Background Facts
The Appellant, Dr. Joseph Nwobike, was prosecuted by the Economic and Financial Crimes Commission (EFCC) before the High Court of Lagos State on 18 Counts. Counts 1, 2, 4, 5 and 6 were on the offences of offering gratification to a public officer contrary to Section 64 (1) of the Criminal Law of Lagos State, Counts 3, 7 - 17 were on the offences of attempting to pervert the course of justice contrary to Section 97 (3) of the
Criminal Law of Lagos State and Count 18 was on the offence of giving false information to an officer of the EFCC contrary to Section 39 (2) of the Economic and Financial Crimes Commission (Establishment) Act. The Appellant pled not guilty to all the Counts and trial commenced. On the offences of offering gratification to a public officer, evidence was given to prove that the Appellant gave N750,000 to a Judge of the Federal High Court before whom he had a case, that he gave N250,000 to a Federal High Court Registrar of a Court before whom he had a case and also gave sums of money to the same Registrar to give to her boss the presiding Judge of the Court. The defence of the Appellant was that the moneys were given as financial aid and nothing more. The High Court acquitted him on Counts 1, 2, 4, 5 and 6 on the ground that the prosecution was unable to prove beyond reasonable doubt that the moneys were given as gratification intended to influence the performance of their duties as public officers.
On the offences of attempt to pervert the course of justice (Counts 3, 7 - 17), the Court held that a payment of money into the account of a Judge and the constant stream of messages from the Appellant to court officials concerning the assignment of cases to certain Judges was sufficiently proven by the prosecution that they were attempts by the Appellant to pervert the course of justice. The Appellant was therefore convicted on those Counts by the Court even after the Court had ruled that Section 97 (3) of the Criminal Law of Lagos State upon which the charges were brought did not define the offence of attempt to pervert the course of justice contrary to Section 36 (12) of the 1999 Constitution. On Count 18, the Court held that the defendant was not guilty of making false statements to an EFCC official and he was therefore acquitted on that Count. The Court sentenced the Appellant to 30 days imprisonment for each of the 12 Counts of attempting to pervert the course of justice. The sentence ran concurrently. The Appellant dissatisfied with the judgment appealed to the Court of Appeal. The Court of Appeal allowed the appeal in part by setting aside the conviction of the Appellant in Counts 3, 12 and 14 and affirming his conviction in Counts 7 to 11, 13 and 16 -17. Still dissatisfied with the decision of the Court of Appeal, the Appellant further appealed to the Supreme Court.
Issues before the Supreme Court
Eight (8) issues were submitted by Appellant’s counsel while Three (3) issues were submitted by Respondent counsel. From the issues put forward by both counsels, the Supreme Court distilled the following four (4) issues which it thought fit to address and resolve –
- Whether having regard to the provisions of Sections 14 – 18 of the Economic and Financial Crimes Commission (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 attempt 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.
- 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 (3) of the Criminal Law of Lagos State, 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 and therefore null and void.
- 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 of Lagos State, when the conduct of the Appellant did not constitute an offence defined in the law under which he was charged.
- Whether their Lordships of the Court below erred in law when they applied the reasonable man’s test to their interpretation or construction of Section 97 (3) of the Criminal Law of Lagos State, and Section 36 (12) of the Constitution, when as found by the learned trial Judge, Section 97 (3) of the Criminal Law, did not disclose any offence known to law.
Decision of the Supreme Court
Issue One – The Supreme Court held that the offence of attempt to pervert the course of justice is not an economic and financial crime and the EFCC is not empowered to prosecute it. Consequently, Counts 7 to 11, 13, 15 to 17 of the Amended Information have no foundation and since the aforesaid Counts are the ones upon which the Appellant was convicted and sentenced, the order of the Trial Court made on those Counts are a nullity.
Issue Two, Three and Four – On whether Section 97 (3) of the Criminal law does not define the offence of attempt to pervert the course of justice contrary to Section 36 (12) of the 1999 Constitution, the Supreme Court did not decide on the constitutionality of Section 97 (3). The Supreme Court’s refusal to determine the question was based on the fact that there was no valid cross appeal by the Respondent at the Court of Appeal on the Trial Court’s decision that Section 97 (3) was unconstitutional. The Court could not therefore consider and determine the question on the merit.
Having resolved the above issues in favor of the Appellant, the Supreme Court allowed the appeal and set aside the Appellant’s conviction and sentence.
Impact on the War against Corruption
The decision of the Supreme Court allowing the appeal and discharging the Appellant caused quite a stir in legal circles with questions arising about the mandate of the EFCC, its prosecutorial effectiveness and the impact of the decision on the war against corruption. A simple look at the decision may give the impression that it is intended to curtail the powers of EFFC. However, a detailed reading of the judgment of the Supreme Court shows a well-reasoned decision to the effect that the EFCC’s power to prosecute should be restricted to only economic and financial crimes as provided in its enabling Act. These economic and financial crimes were interpreted by the Court to not include the offence of attempt to pervert the course of justice which the Appellant was alleged to have committed.
There are several government agencies in Nigeria whose mandate border on anti-corruption of which the EFCC is only one. Others include the Independent Corrupt Practices and Other Related Offences Commission (ICPC) and the Code of Conduct Bureau and Tribunal. It is therefore important that their mandate and powers are well delineated to avoid conflict between the Agencies and unnecessary duplicity of functions. The Supreme Court’s judgment that the EFCC’s prosecution powers applies to only economic and financial crimes is a welcome step that has the effect of defining the mandate of anti-corruption Agencies instead of that mandate being open-ended.
The judgment also brings to the fore the need for synergy between anti-corruption Agencies. The decision of the EFCC to prosecute the Appellant on an offence outside its mandate will have cost time and resources that could have been expended on other matters. Where there is greater synergy and cooperation between anti-corruption Agencies, it gives room for the assignment or transfer of cases from one anti-corruption Agency to another notwithstanding which anti-corruption Agency started investigation on the matter. In any case, recourse can be made to the Police and the Department of Public Prosecution in the Ministry of Justice who generally have power to prosecute offences.
Another impact of the judgment is the focus it brings to the need for better drafting of our laws especially our criminal laws and anti-corruption laws and the need for regular reform of those laws. The decision by the Supreme Court that economic and financial crimes do not include the offence of attempt to pervert the course of justice was based on the interpretation of “Economic and Financial crimes” in Section 46 of the Economic and Financial Crimes Commission (Establishment) Act. If the EFCC wants to have power to prosecute the offence of attempt to pervert the course of justice, it can do so by proposing an amendment to its Enabling Act.
Although the Supreme Court did not determine the issue of whether the provision of Section 97 (3) is unconstitutional, an examination of the provision leaves no surprise as to the decision of the Trial Court that it was unconstitutional. Section 97 (3) of the Criminal Law of Lagos State provides as follows –
“(3) Any person who attempts, in any way not specifically defined in this Law, to obstruct, prevent, pervert, or defeat, the course of justice is guilty of a misdemeanor, and is liable to imprisonment for two years.”
Section 36 (12) of the 1999 Constitution on the other hand provides that a person shall not be convicted of a criminal offence unless that offence is defined and the penalty is prescribed in a written law. The phrase “in any way not specifically defined in this Law” in Section 97 (3) of the Criminal Law intends to punish an attempt to commit an offence which offence need not be specifically defined in the law. The phrase is vague and confusing and makes the entire provision contrary to Section 36 (12) of the 1999 Constitution. To put to rest the question of the constitutionality of Section 97 (3), it is necessary to initiate a process for the amendment of the provision so that the vagueness is removed.
In conclusion, the decision of the Supreme Court in Joseph Nwobike SAN vs FRN has a generally positive impact on the war against corruption because it examines the limits of the powers of our anti-corruption Agencies and also highlights the need for a review of some of the provisions of our anti-corruption laws.