…Dismisses Benue State govt’s suit against commission
…Says accountability can’t be left alone to State Assembly
In what can be regarded as a landmark judgment to address impunity, the Federal High Court in Abuja on Monday emboldened the powers of the Economic and Financial Crimes Commission (EFCC) to curb financial crimes in the states as it held that the agency has the powers to investigate the accounts of Benue State Government and alleged financial crimes committed by officials of state government.
Justice Nnamdi Dimgba stated this while delivering his judgment in the suit brought by the Benue State government, challenging the propriety of a temporary freezing of the state bank account by the anti-graft agency.
In his remarkable verdict on the matter, Justice Dimgba held that the power of EFCC to fight corruption is not limited by boundary.
He said, “I am therefore in total disagreement with the plaintiff counsel submission that the anti-graft agency can’t probe complaints of corruption leveled against the officials of state government until it is invited by the State House of Assembly by resolution”.
Consequently, the court dismissed the suit by the Benue State government, challenging the powers of the EFCC to investigate its accounts for lack of merit.
Justice Nnamdi Dimgba further held that he was not persuaded by the earlier decision of the court of coordinate jurisdiction in Port Harcourt Division in a similar case that the EFCC lacked the statutory powers to investigate the financial activities of a state government.
He said that the instant case was built on a misconception that the EFCC lacked the statutory powers to investigate the financial activities of a state government.
Justice Dimgba said, “ The powers donated to the EFCC under Section 38 of its Act are very broad and not limited to any geographical location. It is so broad that it arises even in the context of management of State finances.
“I must make bold to say that the suit rest on a fallacy that EFCC is investigating the Benue State Government. This misconception collapsed by the provision of Section 38 of the EFCC Act.
“Issues are mixed up here and the court cannot allow itself into the misconception. What is clear to me going by the exhibits attached by the 1st defendant is that petitions were written against some named officials in the administration of the Benue State Government containing allegations of fraud against them.
“Invitation letters were directed to some officials of Benue State Government and another letter requesting the release of some State officials.
“None of the officials is a Governor or Deputy Governor who enjoys immunity under section 308 of the 1999 constitution of the Federal Republic of Nigeria (as amended).
“The suggestion that EFCC is investigating Benue State Government did not hold water. I am of the view that EFCC acted within its powers under the law when it sent letters of invitation to some officials of the Benue State Government for the purpose of investigation, which is the subject matter before this Court.
“I don’t agree that its action is a usurpation of responsibilities of the State House of Assembly and the Auditor General of the State.
“The Audit function of the Auditor General did not foreclose the duties and functions of the EFCC. It is a complementary to the powers of the powers of the State Assembly under Sections 128 and 129 of the 1999 Constitution.
“As far as I can see, there is nothing in section 125, 128 and 129 which foreclosed the investigating powers of the EFCC. The surveillance powers of the Auditor General and House of Assembly is limited.
I am of the view that EFCC retained the powers to investigate the finances of the state. It does not do any violence to the doctrine of federalism and separation of powers.
“Besides, the EFCC has the expertise to carry out forensic investigation of financial crimes which neither the House of Assembly and Auditor General has the special skills to investigate financial crimes.
“I differ with my brother’s decision in the case of AG Rivers v. EFCC and AG Ekiti v. EFCC because there is some danger in holding that only State Houses of Assembly can investigate State finances.
This court takes a different view bearing in mind the collaborative efforts between the State and Federal government in the fight against corruption.
Secondly, the harmonious relationship of state Assembly and the overbearing of state executive powers have rendered the investigative powers of the state assemblies an academic exercise”.
The judge also held that he did not see how Auditor General who is not independent of the state governor or state assembly would carry out the investigative function.
Speaking on the statutory powers of the EFCC, the judge said, “The EFCC has legal powers to investigate financial crimes in every strata of our public life even at Local government level.”
But the court cautioned the EFCC to carry out its statutory functions in such a way that it would earn public confidence and must be impartial and neutral.
Justice Dimgba observed that though the Commission received the first petition against some officials of the state since July 18, 2016 when the Benue State governor was in the same political party with the government in power,
it waited till July 19, 2018 when there was a change in the political affiliation of the state executive governor before acting, thus given rise to suspicion.
The judge said that a public institution being funded by tax payers should be neutral in carrying out its functions and should not create excuses that would make the political class of the state to see its actions as being motivated by malice.
He said these observations are for posterity and are based on moral grounds which has nothing to do with laws as it relates to the case before the court.
The EFCC had earlier this month placed Debit Note on the bank accounts of Benue State Government, claiming it was investigating alleged fraud but lifted Debit Note on the account same day the order was made.
But in an originating summons marked FHC/MKD/CS/42/18 filed by the Attorney General of Benue State, Michael Gusa, the state government challenged the powers of the EFCC 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.
It has the Speaker of the Benue State House of Assembly; the Clerk of the State Assembly; Benue Assembly and the Auditor-General, Benue State as other respondents.
Lawyer to Benue State government, Mr Emeka Etiaba (SAN), said on Monday, that the state government will challenge the decision on appeal while the lawyer to the EFCC, Mr Syllvanus Tahir, said the commission would take up issues with the Benue State government at the appellate court.