Paper Presentation on "Criminal Legislations and the Prosecution of Corruption Cases in Nigeria: Prospects and Pitfalls"

GCIOBA-Lagos Branch Annual Public Lecture on Law by Olanrewaju Onadeko

By Olanrewaju Onadeko (Grier, 1966) (SAN), Director-General, Nigerian Law School, Bwari – Abuja; delivered at the 2016 Annual Luncheon of GCIOBA-Lagos Branch.

Corruption is a global phenomenon, but it is generally believed that corruption is pervasive in some countries including Nigeria. It is so pervasive that: “In the case of Nigeria corruption, though older than the Nigerian State, has been promoted to state craft. Of one thing Nigerians are unanimously agreed: Corruption is endemic in these shores.” Various scholars have attempted to identify the causes of corruption in Nigeria. Yusuf O. Ali, S.A.N stated thus:

The elites who took over the mantle of “rulership” after the departure of the colonial overlords, conceived themselves not only as inheritors of the Whiteman’s arbitrary powers, but also of his relation to the state and the people. They therefore, regarded the state as their personal estate to which they can dip hands at will to satisfy their whims and desires. Hence the unbridled corruption rampant amongst public office-holders in Nigeria…

The endemic nature of corruption in our country is paradoxical, because extant legislations at the Federal and State levels, criminalize corruption and other economic crimes. Various institutions also exist for the detection, investigation, and prosecution of corruption cases. The main criminal legislations in Nigeria are the Penal Code, the Criminal Code, the Corrupt Practice and other Related Offences Act, 2000, and the Economic and Financial Crimes Commission (Establishment) Act, 2002. The main agency saddled with responsibility for the prevention, detection, and apprehension of offenders before the enactment of the ICPC and EFCC Acts was the Nigerian Police Force.

The apparent inability of the NPF to ensure significant enforcement of the provisions of the Penal Code and the Criminal Code on corruption, spurred the Federal Government to enact the Corrupt Practice and other Related Offences Act 2000 and The Act created the Independent Corrupt Practices Commission (the “ICPC”), whilst the EFCC Act created the Economic and Financial Crimes Commission (the “EFCC”).

This paper highlights criminal legislations on corruption in Nigeria and the roles of the ICPC, EFCC, and other prosecutorial agencies in the prosecution of corruption cases. Despite noticeable pitfalls and setbacks in the prosecution of corruption cases in Nigeria, the paper concludes that with improvements in the capacity of prosecutors, the prognosis for enhanced conviction rate is good if mechanisms are established to curb dilatory tactic of defence counsel, dissuade courts from entertaining and granting injunctions and orders that undermine the statutory functions of anti-corruption agencies.


There are numerous legislations in Nigeria that contain provisions on corruption all of which cannot be referred to within the time and space allowed by this presentation. Emphasis will therefore be placed on the Penal Code, Criminal Code, and the ICPC and EFCC Acts. The Penal Code and the Criminal Code were the main legislations that criminalized different forms of corruption before the ICPC Act and EFCC Act were enacted. It must be noted however, that other enactments and governmental measures were introduced at the Federal and State levels to combat corruption. At the Federal level, the first distinct initiatives to combat corruption were introduced during the period of military rule.

The military administration of General Murtala Mohammed promulgated the Corrupt Practices Decree and established the Public Complaints Commission in 1975. The Corrupt Practices Decree of 1975 was repealed in 1979 and replaced by the Code of Conduct for Public Officers now placed in the 1979 Constitution. A Code of Conduct Bureau was also established in the same year. Perhaps realizing that legal measures alone cannot eradicate corruption, the civilian administration of President Shehu Shagari introduced an Ethical Revolution in 1981. The military administration of General Ibrahim Babangida introduced the Mass Mobilization for Social Justice and Economic Recovery (MAMSER), in 1985 whilst the military government of General Sani Abacha couched the programme it introduced in 1994 to sensitize the public against corruption and other economic crimes as War Against Indiscipline and Corruption (WAIC).

The military administrations also promulgated decrees to recover assets that had been illicitly acquired by public office holders. The Public Officers (Investigation of Assets, Decree) , for instance, empowered the Head of the National Military Government, in appropriate cases, to order forfeiture of illicit assets to the State. Also, under the Investigation of Assets (Public Officers and Other Persons) Decree , Special Assets Investigation Panels were constituted to probe the assets of public officers in the various States of the Federation. Some of the Decrees, for example, the Recovery of Public Property (Special Military Tribunals) (Amendment) Decree had retroactive effect and sections 6(3), 11 and 12(b) of that Decree also provided for mandatory minimum term of imprisonment, prohibited appeals from decisions of the Special Military Tribunal, and placed the onus of proof upon a person charged to disprove corrupt enrichment.

Military Decrees have sometimes been condemned for the draconian punishments that they prescribed. However, the presumption of illicit enrichment where a public officer owns, or is in possession of assets or property above his legitimate and known sources of income, is a measure which may significantly assist in the eradication of corruption. The presumption would be rebuttable at the instance of the defendant. It is note-worthy that several countries in the world have introduced proceeds of crime legislations with provisions similar to the above-mentioned military Decrees.

I will note, here, that this concept of presumption of illicit wealth had intense criticism in some quarters, notably among Lawyers who had been well ingrained with the age old legal precept of presumption of innocence.

The Code of Conduct for Public Officers was retained in the 1979 Constitution and is an integral part of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Of note is the on-going prosecution of the Senate President, Dr. Bukola Saraki at the Code of Conduct Tribunal, a trial that has brought to the fore the purpose and import of the Code of Conduct for public officers; and the relevance of Code of Conduct as a vehicle to minimize corruption in public service.

The Penal Code, Criminal Code, and the Code of Conduct for public officers did not achieve reduction of corruption to any significant degree and that partially justified the enactment of the Corrupt Practices and Other Related Offences Act, 2000 and the Economic and Financial Crimes Act in 2002. A pitfall in the provisions of the ICPC Act is the definition of “corruption.” Section 2(3) of the Act simply defines corruption to include bribery, fraud and other related offences. Sections 8, 9 and 10 of the Corrupt Practices and Other Related Offences Act, 2003 have maintained a quid pro quo posture for the definition of offences relating to gratification and corrupt offers or demand by persons, through the usage of the phrase “on account of” to describe the exchange relationship that clogs the exercise of discretion by the public official concerned.

These sections generally relate to bribery. The most significant challenge with making liability for bribery to be dependent upon quid pro quo, is that it makes proof of bribery a herculean task. There may be need to expand the definition of corruption to cover situations that involve breach of fiduciary duties, breach of trust and lack of transparency for direct or indirect benefit or advantage. There should be a presumption that the receipt of any valuable consideration outside the legitimate earnings of a public or private functionary, who occupies a fiduciary position, or whose duties carry an expectation of trust and transparency, amounts to corruption.

The sketchy review represents the position of legislations on corruption in Nigeria before year 2000 when the Corrupt Practices and other Related Offences Act, 2000 was enacted. The Economic and Financial Crimes Commission (Establishment) Act was enacted in 2002. Other relevant Federal enactments include: the Fiscal Responsibility Act, 2007; Public Procurement Act, 2001; Nigerian Extractive Industries Transparency Initiative (NEITI), 2007; the Advance Fee Fraud and other Fraud Related Offences Act, 2006; the Freedom of Information Act 2010. The FOI Act is not a penal legislation, but it has the potential to affect investigation of economic crimes. So far, these legislations have not had profound impact on the eradication of corruption in Nigeria. The fault is not in the legislations themselves, but in the capacity and capability of the criminal justice system to optimally guarantee certainty of detection, prosecution, conviction and ensure that offenders receive their just sanctions after conviction.

Several agencies are constitutionally responsible for the prosecution of crimes in Nigeria. These include the office of the Attorney-General (of the Federation or State), the Nigerian Police Force, the ICPC and the EFCC. Section 4 of the Police Act provides that:
The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged and shall performs such military duties within or without Nigeria as may be required by them, or under the authority of, this or any other Act.

Wide latitude and discretion is granted to the police to execute this statutory mandate. The power of the Police to investigate crimes is not curbed by the immunity clause in section 308 of the Constitution. Uwaifo JSC rationalized this principle with a few illustrations in Gani Fawehinmi v. IGP & Anor thus:

That a Person protected under section 308 of the 1999 constitution, going by its provisions, can be investigated by the Police for an alleged crime or offence is, in my view, beyond dispute. To hold otherwise is to create a monstrous situation whose manifestation may not be fully appreciated until illustrated. I shall give three possible instances.

Suppose it is alleged that a Governor, in the course of driving his personal car, recklessly ran over a man, killing him; he sends the car to a workshop for the repairs of the dented or damaged part or parts. Or that he used a pistol to shoot a man dead and threw the gun into a nearby bush. Or that he stole public money and kept it in a particular bank or used it to acquire property. Now, if the police became aware, could it be suggested in an open and democratic society like ours that they would be, precluded by section 308 from investigating to know the identity of the man killed, the cause of death from autopsy report, the owner of the car taken to the workshop and if there is any evidence from the inspection of the car that it hit an object recently, more particularly a human being; Or to take steps to recover the gun and test for ballistic evidence; and generally to take statements from eye-witnesses of either incident of killing. Or to find out (if possible) about the money lodged in the bank or for acquiring property, and to get particulars of the account and the source of the money; or of the property acquired? The police clearly have a duty under section 4 of the Police Act to do all they can to investigate and. preserve whatever evidence is available. The evidence or some aspect of it may be the type which might be lost forever if not preserved while it is available, and in the particular instances given it can be seen that the offences are very serious ones which the society would be unlikely to overlook if it had its way.

It is regrettable that despite the judicial affirmation of the powers of the police to investigate all crimes and all persons, including corruption, the Nigerian Police Force has not visibly risen to the occasion to significantly contribute its share in the fight against corruption. The public extortion of motorists at various police check points in the country, in the full light of day does not help matters. The conviction of serving policemen for armed robbery does not do the image of the Force any good. The case of Tafa Balogun is a testimony to how far corruption has embedded itself in the force. Rather than focus on their constitutional role, some errant police officers have instead resorted to deployment of police resources to enforcement of contract or other civil transactions.

The NPF should embrace modern criminal detection and investigation techniques and procedures. Proficiency in the use of modern techniques, skills and gadgets, knowledge of accounting, the computer and information and communication technologies are indispensable in modern policing.

Apart from prevention and investigation of crimes, section 23 of the Police Act also empowers the NPF to prosecute crimes. This was affirmed by the Supreme Court of Nigeria in George Osahon and Others v. FRN to the effect that the police can prosecute up to the highest court of the land. Contrary to the views of some legal scholars and commentators, the Administration of Criminal Justice Act, 2015 has not abrogated lay police prosecution in Nigeria, at least not in Magistrate Courts. However, the obvious limitations of lay police prosecutors suggests that the move towards eventual abolition of lay police prosecution in Nigeria is justified.

Sections 6 and 7 of the EFCC Act, 2004 stipulates the powers and function of the Commission. The functions of the Commission include the enforcement of the Act and the adoption of measures to eradicate economic and financial crimes; the investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charges transfers, all types of fraud, etc. The special powers of the Commission includes investigation of persons, corporate or otherwise, in relation to economic and financial crimes, particularly offences under the provisions of the Money Laundering Act, the Advance Fee Fraud Act, Failed Banks (Recovery of Debts and Financial Malpractices in Banks) Act, The Banks and Other Financial Institutions Act, Miscellaneous Offences Act, and any other law or regulation relating to economic and financial crimes, including the Criminal Code and Penal Code. The EFCC also prosecutes economic and financial crimes cases in various courts in Nigeria.

The EFCC is specifically empowered by sections 6(m), 7(2) and 13(2) of the EFCC Act to prosecute economic and financial crimes in Nigeria. The prosecutorial powers of the EFCC are unique. Apart from the statutes specifically mentioned in the EFCC Act that the Commission is enjoined to enforce, all economic crimes in the Criminal Code and Penal Code are deemed to have been incorporated into the EFCC Act. Some politically exposed persons have, in a bid to delay their trials, challenged the clear statutory powers of prosecution of the EFCC .They seek legal counsel to clutch at weak straw, to challenge to the prosecutorial powers of the EFCC. In Joshua Chibi Dariye v. FRN , for instance, amongst the complaints of the appellant was that the EFCC, a Federal Government agency, had no powers to prosecute him because the money he stole belonged not to the Federal Government but to the people of Plateau State! The Supreme Court held, per Ngwuta JSC that: “The owner of the subject matter of the charges is immaterial.”

The cases cited in support of the Commission’s prosecutorial powers are themselves testimony to the fact that the Commission has had its fair share of successes in preliminary skirmishes with offenders. Only recently, the current Chairman of EFCC, Mr. Ibrahim Magu reported that the Commission secured 140 convictions in the past six months alone and recovered several billion dollars. It is also worthy of note that the Commission successfully prosecuted Mr. Tafa Balogun, a former Inspector General of Police and Mrs Cecilia Ibru, the former CEO of now defunct Oceanic Bank PLC. Both regurgitated money and other assets running into billions of naira.

The account of the prosecutorial activities of the EFCC will be incomplete without some comments in the adoption of the concept of plea bargaining by the Commission to resolve cases. In both Patrick Eboiegbodin v. FRN and Igbinedion v Federal Republic of Nigeria the Court of Appeal asserted that “plea bargain is alien to Criminal Justice Administration in Nigeria but was imported into our criminal justice system by the implication of section 14(2) of the Economic and Financial Crimes Commission Act.”

Examples of recent cases in Nigeria determined through plea bargaining that lend credence to public perception of differential treatment of the rich and politically exposed persons include FRN v Tafa Adebayo Balogun & 8 Ors (which involved the former Inspector General of Police, who was convicted); COP v Salisu Buhari (a former Speaker of the House of Representatives); FRN v Bulama (former CEO of a leading bank in Nigeria); and FRN v Lucky N. Igbinedion (former Governor of Edo State, Nigeria). The general perception of the average Nigerian is that the punishment in these cases did not fit the crime because the punishments were unduly lenient. In FRN v Tafa Adebayo Balogun & 8 Ors for instance, the accused persons were originally charged with 70 counts of offences related to corruption, but agreed to forfeit assets and properties valued over N17 Billion.

Tafa Balogun, the principal accused person, was sentenced to 6 months imprisonment and N500, 000.00 on each of the 8 counts that he pleaded guilty to. The terms of imprisonment were to run concurrently. The fact that he was the head of the Nigerian Police Force at the time of the offences and betrayed the public trust was not considered in fixing his sentence. Mrs Cecelia Ibru, the former CEO of one of our leading banks then, similarly helped herself with depositors’ funds. She forfeited assets valued N191 billion naira to the Federal Government of Nigeria. She served her “prison” term at the up-market Reddington Hospital in Victoria Island, here in Lagos. Her “prison” was tailor made by the sentencing Judge. Nigerian law stricto sensu does not permit incarceration at any place other than a prison.

Another case in point is Federal Republic of Nigeria v Lucky Nosakhare Igbinedion and Ors where the more substantial charges against the first accused person were dropped pursuant to a plea bargain. The lone count undermined the substance of the alleged misappropriation of money belonging to Edo State. In sentencing the first accused, the court gave an option of fine. Critics have made the point that the plea agreement was beclouded by the fact that the first accused was the former Governor of Edo State, Nigeria.

The Administration of Criminal Justice (Repeal and Re-enactment) Law, 2011 of Lagos State was the first to explicitly codify plea bargaining in Nigeria. Section 71 of the Law affirms the powers of the Attorney General of the State to discontinue criminal cases, while section 75 states that the Attorney-General may consider and accept a plea bargain from a person charged with any offence. Section 270 of the Administration of Criminal Justice Act, 2015 has formally introduced plea bargaining in federal criminal causes and matters in Nigeria.

But quite apart from internal weakness in the EFCC and the unsavoury termination of cases through plea bargaining, the EFCC has solid grounds to complain about the conduct of some judicial officers in the handling of economic and financial crimes cases. A case in point is EFCC v. Akingbola . Preliminary objections and application for amendment of the charge were filed by the defence and the prosecution respectively. The chairperson of the EFCC wrote a petition to the Chief Judge of the Federal High Court against Hon. Justice Archibong, the presiding judge in the matter. The petition alleged “undue interests and manifest bias in favour of the bank Chief…” by the judge. The Commission followed the petition with an application dated September 27, 2011, praying the judge to disqualify or excuse himself from further hearing of the matter and remit the case file to the Chief Judge of the Federal High Court. The judge dismissed the application for disqualification on January 31, 2012. The appellant lodged an appeal against the ruling and filed an application for stay of proceedings, pending the appeal. The record of the court for April 2, 2012 stated, inter alia, as follows:

“Court: Ruling read in open court.
Obla: Before we take the motion for stay of proceedings, we wish to have Your Lordship’s indulgence to avail us the records of Your Lordship to enable us complete our compilation of record in respect of the appeal the prosecution has filed on 7 February 2012, against the ruling of Your Lordship of January 3, 2012.
Court: So you insist on that appeal.
Obla: Yes, those are my instructions. I am No. 5 in the hierarchy.
Court: You will give me two minutes
Court Rises: Judge goes into chambers.
Court Returns: Judge re-enters court.
Court: I direct the Attorney-General of the Federation to disband, sack, debrief the present firms for being incompetent in thier prosecution of the charges against this accused before this court…The prosecution has chosen to persist in a campaign to scandalize the court rather than mount a serious and professionally competent prosecution of the accused. This prosecution team or any part of it shall not be given further audience in this court in relation to the charges against this accused either before this presiding judge or any other judge of the Federal High Court…I therefore dismiss the charges amended or otherwise brought by this incompetent and abusive prosecution team. I discharge the accused accordingly; and leave the Attorney-General of the Federation, to consider his options…”

Dissatisfied with the decision, the appellant appealed to the Court of Appeal. The Court of Appeal reversed the decision of the trial court for, amongst other reasons, that the conduct of the judge was an affront to the Socratic model of a good judge. The propriety of EFCC’s opposition to the judge was later affirmed by the ignominious exit of Justice Archibong from the bench.

The National Judicial Council took the position that the judge did not demonstrate sound knowledge of the law and procedure of his court.
Some judges and members of the legal profession are also seemingly part of the problem rather solution to the work of the EFCC. The Supreme Court of Nigeria had cause to comment on delay tactics by counsel in Dariye v. FRN.

It must be noted however that the responsibility for failure of the prosecution and inability of the EFCC to secure conviction, even where there is evidence of culpability is, in some cases not the fault of courts but of the EFCC and its prosecutors. A case in point is the prosecution of Dimeji Saburi Bankole and Usman Bayero Nafada, former Speaker and Deputy Speaker, of the House of Representatives respectively. In FRN v. Bankole & Anor the accused persons were arraigned on 17 counts charge before the Federal Capital Territory High Court, presided over by Hon. Justice S.B. Belgore. The prosecution called twelve witnesses and tendered forty-one exhibits. The court drew attention to the investigation and prosecution of the case. It noted that:

“the prosecution and indeed the operatives or investigators at EFCC failed to appreciate or distinguish between a wrong that is civil in nature or merely immoral and a wrong that is criminal.”

The ICPC is also statutorily empowered to prosecute corruption cases. Like the EFCC, the ICPC has had some successes and failures in the investigation and prosecution of offenders. The low success rate of the ICPC is attributable to several factors, amongst which are lack of institutional capacity, seeming lack of independence and political interference, injunctive and other orders that hamstring the Commission from performing its statutory functions, flaws in criminal procedure legislations and delay tactics by legal practitioners.

The prosecution of many high profile individuals by the ICPC has failed on account of a combination of factors. In Milton Paul Ohwovoriole (SAN) v. FRN & Ors the prosecution of the appellant who was alleged to have given gratification of N3.5 million to the 1st Accused, a public officer, failed because the application for leave to prefer the charge against the accused persons did not contain the statement of one Chief Adefulu, which linked the appellant to the offence, even though it was available to the prosecution. The perceived incompetence or collusion of the prosecuting team was responsible for the striking out of the information.

Similar to Milton Paul Ohwovoriole (SAN) v. FRN & Ors , there appears to be a consistent pattern of prosecutorial incompetence, (or deliberate design?) to shield accused persons in a number of high profile corruption cases. In Senator Adolphus Wabara v. FRN , for instance, the prosecution had in its possession, the statement of its principal witness but did not attach it to the proof of evidence. The legal practitioners to the defendants applied to the trial court to set aside the leave granted to the prosecution to prefer the charge against them. They further urged that the defendants be discharged on the grounds, inter alia, that since they had been tried and convicted by the President of the Federal Republic of Nigeria for the same offences via the media, it would be unjust to retry them for same. It was also submitted that the proof of evidence attached to the appellant's application did not disclose any prima facie case against them and that some of the offences in the counts were not defined or provided for by any written law.

The trial court dismissed the applications of the appellants and they appealed to the Court of Appeal. The Court of Appeal upheld their appeal against the decision of the trial court and quashed the charges. Even though it is not a strict requirement of the law, it would have been better for the prosecution to attach the report of the Chairman of the EFCC and at least one statement of their main witness to the proof of evidence. The Supreme Court rescued the Commission in FRN v Wabara & Ors and reversed the decision of the Court of Appeal. The Court held that the proof of evidence required for a court to consider before granting an application for leave to prefer a charge under section 185(b) of the Criminal Procedure Code and the Criminal Procedure (Application for Leave to Prefer a Charge) Rules, 1970, is not the same as the raw statements of potential witnesses, but rather the summaries of the evidence that potential witnesses would give, sufficient to disclose a prima facie case. That I must note, is the correct statement of the law. The Supreme Court appears to have realized the misrepresentation of its ratio in Ohwovoriole’s case by counsel who are quick to raise preliminary objections to the competence of charges. The Court has indeed provided the much needed clarity.

Apart from resort to preliminary and other objections to stultify their trial, it is observed that some politically exposed persons, have used the courts to prevent their investigation and subsequent arraignment. In Umar Ghali Na’aba v.FRN , the applicant, a former Speaker of the House of Representatives challenged his invitation by the Commission (ICPC) at the Federal High Court, Abuja. Following the dismissal of the application, he lodged an appeal. The case is a 2002 case, but as at 2015, the appeal had not been determined. Similarly, in FRN v. Sunday Ehindero , the accused, a former Inspector General of Police was arraigned by the ICPC upon charges of using his position to confer corrupt advantage and making false statements to officers of the Commission. He raised an objection to the jurisdiction of the court. The trial court dismissed the objection and he appealed to the Court of Appeal which affirmed the ruling of the trial court. He further appealed to the Supreme Court and the final appeal is still pending.

The Commission, like the EFCC, operates under severe internal and external constraints, including corruption. The Commission needs both internal and external impetus to match, not just the publicity, but relative effectiveness of the EFCC. The ICPC needs to invigorate its personnel by weeding out those suspected to have been compromised and recruiting, training and equipping fresh hands from our tertiary institutions. Commissioners of the ICPC should be painstakingly vetted to ensure that they have no traits or antecedents that may undermine the work of the Commission.


The law should be no respecter of persons or status. Our legal system should also determine ways of curtailing abuse of legal process, failing which the law could be undermined and dragged into disrepute. The Constitution of the Federal Republic of Nigeria, 1999 (as amended) contains several provisions to guarantee fair trial in civil and criminal cases. The Constitution also grants immunity to the President, Vice-President, State Governors and Deputy-Governors from civil and criminal proceedings during their period in office.

The intention of the framers of the Constitution is that immunity will prevent or avoid the distraction that may ensue from litigation and legal proceedings. The immunity clause was not intended to provide a licence for criminality and ignoble conduct. Unfortunately, the general perception among the informed citizenry is that the immunity clause has been abused and denigrated to shield wanton criminality. The EFCC has been constrained to wait until the termination of the tenure of many Governors of States, before filing cases against them. Some notable cases in this category are: (a) FRN v. Joshua Dariye & Ors ; (b) FRN v. Saminu Turaki ; (c) FRN v. Orji Uzor Kalu & Ors ; (d) FRN Vv.James Ibori ; (e) FRN v. Jolly Nyame ; (f) FRN v. Ayodele Fayose ; and (f) FRN v. Chimaroke Nnamani & Ors .

The immunity clause is not a valid basis for a court of law to perpetually restrain the EFCC or any law enforcement agency from investigating a Governor or carrying out its statutory functions. In the case of Attorney General of Rivers State v. EFCC & Ors the Attorney General of Rivers State sought an injunction to, in effect, restrain the EFCC from investigating Dr. Peter Odili, then Governor of Rivers State, on the grounds that the investigation was negatively affecting the conduct of governmental affairs in the State. The presiding judge granted all the reliefs sought, including a declaration that the EFCC investigation was invalid, unlawful, unconstitutional, null and void. The court also granted an injunction to restrain the EFCC and other respondents from publishing the reports of their investigation on Dr. Peter Odili and also gave an order restraining the EFCC from taking any further action in relation to the economic crimes the EFCC was investigating.

The question is: if EFCC cannot investigate or publish reports of investigation conducted by it, then what are the EFCC’s statutory functions. Such a judgment as this lends credence to the claim of the EFCC that some courts are sabotaging the work of the Commission. The court, in my view, should have been wary of granting injunctive reliefs that have the effect of preventing a law enforcement agency from investigating any citizen, no matter how highly placed.

The immunity clause should not be allowed to be an albatross to the criminal process in Nigeria, otherwise it could unwittingly perpetuate impunity.

Alleged denial of fair hearing and breach of fundamental rights have been deployed as tactics to delay trial in corruption cases in Nigeria. For instance, in EFCC v. Bayo Dada , the respondent was arraigned as the 6th accused in charge No: FHC/L/CS/295C/2009-FRN v. Raymond Obieri and Ors upon charges connected with the funds of now defunct Intercontinental Bank Plc. He was granted bail on September 15, 2009. The charge was subsequently amended and he was arraigned again as the 4th accused in charge No: FHC/L/CS/445C/2009-FRN v. Akin Solomon Fabunmi and Ors. He was granted bail upon terms which included that he must report to the investigating officers of EFCC on the first working day of every week, pending the conclusion of trial. When he reported on May 3, 2011 at the EFCC office, he was arrested and detained by the appellant upon allegation that he stole funds belonging to the bank earlier mentioned whilst he was a director of the bank. He filed an application for the enforcement of his fundamental rights when efforts to procure his bail failed. Amongst his prayers were:

a. A declaration that the arrest, detention, harassment and incarceration of the respondent is a violation of his fundamental right to dignity of human person, personal liberty and freedom of movement…
b. A declaration that the continued detention, constant harassment, humiliation and maltreatment of the respondent by the appellant is wrongful, illegal and unconstitutional…
c. An order directing the appellant to release the respondent from its custody with immediate effect.
d. An order of perpetual injunction, restraining the appellant…from further arresting and/or detaining the respondent…

The respondent also filed an ex parte application for an interim order admitting him to bail and “an order of interim injunction restraining the appellant…from further arresting or detaining the appellant in connection with the matter relating to the complaint for which he was arrested and detained, pending the hearing and determination of the motion on notice…” The trial court heard and granted the ex parte application on May 6, 2011. Aggrieved by the interim order, the appellant filed a notice of appeal on May 13, 2011 and also filed an application for stay of further proceedings pending the determination of the appeal. The appellant also filed a notice of preliminary objection to the application for the enforcement of fundamental rights filed by Dr. Erastus Akingbola and the respondent. Amongst the grounds for the preliminary objection was that:

1. No court has jurisdiction to grant an injunction restraining the performance of statutory duties/powers of arrest and prosecution.
2. The applicants’ fundamental rights are not absolute and can be curtailed under the provisions of the Constitution of the Federal Republic of Nigeria, 1999.

Without hearing parties on the motion for stay of proceedings the trial judge dismissed same. Part of the records of the court for May 18, 2011 are as follows:

“Court: The motion for stay of proceedings is misconceived and hereby dismissed. Move your substantive application.
Senior counsel for the prosecution take their leave.
Court: I may add that the EFCC and the leading Senior Advocates are in contempt of court.”
Counsel to the respondent then moved the substantive application for enforcement of fundamental rights. The record of the court next shows:
“Court: They filed a counter-affidavit yesterday, which they would have now argued but they say they are taking their leave. The underlying issue of course would be why an interim order was disobeyed.
Fagbohungbe SAN: I move in terms of our application.
Court: Orders/declarations as prayed.”

The perfunctory manner in which the trial judge delivered the “rulings” of both dates, may lead a bystander to form the opinion that the judge was working from a particular answer to the questions before the court. The trial judge referred to the counter-affidavit of the appellants, but “forgot” the notice of preliminary objection to the substantive application filed by the appellant. If the judge had adverted his mind to the notice of preliminary objection and the grounds contained therein, he might have formed a more balanced view of the issues before the court.

I must emphasize that, the judge does not bear sole responsibility for the cavalier resort to or invocation of fundamental rights. As stated in one of the grounds of preliminary objection of the appellant to the substantive application, no court can injunct a statutory body from performing its duties of investigation and prosecution. Judges should be wary of applicants for enforcement of fundamental rights who use terms like “constant harassment, humiliation and maltreatment,” when in fact they are lawfully arrested, detained and prosecuted for crimes. The grant of bail for one offence or series of offences does not foreclose detention for other offences traced to the same person.


The prospects for the prosecution of corruption cases in Nigeria have been enhanced by recent developments in the country. Amongst these developments are the enactment of the Administration of Criminal Justice, Act, 2015 and practice directions issued by heads of courts at the Federal level. A major innovation in ACJA is the provision that an application for stay of proceedings in respect of a criminal matter before the Court shall not be entertained. Another salient provision is 396 (2) of the Act, which provides that ruling on objections to the validity of a charge “shall only be considered along with the substantive issues and the ruling thereon made at the time of delivery of judgment.” The potential of these provisions to minimise delays in criminal trials cannot be over-stated and it is already being felt in the relative speed at which the on-going trial of the Senate President, Dr. Bukola Saraki and other politically exposed persons are being conducted.

Apart from ACJA, the Chief Justice of Nigeria, the President of the Court of Appeal, the Chief Judge of the Federal High Court, and the Chief Judge of the High Court of the Federal Capital Territory have issued practice directions to specifically facilitate the progress of cases relating to corruption, money laundering, terrorism, kidnapping, rape, etc. These practice directions have the potential to revolutionalize criminal justice administration in Nigeria. The practice directions encourage active case management by courts, restrict the number of adjournments that parties may seek, limit the length of adjournment of cases, expedite the hearing and determination of appeals, etc.

The most significant pointer to the prosecution of corruption cases is the demonstration of clear political will by the President, Mohammadu Buhari, G.C.F.R. His pronouncement and the zeal of the EFCC under his administration suggest that the Federal Government under his watch will not tolerate corruption. Other arms of government need to follow the path of Mr President in the collective effort to rid Nigeria of corruption.
The discussion of the prosecution of corruption cases reveals that their is an arduous task that is filled land mines and pitfalls.

The pitfalls include:
1. Corruption in the administration of criminal justice;
2. Weak institutional capacity of anti-corruption agencies;
3. Incessant grant of ex-parte and injunctive reliefs to prevent the discharge of statutory functions by anti-corruption agencies;
4. Seeming ambivalent attitude of the public to corruption;
5. Poor investigation of corruption cases;
6. Absence of robust proceeds of crimes legislations;
7. Unnecessary grant of bail to politically exposed persons for medical treatment abroad;
8. Abuse of legal process by legal practitioners under the pretence of defence of human rights; etc.

Nigeria does not lack good legislations on corruption. The irony is that: “The legal system is built on the assumption that there is an effective means of law enforcement;” whilst the fight against corruption cannot succeed unless there is “solid commitment to the application of these laws…” The Gordian Knot in the fight against corruption in Nigeria lies in the web between the prospects of extant legislations and institutions on the one hand, and the pitfalls that militate against effective enforcement of these laws. The pitfalls in many cases are deliberate obstacles introduced into the criminal justice system by those with genuine concerns; and who have good reasons to fear that they will end up in jail if relevant actors and agencies function efficiently. Legal actors who apply criminal legislations must realise that true justice does not lie in syllogism and fine legal arguments but in what is fair to the citizenry.

Justice has two sides to it and both must be availed equal consideration. It often feels odious to be met with arguments and considerations, which are indulgent to those charged with crimes of corruption. They are at times held out as “victims” being oppressed by the might of the State.

We all need to be unanimous in joining hands with the Federal Government, in its quest to get us back to the path of national moral rectitude. We cannot afford to fail, lest we fall into perpetual perfidy. May we never go in that direction.

I thank you all for listening.



GCIOBA-Lagos Branch Programme Brochure

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