Have you ever seen counsel from the department of the EFCC prosecuting matters at the magistrate courts? Have you ever seen where the commission is filing charges at the magistrate courts? Have you taken time to consider the possible reason behind their failure to file charges at magistrate courts? Do you think they are right to avoid magistrate courts for all matters involving financial crimes?
The Economic and financial crime commission (EFCC) is saddled with the primary responsibility of prosecuting all financial crimes in Nigeria. Section 6 of the Act provides in clear terms the powers and functions of the commission. Paragraph b of section 6 of the commission provides that the commission shall be responsible for the investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, future market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc.
A careful and holistic reading of section 6 of the Act, shows that the commission is saddled with wide powers as far as financial crime is involved irrespective of where the crime is or was committed. This wide powers of the commission has in some aspects, generated some heat and controversies as a result of the overlapping functions provided in the Act and other relevant codes of various states. One of such controversies is the issue as to whether the commission can validly prosecute offences under the penal code and other criminal code laws of various states. While Some legal expert were of the opinion that the commission only has the power to prosecute offences under the EFCC Act and any other Act where the National Assembly prescribe that the commission shall have the power to prosecute, some were of the view that the commission by virtue of section 6 of the Act can validly prosecute any offence that involves financial crime under the penal code. While both school of thought are good in their reasoning, the court has in some already decides cases held that the commission can validly prosecute offences under the penal code even without a fiat from the Attorney General of the state see the case of shema & 3 Ors v FRN (2018)1 SC (PT.1)1, Amah v FRN (2019)LPELR SC.567/2016 among others.
While it is now a settled principle that the commission can prosecute offences under the penal and criminal code of various states, the question is whether the commission can validly prosecute offences at the magistrate courts in Nigeria?
Section 19 of the EFCC Act 2004 being the establishment Act, provides that the federal high court, state high court and the high court of the federal capital territory possess the jurisdiction to try offenders under the Act. It is worthy to note that the above section 19 of the Act didn’t give the three courts stated therein exclusive jurisdiction to try offences under the Act but however, under the rules of interpretation, the express mentioning of a particular class of things, means that others not mention are excluded. This could actually justify the commission of not prosecuting cases at the magistrate court for offences under the EFCC Act 2004.
Question
Since the EFCC prosecutes offences under the establishment Act at the high courts or the federal high court simply because it is expressly provided for by an Act such as section 19 of the EFCC Act 2004, section 18 of the Money Laundering Act and section 14 of the Advance Fee Fraud and other Fraud Related Offences Act 2006, why still approach the high court even when the charges are brought under the penal code when the magistrate court can actually entertain same?
Section 19 of the EFCC Act provides that the commission shall have the power to prosecute its matter at either federal or state’s high court or that of the federal capital territory for offences under the Act without more. Section 18 of the Money laundering Act states that the federal high court shall have the exclusive jurisdiction to try offences under the Act. Section14 of the Advance fee fraud and other related offences Act, states that the high court of a state or of the federal capital territory or the federal high court shall have jurisdiction to try offences under the Act.
A careful reading of the above mentioned Acts, shows that there is no link anywhere to offences committed under the penal code or criminal code of various states. In that regard, one begins to wonder why EFCC will run to the high court to prosecute a simple financial crime under the penal code without recourse to the Magistrate courts.
Offences under the penal code are usually prosecuted at the magistrate courts of the state or high court depending on the gravity and financial worth of the offence.
Offences such as stealing, obtaining by false pretenses and fraudulent breach of trust that involves the misappropriation of money should ordinarily be filed at the magistrate court depending on the financial worth. Unfortunately, this is not the case. Findings and experience shows that all financial crimes no matter the amount find its way straight to the high court for trial. This is totally inappropriate.
No doubt,both the magistrate and the high court can entertain all sort of criminal matters under the penal code unless expressly provided against, minor criminal charges that involves misappropriation of funds should be filed at the magistrate court to at least lessen the work load of the high court being a court of unlimited jurisdiction and usually over burdened with cases. Judges of the high courts are also human beings who are subjected to the natural law of nature like every other person.
BRAINSTORMING: could it be that EFCC are not aware that they can actually prosecute matters at the magistrate court when the charge is framed under the penal code or could it be that they unilaterally prefer the high court as against the magistrate court? Are there special factors that propel them to the high court or are they doing that out of sheer ignorance and misinterpretation of the EFCC establishment Act 2004?
Recently, I was involved in a criminal matter at the FCT high court as a defense counsel. It was a charge under the penal code filed by the EFCC over the offence of cheating and obtaining by false pretenses. The defendant was accused of obtaining a sum less than #100.000 (one hundred thousand naira) from an alleged victim. Upon arraignment and plea, the court looked at the charge and the plea bargain agreement attached and asked the prosecution why the matter was not filed at the magistrate court instead considering the amount and even the content of the plea bargain agreement. The prosecution being the counsel to Efcc defended the charge by telling the court that according to the EFCC establishment Act 2004, they are bound to prosecute all their matters at the high court of federal high court. Including charges brought under the penal code? The court asked. At that moment, the other EFCC counsel made reference to the plea bargain agreement as one of the reason. The court laughed and so did i.
From the above case, it is obvious that the EFCC misconstrued the provisions of the establishment act as limiting its powers to high court and federal high court whenever it is prosecuting any offence. Only offences prosecuted under the EFCC Act, Money laundering and the Advance fee fraud Act can be prosecuted at the high court of a state or the federal high court. Once it is under a penal code, depending on the financial worth, a magistrate court should be approached instead of giving the high court unnecessary head ache. No law prohibits the EFCC from prosecuting matters at the magistrate courts. It is immaterial whether there is a plea bargain agreement or not. The magistrate court can take same and act accordingly.
In summary, it is advised that EFCC should stop stressing judges of high court with minor offences that should go to the magistrate courts. There is nothing special about the EFCC as a body not to appear before magistrate courts.
Stanley Maduabuchi Ofoegbu Esq, Whatsapp 08068515340, 08181689769 email; [email protected], Abuja.
