08 April 2020

by Uche Nwokedi & Co

Uche Nwokedi & Co

The Finance Act of 2020 (the Act) reviews and amends several tax legislations. By so doing it consolidates into one statute many tax provisions from different tax statutes. The main thrust of the Act is to increase revenue of the Federal government and to curb avenues by which tax has been evaded and or avoided over the years.

The statutes which the Finance Act tends to amend, repeal or add some provisions are as follows:

1. The Companies Income Tax Act
2. Value Added Tax Act
3. Customs and Excise Tarrifs etc (Consolidation Act)
4. Personal Income Tax Act
5. Capital Gains Tax Act
6. Stamp Duties Act
7. Petroleum Income Tax Act

The Companies Income Tax Act (CITA)

A total of about 23 sections of the CITA have been either amended, repealed or substituted by the Finance Act. Some of the provisions of the CITA amended by the Finance Act are as follows:

Section 9 of the CITA was amended to check for double or multiple taxation, also to charge taxes on collaterals.

The requirement for Tax Identification Number (TIN) for companies is made mandatory under the new section 10 of the CITA. TIN is also made mandatory for opening of bank accounts and the operation of existing ones by account holders.

Section 13 was expanded to make companies with electronic or online business within the spheres of Nigeria and having some significant economic presence in Nigeria taxable.

Under section 19 of the CITA, excess dividend is exempted from further tax. Section 23 exempted franked investment incomes from tax liabilities under CITA.

Section 16 of the CITA was further amended by the addition of a new subsection which defines what an “investment income” is for the purposes of taxation of life insurance companies

The Act also increased the monetary penalty for late filing of tax returns. The CITA also categorized companies by their annual gross turn over or income for the purposes of corporate tax liability such that companies with annual gross turn-over of 25 million or less are categorized as small companies and are exempted from tax liability.  A medium-sized company is defined as a company having an annual gross turnover of over N25, 000,000.00 (Twenty Five Million Naira) per annum but below N100, 000, 000.00 (One Hundred Million Naira). Such Companies shall pay Income Tax at the rate of 20% while companies other than small or medium sized companies are defined as large companies and their income tax rate is stated to be 30%.

Capital Gains Act

The Capital Gains Tax Act is amended at section 36(2)of the CGTA to the extent that exemption on tax liability for compensation for loss of office which was hitherto limited to N10,000.00 is now extended to N10,000,000.00. There is a new section 32 which provides that no tax shall apply to any trade or business transferred to a Nigerian company for the purposes of better organization of that trade or business etc. This tax exemption is however not applicable if the acquiring company subsequently disposes of the assets within one year of acquiring same.

Personal Income Tax Act

The section 49 of the PITA has been amended to make the provision of Tax Identification Number mandatory for persons intending to open a new bank account for purposes of business operations or for continuation of operation of such bank account. In order words, the mandatory requirement for tax identification number is for accounts being operated for purposes of business transactions.

Value Added Tax

Section 4 of the VAT Act has been amended by increasing the value added tax payable by consumers from 5% to 7.5%. Section 19 increased the penalty payable by a taxable person for non-remittance within the specified period from 5% to 10%.
Under section 28, the penalty for failure to give notice of change of address or permanent cessation of business was increased from N 5000 to N 50, 000 in the first month and N25000 in subsequent months.

There is a new section 8 of the VAT Act to cater for the  registration of a taxable person upon commencement of business. The penalty for failure to register has been increased from N10, 000 to N50,000 in the first month and from N 5, 000 to N 25, 000 in the subsequent months. However, the time within which a taxable person is required to register with the service is not specified under the new law as the law simply hinged the time “upon commencement of business.” This is somehow ambiguous and may be subject for court’s interpretation.

The new section 15 of VAT introduces a threshold for VAT compliance. Thus companies with turnover of N25, 000, 000. 00 or more shall render their tax on or before the 21^st of every month.

Petroleum Profits Tax Act

The new Act deletes section 60 of the PPTA. This is the section that gives tax exemption from dividends or incomes paid out of profits made after tax deductions made under the Petroleum Profits Tax Act. The effect of the revocation of the said section 60 appears to be that such incomes or dividends shall henceforth be subjected to tax liability.

Conclusion

While the Finance Act may seem to be favorable to small scale businesses and encourages growing Nigerian companies, it appears not to encourage foreign investors and international businesses. Also the increase of the vat rate from 5% to 7.5% appears to put more hardship on the people while increasing the revenue of the people.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

A SOFT ANSWER

A senior pastor arrived his church, one ordinary-looking morning, only to be confronted by the angry faces and aggressive voices of his junior pastors. Mutiny! They had had enough! How could he take some of the steps he recently took in the church without carrying them along? This was beginning to look like a one-man business and they wouldn’t take it!

The senior pastor fell flat on his face. “I’m very sorry, my brothers. Please forgive me. It was not….”

But the aggrieved pastors could not bear the sight of this much older man on the ground. Without allowing him to continue his pleas, they all fell to the ground, imploring him to get up, that they had forgiven him. Whatever their grievances, they wept, did not justify their father lying prostate before them on the ground….

It was eventually a tearful reunion.

This is a true story.

That ministry is today flourishing.

I know of another pastor too. His ministry was arguably the fastest growing at a time in the country. I was in that ministry.

One day the story came out that he had impregnated his personal secretary. It was one huge scandal : a holiness preaching, fire breathing deliverance minister could do minini wanana with somebody outside his marriage? Thunder fire devil!

The man denied. Robustly. Not only that. He did a public show : at an emergency crusade, he scoffed at the story, called the personal secretary to the podium and to further denigrate the rumor said :”Imagine people saying I slept with this thing “.

Not long after, he was attacked, and shot by armed robbers . His subsequent hospitalization was the beginning of his demystification. His ministry that was hitherto rapidly spreading immediately went into decline. If I name that ministry, many persons would remember it as one rave in the nineties.

I told these two true stories to ground a Biblical moral. Proverbs 15:1 says “A soft answer turneth away wrath “

A soft answer.

This is one thing lacking in the relations of most of our leading clergy today.

I have witnessed a pastor, angered by his congregation, point his hand to heaven and declare that he had locked heaven against their prayers.
Not long after, this same pastor pulled out his Port Harcourt branch from the parent ministry and renamed it. Not long after, when the expected oil money did not come, he returned begging for forgiveness.
Last time I saw him in Ikeja -Lagos, he was looking so weatherbeaten that it was difficult for me to connect him to that powerful god that could lock up heaven.

Now, Pastor Biodun Fatoyinbo.

Let us assume that Brother Biodun is a victim of a grand conspiracy to rubbish his call and ministry. Let us assume all these testimonies by victims were procured and all these ladies are in the script to persecute the body of Christ starting with Brother Biodun .

After all, when Saul, later to become Paul, was arrested on his way to Damascus to unleash horror on believers, Jesus said to him: “It is I you are persecuting …”(Acts 9:5)

If this were then a case of persecution, Brother Biodun is not facing the unusual for the Christian faith, from the beginning, is a call to persecution. And the Founder Himself ,Our Lord Jesus Christ, was no stranger to persecution and conspiracies. Indeed an eyewitness, one of His apostles recorded :”When they hurled their insults at Him, He did not retaliate, when He suffered, He made no threats. Instead He entrusted Himself to Him who judges justly “(1 Peter 2:23).

And we are enjoined to look unto Him as “the Author and Finisher of our faith “

One would thus have expected Brother Biodun to treat the persecution as Christ would have.

With prayerful silence. Whilst awaiting vindication from his Master.

That is if he stood wrongly accused.

But I believe Brother Biodun is largely guilty of what he stands accused. His body language screams his culpability. The threats of “robust response ” that never came and briefing of church lawyers. The release of smears against the Dakolos : lies about their having been fornicating church singers, Busola flying to Chicago with Biodun, their being gifted millions at their wedding, etc — all these bespoke a desperation to bully the truth into silence.

Brother Biodun, I believe, is truly a serial molester. And hierarchy members of his church, starting from his wife, are either accessories or enablers of his misdeeds.

And if he is guilty–as I believe — would a soft answer not have turned away all this wrath?

And who does it benefit that no matter how things ultimately pan out, anytime anybody mentions COZA, now or in the future , the next thing that comes to mind is RAPIST PASTOR?

A soft answer….

A king, in whose hands rested the power of life and death was once rebuked by a lowly prophet. “You are an adulterer!”, the prophet thundered. The king instantly melted in repentance. And memorialised his genuine contrition with a song :Psalm 51.

Is it surprising that God said of this king :”He’s a man after my heart “

A soft answer.

Many pastors have come online and off to psychologically blackmail people criticising Brother Biodun.

Such persons fail to realize that Brother Biodun is actually a scapegoat for the mounting disenchantment of the people with their pastors. People miffed at lucre loving monarchical pastors who have elevated themselves as “lords over God’s heritage “.Brother Biodun presented an opportunity for a transfer and concentration of all the grievances in one person.

Noticeably, some of the placards borne in the protests went beyond the issue of rape. One read : “Your pastor is not God “

If only these pastors could read this handwriting on the wall.

If only they can listen to the “still small voice “.

For the handwriting and the voice give one and the same testimony:

Many pastors today have become BURDENS to the Body of Christ.

Did you hear what I said : pastor reading this post?

You may have become a BURDEN TO THE BODY OF CHRIST!!!

Unfriend me after this line but know this :EXCEPT YOU REPENT, this message will rise and testify against you on Judgement Day.

STOP BEING A BURDEN TO THE BODY OF CHRIST.

Ah don talk my own.

A lutta continua! Victoria a certa!!

On 20 June 2019, the Tax Appeal Tribunal (TAT), in the case between Nigeria Breweries Plc and Abia State Board of Internal Revenue Service (Respondent), ruled that gratuity is not liable to personal income tax.

in reaching its conclusion, the TAT declared that:

• Section 3 of Personal Income Tax Act 2011, as amended (PITA), which is the charging provision, does not make any specific reference to gratuity as a chargeable income
• Where no provision of PITA subjects gratuity to tax, a schedule cannot be used to amend provisions of the principal Act to achieve the opposite.
• Where there are ambiguities in the tax law, the relevant provisions of such law must be interpreted in favour of the taxpayer.

We will share a detailed analysis of the ruling in our Newsletter in due course.

Authors Deloitte Nigeria

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Years ago while in the University my good friend who I later nicknamed Eze mmuo said to me “sex rules the world”. In deed that was a profound statement. Did he mean sex as in gender or sex as that ephemeral pleasure that has in no small measure shaped the destiny of man. Eze mmuo however does not mince words and I knew what he meant. I would however without apology modify Eze mmuo’s statement to be “sex ruins the world”.

Ordinarily when the word sex is used pedestrianly it is used to indicate sex outside of marriage (and when I say marriage, I mean that legitimate union between a man and a woman ordained by God and sanctified by Christ at the wedding feast at Cana. I do not mean that perversion of today that is delivering a sustained assault on man’s oldest institution, the family, that demonic perversion called same sex marriage).

 From Biblical times till now whenever men had succumbed to the allures of the hidden and ephemeral pleasures of the flesh, lives had been ruined, kingdoms crashed, generations subjected to irreversible curses. Prominent men have had their empires crashed by sexual irresponsibility and men of infamy whom have serially eluded capture have been trapped in between the thighs of the fairer sex. Such is how powerful and dangerous a tool sex is. So on that day many decades ago when Eze mmuo cast his cowry shells on the ground and pronounced in that eerie voice “sex rules the world”, I knew he had seen a vision. It did not matter if without consulting Eze mmuo I amended his statement to read “sex ruins the world”, the meaning is the same.

So as I was busy making efforts to be mindful of my affairs, I stumbled on a trending story or news, it trended because it concerned a celebrity, (such things happen daily in this our chaotic world, where everybody is busy hurrying to nowhere but no one takes notice). If it was Eze mmuo that was involved even his tiny community of not more than one hundred citizens would not know, after all he is not the most expensive footballer on this planet of endless and sometimes phenomenal contradictions.

The story I stumbled upon was the allegation of rape against a certain Neymar Da Silva Santos Jr. aka Neymar Jr. the world’s most expensive footballer entertaining the oil sheiks in Paris with silky footballing skills.

The story goes like this, a certain adventurous Najilda Trindade while on a frigate via Instagram, located Neymar Jr. and as is the norm in this present day of confused priorities, she decided that ranking highest in her scale of worldly preference was to have sex with Neymar Jr. and so she made an offer of her body, Neymar accepted the offer. A young boy who has conquered the entertaining world of football, who has conquered poverty, a lad who has at his beck and call whatever luxury or pleasure money can buy. A friend of mine once said that when a man conquers poverty the next thing, he wants to conquer is women, what more when women willingly and consciously throw themselves at him. Neymar with his wealth and celebrity status must have had himself inundated with Najilda-like offers from women of diverse cultures, background and beliefs.

Well the story continues, Master Neymar flew Najilda to Paris and lodged her in a hotel at his own sex-pence (permit my corruption of the word). However, as Najilda later narrated days after the event, the honeymoon she expected was not quite what she got. In her words Neymar was “aggressive, totally different from the boy (mark it ‘the boy’) that I got to know through messages”. Najilda must have made an offer for sex which offer Neymar accepted at his own sex-pence as he flew her to Paris and lodged her in a hotel and she must have enjoyed the passionate French cuisine, however at the point of intercourse, Najilda claimed that she insisted that Neymar should use a condom but Neymar refused and rather than being the passionate and gentle lover she flew all the way from Brasilia to meet, he as she claimed became aggressive and raped her. According to her, she told him to stop but he refused.

Najilda has told her story and Neymar also told his own, both of them have testified at a police station in Brasilia. According to Neymar “what happened that day was a relationship between a man and a woman within four walls, like with any couple”. Rape does not happen as “relationship between a man and a woman within four walls like with any couple”. In fact, those who rape are not couples with their victims. At the least the debate whether a man can rape his wife is still on, there is no conclusion yet. Neymar therefore has by his statement effectively denied the allegation that he raped Ms. Najilda Trindade. Neymar may have conquered another fairer flesh but this one comes with its negative consequences. Some have claimed that it is a blackmail by Ms. Trindade, however I am concerned with the allegation of rape.

Neymar admitted having sex with Ms. Trindade but he claims it was consensual, Ms. Trindade admitted having sex with Neymar (in fact she admitted initiating the move) but claimed that it was not consensual, she claimed she was raped.

Najilda is the accuser, she is the protagonist, she initiated the contact. Was she a seductress out to blackmail a superstar celebrity and extort money. Was she only interested in having sex with Neymar as a mere emotional trophy to keep in her emotional cabinet to be unveiled to her daughter in future (Neymar claimed she asked for a trophy for her daughter). It is not in issue that she initiated the move, sought out Neymar on Instagram and declared to him that she desired to have sex with him. Neymar accepted her offer, flew her to Paris and lodged her in a hotel all for the purpose that linked them sexual intercourse.

Did Neymar actually rape Ms. Trindade. Rape is defined as non-consensual sexual intercourse. Rape is complete upon penetration. The nature of lack of consent is that even if a woman comes into your room where you are alone with her, strips naked and lies down on your bed, she has not consented to have sex with you. Her consent must be positive. It may be argued that the scenario painted above is consent, that the body language of the woman, and her visible actions meant consent but that is not so. However, it would be a defence for the man if he claims that he reasonably believed that the woman was consenting to sex. Again what if the man reasonably believed that the woman who entered his room, stripped herself naked and laid down on his bed was consenting to having sexual intercourse with him and decided to take advantage of that but the woman tells him “Before you have sex with me, you must first dance”. If the man refused to dance and goes ahead to have sex with the woman even though she did not resist him but said to him, “I insist you must dance before you have sex with me” the man has raped the woman.

The Queensland case of Kaitamaki v. The Queen (1985) stretched the issue of consent if you may say, ridiculously. It was held in that case that if at the point of penetration, the man reasonably believed that the victim was consent and during the intercourse the man realized that the victim was no more consenting, if he did not withdraw at that point and continues then he has committed rape. So a man having sex with a woman must be able to know she is consenting and she has withdrawn her consent and stop. So the argument will not be that at the time the man penetrated the victim was consenting and so he could not have raped her, if after penetration she withdrew her consent.

I brought up the Kaitamaki case because many would argue that, that the mere fact that Ms. Trindade made the offer to Neymar and that Neymar went through the expense of flying her into Paris and lodging her in a hotel she consented to whatever happened. The answer is no. Ms. Trindade might have made the offer, came to Paris to meet Neymar for the sole purpose of having sex with him and may have engaged in foreplay with him preparatory to the intercourse but at the moment she allegedly told Neymar to use a condom, she changed her offer by giving a condition and the moment Neymar allegedly penetrated her without a condom rape was complete.

It may also be argued for Neymar that he had already paid for the sex by flying Ms. Trindade to Paris and lodging her a hotel, if that argument could be made, it could also be argued for Ms. Trindade that at the time she made the offer and realizing that sexually transmitted diseases are rampant she reasonably believed that her sexual intercourse with Neymar must be with a condom. Neymar in his public statement never made mention of Ms. Trindade’s demand that he use a condom. If at all this demand was made and refused and penetration ocurred then the offence of rape was committed.

The funny thing is that this event occurred in Paris France but the complaint was lodged in Brasilia and that is where investigation is being conducted. I do not know the provisions of the Brazil Criminal Code, however it seems to me that Brazil is not a proper forum to try the offence.

In the end it might be that Neymar did not rape Trindade and Trindade was only blackmailing the “boy” to secure a big pay cheque. Whatever may be the case, one thing is sure, sexual intercourse took place “within four walls” of a room between Master Neymar and Ms. Trindade, but what we are not sure of was whether it was “like any couple” or ‘like a rapist and his victim’.

I will ask my good friend Eze mmuo to consult the oracle, I already have five shillings the price that opens the mouth of the gods.

Okechukwu Opara.

Contact Us at 08035896248

WASHINGTON – President Donald Trump, in his written answers to special counsel Robert Mueller, said more than 30 times that he did not “recall” or “remember” or have an “independent recollection” of events related to key questions surrounding Russian investigation. 

As part of Mueller’s 448-page report, which was released Thursday and divided into two volumes, the Justice Department also released Trump’s answers to dozens of questions from Mueller’s office relating to key aspects of the investigation into whether the Trump campaign conspired with Russia to interfere in the 2016 election. 

The questions centered around five key topics: The June 2016 meeting at Trump Tower with members of Trump’s circle and a Russian attorney, the Kremlin’s hacking efforts, the Trump Tower Moscow project and the various contacts with Russia during the campaign. 

The report noted that Mueller’s office tried for a year to interview Trump as part of its investigation, noting that the president was a “subject” of the investigation. Mueller’s office said it told Trump’s counsel that “[a]n interview with the president is vital to our investigation,” adding that “it is in the interest of the Presidency and the public for an interview to take place.” 

Trump’s answers were dubbed both “inadequate” and “incomplete or imprecise” by Mueller in the report. Mueller added that his office considered subpoenaing the president for his testimony but decided the “investigation had made significant progress” and that he had enough evidence from other sources to determine the credibility of Trump’s answers, the report states. 

More: Trump thought Mueller would ‘end’ his presidency and other takeaways from the Mueller report

President Trump’s answers to Robert Mueller’s questions about Russian contactsby Christal Hayes on Scribd

Full text: The Mueller report

Special counsel Robert Mueller wrote in his report on Russian interference in the 2016 presidential campaign that although he lacked sufficient evidence to clear or charge President Trump on possible obstruction of justice, Congress could take up the issue.

“We concluded that Congress has authority to prohibit a president’s corrupt use of his authority in order to protect the integrity of the administration of justice,” Mueller wrote in his 381-page report, a redacted version of which was released by the Justice Department Thursday.

Mueller made clear in his report that he did not believe his investigation cleared the president of much.

“If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state,” Mueller wrote.

Still, Mueller wrote that Trump was, for the most part, unsuccessful in influencing the outcome of the investigation.

Read the full text of the report hear

On Wednesday March 20, 2019, citizen Jumbo Ogah an officer of the Nigerian Security and Civil defence Corps (One of those paramilitary organisations in Nigeria whose roles collide, conflict and are confused with that of the Nigerian Police), dressed up in that early morning heat in his starched blue uniform with a red patch on the collar ready for work. But before he could go to office he had to do school runs and also wifey runs. It was a normal day, a hot day succeeding a hot night. A normal Wednesday in Abuja the Federal Capital typical for its hot weather at this time of the year. There was no inkling of evil, the cloud was bright and the weather man had on the previous night predicted a hot weather with a maximum temperature of 35’ c. Though the weather was hot and the day bright yet Citizen Jumbo Ogah did not know that his blood would soon run cold and the bright cloud darken over his family.

If you live in Abuja and know about the Nyanya axis, you would know how chaotic the traffic over there is in the mornings and in the evenings. It was therefore predictable that Jumbo Ogah with his wife and two children in tow would run into the chaotic traffic that morning. Typical of any and or all people of official uniform in Nigeria, he decided to use his uniform as a pass against the chaotic traffic (they all do it, from Soldiers to Policemen to Civil Defence, Customs, immigration etc. minus maybe the FRSC) but alas he ran into some other uniformed men who from what could be deduced from Ada’s (Jumbo’s wife) narrative were nursing a grudge against men and officers of the Nigerian Security and Civil Defence Corps. For his offence of misused privilege, the penalty was death, not just death but death with clubs. As the wife narrated “they kept hitting my husband with their batons… in front of his children and later dragged him on the ground to the police station”. Citizen Jumbo Ogah’s offence was therefore not that he committed any alleged traffic offence rather his offence was that he belonged to corps that was allegedly trained by the police but whose officers and personnel have refused to accord the Nigerian Police its due respect. To the two traffic policemen Jumbo Ogah must be taught a lesson that would resonate among the men and officers of the Nigerian Security and Civil Defence Corps.

According to Ada the policemen dragged her husband on the ground to their police station, where he was further mocked and parodied, the Divisional Police Officer was not to be left out in the morbid fun. She said that the policemen taunted her dying husband claiming that it was the police that trained the men and officers of the Civil Defence Corps but that they (men and women of Civil Defence) do not respect those who trained them. The Divisional Police Officer pretending ignorance of the pains of the man lying almost lifeless in his Station, ordered that the man lying almost lifeless and probably under intense internal bleeding be pricked with a needle to bring him back to life as he believed the man was faking unconsciousness. That is the brutal callousness that is Nigeria. Citizen Jumbo Ogar was brutally and scandalously murdered by those who belong with him to the same spirit of service (spirit of one body) e spirit d’ corps.

The Acting Inspector General of Police has promised that justice would be done, he has ordered an autopsy to be carried out to determine the cause of death, but the fact is that Mrs. Ada Ogar is now a widow, the Ogar Children are now fatherless, spousal love is gone, fatherly influence is gone. The Ogar family mourns, they are traumatized and the children will live with the memory of their father being bludgeoned to death.

Jumbo Ogar is dead but his blood screams for justice in a country where lives do not matter but will justice be done.        

ON THAT SEARCH OF HON. JUSTICE WALTER SAMUEL NKANU ONNOGHEN FARM

It is now common knowledge that the prosecution led by a Senior Advocate of Nigeria has goofed in its hire wired and horribly jaundiced trial of the ‘suspended’ CJN. I recall Mr. Femi Falana SAN talking to a reporter at the FCT High Court during the NBA declared boycott of the courts as a protest against the illegality of the suspension of the CJN. Mr. Falana told the reporter that NBA was celebrating criminality. That statement spoke volumes. However, I am not presently interested in the trial but something that has gone under the radar. On Saturday March 2, 2019, it was alleged that the operatives of the Economic and Financial Crimes Commission in their usual braggadocio invaded Hon. Justice Onnoghen’s Farm in Nassarawa State. According to one of the employees at the Farm, the EFCC did not show them any search warrant (before they commenced the search) claiming that the commission does not need search warrants to conduct searches. The Commission hurriedly came out on Sunday March 3, 2019 to deny that it invaded or searched Justice Onoghen’s Farm. Well whether it is true that the EFCC searched Justice Onoghen’s Farm or not, the alleged claim that the EFCC does not need a search warrant to search a premises is bogus. We shall look at the provisions of the law on search of premises and conveyances by the EFCC.

It is common for security agencies to use the twin weapons of ignorance of the law and intimidation to hoodwink Nigerians. Though legally speaking illegally obtained evidence (like evidence obtained through an illegal search of a person, house etc.) is admissible in law, but a person can avoid this by insisting on the law following its cause. It is not only immoral but illegal for operatives or agents of the Economic and Financial Crimes Commission to unlawfully invade a private property for a search without warrant claiming that it does not need a search warrant.

Though the main Act establishing the Commission did not provide that the Commission should obtain a search warrant, yet the Act did not make any explicit provision for Search of a property in the course of the Commission’s investigations. However, in 2010 the then Attorney General of the Federation Mohammed Bello Adoke acting pursuant to the powers conferred on him by S. 43 of the Economic and Financial Crimes Commission’s Act made the Economic and Financial Crimes Commission (Enforcement) Regulations 2010. Part V of the Regulations deal with Search, Inspection, Seizure, Forfeiture and Disposal of Property.

S. 13 of the Regulations provides; the Commission shall apply and obtain a court order to enter and search any premises, seize and take possession of any book, document or other articles evidencing the commission of an offence under the Act.

S. 14 of the Regulation provides; an officer of the Commission exercising the power pursuant to regulation 13 of these regulations shall obtain a warrant from a Judge or Magistrate to do the following-

a. break open any outer or inner door or window of any premises and enter thereto or forcibly enter the premises or any part thereof;

b. remove by force any obstruction to such entry, search, seizure or removal as he is empowered to effect;

c. detain any person found in any premises or conveyance to be searched pursuant to regulation 13, until the premises or conveyance has been searched.

The regulations made by the Attorney-General of the Federation pursuant to S. 43 of the EFCC Act which empowers him to make rules and regulations with regard to any of the duties, functions or powers of the Commission (EFCC) has the force of law and is binding on the Commission.

The implications of Regulation 13;

For the Economic and Financial Crimes Commission to exercise its power to search any premises or conveyance (Vehicles, Ship, Airplane etc.), and seize anything therein, it must first apply for and obtain a court Order. It is believed that such an application has to be by an ex-parte application before court a High Court or a Magistrate Court. The contents of the application should include, the name and address of the premises and the reason for the search, if the Judge or Magistrate after considering the affidavit evidence of the Commission is convinced that there is cogent reason to issue the search warrant then the Judge or Magistrate will grant the order and pursuant to the order made sign a Search Warrant. However, the grant or refusal of the application to issue a search warrant is at the discretion of the court.

The implications of Regulation 14;

For the Commission to carry out any of the acts in regulation 14, it must first obtain a warrant from a Judge or Magistrate, it would therefore be illegal for the Commission to enter a premises or conveyance uninvited and without a Warrant signed by High Court Judge or Magistrate. The Commission cannot even produce a search warrant without an accompanying order of court, since the law provides that it must obtain a search warrant pursuant to a court order. The implication is that any Search Warrant signed by a Judge or Magistrate which was not signed pursuant to an Order of that Judge or Magistrate is invalid and cannot admit any operative of the Commission into any premises or conveyance without the permission of the occupant or owner of the premises or conveyance.

However, where the operatives come to a premises without fulfilling the conditions in regulations 13 and 14 and the owner or occupant willingly admits them then they can go ahead and conduct their search but where they are denied entry they should behave like civilized beings under the law and go back.

Where therefore any operative of the Economic and Financial Crimes Commission enters a premises or conveyance uninvited and without a search warrant (backed by a Court order) signed by a High Court Judge or a Magistrate and proceeds to search the premises or conveyance without the consent of the occupier, though whatever incriminating evidence discovered could be used against the occupant of the premises or conveyance, the occupant can maintain an action in the tort of trespass against those persons who carried out the act. If the occupant can establish that those who carried out the search were acting for the Commission at the time of the act, then the Commission is also liable in the tort of trespass.