In the course of my research, I discovered conflicting versions of the Economic and Financial Crimes Commission (Establishment) Act 2004. The conflict has to do with the provisions of section 14(2) often relied upon by the EFCC when compounding an offence. To compound an offence is to give the offender the option to settle out  of court by paying a certain amount of money in order to avoid prosecution.

The EFCC Act 2004 was enacted to replace the EFCC Act of 2002. In the 2002 Act downloadable from the website of the United Nations Office on Drugs and Crime, the provision for compounding an offence was as contained in section 13(2). It provides:

Without prejudice to section 174 of the Constitution of the Federal Republic of Nigeria 1999 (which relates to the power of the Attorney-General of the Federation to institute, continue or discontinue criminal proceedings against any persons in any court of law), the Commission may compound any offence punishable under this Act by accepting such sums of money as it thinks fit, not exceeding the amount of the maximum fine to which that person would have been liable if he had been convicted of that offence. (Emphasis supplied)

Similarly, in the EFCC Act 2004 downloadable from the EFCC website and the website of the Nigerian Financial Intelligence Unit (NFIU), section 14(2) provides:

Subject to the provision of Section 174 of the Constitution of the Federal Republic of Nigeria 1999 (which relates to the power of the Attorney-General of the Federation to institute, continue or discontinue criminal proceedings against any persons in any court of law), the Commission may compound any offence punishable under this Act by accepting such sums of money as it thinks fit, not exceeding the amount of the maximum fine to which that person would have been liable if he had been convicted of that offence. (Emphasis supplied)

The implication

The implication of the above is that when compounding an offence, the offender is not expected to pay any amount of money which exceeds the maximum amount of fine payable for the offence should he be convicted. Therefore, relying on section 14(2) of the EFCC Act (as downloaded from the EFCC and NFIU websites), if the maximum fine is N50,000, the offender cannot pay more than N50,000 because N50,000 is the maximum fine. 

In the recent case involving Pascal Okechukwu, popularly known as Cubana Chief Priest, the Court ordered him to pay the sum of Ten Million Naira into the Consolidated Revenue Fund of the Federation as required by law based on the out-of-court settlement agreement he entered with the EFCC. Contrary to the perception of EFCC as published in its official statement, section 21(1) of the Central Bank of Nigeria Act 2007 which prohibits Naira abuse states that the minimum (not maximum) amount of fine is Fifty Thousand Naira. The section provides:

A person who tampers with a coin or note issued by the Bank is guilty of an offence and shall on conviction be liable to imprisonment for a term not less than six months or to a fine not less than N50,000 or to both such fine and imprisonment. (Emphasis supplied)

As it stands, the maximum amount of fine payable for the offence of Naira abuse is not provided by statute. Section 21(1) of the CBN Act only provides the minimum–N50,000.

Meanwhile, currently, the position of the EFCC, and as upheld by the Supreme Court in the case of EFCC v. Chidolue [2019] 2 NWLR (Pt. 1657) 442 is that in compounding an offence, the settlement sum must exceed the maximum amount to which that person would have been liable if he had been convicted of the offence. In other words, section 14(2) of the EFCC Act is said to read as follows:

Subject to the provision of Section 174 of the Constitution of the Federal Republic of Nigeria 1999 (which relates to the power of the Attorney-General of the Federation to institute, continue or discontinue criminal proceedings against any persons in any court of law), the Commission may compound any offence punishable under this Act by accepting such sums of money as it thinks fit, exceeding the amount of the maximum fine to which that person would have been liable if he had been convicted of that offence. (Emphasis supplied)

This is the version downloadable from the website of Policy and Legal Advocacy Centre (PLAC).

Therefore, while the EFCC Act of 2002 and the versions of EFCC Act 2004 (downloadable from the EFCC and NFIU website) reads “not exceeding the amount of the maximum fine…”, the version relied on by the EFCC and the court reads “exceeding the amount of the maximum fine…” 

Determining the true version of the EFCC Act

It is therefore important to ultimately determine the true version of the extant EFCC Act 2004 as passed by the National Assembly and signed into law by the President.

One reason this determination is extremely vital is to properly guide parties when compounding an offence. If the maximum fine is, say N100,000, it would be unlawful for the EFCC to demand payment of money in excess of N100,000 as settlement sum, going by the version of the EFCC Act as uploaded on its website. Drawing an example from the case of Cubana Chief Priest, if the maximum amount of fine was N50,000, the agreement to pay N10,000,000 and as ordered by the Court would have been against the law.

Does the EFCC have the power to compound an offence punishable under another statute not being the EFCC Act?

If you look at section 14(2) of the EFCC Act, one of the conditions for compounding an offence is that the offence must be punishable under the EFCC Act. This has been confirmed by the Supreme Court in the case of EFCC v. Chidolue. 

Again, taking the case of Cubana Chief Priest as an example, the offence of Naira abuse is as contained in section 21(1) of the CBN Act, not the EFCC Act. Therefore, it is arguable whether the EFCC had the statutory authority to have entered into the settlement agreement with Cubana Chief Priest relying on section 14(2) of the EFCC Act.

One other way to look at it is that since the EFCC generally has powers under section 7 of the EFCC Act to investigate and prosecute offenders for offences touching on economic and financial crimes found in other statutes, the EFCC may stretch its powers to compound offences found in statutes other than the EFCC Act specifically. Hopefully, there will be a definite judicial clarification by way of interpretation some day.