I have the privilege of reading the interview granted by Mr Olisa Agbakoba (SAN) on the 5^th day of January, 2023 in respect of the relevance of the EFCC in Nigeria. Before I proceed in my response to the view expressed by Mr Agbakoba (SAN), it is pertinent to state that the Economic and Financial Crimes Commission (EFCC) is a Nigerian law enforcement agency established to investigate and prosecute economic and financial crimes, such as advance fee fraud, money laundering and misapplication and misappropriation of public funds, etc. The EFCC was established in 2003, partially in response to pressure from the Financial Action Task Force on Money Laundering (FATF), which named Nigeria as one of 23 Countries non-co-operative in the international community’s effort to fight money laundering.

With due respect, Mr. Agbakoba (SAN)’s position is more of legal sophistry rather than legal substance. His position does not represent the correct position of the law as it runs contrary to the long-settled position of the law as handed down by the superior courts of law including the Apex Court in Nigeria. It is settled law that Nigeria operates a co-operative federalism as opposed to dualist federalism and under co-operative federalism as practiced in Nigeria, some agencies are common agencies for both the Federal and State Government.

Indeed, the EFCC is a common agency for both the Federal and State Economic and Financial Crimes, and as such, it qualifies as “any other authority” to institute criminal proceedings under section 174(1)(b) and section 211(1)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The Federal Government of Nigeria is not synonymous with the Federation of Nigeria, or the Federal Republic of Nigeria. The Federal Republic of Nigeria (or the Federation) is the repository of the sovereignty of the people of Nigeria, whereas the Federal or State Governments, in contradistinction, are donees of the powers and authority of the people. In other words, the Federation of Nigeria or the Federal Republic of Nigeria, is distinct and separate from the Federal Government of Nigeria which often, is a product of periodic elections. See SHEMA V. F.R.N (2018) 9 NWLR (PT. 1624) 337 @ 398, paras. A-C.

Again, these statutory provisions have been given judicial considerations by the Supreme Court and the Court of Appeal, in line with my position and contrary to Mr. Agbakoba’s views or submissions on this issue. A few will suffice. In the celebrated case of AMADI vs. F.R.N. (2008) 18 NWLR (PT. 1119) 259 @ 274-277, the Supreme Court per Mukhtar (JSC) (as she then was) held succinctly, thus:

“In reply, the learned counsel for the respondent has argued that Nigeria is a Federation (as stipulated in section 2 of the 1999 Constitution of the Federal Republic of Nigeria), consisting of Federal and State Governments, and each tier of government has its powers defined in the Constitution. He referred to section 174 of the said Constitution, cases of Queen vs. Owoh and Others (1962) NSCC 416: (1962)2 SCNLR 409 and Anyebe vs. State (supra). According to him, it is based on the authorization required in these cases that the respondent having been granted power of delegation, Exhibit ‘A’, is empowered to prosecute the appellant for forgery and uttering under Criminal Code Law of Lagos State.

No doubt that section 211 of the Constitution (supra) empowers a State Attorney-General to institute and undertake criminal proceedings in respect of an offence under any law of the House of Assembly. Subsection (2) of the said section stipulates thus:-

“(2)   The powers conferred-upon the Attorney-General of a State under subsection (1) of the section may be exercised by him in person or through officers of his department.”  

At this juncture, it is imperative that I reproduce a pertinent excerpt of the letter of authorization. It reads: –

“I therefore have his further instructions to inform you that in the spirit of our collective resolve to reverse the country’s negative image, he does formally delegate his prosecutorial powers in relation to offences under the Criminal Code Law and Criminal Procedure Law of Lagos State to both the Attorney-General of the Federation and the Economic and Financial Crime Commission effective from the date of this letter”.

First, it is the argument of learned counsel for the appellant that the delegation of the above letter offended the spirit of the provision of section 211 of the Constitution (supra), which confers power of delegation only on officers of the states Attorney-General, and as such the purported delegation to the Federal Attorney-General and the Economic and Financial Crimes Commission was invalid, null, and void. Learned counsel for the respondent has argued that the use of the word ‘may’ in the said section 211 (supra) does not restrict the delegation of the Attorney-General’s powers to only officers of his department, and that this court has in the past held that an Attorney-General’s powers under section 174 and 211 of the Constitution of the Federal Republic of Nigeria cannot be questioned even by the court. He relied on the cases of Nafiu Rabiu V. State (1980) NSCC 291 (1981) 2 NCLR 293, State v. hon (1983) NSCC, 69; (1989) E SCNLR 94, and Ibrahim and Anor v. State (1986) 1 NSCC 231; (1986) 1 NWLR (Pt. 18) 650.

 I endorse the argument of the learned counsel for the respondent and hold that Exhibit “A” is valid. As for the argument that exhibit A specified the delegates and that it did not empower Mr. Hassan, learned counsel for the Respondent has replied that the charges against the appellant at the lower court were not defective because the prosecutor of the Economic and Financial Crimes Commission on behalf of the Federal Republic of Nigeria qualifies as authority under section 211 (1)(b) of the 1999 Constitution. Learned counsel cited the case of Comptroller Nigeria Prison Service vs. Adekanye (2002) 15 NWLR (Pt. 790) page 318, and F.R.N. vs. Osahon (2006) 5 NWLR (Pt. 973) page 361, and further submitted that Nigeria operates co-operative federalism as opposed to dualist federalism, and under cooperative federalism as practiced in Nigeria, some agencies are common agency for both the Federal and State Government. Indeed, the EFCC is a common agency for both the Federal and State Economic and Financial Crimes, and as such it qualifies as any other authority to institute criminal proceedings under section 211(1)(b) of the 1999 Constitution. That being the case Mr. Hassan being a staff of the EFCC who signed the charge was competent to do so. Any staff of EFCC can exercise the power delegated to the EFCC in exhibit W. That is why I am in fact in agreement with the learned Justice of the Court of Appeal when in his judgment he stated the following:

“The position in criminal trial is different. In view of the high premium attached to speedy disposal of criminal cases, the Attorneys-General of the States delegate their powers to the various State Commissioners of Police who institute and prosecute criminal matter in the name of such commissioners of Police. Such powers are also delegated to the Federal Board of Internal Revenue, Nigeria Customs Service and lately EFCC by the Attorney-General of the Federation. This arrangement is made possible subject to the provisions of section 174 (1)(b)(c) and 211(1 )(b)(c) of the Constitution of the Federal Republic of Nigeria 1999 which provide that the Attorney-General of the Federation or State, as the case may be, shall have power to take over and continue any such criminal proceedings Instituted by any other authority or person, and to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person. (Italics mine).