By Stanley Ofoegbu

Introduction

It is often said that all works and no play, makes jack a dull boy. Even the Holy Scriptures in Ecclesiastes 3:1 states that to everything there is a season, and a time to every purpose under the heaven. Apostle Paul in 2nd Thessalonians 3:10 admonished the church saying, let him who will not work, not eat as well. This means that anyone who work, should be allowed to eat even with equanimity. Similarly, Ecclesiastes 9:10 states that ‘whatsoever thy hands findeth to do, do it with thy might for there is no work, nor device, nor knowledge, nor wisdom in the grave where thou goest’. A popular saying goes thus ‘you only live once ‘YOLO’ Nigeria is a blessed country with different personalities of different pedigree. On daily basis, people work hard to earn a living despite the poor performing attitude of the government. According to findings, only a little make ends meet from the wages and salaries paid to them by various state governments. While many are self-employed and entrepreneurs, others are into one form of business or the other. On daily basis, foreigners and foreign investors visit Nigeria for one form of business or the other. Like every well doing Nigerian, foreigner’s whether visiting for luxury or business are meant to pay tax. Taxes in Nigeria ranges from personal income tax, stamp duties, value added tax, company income tax among others. These taxes are collected for use by the states and federal government of Nigeria to enable it fulfills some of its constitutional obligation. While that is the case, the Nigerian constitution 2011 as amended provides an enabling environment for businesses to thrive. By chapter four of the constitution, every Nigerian is guaranteed the freedom to engage in any legal and legitimate form of business in other to earn a living. However, the provisions of this law among others are beginning to lose relevance and essence. The economic and financial crime commission (EFCC) including other law enforcement agencies, have become a monster and a thorn on human flesh. Nigerians including visitors are no longer free to go about their legitimate business again. Relaxation has become a time bomb. Security of lives and property are no longer guaranteed. Nigerians and foreigners are now scared to visit the hotel, bars and restaurant to cool off their head after a hectic day at work all because of the monstrous operating style of EFCC and others in the name of fighting financial crimes. How did we even get to this point? This paper examines some of the statutory duties of EFCC among others, operating styles, economic implications of such styles, legal implications and the way out.

According to the Merriam Web Master Dictionary of English, hotel is an establishment that provides lodging and usually meals, entertainment, and various personal services for the public.  People visit the hotels for different reasons. Some of the reasons are:

  1. As a way of escape from stress after hectic days in the office encountered during the week. People use the hotels to cool off their head and prepare for the next task ahead.
  2. Hotels are known to offer good services and that includes thorough cleanliness with everything especially with hotel rooms. It has housekeeping that keeps the hotel rooms clean at all times thereby saving the guest the stress of cleaning.
  3. Security and service are guaranteed. People go to spend time in the hotel because, the securities are usually guaranteed. The need to worry about burglars is displaced as the hotel will always ensure that they provide adequate security.
  4. Convenient locations. People visits the hotel due to the convenience of the location to their offices and work place thereby saving them the stress of moving or sitting for long hours in a vehicle before getting to their offices.
  5. Awesome amenities. Hotels are known for offering awesome amenities to their guest. Hot tubs, great toiletries, flat screen TV, reliable internet services, private washer, spacious bath room, hair dryer and many more.
  6. Variety of dining options. A lot of big chain hotels have in their menu, varieties of food to be taken. Guest need not bother going outside to get some food. A single phone call will save all the stress.[1]
  7. Summer holidays. Most persons find hotel the best place to spend summer holidays. By this, they are exposed to new environment and life style with less stress. Etc.

Question

Following the current trend of EFCC and others, can it be said that the essence of visits to hotel especially in commercial cities is still intact?

Establishment and functions of the EFCC and others

Section 1 of the Economic and Financial Crime Commission Act 2004 provides for the establishment of the commission. The section provides as follows; ‘there is established a body to be known as the Economic and Financial Crime Commission (in this Act referred to as the commission) which shall be constituted in accordance with and shall have such functions as are conferred on it by this Act.’ By section 2, the commission is a corporate body which can sue and be sued in its corporate name. The powers and functions of the commission are listed in section 6 of the establishment Act. The powers and functions includes but not limited to the investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, future markets fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam , etc. Other security agencies include but not limited to the state security service (SSS), the Nigerian Police, the Nigerian drug law enforcement agent (NDLEA) and host of others. Their powers and functions are all provided for by the enabling Act.

The year 2020 in the Nigerian history ought to be made a full time subject in the secondary and tertiary level of our Nigeria education system. The year is such that can never be forgotten. Many are still counting their loss both in death, finance and other aspect of life. The year was indeed a terrible one. But for a moment? What gave rise to the END SARS PROTEST? The police as a body is an establishment of the Act. Their duties are well spelt out in the establishment Act. Unfortunately, the police turned itself into a monster killing innocent Nigerians who are going about their lawful businesses. To curtail the death, nuisance and unfathomable economic loss encountered on daily basis from the escapades of the Nigerian police, the Nigerian youths in 2020 decide to launch a meeting against the police. This meeting occasioned a great loss in almost all sectors of the economy. While we count our loss, the economic and financial crime commission EFCC is beginning to turn itself into another monster tormenting hotels, restaurants and other relaxation centers.

The procedures now adopted by operatives of the commission has recently become brutish, callous, high handed, monstrous and grossly unconstitutional all in the name of fighting corruption. This is totally not the intendment of the Supreme law.

EFCC now attack and raid hotels, clubs, lounge, restaurant and bars in the name of searching for yahoo boys and girls. They carry out these operations in the wee hours of the night when all reasonable man should be sleeping. Destroying hotel properties and abusing the fundamental rights of innocent Nigerians and others in no immeasurable ways. No doubt, I am not in any way holding the brief of any person. However, as a true Nigerian, I must say the truth when I see one.

Just in July 2021, operatives of the commission as reported by the punch news[2] raided some hotels in Lagos state at the wee hours of the night. Analysis showed that the procedure adopted by the commission was not different from the way armed robbers attack people in their homes. According to the report, operatives of the commission gained entrance into rooms occupied by different guest by seizing the master cards from the management of the hotel at gun point. What a shame! According to the report, one of the victims while lamenting on the ungodly and unconstitutional way she was attacked, said she was naked as at the time the operatives broke into her room. She added that she was also a hypertensive. Others sources, added that operatives of the commission threatened to shoot the receptionist if the master cards of Parktonian hotel was not released to them. As if that was not enough, news had it again that the commission recently launched another attack at three different hotels in Abeokuta. According to premium times, the operatives destroyed properties belonging to the hotels and arresting 56 lodgers. There were massive destructions of hotel doors, plates and other furniture of the hotel all in the bid to get entrance into the hotel rooms by the operatives of the commission EFCC at dakdat hotel, Cecilia suites, Mitro hotels, Adesba night club and Royal Mandarin Club respectively. Guest and witnesses in the hotel described the operation as dastard and brutish in a commando style. According to them, many sustained various degree of injury while scampering for safety. They added that the electricity supply to the hotels was disconnected by operatives of the commission who broke into the rooms without a knock at the door. A lady complained bitterly while describing one of the officers who had an afro hair that her phone was seized and the said officer used the torchlight to check her private part before dipping in one of his fingers. Imagine the shame and abuse to human dignity!

No doubt, the commission as usual will always refute all allegations of crimes and misconduct even when the fact is speaking for itself. However, whether or not the allegations are true, depends largely on the continuous report and testimonies of the victims and suffice is to say that in any allegation, there exist element of truth no matter how minute and according our law, circumstantial evidence is one way of establishing crime.

Economic implications

  1. Reduction in tax. The hospitality industry contributes a large portion of the value added tax being collected by the federal government of Nigeria. In AG Lagos state v Eko Hotels, the bone of contention was whether the hotel was liable to pay tax to Lagos state government after paying to the federal Inland Revenue service and whether it did not amount to double taxation since the payment was for same services. The Supreme Court wasted no time in coming to the conclusion that it amounted to double taxation if the hotel should still pay tax to Lagos state government after paying to the federal Inland Revenue service. The case shows that the hospitality industries contribute to the economic growth of the country. It further reveals that if the profit or earnings of the industry reduces as a result of the incessant attacks from the EFCC, the tax to be paid will also be reduced and if for any reason, the industry is shut down, the economy will automatically lose some revenue from that sector.
  2. Loss of employment. The continuous attack on hotels, lounge, clubs and bars can create unemployment in the economy. Already, Nigeria rank among the highest states with high unemployment ratio. The hospitality industry no matter how it is looked at contributes to the reduction of unemployment in Nigeria. If workers in this industry are retrenched owing to low productivity as a result of incessant and ungodly means of operations of the EFCC, NDLEA among others, they will be plunged back to the society jobless. This will in turn affect the economy.
  3. Discourages foreign investment. A foreigner who intend coming to Nigeria will definitely lodge in a hotel if he has no place to stay. How will a foreigner feel if on getting into Nigeria, he is attacked in the middle of the night by men of the EFCC in the name of searching for fraudsters? How will he or she feel if accosted while being naked and possibly doing stuff with his partner? How will he feel if his door or window is broken and other properties belonging to him are carted away or destroyed by fierce looking men in the name of investigation? Who will want to invest in a country where one cannot sleep in peace? Who will want to work in a place where he cannot enjoy the fruits of his labour all because one overzealous set of persons who defy constitutional procedures are fighting corruption? Can a basket fetch water? No reasonable man will want to invest in such environment and especially, in the hospitality industry.

Legal implications

A lot of legal liability can flow from the alleged monstrous operations of the EFCC and others. Some of the legal implications that can flow from their acts are as follows:

  1. Trespass ab initio. This occur when a person is duly empowered or authorized by law to perform a particular act in a given place but unfortunately, he abuses such powers by engaging in an illegal acts in performance of his duties. Such persons can be sued for trespass ab initio to which damages can flow. See OMOTAYO V CSA,[3] AJIBADE V PEDRO,[4] FATIMEHIN V LAWANI.[5] Accordingly, where operatives of the economic and financial crime commission are allowed entrance into the hotels by the hotel management, they can be liable for the tort of trespass if they abuse the said permission to engage in unlawful acts such as destructions of properties, unlawful threats among others. Hotel managers in this regard should take note of this to save their business and customers.
  2. Trespass to land. Unlike the NDLEA Act that empowers the commission to break in and arrest using reasonable force any one found committing a crime under the Act, there is no provision in the EFCC establishment Act that empowers the commission to break into any building whether hotel, residential homes , club , bar or lounge to effect an arrest. It is immaterial whether the breaking is or was reasonable. The establishment Act provides for way and manner the commission should operate. There is no law anywhere that empowers the commission to attack and break into hotels in the wee hours of the night. In fact, section 6 (f) provides that the commission can adopt measures which includes co-ordinated prevented and regulatory actions. The word co-ordinated and preventive cannot in law mean attacking and breaking into hotels using gun to threaten the hotel managers or their staff. It cannot mean destructions of doors, plate and facilities in the hotel. This is why a man once said, Nigeria has the worst security personnel’s on earth. Accordingly, where operative breaks into any hotel in the name of arrest and or investigation without due authorization, they can be liable to be sued for trespass to land. See REGISTERED TRUSTEES OF PEOPLES CLUB OF NIGERIA V REGISTERED TRUSTEES OF ANSAR UD-UDEEN SOCIETY OF NIGERIA AND ORS,[6]OJOMO V IBRAHIM.[7]Accordingly, hotel managers and others should be wary of this fact and see how to secure the business environment from unwarranted, uncivilized and inordinate interference.
  3. Trespass to chattels. Unlawful and unjustifiable interference with the properties of another can ground an action for trespass to chattels. Accordingly the wanton destructions of hotel properties in the name of arrest can render operatives of the commission liable for trespass to chattels aside others. See SPDC V OKONEDO.[8]
  4. Assault and or battery. A guest in the hotel room or lounge who suffers from great fear or apprehension following the break into of his or her room can comfortable sue for assault or battery or both and claim damages see TAIWO V ADEMUWAGUN[9], ESI V CNPC/BGP INTERNATIONAL AND ANOR[10] Unfortunately, this is Nigeria where everything goes. No one is willing to go to court because of mere apprehension including those that are hypertensive. Indirectly, we are also part of the problem we face.
  5. Operatives of the EFCC can be liable for the tort of nuisance if their acts become consistent. In other words, where the commission form a habit of interfering with the business of hotel owners, bars and other similar bodies in the name of arrest and investigation, they make themselves liable for the tort of nuisance should the procedures adopted by them be adjudged to be unjustifiable and illegal.
  6. Fundamental rights action. Any guest in the hotel who feels maltreated by officers of the commission can actually sue for the enforcement of fundamental right of privacy among others. It is unimaginable how a human being will break into another man’s room, collect his phone and use the torch light to search the person’s private part and even dip his fingers into it. This is indeed the highest form of abuse. Such persons should not go unpunished otherwise, rape will soon become inevitable.

Conclusion and way out

While I call on the chairman of the EFCC to call his men to order and ensure that they are properly trained in line with laid down rules and regulations, hotel managers, clubs, bars and other relaxation centers should take up necessary legal actions against the commission to protect their business. The commission should understand that we are in a democratic setting. One who works should be allowed to eat, rest and sleep. Arrest and investigation can still be done without subjecting others to pain. The constitution protects privacy and dignity of all persons whether in their homes or hotels.  Guest in the hotel should sit up and enforce their rights for heaven will surely not fall. EFCC should stop destroying the image of the country with their style of operations in the name of fighting against corruption. No doubt, if multiple suits begin to flow in and out of the court following the activities of the commission that has become bizarre under the current administration, the commission must surely think twice. Hotel guest and others, who in one way or the other have suffered untold hardship from the despicable way and manner the operatives of the commission operate, should consult legal experts instead of crying blood on paper. Problems are not usually solved that way.

Stanley Maduabuchi Ofoegbu Esq.

08068515340, email; ofoegbustanley72@gmail.com

[1] https://travelatdestinations.com/9-exceptional-reasons-why-people-stay-in-hotels/ visited on 18th Sep, 2021 at 6:23 am.

[2] https://punchng.cm/efcc-breaks-into-lagos-hotel-arrest-30-over-fraud/amp.

[3] (2010) 16 NWLR (PT1218)P 1

[4] (1992)6 SCNJ (PT1)44 AT 57.

[5] (2014) LPELR 23476 (CA)

[6] (2019) LPELR-47523 (CA)

[7] (1999) 12 NWLR (PT 631)

[8]  (2007) LPELR -8198(CA)

[9] (2014) LPELR- 41110 (CA)

[10] (2014) LPELR 22807 (CA)

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