Stanley Maduabuchi Ofoegbu Esq
When an Act or a law creates or establishes a body, such Act or law also specifies its functions. The Act or law provides for the way and manner at which those functions are to be exercised and carried out. Where by an omission, the Act or law is silent on way and manner the body is to exercise its powers, regard may be made to other forms of subsidiary legislation that has similar or same objectives with the established body having in mind the major essence for the passage of the bill from the outset.
Where the Act or law specifies the powers, functions and or duties of the body including the manner at which the body is to carry out the said functions, the Constitution of the Federal Republic of Nigeria shall be the litmus paper for determining the validity and efficacy of such Act or law including all that the Act or law provides for Relying on the above background, the question with reference to the subject matter being looked at is;
What is the liability or liabilities of hotel managers under the Economic and Financial Crime Commission Act 2004 and the National Drug Law Enforcement Agency Act?
Put in another sense, to what extent are hoteliers liable to be prosecuted for offences under the EFCC and NDLEA ACT with respect to the management of hotels as business entity?
Recently, news had it that officers from the Economic and Financial Crime Commission (EFCC) and the National Drug Law Enforcement Agency (NDLEA) have developed and formed the habit of visiting hotels without prior information and as well, terrorizing not only the management of the hotels, but her customers who use their facilities for lodgment and other business activities.
While this move negates the ideal principle of democracy and the rule of law, it is gradually becoming a norm and if care is not taken, these established bodies will one day attempt effecting arrest in heaven without due process (God save their soul that day)
The NDLEA Act and the EFCC Act are both legislations enacted by the National Assembly of Nigeria. While the former is meant to enforce laws against the cultivation, processing, sale, trafficking and use of hard drugs and to empower the agency to investigate and prosecutes persons suspected of dealing in drugs and other related matters, the later deals with the responsibility of coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with economic and financial crimes in Nigeria.
While section 3 of the NDLEA Act provides for the overall functions of the agency, section 11 of the Act provides for what constitutes offences under the Act. Section 12 of the Act which is presumably the section mostly relied upon by the officers of the agency to terrorize hoteliers, provides as follows;
‘’Any person, who being the occupier or is concerned in the management of any premises, unlawfully permits or causes the premises to be used for the purpose of storing, concealing, processing or dealing in the drug popularly known as cocaine, LSD, heroine or any other similar drug shall be guilty of an offence under this Act and liable on conviction to be sentenced to imprisonment for a term not exceeding 25 years’’
A careful reading of the above section shows that a hotel manager has some duties to be performed under the Act and same which attracts sanction where there is failure to perform. But, can it be said that a hotel manager is liable under the Act simply because someone who used the hotel facility by way of lodging or similar act was arrested in the hotel facility or premise?
No doubt, this is the major reason hoteliers are recently being terrorized by men of the NDLEA unit. The truth is that, the mere fact that a person was found and arrested from a hotel room or anywhere within the premises of the hotel does not in any way make the hotel manager or members of her staff liable under section 12 of the Act or any other provision in the Act. For a hotel manager or worker in the hotel to be held accountable under the above section, any of the following must be established to have existed
1.It must be shown that the hotel manager knows from the outset that the customer(user/lodger) deals on drugs or that other facts exist such that a reasonable and prudent man ought to know that the lodger deals on cocaine or prohibited drugs.
2.It must be shown that the hotel manager or her staff conspired with the arrested party to commit the offence either for personal or economic gain.
3.It must be shown that the hotel manager or her staff actually possess the knowledge of a crime being committed but failed or neglect to report to the appropriate bodies irrespective of his or her motive.
However, despite the clear letters of the law, it is necessary that hoteliers take some steps in the conduct of their business to avoid unnecessary invitation and harassment by the men of the NDLEA. Some of the necessary steps includes;
1.Retaining the services of a legal practitioner who is vast with the knowledge and workings of the law on contract or retainership basis who will always respond to legal matters arising among others. This is very indispensable as the works of the lawyer in such entity is eminently unavoidable.
2.Have a checklist of acts that are prohibited within the premises including the hotel rooms. The checklist should be drafted inform of an agreement to be signed by the lodger or inserted in the document where the full identity of the lodger is to be written so that as the lodger append his signature, it will be presumed that he had read and understand the content before signing. This will go a long way in proving the innocence of entire management of the hotel in the absence of other incriminating factors.
3.The hotel management can decide to produce all rules regulating the use of her premises in a handbook to be kept in a conspicuous side of the room and inform all users of the premises about the existence of such rules before letting them part with their money as their own side of the consideration. On this, a duty would have been created on the receptionist to inquire if the customer lodger or user is literate to read otherwise, the duty falls on the receptionist or anyone designated with such duties to read and interpret same to the customer.
- It may also be a good practice to write in a conspicuous space of the wall or fence of the hotel that the use of illicit drugs are not allowed in the premise. But then, not all persons have the time to start reading inscriptions on the wall and even if such persons have the time, there is every tendency that payment would have been made and some time already spent using the facility. Hence, this may not necessarily move to prove innocence when the rewarder will strike.
The above, are not necessarily the provisions of any enactment however, they will go a long way in protecting the image and business of hotel owners if practiced. The above is tied to the fact that though a hotelier has no power to search the bags and pockets of her customers, the law still impose a duty on the hotel management not to permit their facility to be used as a haven for perpetration of crimes by criminals. The above also applies to all persons involved in the business of hospitality (hospitality industries) Accordingly, men of the NDLEA should desist from harassing and intimidating hotel owners simply because their customers were caught violating the provisions of the Act. It is not the duty of hotel owners to enforce the provisions of the Act. The duty bestowed on them as hospitality providers, is same that is bestowed on every other Nigerian to wit;
- Duty to avoid committing crime
- Duty to take reasonable steps not to aid or abet crime
- Duty to report suspicious acts to the necessary agencies among others.
Since it is not the intention of the law to arrest or harass hoteliers unnecessarily, what then is the position of the law with regards to one who lodges in a hotel with cocaine and or other illicit drugs without the knowledge of the hotel management?
Section 41 of the Act empowers any police, custom officer or officers of the agency to enter into any premise or building to conduct search including seizure of all prohibited items found therein without any form of warrant being issued.
Question
Will the above provision not amount to a violation of the right to personal privacy as provided for in the constitution? The answer is simple. No law will be adjudged contrary to the Constitution when it is reasonably enacted in accordance with democratic principles meant to save guard lives and property. The Constitution, provides exceptions to the application of fundamental rights. This means that members or officers of the NDLEA need no special request from any one neither need to inform the hotel managers of their visits to their facilities before carrying out any form of search or arrest as provided for in the Act.
Question
What happens if in the process of search and arrest, the properties of the hotel are destroyed?
The law is firmly settled that a man who is performing his statutory duties cannot be liable for acts that occur during such exercise provided he was reasonable in carrying out his duties. An officer effecting a search or an arrest under section 41 of the Act will be liable in damages in a civil suit if he fails to use reasonable force in carrying out his duties that resulted in the damage of the properties of the hotel. The hotel management can institute an action for trespass ab initio besides other cause of action in tort. The damage will even be aggravated if after the search that resulted in damage of the properties of a hotel, nothing incriminating was found and circumstances are such that a reasonable and prudent man ought not to have embarked on such futility called search. A good lawyer knows what to do.
Can section 41 of the Act that empowers any officer to search and arrest without warrant also be applicable to officers and men of the EFCC?
Section 6 of the Economic and Financial Crime Commission Act 2004 provides for the function of the commission. No section in the Act empowers the EFCC to break into any hotel or facility in the name of searching or arresting someone who is lodged in a hotel without warrant. While the duties of the hotel managers include but not limited to reporting cases of suspected financial crimes to the EFCC, the duty of the commission (EFCC) is to investigate and effect arrest where necessary after a reasonable disclosure that an offence has been committed. It duties does not include going to a hotel at wee hours like thieves and armed robbers all in the name of fishing for evidence. That alone is a gross abuse of the powers donated to it by the Act. Such exercise, is dastardly reprehensible in a democratic setting like ours. It is totally against the tenets of the Constitution of Nigeria to attack someone who is sleeping or catching his fun in the night all in the name of fishing for evidence. This is absurd and present the officers of the commission as gross and highly incompetent. This nonsense, should be checked otherwise even the ‘Oga at the top’ will one day be making love with his wife in the mid night and boom, EFCC will land in the name of looking for yahoo boys and girls.
No doubt, the affected hotels including the affected persons or any person who will be affected from such dastard act, has a good cause of action, we should all rise up against impunity and save Nigeria from collapsing and exploding for she is already sitting on a gun powder.
In all, we should endeavor at all-time to seek for the services of a sound legal practitioners as a way of curtailing the unfortunate excesses of some of the security agencies in Nigeria. The security agents should as well seek legal opinion from sound legal practitioners from time to time on proper and permissible legal ways of discharging their statutory duties. Zealousness without the rule of law is stupidity married with ignorance.
Stanley Maduabuchi Ofoegbu Esq, 08068515340, [email protected]
Abuja.
