A message making the rounds on WhatsApp, purportedly written by one Barr Emperor Ogbonna, alleges that by the decision of the Supreme Court in Dr Joseph Nwobike (SAN) vs. FRN (SC/CR/161/2020, delivered 20 Dec. 2021), the powers of the Economic and Financial Crimes Commission (EfCC) to investigate and prosecute economic and financial crimes at the state levels have been nullified. The message goes further to paint scary scenarios of corruption by state officials without them being brought to book, thanks to the decision of the Supreme Court in the said case.
But was that really the holding of the Supreme Court? Did the Supreme Court Nullify the power of the EFCC to investigate economic and financial crimes at the state levels?
Here's the gist of of the Supreme Court's decision in the said case.
The EFCC alleged that the learned silk, Dr Joseph Nwobike SAN, bribed a judge, attempted to illegally influence the determination of which judge to preside over a matter he was handling before the court and made false statements to the EFCC. Consequently, the EfCC filed an 18 -count information (a court process) against the SAN. All 18 counts are made up of three types of offences, to wit:
1. Offering bribe to a public officer;
2 Perverting the course of justice: and
3. Making false statement to the EFCC.
The first two were under the Criminal Law of Lagos State and the last was under the EFCC (Establishment) Act.
The trial court acquitted the learned silk of the first and third offences but convicted him of the offence of perverting the course of justice under Section 97(3) of the Criminal Law of Lagos State (CLLS). This is where it gets interesting.
The trial court (High Court of Lagos State) made a legal conclusion that Section 97(3) of Criminal Law of Lagos State was not clear thus (as quoted by in the judgement of the Supreme Court):
"Contrary to the submission of learned SAN to the Defendant, these provisions are relevant and applicable to the acts of the Defendant. S. 97(3) of the Criminal Laws of Lagos State pursuant to which the Defendant stands charged DOES NOT DEFINE OR DESCRIBE THE MANNER Of PERVERSION ANTICIPATED UNDER THIS PROVISION….” (uppercase emphasis mine)
Notwithstanding the above, the trial judge convicted the SAN of the offence of perverting the course of justice.
The SAN agreed with the trial court that Section 97(3) of the CLLS is not clear enough, but disagreed with the trial court convicting him of a provision which the same court said was not clear. So, the SAN appealed that part of the judgement.
The EfCC could not cross-appeal the acquittal of the SAN of the other two offences and the legal conclusion of the trial court that Section 97(3) of CLLS is unclear. They tried, but they were out of time, and the reason (inadvertence of counsel) given in their application for extension of time to cross-appeal was held by the Court of Appeal not to be good enough because they did not particularise (clearly detail) it.
The questions the SAN submitted before the Court of Appeal were simply: whether perverting the course of justice is an economic and financial crime which the EFCC can prosecute; and whether the trial court was right in convicting him of an offence which the same court admitted is not clearly defined by law.
So, in essence, there was no appeal against the finding of the trial court that Section 97(3) of the CLLS is unclear. Since the EFCC did not cross-appeal against that finding, they are deemed to have admitted its correctness.
Nonetheless, the Court of Appeal went ahead to consider the correctness of that finding and affirmed it on other grounds such as reading it together with the RPC (Rules of Professional Conduct for Lawyers). Consequently, the Court of Appeal affirmed the decision of the trial court convicting the SAN of the offence of perverting the course of justice under Section 97(3) of the CLLS.
On further appeal to the Supreme Court, the Apex Court disentangled the issues and resolved the appeal as follows (summarising):
1. Perverting the course of justice does not fall within the meaning of "economic and financial crime" as defined by Section 46 of the EFCC (Establishment) Act. The Apex Court applied the ejusdem generis rule to limit the definition of such crimes, and in effect held that to not limit the meaning as it has done would make every crime in the statute book an "economic and financial crime".
2. By virtue of Sections 6(b), 7(1)(a) and (2)(f) and 13(2) of the EfCC (Establishment) Act, the EFCC can investigate and prosecute any crime under the Act or any other Nigerian law insofar as such a crime fits the definition of economic and financial crimes as provided for in the EfCC (Establishment) Act.
3. The question of whether S. 97(3) of the CLLS is unclear was never placed before the Court of Appea, and the appellate court had no business considering let alone determining it.
4. The Supreme Court, too, had no business considering whether section 97(3) of the CLLS is clear or constitutional, because there is no appeal against the finding of the trial court that the said section is unclear.
5. The finding of the trial court that Section 97(3) of the CLLS is unclear stands in the circumstances of this case.
6. The trial court, having resolved that Section 97(3) of the CLLS is not clear, had no justifiable basis to convict the SAN under the said unclear law. In other words, the trial court tried to put something on nothing and expected it to stay there.
7. The appeal was allowed. The Court of Appeal's decision affirming the conviction was set aside. The SAN's conviction by the trial court of the offence of perverting the course of justice was set aside, and the SAN was discharged of same.
So, basically, neither the Court of Appeal nor the Supreme Court affirmed that Section 97(3) of the CLLS is unconstitutional. The Supreme Court even emphatically stated that it was not going to consider that question, contrary to what has been reported even in good media sources that it did.
Going by the doctrine of stare decisis (the decision of a higher binding a lower court), the same trial judge can overrule herself in a later similar case, and another judge of the same High Court I'd Lagos State may choose not to follow that finding. Only the Magistrates' Court in Lagos is bound by that finding of the trial court. Therefore, the jury is still very much out on the constitutionality of Section 97(3) of the Criminal Law of Lagos State.
May Nigeria prevail over its adversities, including economic and financial crimes at all levels and in both private and public sectors.
Ishaq Obashola Apalando is an associate at Charles Anthony (Lawyers) LLP, Lagos.