially defined, either by case-law or statute, it takes that meaning judicially assigned to it and drops/sheds its erstwhile technical or ordinary meaning it owed before. See Dapianlong v. Dariye (2007) 8 NWLR (Pt. 1036) 239. See also NPG Prop. & Const. Works Ltd. v. Zenith Bank Plc (2023) 15 NWLR (Part 1908) 423 at 452 para b-c.  Hence I will abide by the definition in S. 46 of the EFCC Act which states that “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.;

There is one very important point to be made which many may gloss over. It is 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 is, used the expression “means” and then the definition followed. 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; 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.”

Relating the above to the instant suit, the EFCC Act states that economic and financial crime 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”. The emphasis in the underlined words which are also in bold are mine. From the foregoing it simply means that the EFCC “only” has jurisdiction to prosecute any non violent offence /illicit activity which is intended to make the offender earn wealth illegally. No wider or inferred meaning other than a non violent illicit activity which is aimed at earning wealth illegally, can be defined/fall into the scope of  “economic and financial crime”. Beautifully, activities that can make a person earn wealth illegally has been listed to include 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…etc.

From the foregoing, I ask the million dollar question “Does spraying of Money make the offender earn wealth illegally” ??? Certainly not ! Spraying of money does not make the offender earn wealth simpliciter not to talk of the inclusion of the word “illegally”. However, anyone who feels I am wrong can please write a rejoinder to this article. I am always willing to learn.

THE STATUS OF “E.T.C” VIS A VIS THE EJUSDEM GENERIS RULE 

Section 46 of the EFCC Act which listed several illegal activities ended with the adverb etc. Etc. as we know is usually used at the end of a list to indicate that further similar items are included. This at first may give the impression that “spraying money” can fit into the “further items” due to the adverb “etc”. However, I am of the opinion that spraying of money does not fall within the category of “further items/other illegal activities” as may be inferred in the adverb “etc”.

Rationale

In the interpretation of statutes, there are certain rules that guide the court in interpreting the provisions of a statute. They are:

  1. Literal Rule – This rule states that words in a statute should be interpreted in their ordinary meaning and in the language used in the statute. See Fisher v. Bell (1961) 1 QB 394
  1. Golden Rule – This rule states that where the literal rule will lead to absurdity or a repugnant result, the literal rule should not be followed. See Re Sigsworth (1935) 1 Ch 98. In this case, under the statute setting the law of intestacy, when a single parent dies, the sole issue stood to inherit the entire estate. In this case however, the son who was the sole issue of his mother, murdered her. The court applied the golden rule and held that he was thus entitled to nothing.
  1. Mischief Rule – This rule attempts to determine the legislator’s intention. Its aim is to determine the mischief and defect. In the case of Smith v. Hughes (1960) 2 All ER 859, where under the Street Offence Act 1959, it was a crime for prostitutes to “loiter or solicit in the street for the purposes of prostitution”. The defendants were calling to men in the streets from balconies and tapping on windows. They claimed they were not guilty as they were not in the “street”. The judge applied the mischief rule to come to the conclusion that they were guilty as the intention of the Act was to cover the mischief of harassment from prostitutes. The rule is basically resorted to when a statute was passed to remedy a defect.
  1. Ejusdem Generis Rule – This rule is an interpretative one which the Court would apply in appropriate cases, to confine the scope of general words which follow special words as used in a statute or document or constitution with genus of those general words. E.G If a statute says lawyers, doctors, engineers and others are exempted from paying tax, the general word “and others” will be construed to mean professionals. The phrase “and others” cannot be interpreted loosely. It must be interpreted within the confines of the words it follows.

Relating it to the instant case, while it is unequivocal that economic and financial crime means any non violent illegal activity that makes the offender earn wealth illegally, it therefore means that the other illegal activities not listed but inferred by the adverb “etc” must be non violent illegal activities that makes the offender earn wealth illegally. Like I earlier stated, spraying of money cannot by any stretch of imagination be an illegal activity that will make the offender earn wealth illegally.

It is apposite to note however, that “how” the offender got the money that he is spraying is a distinct issue which the EFCC has the powers to investigate and prosecute if the need arises. With all that has been stated thus far, the point being made is that it is not just because “money” is involved simpliciter as at when an offence is committed, that the EFCC can prosecute. A typical example, If a person travelling in his car has a brief case with money inside and that person is attacked on the high way by armed robbers, can such a person report to the EFCC, my answer is a solid No! The offence must be such that wealth is earned illegally and non violently. The scenario I just painted, though money may have been earned illegally, but let us not forget the inclusion of the word “non-violent” as defined in S. 46 of the EFCC Act. Again, I ask, If a very wealthy business man whose business and proceeds are legal, sprays money at an occasion, can we call that an economic and financial crime of which the EFCC can prosecute, certainly not. The preceding example is a non-violent activity which like I have previously emphasized, does not make the person spraying “earn wealth illegally”.

CBN ACT

The act under S. 21 criminalized spraying. However, there is nowhere under S. 21 that the expression “Financial Crime” was defined neither did the act in same section state that the EFCC has the power to prosecute anybody who contravenes that particular section.

NWOBIKE V. FRN (2022) 6 NWLR (PART 1826) 293

Before I conclude this article, it will be recalled that at the commencement stage of this article, I made mention of a Supreme Court authority that i read in the past and which made me form the opinion that the EFCC lacks the jurisdiction to prosecute the offence discussed in this article. In the case mentioned above, the appellant was charged before the High Court of Lagos State with several offences, part of which included attempting to pervert the course of justice contrary to Section 97(3) of the Criminal Law of Lagos State. At the trial court, he was discharged on other counts but found guilty for the offence of attempting to pervert the cause of justice. On appeal to the Court of Appeal, some of his conviction and sentence were set aside. Still aggrieved, the appellant further appealed to the Supreme Court.

At the Supreme Court, the fulcrum of the appellant’s arguments was that the EFCC did not have jurisdiction to prosecute him of the offence of attempting to pervert the course of justice and that the offences for which he was convicted by the trial court which the Court of Appeal affirmed, were not financial crimes to make them come within the scope of the powers of the EFCC. In determining the appeal, the Supreme Court considered the provisions of S. 36(12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Sections 6, 7 and 46 of the Economic and Financial Crimes Commission (Establishment) Act and Article 15 of the United Nations Convention Against Corruption.

Tijani Abubakar, J.S.C. who delivered the lead judgment stated at page 343 as follows;

“… A fortiori, it must be pointed out, as 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.”.

CONCLUSION

It is my humble submission that the EFCC lack the powers to prosecute any person for spraying naira notes. This is because it is not an economic and financial crime as envisaged by the provisions of S. 46 of the EFCC Act. Also, their officials will have the burden of proving that the money was sprayed with the objective of earning wealth illegally. This of course is a very herculean task. Consequently, the EFCC erroneously assumed unimaginable and all-encompassing powers supposedly granted under section 46 in the two scenarios mentioned at the commencement of this article. It is clearly outside the purview of the powers granted to the EFCC to investigate and prosecute offences bothering on spraying of the naira note and thereby robs the court of jurisdiction to determine the charge on those counts. In such a situation, the charge would not have been intiated by due process of law and is therefore bound to fail.


Carrington is a researcher and a very passionate litigation lawyer practicing in Benin City, Edo State. He currently works in the firm of OLAYIWOLA AFOLABI (SAN) & CO. He may be reached on  07088432549, 08146227280 omokarocarrington@gmail.com


REFERENCES

  1. UNITED NATIONS CONVENTION AGAINST CORRUPTION – GENERAL ASSEMBLY RESOUTION 58/4 OF 31 OCTOBER 2003
  2. CBN ACT 2007
  3. ECONOMIC AND FINANCIAL CRIMES (ESTABLISHMENT ACT) 2004
  4. NIGERIAN WEEKLY LAW REPORT
  5. LAW PAVILLION ELECTORNIC LAW REPORT – PRIMSOL
  6. HTTPS://WWW.EFCC.GOV.NG/EFCC/ABOUT-US-NEW/HISTORY-OF-EFCC
  7. HTTP://WWW.E-LAWRESOURCES.CO.UK
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