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Letter From Rivers Attorney General To AGF Malami On EFCC And Abuse Of Constitution
June 28, 2016
June 24, 2016
The Honourable Attorney-General of the Federation
Federal Ministry of Justice
Abuja
Attention: Honourable Abubakar Malami, SAN
Sir,
RE: PUBLICATION IN THE PUNCH NEWSPAPER OF FRIDAY JUNE 24, 2016 VOL. 40 N0 21,210 TITLED “AGF ORDERS EFCC TO PROBE RIVERS GOVT HOUSE DIRECTOR” PUBLISHED AT PAGE 7 WITH THE HEADING “ALLEGED N11BN WITHDRAWAL: AGF ORDERS EFCC TO PROBE RIVERS DIRECTOR”
The abovementioned subject refers.
I write as the Chief Law Officer of Rivers State and at the instruction of the Governor of Rivers State, His Excellency, Nyesom Ezenwo Wike, CON 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 Economic and Financial Crimes Commission, 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 V THE SPEAKER OF RIVERS STATE HOUSE OF ASSEMBLY & 36 OTHERS. The judgment was delivered by Honourable Justice P. N. C. Agumagu on the 16th day of February 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 Suit Number PHC/114/2007: ATTORNEY-GENERAL OF RIVERS STATE V THE SPEAKER OF RIVERS STATE HOUSE OF ASSEMBLY & 36 OTHERS, 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 which it considered in Suit number FHC/PH/CS/78/2007: ATTORNEY-GENERAL OF RIVERS STATE V THE ECONOMIC AND FINANCIAL CRIMES COMMISSION & 3 OTHERS made specific injunctive orders in its judgment delivered on the 20th day of March 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 Honourable 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 (9) 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 the Punch 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 V THE ECONOMIC AND FINANCIAL CRIMES COMMISSION & 3 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.
I cannot end this letter without quoting from the famous poem of Pastor Martin Niemöller following the Nazis’ rise to power and the subsequent purging of their chosen targets, group after group:
First they came for the Socialists, and I did not speak out-
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out-
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out-
Because I was not a Jew.
Then they came for me-and there was no one left to speak for me
Please be assured of the highest esteem of the Government and people of Rivers State.
Yours faithfully,
Emmanuel C. Aguma, SAN
Honourable Attorney-General and
Commissioner of Justice
Rivers State.
