On need to follow due process in the fight against corruption.

Tumsah v.FRN [2018] 17 NWLR (Pt. 1648) 238 at 273, paras. D-E, per Iyizoba, JCA:

“The learned trial Judge in assuming jurisdiction to grant the orders in this appeal acted more out of sentiments than due adherence to the applicable laws. Corruption no doubt is the bane of our society and the courts would not want to be seen as hindering the efforts of the Government in its attempts to bring corrupt officials to book. The learned trial Judge was thus so determined to grant the orders that he paid no heed to the sound arguments of the Appellant’s counsel that the Special Presidential Panel of Enquiry had no power to approach the court, the High Court of the Federal Capital Territory for forfeiture of the properties. More so when the ex parte application was pursuant to the provisions of the EFCC Act and the Money Laundering (Prohibition) Act, completely separate legislations which conferred no powers to the Special Presidential Panel of Enquiry to act the way it did. It is very important that due process be followed in these corruption cases and indeed in all other matters.”

Notes:

The facts of the case are that the Chairman of the Special Presidential Investigation Panel on Recovery of Public Property (“SPIP”) filed an ex parte application at the High Court of the Federal Capital Territory, Abuja in the name of the Federal Republic of Nigeria (1st Respondent) seeking for an order granting the Chairman, SPIP the power to order an interim forfeiture order freezing certain properties belonging to the Appellant pending the completion of full investigation of some serious criminal allegations against the Appellant and the 2nd Respondent. The application was filed pursuant to the EFCC Act and Money Laundering (Prohibition) Act.

The trial Court granted all the prayers sought. The Appellant on becoming aware of the orders granted applied to have same set aside but the trial Court dismissed the applications. The Appellant appealed to the Court of Appeal contending that the SPIP in whose favour the trial Court made the interim freezing orders lacks the powers under the Recovery of Public Property (Special Provisions) Act (that is, the Act establishing SPIP) to apply for such orders and that the FCT High Court lacks jurisdiction to entertain the matter.

The Court of Appeal upheld the contention and unanimously allowed the appeal. The Court held that the functions of SPIP are investigatory and not prosecutorial and that its powers are circumscribed by the enabling Act. Tukur, JCA explained (at p. 278):

“A community reading of the provisions of sections 3 and 4 of the Act shows clearly that the primary function of the Presidential Panel is to investigate and report its findings and conclusion to the President who will then decide the next line of action to take. There is nothing in the Act establishing the Presidential Panel on Recovery of Public Property that gives it the vires to initiate proceedings in any court of law. Its primary function as manifested in the preamble to the Act under which it comes into existence is investigation of Assets of any Public Officer or any other person subject of inquiry under the Act. While it is understood to play a complimentary role to other agencies fighting corruption like the Economic and Financial Crimes Commission (EFCC) and others, it cannot wear the garment of those agencies, encroached on their powers in a clear disregard of its enabling Act. The law is trite that a public authority vested with powers must act within the limits of its authority.”

Iyizoba, JCA also made the above quoted notable pronouncement to buttress the point. What is more? The need for law enforcement agencies to operate within their statutory bounds cannot be overemphasized.

Let us look at the serious observations of Iyizoba, JCA again. Her Ladyship said in her opening remarks: “The learned trial Judge in assuming jurisdiction to grant the orders in this appeal acted more out of sentiments than due adherence to the applicable laws.” The question is, what could have triggered these sentiments? Could it be the eagerness to please the Federal Government so as not to come under the common criticism against the Nigeria courts in corruption matters? This, perhaps, could be it considering the following statement by her Ladyship which is to the effect that “Corruption no doubt is the bane of our society and the courts would not want to be seen as hindering the efforts of the Government in its attempts to bring corrupt officials to book.” In essence, the point being made is that while the courts are interested in assisting in the fight against corruption, the courts must be firm in upholding the dictates of the law at all times and in ensuring that due process is followed in the course of the battle. This is one of the highlights of rule of law. Law enforcement agencies and the courts must not be moved by overzealousness. For instance, today, we see EFCC using several social media platforms to attack the personality of persons facing criminal trial. This is wrong. Playing to the gallery is not the way. Persons facing criminal allegation should be prosecuted and not persecuted. Whenever due process is not followed, it is no longer prosecution but persecution. We must always bear in mind that even the Constitution of the Federal Republic of Nigeria guarantees the rights of all persons including the guilty.



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has worked with a number of startup tech companies. He tweets @siazubuike.
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