……..Benue Govt vows to appeal judgment
By Ikechukwu Nnochiri
ABUJA – The Federal High Court sitting in Abuja, on Monday, dismissed a suit the Benue State Government filed to challenge the powers of the Economic and Financial Crimes Commission, EFCC, to investigate its finances.
The court, in a judgement that was delivered by Justice Nnamdi Dimgba, held that EFCC has the legal competence to investigate any allegation or reasonable suspicion of financial impropriety involving officials of any state government.
Justice Dimgba held that powers the law conferred on EFCC under sections 6, 7 and 38 of the EFCC Act were very broad and not confined or limited to geographical or territorial boundaries.
He said the anti-graft agency was not forclosed by section 125 of the 1999 Constitution, as amended, from demanding the release of specific officials of the Benue State government to assist its investigations.
The court held that the suit was predicated on the “fallacy and misconception” that only a resolution by the Benue State Assembly could empower the EFCC to look into financial activities of the state.
It further dismissed contention of the Plaintiff that only the Auditor General of Benue State has the sole responsibility of scrutinizing financial books of the state.
The court maintained that contrary to the position of the Plaintiff, the Benue State government was not the subject of the investigation, but named officials that were fingered in a petition that alleged the commission of financial crimes.
“Indeed, the definition of economic and financial crimes under Section 46 of the EFCC Act is so broad that it arises even in the context of the management of the financial resources of a State.
“I am therefore in total disagreement with the proposition that the 1st Defendant is foreclosed from investigating an allegation of corruption when it has to do with the finances of a state government.
“It is important to note that none of the officials which the 1st Defendant by Exhibits EFCC3 to EFCC6 have asked to be released to assist their investigation is a Governor or Deputy Governor who enjoy immunity under Section 308 of the Constitution.
“Therefore, from a totality of all these evidence as well as the depositions in the affidavit evidence before me, the suggestion that the 1st Defendant is investigating the Government of Benue State absolutely holds no water. It is clear that the investigation activities are directed at State officials and not to the State itself which in any event cannot possibly be engaged in the commission of economic and financial crimes since the State Government cannot possibly possess the mental element needed to commit such crimes nor can possibly be subject to the criminal prosecution that is the end-point of any investigative activities.
“As far as I can see, there is nothing in Sections 125, 128 and 129 of the CFRN 1999 which forecloses or precludes the investigative powers of the 1st Defendant in the matters over which the 1st Defendant has competence.
“The purpose of the surveillance and investigative powers of the House of Assembly and indeed of the Auditor-General are quite limited by the Constitution. There is nothing in any of the mentioned constitutional provisions that contains a language of exclusivity indicating that as far as issues of corruption in the administration of a State Government is concerned, it is only the House of Assembly that can detect or deal with such.
“In the absence of such language of exclusivity, and in the presence of the strictly limiting purposes set out under Section 128(2) of the Constitution in relation to the investigation powers of the House of Assembly, I am of the view that the 1st defendant retains the competence to investigate the financial administration of a State to see if a financial or economic crime has been committed by any official when a reasonable basis exists, as it does in the light of Exhibits EFCC1 and EFCC2.
“I further hold that exercising this competence as the 1st Defendant has done in the circumstances of the present case does not do any violence to the principles of federalism and separation of powers embodied in the Constitution.
“The proper view therefore is that in relation to financial and economic crimes in Nigeria, there are no holy grounds or exclusive territories belonging only to the State Houses of Assembly. The powers of the state legislatures to investigate and expose corruption in the management of a State’s finances exist in complementarity with the roles, mandate and powers of the 1st Defendant”.
“For the avoidance of doubt, my conclusion is that the 1st Defendant has the legal competence to investigate any allegation or reasonable suspicion of corrupt practices and all forms of economic and financial crimes in Nigeria in every strata of our public life, even if such allegations or reasonable suspicions arise in the context of the financial administration of a state or even local government in Nigeria.
“I also do not believe the argument that an invitation of key officials of the Benue State government pursuant to investigating allegations of corrupt practices and suspicious transactions in the financial dealings of the state amounts to an attempt to take over the Benue State government by the 1st Defendant. The State can still very much function if the requested officials show cooperation with the 1st defendant”, Justice Dimgba held.
The Judge said he was not unmindful of two previous verdicts of the Ekiti and Rivers Divisions of the High Court which stripped EFCC of the powers to investigate accounts of states.
However, he wondered why EFCC was quick to invite Benue officials for investigation shortly after Governor Samuel Ortom declared his intention to join the opposition party.
Justice Dimgba noted that while EFCC ignored a petition that was sent to it since 2016, it acted swiftly by summoning Benue officials on the same day it received a petition within the period governor Ortom threatened to decamp.
“Public institutions such as the 1st Defendant who are maintained with the public purse, must not only be impartial and politically neutral, but must be seen to be such. They must also sequence their activities in such a way as not to raise suspicions that they are motivated by considerations other than the genuine mandate for which they have been set up.
“The point is that it is the level of efficiency and frenzy displayed by the 1st Defendant in receiving a petition on a particular day and which received immediate and instant attention that has aroused suspicion and curiosity, in the light of the fact that a first petition received in June 2016 did not receive the same level of efficiency and attention.
“Speaking directly, and calling a spade its English name, it is the sudden display of efficiency by the 1st Defendant to investigate possible commission of economic and financial crimes by officials of the Benue State Government at a time of a change in the political affiliation by the leadership of Benue State, when such efficiency was not displayed on a petition received at a time when the leadership of the state was in the same political affiliation with the Federal Government, that has given rise to the suspicion and corresponding resistance that the 1st Defendant’s actions in carrying out its mandate in relation to the financial affairs of Benue State was being ill-motivated by malice and political considerations.
“This is a moral point, but which observation as I noted earlier, I feel obliged to make for posterity purposes”, Justice Dimgba added before he dismissed the suit.
Meanwhile, Benue State, through its lawyer, Mr. Emeka Etiaba, SAN, said it would appeal against the judgment.
Aside the EFCC, other Respondents in the suit are the Speaker of Benue State House of Assembly, the Clerk Benue State House of Assembly, Benue State House of Assembly, and the Auditor General of Benue State.
Benue State had in its suit marked HC/MAD/CS/42/18, urged the court to among other things, determine, “Whether by virtue of Sections 6, 7 and 38(1) of the Economic and Financial Crimes Commission (EFCC) Act 2004 (EFCC Act) or any other law, the EFCC or any other body, authority or person beyond the 4th and 5th defendants has the power to investigate or inquire into the accounts and/or appropriations, disbursements and administration of the funds of Benue State Government having regard to the clear provisions of Sections 1 ( 1) and (3), 125(2), (4) and (6), 128 and 129 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
It sought for a “declaration that the commencement or continued invitations of officials of Benue State Government on account of investigation of Benue Government accounts, investigations and/or inquisitions into the accounts and/or appropriations, disbursements and administration of the funds of Benue State Government by the EFCC or any other body, authority or person under any guise without authorization by the 2nd to 4th defendants vide a duly passed eesolution negate the Doctrine of Separation of Powers as enshrined under Sections 4, 5 and 6 of the Constitution.
As wellas an order of perpetual injunction restraining the 2nd, 3rd and 4th defendants from surrendering\or sharing their powers of control over the public funds of Benue State as provided under Sections 128 and 129 of the Constitution to the 1st defendant or to any other body, authority or person.
Aside the EFCC, other Defendants in the suit were the Speaker of Benue State House of Assembly, the Clerk Benue State House of Assembly, Benue State House of Assembly, and the Auditor General of Benue State.