EFCC can't look at our books, Rivers AG writes AGF
Attorney General of the state and Commissioner of Justice,
Mr Emma Aguma, in a letter to the Chief Judge of the Federation on Tuesday, said there
were judgements barring the anti graft agency from investigating the state.
The Attorney General, also described as untrue, a newspaper
report that a staff of the state government withdrew N11 billion for the state.
He said, "I
write as the Chief Law Officer of Rivers State and at the instruction of the
Governor of Rivers State, Mr Nyesom Wike, and the Government of Rivers State.
My instruction and direction is to state as follows.
“The totality of the allegations made in the said
publication is untrue and unfounded. It is a salacious publication aimed at
both scintillating the reading public and scandalizing the Government of Rivers
State by the usual methods of trial on the pages of newspapers devoid of
verifiable facts.
“The wild allegations contained in the said publication
would be appropriately addressed and their falsity shown when they are raised
by due process of law in the appropriate forum.
“There are two subsisting judgments of the High Court of
Rivers State and the Federal High Court that bar the EFCC from investigating
the finances of Rivers State. The first of these judgments is the judgment of
the High Court of Rivers State in suit Number PHC/114/2007: Attorney General of
Rivers State Vs the Speaker of Rivers State House of Assembly and 36 others.
The judgment was delivered by Justice P. Agumagu on February 16, 2007. This judgment
enunciated the following principles of law which till date have not been
set-aside by the EFCC in any appellate court. The principles of law are:
“By the combined effects of section 125 subsections (2), (5)
and (6) of the Constitution of the Federal Republic of Nigeria 1999 (the 1999
Constitution), it is the House of Assembly of a state, Rivers State inclusive,
that has the final say on matters pertaining to the funds of the state as laid
before it by the Auditor-General's Audit Report of all public accounts and the
Accountant-General's financial statements and published annual accounts.
“These powers are exercised independently without the
direction, dictation, control or manipulation of any other authority or person.
The constitution does not vest on investigating bodies such as the EFCC or the
Police or law officers like the Attorney-General of the Federation any powers
to direct or control the House of Assembly of a state in the performance of its
aforementioned function of superintending over the funds of a State.
“Neither do the Attorney-General of the Federation, the
Police or the EFCC have any constitutional powers to direct how the
Accountant-General or the Auditor General of a state performs their respective
functions.
“By the combined provisions of sections 128 and 129 of the
1999 Constitution, it is the House of Assembly of a state that is vested with
the power to superintend or police all funds of the state and "to expose
corruption and waste in the management of public and consolidated revenue funds
of a State". The powers of the House of Assembly contained in section 128
of the 1999 Constitution are exclusively reserved for them. "The Federal
Government or any of its agencies does not share this power with the House of
Assembly. Neither the Police, nor the EFCC is constitutionally empowered to
share power with the House of Assembly. It will amount to an unconstitutional
act for the EFCC or the ICPC to usurp this power of the House of Assembly.’
"The EFCC has no constitutional power and control, over
public and consolidated revenue funds of Rivers State, and to that extent is
not entitled to audit its accounts or tamper with its bank statements and
records".
“On the strength of the decision in said suit, the EFCC has
no business with the matters contained in the said publication unless and/or
until the Rivers State House of Assembly performs its duties and invites the
EFCC to investigate a crime pursuant to sections 6 and 7 of the Economic and
Financial Crimes Act No. 1 of 2004.
“It is instructive that the aforementioned judgment of the
High Court of Rivers State delivered over nine (9) years ago (2007) is valid
and subsisting and has not been set aside. It is therefore binding and in
force. It cannot be overruled by administrative fiat by any official of
Government no matter how highly placed.
“The Federal High Court in line with the tenor of the
judgment of the High Court aforementioned made specific injunctive orders in
its judgment delivered March 20, 2007
restraining the EFCC (the 1st Defendant in the said suit) from specific acts.
The Federal High Court made the following peremptory orders that are reproduced
below:
(a) "An order of
injunction restraining the 1st defendant by itself or by its servants or agents
or in any manner howsoever from purporting to investigate or inquire into the
appropriation, disbursing, administering, or management of the funds of Rivers
State is hereby made". This is relief number v granted by the Honourable
Court.
(b) "An order of injunction restraining the 1st
defendant by itself or by its servants or agents or in any manner howsoever
from disseminating, publishing or circulating to any government, government
agency, the news media or members of the public or in any manner at all, he
(sic) purported or findings in respect of any investigation or inquiry into the
appropriation, disbursing, administering or management of the funds of Rivers
State or putting the said report or finding to any use whatsoever is hereby
made". This is relief number vi granted by the court.
“The Federal High Court in relief numbers vii. and viii. of
the judgment reinforced reliefs v and vi aforementioned by barring by way of
injunction:
Both the Speaker of the Rivers State House of Assembly and
the Members of the house (the 2nd and 3rd Defendants respectively) from putting
to any use whatsoever any investigation report placed before it by the 1st
Defendant; and
“The 1st Defendant by itself, its servants and agents from
inducing, coercing or in any manner howsoever influencing the 2nd and 3rd
defendants to commence impeachment proceedings to remove the Governor or Deputy
Governor of Rivers State.
“It is again noteworthy that the EFCC has not, over nine years
after the said judgment set-aside the said judgment through an appeal. It is
trite that both judgments are still valid and subsisting even if it is to the
irritation of the EFCC. As the Supreme Court aptly stated in Akinyemi v Soyanwo
[2006] All FWLR Part 335 page 58 at page 70 paragraphs F - G thus:
"It is a settled principle of law that every party to a
suit, and indeed every citizen, has an obligation to obey subsisting court
decision or order in the suit unless or until it is set-aside. And the party's
obligation to obey the decision is without regard to his perception about the
irregularity or illegality of the decision as long as it subsists".
“The publication in a national newspaper aforementioned is a
clear violation of the tenor of the judgment in suit number FHC/PH/CS/78/2007:
Attorney General of Rivers State Vs the EFCC and three others. The audit of the
accounts and expenditure of the Government of Rivers State are also in utter
violation of the orders of the Federal High Court and negates the rule of law.
“We respectfully remind you sir of the responsibilities of
the Attorney-General of the Federation as elucidated by the Supreme Court in
Elelu-Habeeb v Attorney-General of the Federation [2012] All FWLR Part 629 page
1011 at page 1079 paragraphs B-D. There is no need for a reproduction of the
admonition of the Noble Justices of the Supreme Court as we are certain that
you are conversant with the decision.
We are also reminded of our duty as lawyers thrust on us by
Rule 24 of our Rules of Professional Conduct headed "The Lawyer's Duty In
Its Last Analysis". It provides:
"Lawyers are in duty bound to uphold the law; and no
service or advice ought to be rendered or given by them to clients, corporate
or individual, of any description or to any cause whatsoever involving
disloyalty to the law or bringing disrespect upon the holder of any judicial
office or involving corruption of holders of any public office. Improper
service or advice in such circumstances as aforesaid is unethical and merits
strong condemnation as unprofessional conduct. On the other hand, service or
advice rendered or given that not only accords with the letter of the law but
also embraces moral principle cannot be too highly commended.
“He must also observe and advise his client to observe the
statute law, save that until a statute has been construed and interpreted by
competent adjudication, he is free and is entitled to advise as to its validity
and as to what he conscientiously believes to be its just meaning and extent.
Above all, a lawyer finds his highest honour in a deserved reputation for
fidelity to private trust and to public duty, as an honest man and as a
patriotic and loyal citizen.
“Conclusion: It is with utmost respect that in keeping with
my capacity and my instruction and direction, that I respectfully urge you sir
as the Chief Law Officer of the Federation and custodian of the Constitution of
Nigeria which is premised on the rule of law to advice the EFCC on the limits
of its powers.
“The judgments we have respectfully referred you to sir are
judgments in rem and are binding on all the parties to the suits including the
EFCC. As the Supreme Stated in its judgment in SC/521983: Hart v Hart delivered
on the 2nd day of February 1990:
"As O'Leary, J. (a Canadian Judge) put it in Canadian
Metal Co. Ltd. v. Canadian Broadcasting Corp. (No. 2) f1975] 48 D.L.R. (3d) 641
at 669-
'To allow court orders to be disobeyed would be to tread the
road toward anarchy. If orders of the Court can be treated with disrespect, the
whole administration of justice is brought into scorn…….if the remedies that
the Courts grant to correct.... wrongs can be ignored, then there will be
nothing left for each person but to take the law into his own hands. Loss of
respect for the Courts will quickly result into the destruction of our
society.'"
"The EFCC is not supra constitutional. It is a creation
of statute that is bound to honour and respect the law. There is not a single
decision of our Courts or provision of our Constitution or statutes that
exempts the EFCC from obedience to the laws of the land. The "buck",
as it were, stops on your table for each act of the EFCC that is in violation
of the Rule of Law"
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