The Court of Appeal of the Kaduna Judicial Division has warned the Economic and Financial Crimes Commission, EFCC, against interfering in civil transactions, as its powers do not extend to the investigation or resolution of disputes from simple contracts.
The order came following an appeal brought before it by EFCC against a business mogul, Mr Bela Becker, the managing director of the oil and gas engineering company, DKG ITCC Nigeria Limited, over an alleged criminal misappropriation and breach of trust of over N30.4 billion in its transaction with the Nigerian National Petroleum Corporation, NNPC.
A three-man justice of the appellate court in a one-hour judgement delivered by Justice Ntong Ntong dismissed the appeal and upheld the judgement of the Kaduna State High Court, which awarded N1m against EFCC as damages for infringement of the applicant’s fundamental rights.
EFCC had, in the suit, explained that sometime in 2009, the first respondent, Mr Bela Becker, through his company, awarded sub-contracts to the second respondent, Advic Engineering Limited, amounting to over N30.4 million, wherein Mr Becker through his company paid N13.2 billion, leaving an outstanding balance of N19.2 billion.
The appellants submitted that the company “embezzled the money paid by NNPC for the purposes of remitting same funds to the second respondent for the sub-contract job executed, thereby removing that situation from just a simple contract and making it an economic and financial crime worthy of being investigated.”
But the Court of Appeal disagreed, saying it is “confident that EFCC used the phrases “criminal misappropriation” and “criminal breach of trust” to deceive the public and glorify illegal actions, as the said phrases were merely used as semantics to “give the first respondent a bad name in order to hang him.”
Justice Ntong stated that although criminal elements may occur in a contract and when such occurs, EFCC or the Police may cautiously, limitedly and discretely intervene, in the instant case, “the main issue at the lower court was a breach of fundamental rights of the 1st respondent as the appellants acted ultra vires their constitutional powers.”
He said he had read the record at his disposal and that there is nowhere the appellants and the respondents challenged the averments to contradict facts that the transactions were not civil and contractual, stressing that “where the opposing parties do not challenge depositions in an affidavit, such evidence or depositions are deemed to stand and be admitted as the true facts.”
The appellate court held that EFCC “know or ought to know that their action was predicated on illegality ab initio and no court is or ought to be friendly with any form of illegality, be it illegality infacie curae or illegality exfacie curae.”
Justice Ntong said EFCC “threw away their honour, discretion and self-respect to the winds to satisfy their whims and caprices for selfish interest” and does “not have any rights to condescend into an abysmal level of irresponsibility to overzealously disturb the 1st respondent in a civil transaction which should be remedied before a High Court.”
Justice Ntong further held that the action of EFCC “from their own affidavit evidence is, to say the least, opprobrious, unconstitutional, illegal and unlawful, and the Court of Law should not fold its arms and keep mute.”
He said: “Where any EFCC official or a police officer or any agent of government jettisons the rule of law, such official should be made to bear the consequences.”
