“EFCC Is Not A Debt Recovery Agency”: Reviewing The Constitutional Limits Of The Investigatory Powers Of The EFCC In Civil Transactions Diamond Bank PLC V HRH Eze, Petrol Contnental Nig. Ltd, And EFCC (2018) LPELR-SC 375/2012 In PERSPECTIVE.

Ubaka Victor Onyemelukwe^[1] does a review of the Supreme Court decision in Diamond Bank PLC v HRH Eze, Petrol Contnental Nig. Ltd, and EFCC, arguing that the decision neither punctures nor decimates the competence of the EFCC to scrutnize all complaints including civil disputes, maters or transactons in order to detect determine and establish the existence of a prima facie or substantve violaton of criminal statutes enforceable by the Commission, and in the event, criminal infracton is established , trigger its investgaton powers to interrogate the integrity of the civil/contract arrangement.

Background

The 1st & 2nd Respondents as the applicants at the lower Court, were customers of the Appellant bank since 1994. The relatonship contnued untl 2003 when the 1st & 2nd Respondents suspected some discrepancies in the management of their account with the Appellant. They engaged a banking consultant to investgate their claims, and it was allegedly discovered that the Appellant had illegally over charged the 1st & 2nd Respondents, to a tune of N10,776,921.19K, refund of which they demanded. The 1st & 2nd Respondents though not convinced, mutually agreed with the Appellant that the mater be referred to the Chartered Insttute of Banker’ss Commitee on ethics and professionalism for arbitraton. While the mater was pending at the  arbitraton commitee, the Appellant reported the 1st Respondent to the Financial Malpractces Investgaton Unit (FMIU) of the Nigeria Police Force, CID Annex, Lagos State.

Consequently, Policemen from Lagos State arrived Port Harcourt; arrested and detained the 1st Respondent on 18th April, 2005. The 1st Respondent was not granted bail untl the Policemen made him pay N2,000,000.00K to the Appellant.

The police further directed the 1st Respondent to appear before them at Lagos on 10th May, 2005. In the mean tme, the 1st & 2nd Respondents approached the

Federal High Court, Port Harcourt in suit no. FHC/PH/CS/385/2005 between H.R.H EZE (DR) PETER OPARA & 1 OR VS DIAMOND BANK & 4 ORS for leave to apply for enforcement of their fundamental rights. With the fundamental rights applicaton, FMIU police investgaton, and Arbitraton proceedings at he Banking Ethics Commitee pending, the Appellant stll proceeded to petton the EFCC afer instgatng the arrest and detenton of the 1^st Respondent with the Police department. The EFCC proceeded to invite the 1^st Respondent for investgaton of the petton lodged by he Appellant.

At the hearing of the fundamental rights applicaton suit, the trial Court dismissed the applicaton and the reliefs therein to wit:

1. A declaraton that the invitaton of the 1st Applicant by the 2nd Respondent at the behest of the 1st Respondent is unlawful and a violaton of his fundamental right to liberty and dignity of his person and a contnuaton of the harassment of the Applicants by the 1st Respondent in view of a pending acton in this Court in suit no

FHC/PH/CS/385/2005 between the Applicants and Diamond Bank

Limited and 4 Ors.

1. A declaraton that the 2nd Respondent by the enabling Act establishing it, lacks the statutory Power to functon as a debt collector on behalf of the 1st Respondent or anybody for that mater in maters of commercial contract.

• An order of Court restraining the Respondents from disturbing orInterfering with the right to liberty of the 1st Applicant through further threat of invitaton ‘sarrest’s detenton, intmidaton and unnecessary interrogaton or in any other way or manner whatsoever.’s’s

Dissatsfied with the ruling of the Federal High Court, the 1st & 2nd Respondents appealed against that decision. The Court of Appeal in its judgment allowed the appeal and granted all the reliefs. It is against the decision of the Court of Appeal above, that the Appellant appealed to the Supreme Court. The Supreme Court in its judgment unreservedly reprimanded the Appellant bank and the EFCC:

“From the foregoing, it is my view that the partes having mutually agreed to refer the mater to the Chartered Insttute of Banker’ss – sub-commitee on ethics and professionalism, the Appellant should not have gone ahead to report the mater to Financial Malpractces Investgaton Unit, force C. I. D. annex, Lagos since the Banker’ss Commitee directed the partes to stay away from any further acton pending the determinaton of her investgaton, and this was clearly understood and agreed by both Partes. As if that was not enough, the Appellant again reported the mater to the Economic and Financial Crime Commission EFCC (3th Respondent). This amounted to an abuse of process. It is important for me to pause and say here that the powers conferred on the 3rd Respondent, i.e the EFCC to receive complaints and prevent and/or fght the commission of Financial Crimes in Nigeria pursuant to Secton 6(b) of the EFCC Act (supra) does not extend to the investgaton and/or resoluton of disputes arising or resultng from simple contracts or civil transactons in this case. The EFCC has an inherent duty to scrutnize all complaints that it receives carefully, no mater how carefully crafed by the complaining party, and be bold enough to counsel such complainants to seek appropriate/lawful means to resolve their disputes. Alas! The EFCC is not a debt recovery agency and should refrain from being used as such…..I say this now and again, our security agencies, partcularly the police, are not debt recovery agencies.

ENDORSING THE SUPREME COURT DECISION

The ratonale behind the Supreme Court decision is grounded first in common sense ever before it takes its root in law. The message was clear and without any room for conjectures: all security apparatus of government are outrightly forbidden by law from extending the applicaton and enforcement of their powers to the realm of civil transactons. In specific reference to the EFCC, the investgatory and prosecutorial powers donated to the Agency by the EFCC Act, cannot be competently appropriated to invoke the jurisdicton conferred on the Agency in respect of economic and financial crimes, on civil causes, maters, disputes arising from purely commercial transactons.

It is my humble but respectul view that there exist in law legitmate exceptons to the contrary. By virtue of secton 38 of the EFCC Act, the Commission is empowered to receive pettons from members of the public alleging economic or financial crime; and in line with the Supreme Court’ss chronological descripton of the procedure for initatng a response to the petton received, the EFCC is under obligaton to thoroughly determine and scrutnize the petton NOT to principally ensure that the mater rests in the realm of civil jurisdicton far from its reach, but to determine if the actvity complained of has in the eye of the law violated any criminal statute it is obligated to enforce. This, the author respectully submits, consttutes the benchmark for scrutnizaton of all pettons that come before it. This is so because, inevitably, pettons on simple contracts, civil disputes, and transactons under the guise of criminal complaints will find their way to the Commission; the very fact that they appear to be simple contracts or civil disputes so called, cannot at this point oust the jurisdicton of the EFCC untl the scrutnizaton process concludes that no provision of any criminal statutes enforceable  competently by the EFCC has been violated. That remains the blueprint for  detectng the existence of a substantal infracton of the criminal laws.

APPLYING AND RECONCILING THIS DISTINCTION WITH THE LAW

It is trite that civil contractual arrangements are an expression of the element of choice of partes to freely bind themselves on any specific mater. [Jukok Int’l Ltd v Diamond Bank PLC (2016) 16 NWLR Pt 1507 55 (CA), Kolawole v L.A.O Nig. Ltd(2016) 13 NWLR Pt 1529 274 CA]. Civil contracts are ordinarily created to execute and accomplish a predetermined objectve, and therefore, in the course of the operaton and executon of the contract, certain acts or omission may consttute breach of terms agreed. Whilst ordinary contractual breach will not justfy the applicaton and enforcement of coercive powers of the State, [Iheanacho v Nig Police Force (2017) 12 NWLR Pt 1580; Mclarence v Jennings (2003) 3 NWLR Pt 808 470; Afribank Nig plc v Onyima (2004) 2 NWLR Pt 858], certain other breaches would  either disclose prima facie or substantal criminal intent or criminal actvity as the motvaton for the breach thereof,  perpetuated within the penumbra of the civil transacton; yet other contracts may in their formaton , object or purpose, establish a potental violaton of existng criminal law provisions,  thereby, justfying criminal interrogaton of the contract arrangement. Below are circumstances that emphasize this distncton.

1. Ordinary Breach of contract or Non Criminal breach of contract: here, the Supreme court decision applies absolutely as there is no criminal intent that can be reasonably and prudently established.
2. Criminal Breach of Contract or Breach of Contract with criminal intent: here, the contract is ex-facie legal but the drafsman contemplates that certain prohibited criminal acts/ofences will be done in performance of a purely civil transacton, thus, ofences like criminal conversion, criminal breach of trust, criminal misappropriaton, Fraud, Obtaining by False Pretense can conveniently be perpetuated within the precincts of the civil contract. Here, respectully, the Supreme Court decision does not apply. (West Constructon Co Ltd v Santos Batalha [2006] 9 NWLR Pt 986 595; [2006] 4 S.C Pt 1 88; Pat-Acholonu JSC [2006] LPELR-SC.

168/2002, p.27 para A-F) ( John Shipping Corp v Joseph Rank Ltd [1956] 1 ALL ER 683

• Contract to execute or accomplish illegal actvity proscribed by statute (Illegal Contract/ Contract Ex- facie Illegal): here, any act criminally proscribed in the statutes can be a subject mater of a contract leaving the Supreme Court decision inapplicable. Thus, there is no stressing the obvious that a civil contract arrangement will be deemed illegal if its creaton or object, directly or indirectly, is the commission of a criminal ofense known to law. Under this category, contract to defraud the revenue: tax evasion (Miller v Karlinski 1945 63 TLR 85); commit a crime (Berg v Sadler&Moore 1937 2 KB 158; 1937 1 ALL ER 637) (Brown Jenkins Co ltd v Percy Dalton London ltd 1957 2 ALL ER 844). These type of contracts justfy criminal interrogaton on the basis that they violate criminal statutes and are transparently reprehensible judged by prudent standards, and therefore are undeserving and unworthy of the protecton and enforcement of law, but on the other hand, deserving of criminal inquisiton.

1. Frustraton of Contacts by the various lawfully recognized means: here, the contract is frustrated and incapable of being executed and therefore compromised, rendering it a breach of contract if partes dispute that the other has made a legitmate claim to invoke the principle due to unforeseen events . Here, the Supreme Court decision applies but with the excepton that the toga of illegality afectng the contract is manifested in an unforeseeable event that legitmately frustrates the executon of the contract.
2. Contractual breach that is both civil and criminal in nature: here, the Supreme Court decision will not apply to deter the Commission from setting its investgaton process in moton. However, this may be subject to a temporary Court Order commanding the maintenance of status quo which the EFCC is a party to or an order of court directng the commission to maintain status quo in respect of the mater pending a stated event.

From the above circumstances described as civil transactons, It cannot be the intendment of the Supreme Court that the scrutnizaton process of civil pettons so called is punctuated once they have been so determined to be civil arrangements. For that understanding will not only reveal its absurdity, it will disturb the long line of precedent decisions in favour of the principle that an enabling law deriving its legitmacy from the Consttuton cannot be construed to defeat the obvious ends of justce or the mischief for which the enabling legislaton was set in moton. (Ifezue v Mbadugha & anor [1984] LPELR–1437 SC). Assuming but not conceding the absurdity, the understanding will amount to the Supreme Court afrming the powers of the Commission and in another breadth decimatng the very powers it afrms as being already duly granted by law. It must be contended that the investgatory powers of the EFCC will as a mater of law extend to illegal civil contracts/transactons whose object, purpose, performance or executon violates existng criminal law provisions within the exclusive competence of the Commission.

The Author afrms that the apex court decision is a consttutonal reference point for the validaton of the statutory limits of the applicaton of coercive enforcement powers of the State exercised through the investgaton and prosecuton powers of the EFCC, (Iheanacho v Nig Police Force supra), but  in the same vein, argues that the decision does not and cannot decimate the competence of the EFCC to scrutnize complaints including civil maters, disputes, or transactons, in order to detect, determine and establish the existence of a prima facie or substantve violaton  of any criminal laws within her jurisdicton, and in the event any criminal infracton known to law is established, trigger her investgaton powers to interrogate the integrity of the contract arrangement accordingly. However, in the absence of any established criminal intent and actvity at the conclusion of the  scrutnizaton process of the civil transacton, the EFCC is under legal obligaton to counsel complainant to seek appropriate alternatve means outside the criminal justce system to resolve the dispute. In conclusion, by virtue of secton 17 of the Advanced Fee Fraud Act, and sectons 21, 22, 24, 25, 26, 28, 29, & 30 of the EFCC Act, the EFCC is permited by law to consttute itself into an ASSET RECOVERY AGENCY against all assets, monies, and propertes acquired in contraventon of extant criminal laws, and to recover and return same to their rightul owners or to the public purse.

Ubaka Victor Onyemelukwe is a Legal Practtoner in Abuja.

[1] Ubaka Victor Onyemelukwe is a Consttutonal Lawyer, Research Scholar, and a former Federal Prosecutor with the Economic and Financial Crimes Commission, EFCC, Head quarters, Abuja,  under the NYSC program 2017/2018 session. He is a 2016 Graduate from the prestgious University of Lagos ; an expert on Civil and Criminal Asset Forfeiture, and currently a commercial law Associate at DeepLaw Associates  Firm, Abuja.