"The argument that the EFCC should not be allowed to breach the procedure stipulated under the Act does not hold any water whatsoever. Section 53(1) of the Public Procurement Act is merely directory and in carrying out its investigative functions, the EFCC is under no obligation to obey directives from any person or organisation. Section 5 of the Economic and Financial Crimes Commission (Establishment) Act Cap E1 Laws of the Federation of Nigeria 2004 sets out the functions of the Commission.
Some of the functions provided in Section 5(1)(a) (b) (c) (e) (f) (h) (k) and (l) are as follows: "5(1) The Commission shall be responsible for
(a) the enforcement and due administration of the provision of this Act.
(b) the investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge, fraudulent and encashment of negotiable instruments, computer credit card fraud, contract scam etc.
(c) the co-ordination and enforcement of all economic and financial crimes laws and enforcement functions conferred on any other person or authority;
(e) the adoption of measures to eradicate the commission of economic and financial crimes
(f) the adoption of measures which include co-ordinated preventive and regulatory actions, introduction and maintenance of investigative and control techniques on the prevention of economic and financial related crimes;
(h) the examination and investigation of all reported cases of economic and financial crimes with a view to identify individuals, corporate bodies or groups involved.
(k) taking charge, supervising, controlling, co-ordinating all the responsibilities, functions and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes, in consultation with the Attorney General of the Federation.
(l) the co-ordinating of all existing economic and financial crimes investigating units in Nigeria". Sections 53(1) and 58(3) of the Public Procurement Act stipulate thus: '53(1) The Bureau may review and recommend for investigation by any relevant authority any matter related to the conduct of procurement proceedings by a procuring entity, or the conclusion or operation of a procurement contract if it considers that a criminal investigation is necessary or desirable to prevent or detect a contravention of this Act. 58(3) Prosecution of offences under this Act shall be instituted in the name of the Federal Republic of Nigeria by the Attorney-General of the Federation or such other officer of the Federal Ministry of Justice as he may authorise so to do, and in addition' without prejudice to the Constitution of the Federal Republic of Nigeria, he may: (a) after consultation with the Attorney-General of any State of the Federation, authorise the AttorneyGeneral or any other officer of the Ministry of Justice of that State; or (b) if the relevant authority so request, authorise any legal practitioner in Nigeria to undertake such prosecution directly or assist therein".
In exercise of the powers conferred on him by Section 174 the Constitution, the Attorney-General of the Federation can institute and undertake criminal proceedings against any person before any Court of law in Nigeria, other than a Court martial, in respect of any offence created by or under any Act of the National Assembly. He may also take over and continue any such criminal proceedings that may have been instituted by any other authority or person. He also has the power to enter nolle prosequi, at any stage before judgement is delivered, any such criminal proceedings instituted or undertaken by him or any other authority or Person.
Where the EFCC exercises its power under Section 5(1)(k) of the EFCC (Establishment) Act, nobody has a right to question whether it obtained the necessary fiat from the Attorney-General of the Federation before embarking on the prosecution. The submission by the learned counsel for the respondent that the provisions of the Public Procurement Act 2007 do not confer on the Bureau of Public Procurement (BPP) or any other body created under that law powers to conduct criminal investigation or to prosecute criminal cases resulting from procurement processes is well taken. The Attorney General of the Federation or the EFCC have the power to undertake such criminal prosecutions with the former having the upper hand in taking over the prosecution and continuing or discontinuing with the prosecution by entering a nolle prosequi. See:Pharma Deko Plc v. N.S.I.T.F.M.B (2011) 5 NWLR (Pt. 1241) 431: F. R. N. v. Adewunmi (2007) 10 NWLR (Pt. 1042) 399; Nyame v. F. R. N. (2007) 7 NWLR (Pt. 1193) 344. Nyame v. F. R. N. supra confirmed the powers granted to the EFCC in Section 5(1)(k) of the EFCC Act 2004 to co-ordinate, investigate and prosecute cases under the Criminal Code and the Penal Code Laws.
It is not necessary for the EFFC to seek consent from the Bureau of Public Procurement or Attorney General of the Federation before it can proceed to investigate or prosecute the appellant under counts 78 and 79."
Per AKA'AHS, J.S.C. IN OLAGUNJU v. FRN CITATION: (2018) LPELR-43909(SC)
