FEMI FANI-KAYODE AND EFCC’S PROSECUTORIAL POWERS
In this article, AKINTAYO BALOGUN reviews the prosecution of former Aviation Minister Femi Fani-Kayode on allegation of forgery of medical records and argues that the prosecutorial powers of the Economic and Financial Crimes Commission (EFCC) is not at large
On the 17th of December, 2021, the Economic and Financial Crimes Commission arraigned former Aviation Minister, Mr. Femi Fani-Kayode before Honourable Justice Abike-Fadipe following his alleged use of forged medical report(s), which had been earlier tendered before Honourable Justice Daniel Osiagor of the Federal High Court, sitting in Ikoyi, Lagos, where Mr. Fani is being prosecuted by the EFCC for an alleged N4.9 billion fraud. Mr. Fani-Kayode appeared before an Ikeja Special Offences Court on a 12-count charge which includes procuring the execution of documents by false pretenses, use of false documents, fabricating evidence, and use of fabricated evidence, which is contrary to Section 88(1), 365(3), 366 and 369 of the Criminal Law of Lagos State 2015. According to the EFCC, the former aviation minister, through one Ogieva Oziegbe, procured fake medical reports on various occasions to avoid attending his trial at the Lagos Division of the Federal High Court. It was alleged that the former minister had procured the false medical reports on January 31, 2018; May 30, 2019; November 24, 2020; March 23 and October 11, 2021. The Economic and Financial Crimes Commission has since commenced trial on the charges as brought before the court and has called witnesses to prove its case against the former minister.
However, a point of curiosity is as to whether the EFCC is the right organ of government to prosecute a charge that borders on the forgery of medical reports. EFCC probably has successfully done it in the past but the EFCC should understand that their prosecutory powers are not at large. The Supreme Court has made pronouncements on this issue and it is of importance and necessity that the institution abides by the decision of the Supreme Court to avoid an effort that would most likely end in futility if it progresses as it is. This write-up piece does not concern itself as to the propriety of the charge but as to whether the EFCC is the right organ of government to proceed with the prosecution of the charge.
In discussing this issue, heavy reliance is placed on the recent decision of the Supreme Court, delivered on Monday the 20th day of December 2021 in SC/CR/161/2020 between Dr. Joseph Nwobike SAN and the Federal Republic of Nigeria. This judgment in my view should have been a guide in the prosecution of any further charge by the EFCC. In that decision, the Appellant’s Counsel had submitted that the Counts 7, 8, 9, 10, 11, 13, 15, 16, and 17 contained in the charge, which bordered on an attempt to pervert the course of justice, relates to a non-financial crime, for which the EFCC has no power to investigate and prosecute. The Appellant’s Counsel also referred to Sections 6, 7, 14 – 18, and 46 of the EFCC Establishment Act which specifically enumerates the extent of powers of the EFCC. The Appellant contended that where a statutory body acts outside the law setting it up or conferring powers on it, such act, irrespective of the objective, will amount to a nullity, relying on the authorities of Knight Frank & Rutley (Nig.) Limited & Anor. V. A.G. Kano State  4 SC. 251 at 261 – 262 and Nyame V. FRN  7 NWLR (Pt. 1193) 344 at 403.
Furthermore, the Appellant’s Counsel argued while relying on Emmanuel Ahmed V. FRN  13 NWLR (Pt. 1159) 536 at 551 – 552, to emphasize the point that the Economic and Financial Crimes Commission can only investigate and prosecute offences relating to economic and financial crimes.
In agreeing in toto with the submission of Appellant’s Counsel, the Supreme Court held thus:
The result, in my view, therefore, is that the Appellant has discharged the burden of showing that the definition of “economic and financial crime” in section 46 of the EFCC (Establishment) Act admits of intention to apply the ejusdem generis rule, as only by so doing can we give effect to the meaning of “any form of corrupt malpractices” in the context of economic and financial crime. Accordingly, I am unable to accept, the submissions of learned Counsel for the Respondent that the offence of attempting to pervert the course of justice under section 97(3) of the Criminal Law of Lagos State No.11 of 2011 is an economic and financial crime, which the EFCC is empowered to investigate and prosecute. Consequently, Counts 7 – 11, 13, 15 – 17 of the Amended Information have no foundation, and since the aforesaid counts are the only ones upon which the Appellant was convicted and sentenced, it follows therefore that the case of the prosecution was not erected on any pedestal whatsoever, it did not come before the Court initiated by due process of law; the trial court therefore lacked jurisdiction and ought to have declined jurisdiction. The law is well settled that, where a Court of law deals with a matter without jurisdiction, so doing amounts to embarking on a worthless exercise because no matter how brilliantly well the case is conducted it will be a complete nullity. It is the law that an order of Court made without jurisdiction is a nullity. See: ODOFIN VS AGU (1992) NWLR (Pt.229) 350: NIDOCCO LTD. VS GBAJABIAMILA (2013) 14 NWLR (Pt.1374) 350; EKPENYONG VS NYONG (1972) 2 SC (REPRINT) 65 @ 73 – 74 Lines 40 – 45. In the circumstance therefore, this issue is resolved in favor of the Appellant against the Respondent.
It was on this holding that the conviction which had been earlier delivered by the trial court and upheld by the Appeal court was upturned in favour of the Appellant. Note that the Supreme Court didn’t find the Appellant guilty or not guilty of the act he was convicted of, but because the prosecution of the charge against the Appellant was done by the wrong institution, the entire process leading to the conviction of the Appellant was declared a nullity.
Now relating this position to the case currently being prosecuted by the EFCC against Mr. Fani Kayode. The questions begging for answers are; does the EFCC have the power to prosecute the forgery of medical reports? Does forgery of medical reports fall under financial crime? Definitely not in both cases. They are offences that do not relate directly to any economic and financial crimes no matter how you try to connect them to other facts.
With a judgment still fresh at hand like this, I am still wondering why the EFCC is still proceeding with the prosecution of Mr. Fani Kayode by themselves. The EFCC, most respectfully, are towing the same path and might collide with the same doom if they do not take the right steps at this nascent stage. The action might succeed all the way to the Supreme Court, but with the utmost respect, the Supreme Court of late seems to look for the slightest procedural flaw in an Appeal to nullify an entire proceeding. I still do not understand the principle that the era of technical justice has long gone. It appears to my mind that we are very much at the heart of these technicalities in the dispensation of justice. This instant charge may also fall victim to this procedural flaw and render the entire charge a nullity if the right thing is not done now and immediately. It is a jurisdictional issue that can be raised at any time even at the Supreme Court for the first time as was done in the case referred to above.
To save itself the trouble of trying to justify an encompassing Section 46 of the EFCC Act, like it did try to do in the case of Nwobike v FRN, the prosecution of the charge can be carried out by the right organ of government empowered to do such, but as long as a particular organ of prosecution believes it can veto its way through every criminal charge, we will continue to see ourselves losing justice on the altar of such avoidable and unfortunate technicalities. There is nothing conferring powers on the EFCC to prosecute an offence that relates to forgery of medical records, most especially as it does not directly constitute a financial crime. The alleged forgery was not done in an attempt to swindle or get financial gains. It was allegedly done by an accused person who was avoiding an appearance in court.
The EFCC should have just concentrated on their prosecution of the alleged N4.9 billion fraud and left out the prosecution of the charge to the office of the Attorney General or the Police or any other relevant agency. If it continues with this, in the nearest future, the commission will find itself dissipating energy on defending whether or not it has the powers to prosecute this charge against an accused person rather than dissipating energy into defending the substance of the charge and getting justice. It would merely be another case of justice sacrificed on the altar of procedural or technical flaw.
Akintayo Balogun is an Abuja based legal practitioner. firstname.lastname@example.org.
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