It is a truism, that leadership is often “the game…
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.
Festus Ogun, a human right activist and Law undergraduate, is the convener of Hi-Legal Initiative. Contact him via firstname.lastname@example.org