ATTORNEY-GENERAL OF ABIA STATE (PLAINTIFF)
v.
ATTORNEY-GENERAL OF THE FEDERATION and 35 OTHERS (DEFENDANTS)
(2007) 2 All N.L.R. 19
Division: Supreme Court of Nigeria
Date of Judgment: 23 February 2007
Case Number: SC 73/2006
Before: Idris Legbo Kutigi CJN; Sylvester Umaru Onu; Aloysius Iyorgyer Katsina-Alu; Umaru Atu Kalgo; Aloma Mariam Mukhtar; Walter Samuel Nkanu Onnoghen; Francis Fedode Tabai, JJSC
ISSUES
Whether the Economic and Financial Crimes Commission ("EFCC") was a body corporate with the capacity to sue and be sued in a court of law in the performance of its statutory functions.
Whether the EFCC was at material times the agent of the first defendant.
Whether the plaintiff should have sued the EFCC directly.
Whether official corruption, including corruption by the functionaries of a State in the Federation as defined in the Criminal Code law applicable in Abia State or in the Independent Corrupt Practices and Other Related Offences Commission ("ICPC") Act, 2002 came within the purview of section 46 of the EFCC (Establishment) Act, 2004.
Whether section 40 of the EFCC (Establishment) Act was unconstitutional, having regard to section 36 of the Constitution.
Whether it was lawful for the EFCC to have frozen the account of any person pursuant to its power under section 34(1) of the EFCC Act, notwithstanding the provisions of section 36(1) and (5) of the Constitution 1999.
Whether the powers conferred on the EFCC by section 7(1) of the EFCC Act extended to investigations into the financial affairs of a state Government.
Whether the Abia State Government was a person, corporate body or organisation cognisable under section 7(1) of the EFCC Act.
Whether the EFCC had power by virtue of section 34(1) and (2) of the EFCC Act to freeze any account of any government in the Federation, including the Abia State Government.
FACTS
The plaintiff instituted this action in the Supreme Court and claimed that the Economic and Financial Crimes Commission ("EFCC") had caused to be printed in February 2006 the statement of account of the Abia State Government's House and other State departments without its authorisation. The plaintiff further claimed that the EFCC had received copies of its accounts from its various bankers, and that the power of the EFCC to prosecute financial crimes did not extend to the management of its (plaintiff's) accounts. The plaintiff then alleged that the financial affairs of the Abia State Government did not come within the provisions of section 7(1) of the EFCC Act and that, unless restrained, the first defendant's agents, acting through the EFCC would take steps to freeze or render inoperative the accounts of the Abia State Government.
The plaintiff then sought declarations, including a perpetual injunction, to prevent the EFCC from taking any such actions, including the freezing of its bank accounts.
The defendant filed a preliminary objection that it had been incorrectly sued, because the EFCC was an independent body outside its lawful management and control.
HELD
Leading judgment by Walter Samuel Nkanu Onnoghen, JSC with I.L. Kutigi Chief Justice, S.U. Onu, A.I. Katsina-Alu, U.A. Kalgo, A.M. Mukhtar and F.F. Tabai, JJSC concurring
1. EFCC not controlled by the defendants
The relief sought by the plaintiff presupposed that the EFCC was under the control, management and direction of the defendants, whereas it was not. The statement of claim nowhere challenged the validity or constitutionality of the EFCC Act, 2004, which was the Act establishing the EFCC. Per Onnoghen, JSC at 23.
2. Supreme Court jurisdiction over Federation and State disputes
Section 232(1) of the Constitution gave the Supreme Court original jurisdiction, to the exclusion of any other court, over any dispute between the Federation and a State, if the dispute involved any question (whether of law or fact) on which the existence of a legal right depended. Per Onnoghen, JSC at 23.
3. Facts failed to disclose any dispute between the plaintiff (State) and the Federation pursuant to section 232(1) of the Constitution
The facts of the case did not disclose any dispute between the plaintiff and the defendants within the meaning of section 232(1) of the Constitution. There was no complaint against the first defendant as representing the Federal Government. All the complaints were against the EFCC. Per Onnoghen, JSC at 23.
4. Plaintiff at liberty to sue EFCC in another court
The plaintiff is at liberty to sue the EFCC, but not in the Supreme Court as the EFCC is neither a State nor the Federation. Per Onnoghen, JSC at 23.
Preliminary objection sustained.
Chief S.U. Akuma, A.G. Abia State for the plaintiff with him are E. Awa-Kalu (Mrs), Ogbugo Ukoha Esq., Akiola N.N. (Mrs) S.S.C., U. Chukwu Esq. S.C; M.C. Karu Esq. and N.C. Okonkwo Esq.
R.A. Lawal-Rabana Esq. for the first defendant with him are N.U. Okoi Esq. C.L.O. Federal Ministry of Justice; N.A. Mwachukwu (Miss) L.O., Sheeni Ibikuw Esq.; C.P. Idam Esq., Chuma Chukwudi Esq.
Yakubu Gbali Esq. for Adamawa State
I.E. Ukana Esq, D.C.L. for Akwa Ibom State
P.A. Afuba Esq, A.G. Anambra for Anambra State with V.O. Onwuka (Mrs P A.C.S.C.
Dele Adesina Esq. for Bauchi State with him is Bidemi Adesina Esq.
K. Wodu Esq. for Bayelsa State with him is H.P.M. Apeli D.C.L.
C.M. Chaha P.S.C. for Benue State
Prof. A.B. Kasunmu SAN with O.A. Ojo Esq. for Delta State
Gboyega Oyewole Esq., A.G. Ekiti for Ekiti State with A.O. Familoni D.C.L.
A.N. Eluwa (Mrs) D.C.L. for Imo State.
Adamu Abdullahi Esq. for Jigawa State with him is Sabi Abubakar Esq.
H.O. Afolabi Esq. for Niger State with him are S.O. Ajayi, O.A. Popoola A., O.O. Ogunmola (Mrs)
Cyril Akiminsola Esq., D.C.L. for Ondo State with him Deji Ogundare Esq., D.D.C.L.
W.A. Olajide Esq. for Osun State holding brief for N.O.O. Oke Esq. SAN.
M.F. Lana Esq, A.G. for Oyo State with D.A. Ogumuran; C.L.O., O.K. Omotosho Esq, L.O.
F.B. Lotben (Mrs) D.C.L. for Plateau State
E.N. Madume Esq. D.D.C. for Rivers State
Sulaiman Abdulkadir Esq., for Sokoto State
S.Samanja Esq. S.G. for Yobe State with I.S. Kogo D.C.L
The following cases were referred to in this judgment:
Nigeria
Attorney-General of Bendel State v Attorney-General of the Federation (1981) 10 SC 1; (1982) 3 NCLR 1
Attorney-General of Lagos State v Attorney-General of the Federation (2004) 11-12 SC 85
Attorney-General of Ondo State v Attorney-General of the Federation & 19 others (1983) All NLR 552
Attorney-General of the Federation v Attorney-General of Abia State (2001) 11 NWLR (Part 725) 689
Attorney-General of the Federation v Attorney-General of Imo State (1983) 4 NCLR 178
Governor of Kaduna State v The President of the Federal Republic of Nigeria (1981) 2 NCLR 786
Governor of Ogun State v President of the Federal Republic of Nigeria (1982) 3 NCLR 538
Governor of Ondo State v President of the Federal Republic of Nigeria (1985) 6 NCLR 681
Obioha v President of the Federal Republic of Nigeria (1981) 2 NCLR 701
President of the Federal Republic of Nigeria v Governor of Kano State (1982) 3 NCLR 819
The following statutes were referred to in this judgment:
Nigeria
Constitution of the Federal Republic of Nigeria, 1979: S 212
Constitution of the Federal Republic of Nigeria, 1999: Ss 36(1), (5); 232(1)
Criminal Code Law: generally
Economic and Financial Crimes Commission (EFCC) Establishment Act, 2004: Ss 2(a), (b); 7(1); 34(1), (2); 40; 46
Independent Corrupt Practices and Other Related Offences Commission (ICPC) Act, 2002
ONNOGHEN, JSC (DELIVERED THE LEADING JUDGMENT):- The plaintiff claims that the agents of the Economic and Financial Crimes Commission a.k.a EFCC, had caused to be printed in February 2006, the Statement of Account of Abia State Government's House and other State Departments without authorisation or consent of the plaintiff. The plaintiff also alleges that the EFCC had received copies of Statements of Account of the plaintiff from the plaintiff's bankers including but not limited to Hallmark Bank, Guarantee Trust Bank and Manny Bank; that the powers to investigate and prosecute financial crimes vested in the EFCC does not extend to the management of the plaintiff's accounts and that the EFCC within the past one year had used its statutory powers in such a way as to freeze the accounts owned and operated by the Bayelsa State Government and the Plateau State Government; that the Government of Abia State does not come within the provisions of section 7(1) of the Economic and Financial Crimes Commission ("EFCC") and as such its financial activities as a Government are not within the contemplation of the EFCC Act; that unless restrained the first defendant's agents acting through the EFCC will take steps to freeze or render inoperative the accounts of the Abia State Government and therefore called on the court to determine the following questions:-
"(a) Whether official corruption including corruption by functionaries of a State in the Federation as defined in the Criminal Code Law applicable in Abia State or in the Independent Corrupt Practices and Other Related Offences Commission ('ICPC') Act, 2002 comes within the purview of section 46 of the Economic and Financial Crimes Commission ('EFCC') (Establishment) Act, 2004.
(b) Whether section 40 of the Economic and Financial Crimes Commission ('EFCC') (Establishment) Act, 2004 is not unconstitutional having regard to the provisions of section 36 of the Constitution.
(c) Further or in the alternative, whether section 40 of the Economic and Financial Crimes Commission ('EFCC') (Establishment) Act, 2004 is not a Legislative Judgment.
(d) Whether it is lawful or not for the Economic and Financial Crimes Commission ('EFCC') to freeze the account of any person pursuant to its powers under section 34(1) of the EFCC Act, notwithstanding the provisions of section 36(1) and (5) of the Constitution of the Federal Republic of Nigeria, 1999.
(e) Whether the powers conferred on the Economic and Financial Crimes Commission ('EFCC') by section 7(1) of the Economic and Financial Crimes Commission ('EFCC') Act, 2004 extends to investigations into the financial affairs of a State Government.
(f ) Whether the Government of Abia State is a person, corporate body or organisation cognisable under section 7(1) of the Economic and Financial Crimes Commission ('EFCC') Act, 2004.
(g) er the Economic and Financial Crimes Commission ('EFCC') has power by virtue of section 34(1) and (2) of the Economic and Financial Crimes Commission ('EFCC') Act, 2004 to freeze any account belonging to any government in the Federation (including the Abia State Government) or at all."
The plaintiff therefore claimed the following reliefs:-
"(i) A determination of the question whether section 40 of the Economic and Financial Crimes Commission ('EFCC') Establishment) Act, 2004 is not a legislative judgment.
(ii) A determination of the question whether the powers conferred on the Economic and Financial Crimes Commission ('EFCC') by section 7(1) of the Economic and Financial Crimes Commission ('EFCC') Act, 2004 extends to investigation into the financial affairs of a State Government.
(iii) A declaration that it is unlawful for the Economic and Financial Crimes Commission ('EFCC') to freeze or render inoperative the account or accounts of any Government of a State including the plaintiff's.
(iv) A declaration that the powers vested in the Economic and Financial Crimes Commission ('EFCC') by the Economic and Financial Crimes Commission ('EFCC') Act, 2004 does not extend to official corruption as defined in the Criminal Code Law applicable in Abia State not to such kindred offences defined in the Independent Corrupt Practices and other Related Offences Commission Act, 2002 or at all.
(v) A declaration that it is illegal and unconstitutional for The Economic and Financial Crimes Commission ('EFCC') to exercise any power vested in it by the Economic and Financial Crimes Commission ('EFCC') Act, 2004 to feeze the accounts of the plaintiff without recourse to the relevant provisions of section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and to all rules of natural justice.
(vi) A declaration that it is unlawful and unconstitutional for the first defendant acting through the Economic and Financial Crimes Commission or any of its agencies to exercise the executive powers of the Federation in such a way as to stifle, paralyse, curtail, or in any way or manner whatsoever, to inhibit the functions of any State Government including the plaintiffs.
(vii) An order of perpetual injunction restraining the Federal Government, its functionaries or Agencies whomsoever including the Economic and Financial Crimes Commission ('EFCC') or howsoever from executing or applying or enforcing the provisions of the Economic and Financial Crimes Commission ('EFCC') Act, 2004 in the plaintiff state whether by interfering with the activities of any public officer or functionary or officer or servant of the Government of Abia State in exercise of powers purported to be conferred by or under the provisions of the Economic and Financial Crimes Commission ('EFCC') Act, 2004 or by sections 7, 34(1) or 40 of the said Act or otherwise howsoever.
(viii) An order of perpetual injunction restraining the defendants jointly and severally from using the Economic and Financial Crimes Commission ('EFCC') or by any means whatsoever to freeze or render inoperative or inoperable any account or accounts of the plaintiff in any Bank in Nigeria."
From the questions and reliefs reproduced (supra), it is without doubt that the complaints of the plaintiff are against the activities of the agents of or operations of the Economic and Financial Crimes Commission. There is no complaint against the Government of the Federal Republic of Nigeria as represented by the first defendant in this action. It should be noted that the Attorneys-General of all the States of the Federation except Abia State, have been joined by the plaintiff as co-defendants in this action and that by relief (viii) (supra) the plaintiff seeks to restrain the said defendants jointly and severally from using the EFCC to freeze or render inoperable any account or accounts of the plaintiff. The above relief presupposes that the Economic and Financial Crimes Commission ("EFCC") is under the control, management, and direction of the defendants whereas in actual fact, it is not. Throughout the Statement of Claim, there is no single complaint against the Economic and Financial Crimes Commission Act, 2004 which is the Act establishing the Economic and Financial Crimes Commission ("EFCC") whose activities are being called to question in the suit. The Act establishing the said Commission is not being questioned in any manner - its constitutionality or validity is therefore not in issue in this action.
It is the contention of the fifth defendant/objector that this Court lacks the jurisdiction to entertain the action as presently constituted by virtue of the provisions of section 232(1) of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter called "the 1999 Constitution") and the decision of this Court in Attorney-General of the Federation v Attorney-General