Vanguard (Lagos)

5 February 2013

Nigeria: Constitution, Federalism and Rule of Law

Dr. Peter Otunuya Odili, former Governor of Rivers State explains in his Autobiography, the plot that led to his withdrawal from the 2007 presidential race

IN the course of this proceeding, the 1st -32nd Defendants were represented by counsel, so also the 37th Defendant. The 34th-36th Defendants neither put up appearance in court, nor were they represented by counsel.

Records of this court, as gleaned from the affidavit of service deposed to by Mr. Livinus Akere, a bailiff in the office of the Deputy Sheriff, shows that on the 1st of February, 2007 they were all personally served with this originating summons, and all processes filed in support.

They willfully elected, refused and or neglected to file any process in opposition to this application within the time allowed by the rules of this court, as commanded by an order of court made on the 31st of January 2007.

Constitutional interpretation

The issue at stake in this case, is one of constitutional interpretation, of some provisions of the Constitution of the Federal Republic of Nigeria, especially provisions of sections 120,125, 121, 128 and 129. The case for the claimant is that under these provisions, the duty of control of public funds of Rivers State is vested in the House of Assembly of Rivers State. That by virtue of the provisions of sections 120 and 121 of the Constitution of the Federation that appropriation of funds, has to be in accordance with an Appropriation Bill presented to the House of Assembly.

It is also the case of the claimant that under section 125 of the same constitution, the Auditor-General for Rivers State is the one vested with the power to audit the accounts relating to appropriation of Rivers State funds, made by the House of Assembly of Rivers State. He is also under a duty to submit his report to the House of Assembly of Rivers State.

The claimant is contending that under section 128 of the Constitution, the House of Assembly is vested with the power to investigate the disbursing or administering money appropriated or to be appropriated by the Rivers State House of Assembly, for Rivers State. This power, claimant further contends, extends to the power to expose corruption and inefficiency or waste either in the process of disbursement, or administering of money duly appropriated.

In essence, the case of the claimant here, is that the constitution vests on the Rivers State House of Assembly power to investigate the financial affairs of Rivers State Government and that power is not vested in any other body, not even the Federal Government of Nigeria or any of its agencies like the Economic and Financial Crimes Commission (EFCC).

The grouse of the complainant is that in spite of these clear constitutional provisions, the Rivers State House of Assembly, the Auditor General for Rivers State as well as the 35th Defendant, the Accountant-General for Rivers State, have begun to show signs of surrendering these constitutional responsibilities, and abdicating same to other bodies foreign to the Constitution of the Federal Republic of Nigeria.

Shirking of responsibility

The complainant contends that following this impetus evidenced by the shirking of responsibility by Rivers State House of Assembly, the Auditor General and Accountant General for Rivers State, smooth governance of Rivers State in accordance with the constitution and the law, is becoming difficult. At paragraph 12 of the affidavit in support of this summons, the complainant deposed to the fact that the inaction of the Rivers State House of Assembly, will continue to destabilize good governance in the Rivers State unless put in check by this Honourable Court. It is this inaction, claimant contended, that led to delay of payment of December 2006 salaries of Rivers State workers, many of whom spent the Christmas festive season without money, a condition grave and sufficient enough to set the entire Rivers State ablaze.

The claimant is also complaining as deposed to by him at paragraphs 7 and 8 of the same affidavit in support of this originating summons, that it is this shirking of responsibility by the Rivers State House of Assembly, that is giving life to an unconstitutional purpose, which has been confessed by an agency of the Federal Government of Nigeria known as the EFCC to the effect that they have as part of their Agency's agenda, the possibility of generating impeachment proceedings in the Rivers State House of Assembly, for the purpose or removing the Governor of Rivers State from office. A publication in the This Day Newspaper edition of Tuesday, December 19th 2006 was annexed as exhibit HAG 1, in support of this deposition.

It is the contention of the Honourable Attorney-General for Rivers State that except this Honourable Court intervenes now, this shirking of its responsibility by the Rivers State House of Assembly will lead to the complete paralysis of the constitutional Administration of Rivers State, and foist a state of anarchy, with far reaching negative consequences, on this state. It is based on the foregoing facts, that the claimant submitted seven questions for determination in this judgment.

They are as follows:

1. whether upon a proper interpretation of the provisions of sections 120, 121, 122, 123, 124 and 125 of the Constitution of the Federal Republic of Nigeria, 1999, any authority, person body or organization, other than the House of Assembly for Rivers State has the constitutional authority to exercise powers and control over the public funds of Rivers State.

2. whether upon a proper interpretation of section 128 of the Constitution of the Federation 1999, any other authority, person, body or organization, other than the House of Assembly for Hivers State, has the constitutional authority or power to conduct investigation into the disbursing or administering of money appropriated or to be appropriated by Rivers State House of Assembly whether the purpose for the investigation/inquiry is to expose corruption, inefficiency or waste of public funds or not.

3. whether upon a proper interpretation of section 128 of the Constitution of the Federation, the 36th and 37th Defendants or indeed any other bank or financial institution is entitled to submit, release, or in any manner whatsoever disclose any information, financial statement/records, statement of account, vouchers or cheque in respect of or relating to the Bank accounts of the Rivers State Government, to anybody, person, authority, organization or agency including the ICPC, EFCC, or any other such body or organization, other than the Rivers State House of Assembly.

4. whether upon a proper interpretation of the provisions of section 125 of the constitution of Federal Republic of Nigeria, the power to receive financial statements and annual accounts of the Rivers State Government from Accountant-General is vested in any other authority, person, body or organization other than the Auditor-General for Rivers State.

5. whether upon a proper interpretation of the provisions of section 125 of the Constitution of the Federal Republic of Nigeria 1999, the power to audit the public accounts of Rivers State, is vested in any authority, person, body or organization other than the Auditor-General for Rivers State.

6. whether upon a proper interpretation of section 125 of the Constitution, the Auditor General for Rivers State can be subjected to any direction, or control of any authority, person, body or organization.

7. whether upon a proper interpretation of section 188 of the Constitution of the Federal Republic of Nigeria, 1999, the House of Assembly for Rivers State, can exercise its powers to remove the State Governor or his Deputy at the behest, prompting, or advise of any authority, person, body, or organization or otherwise, than in strict compliance with the provisions of the constitution of the Federation 1999.

1st to 33rd Defendants are not opposed to the grant to the claimant, of all the reliefs claimed by him in this application. In their written submission filed on 6th of February 2007, their counsel, S.R. Dappa-Addo Esq. submitted thus: "The 1st-33rd Defendants, therefore, humbly submit that in-principle, they have no objection to the Honourable Court, granting all the reliefs claimed and we so urge the court."

Principles of interpretation

In the light of this submission by their learned defence counsel, it is safe for me to presume that the 1st -33rd Defendants fully adopt and associate themselves with the arguments of Mr. E. C. Ukala, SAN, leamed claimants counsel in support of this originating summons.

While arguing in support of this originating summons, learned counsel for the claimant lumped issues 1, 4, 5, and 6 as hereinabove stated, and argued them together. It is his submission that in order to resolve the questions posed under those heads, that it is important that the age old general purpose and principles- of interpretation be reiterated.

He referred the Court to the case of,

1. A. G. ABIA STATE v. A.G. FED. [2005] ALL FWLR (pt 275) 414 at 450.

2. A. G. Ondo State v. A.G. Ekiti State [2001] FWLR (pt 79) 1431 at 143)

And submitted that it is the principle that the court must adopt a liberal approach to the interpretation of a constitutional provision. That it is the duty of a court, to construe a constitutional provision such as not to defeat the obvious ends which the constitution was designed to serve. He further referred the court to the case of TUKUR v Government of Gongola State [1989] 4 NWLR (pt1l7) 517 at 579.

Mr. Ukala, learned SAN, urged the court to interpret the provisions of the various sections of the constitution submitted to it by the claimant against this background of judicial interpretation, and to recognize that the system, which the Constitution of the Federal Republic of Nigeria 1999, has put in place, is the Federal system of governance.

I wish to state that it is now a fact universally accepted and beyond argument, that Nigeria operates a Federal system of Government. Any attempt made at interpreting any section of the constitution of Nigeria must be an attempt aimed at giving effect to the smooth operation of a Federal State.

The construction which a court will give a constitutional provision must be such that will best serve the interest of the constitution. Thus, the courts are enjoined to adopt such construction that will promote the purpose behind the constitution. The legislature in putting in place the Nigerian Constitution 1999, in my view, intended that this nation should operate as a Federation and that the principles of a Federal system of governance should prevail, in the running of the Nigerian state.

Thus in AG.Ondo State v A G. Fed. [2002J 9 NWLR (pt 772) 227 at 418- 419, Uwaifo JSC, said: "It must be recognized that our constitution is an organic instrument which confers power and also creates rights, and limitations.........All agencies of government are organs of its initiative whose powers are derived either directly from the constitution or from law created there under. They, therefore, stand in relationship to the constitution as it permits of their existence and functions".

Also in the case of AG. of Lagos State v A G of the Federation [2004] 18 NWLR (pt 904) 1 at 142, the Supreme Court had this to say, "Nigeria is a Federation, and operates a Federal Constitution. An important attribute of a Federal Constitution is that there is a division of power between the centre or the Federal Government and the states. The power and role given to each of the governments are defined and set out in the constitution. None of the Governments is allowed to set out of its assigned field".

In interpreting the provisionsof the 1999 constitution of the Federation, now in issue, this court shall be guided by the general kernels of interpretation herein above mentioned. This court is duty bound to give such interpretations as shall enhance the running of a Federal system of governance, which characteristically assigns specific spheres of influence to the Federal authority and the Federating states, such that the boundaries in their areas or spheres of competence, shall be emphasized.

With particular reference to issues 1, 4, 5 and 6 hereinabove formulated for determination by learned claimant's counsel, it will be necessary for me to examine and interpret sections 120,121,122, 123 and 124 of the constitution. These sections are contained in chapter 5 of the 1999 Constitution, part 2, which is· captioned "Power and control over Public Funds".

This chapter made adequate provisions for the policing of funds belonging to the state Governments. Section 120(1) esiablishes the consolidated revenue fund of a state, sections 120 (3) and 120 (4) provide as follows:

"(3) No moneys shall be withdrawn from any public fund of the state, ... unless the issue of those moneys has been authorized by a law of the Houlse of Assembly of the state"

"(4) No moneys shall be withdrawn from the Consolidated Revenue of the state or any other public fund of the state except in the manner prescribed by the House of Assembly".

Mr. Ukala SAN for the claimant submitted with regards to these sections of the constitution, that it is clear that section 120 of the constitution intends to place the power and control of public funds whether ordinary revenue of the state or revenue in the consolidated revenue fund, of a state in the House of Assembly for the state, and not in the National Assembly or the Federal Government of Nigeria.

I agree and accept this submission, and I wish to add that sections 120(3) and 120 (4) in addition, give effect to the principle of Federalism as they expressly provide that only a state House of Assembly to the exclusion of the National Assembly or Federal Government of Nigeria, can authorize the withdrawal of money from a state public fund or consolidated revenue fund. Section 121(1) of the 1999 constitution states.

Estimates of revenues

"The Governor shall cause to be prepared, and laid before the House of Assembly at any time before the commencement of each financial year, estimates of the revenues and expenditure of the state for the next following financial year."

This section, in its true meaning confers on the House of Assembly of a state, power to control the expenditure profile of a state government on annual basis, that is for each financial year. Sections 121, 122, 123 and 124 of the 1999 Constitution, submitted for interpretation by the claimant, in their ordinary meaning and going by the canons of judicial interpretation of statutes, in my view, simply provide for the method to be employed, by the state House of Assembly to authorize distribution of state funds, appropriated under the appropriation law of the state.

These sections learned SAN, Mr. Ukala submitted, underscore the powers of the House of Assembly in relation to all public funds of the state including contingency funds and other funds in the consolidated revenue fund of the state.

Control of state funds

I cannot agree more with this view. These sections bring out completely the intention of the law makers with regards to management and control of state funds. Those sections, apply strictly to the powers of a state House of Assembly, in matters connected with appropriation of public funds of a state.

Equivalent powers with regards to public funds of the Federation, are vested in the National Assembly by virtue of sections 80-89 of the constitution. It follows, therefore, that going by these provisions neither the Federal Government nor the National Assembly can constitutionally be vested with powers to appropriate, or monitor how appropriated funds of a state are used and to what use or uses they have been put. To so do, will amount to an unconstitutional act, and a complete negation of the principles of Federalism.

Section 125 of the constitution vests the power to audit public funds of a state in the Auditor-General of the state. Section 125 (2) specially provides that,

"(2) the Public Accounts of a state and all offices and courts of the state, shall be audited by the Auditor General for the state who shall submit his report to the House of Assembly of the state concerned and for that purpose the Auditor-General or any person authorized by him in that behalf shall have access to all the books, records, returns and other documents relating to these accounts".

Section 125 (5) goes on to provide that; "(5) The Auditor-General for a state shall, within ninety days of receipt of the Accountant-General's financial statement, and annual accounts of the state submit his report to the House of Assembly of the state, and the House shall cause the report to be considered by a committee of the House responsible for public accounts."

Section 125(4) also confers on the Auditor-General, power to conduct periodic checks and inspections of accounts of all statutory corporations, commissions, authorities, agencies of the state et cetera.

An interpretation of section 125 (2) and (5), simply put is to the effect:

1. That the House of Assembly of a state has the final say in respect of all public funds of the state since it is the body to which all reports, relating to the accounts of a state, must ultimately be submitted to.

2. That the Auditor-General of the state has the constitutional responsibility to audit all public accounts of a state and thereafter to submit the report to the House of Assembly.

3. That the Auditor-General is empowered to have access to all books of accounts, records returns and other documents in respect of public funds for the purpose of carrying out his duties. This power does not extend to his power to surrender, submit, handover or pass same over to other bodies or agencies or investigating bodies.

4. This section also commands the Accountant-General to submit to the Auditor-General, financial statements and annual accounts of the state and the Auditor-General shall in turn submit same to the House of Assembly.

Power to audit accounts

Under section 125 (6) all these functions are to be exercised independently and without direction, dictation, control, manipulation, or control of any other authority or person. The constitution does not vest any of these functions on an investigating body like the Police or the EFCC. The Federal Government of Nigeria does not have powers to perform, direct or control the performance of these functions by the Auditor-General and Accountant General of a state respectively.

From the foregoing, one cannot but conclude that the power to audit all accounts of the Rivers State Government, is vested solely in the State's Auditor-General. Learned claimant's counsel, in his concluding arguments in respect of question 1, 4, 5 and 6, as hereinabove formulated by him, urged this Honourable Court, to resolve questions, embodied in them in the negative. On my part, I wish to state that in the light of the arguments adduced by learned SAN, Mr. Ukala, and my interpretation and understanding of sections 121, 122, 123 and 125 of the 1999 Constitution of the Federal Republic of Nigeria that those questions be resolved in the negative.

In respect of questions 2 and 3 above, it is the submission of Mr. Ukala SA.N, that the provisions of section 128 of the constitution are clear and unambiguous. This section he further submitted vests in the House of Assembly the power of investigation in respect of the "disbursing or administering" of "moneys appropriated or to be appropriated" by the House of Assembly. Such moneys learned SAN contended, include moneys in the Consolidated Revenue Fund, and other funds, received by the state.

In order to appreciate and to interpret this section, (section 128) accuralely, it will be necessary for me to reproduce verbatim, section 128 (b) (2) of tile constitution. This section provides as follows;

"128 (2) (b). The powers conferred on the House of Assembly under tbe provisions of this section, Are exercisable only for the purpose of enabling the House to. (b) expose corruption, inefficiency or waste in the execution and administration of laws within its Legislative competence and in the disbursement or administration of funds appropriated by it." In order to grasp fully the real meaning of this provision, it will be necessary for me to also reproduce the provisions of section 129 of our constitution. That section reads as follows;

Purpose of any investigation

"129 (1). For the purpose of any investigation under Section 128 of the constitution, and subject to the Provisions thereof, a House of Assembly or a Committee appointed in accordance with section 103 of this constitution shall have power to-

(a) procure all such evidence written or oral, direct or circumstantial, as it may think necessary or desirable, and examine all persons, as witnesses whose evidence may be material or relevant to the subject matter.. "

The combined effect of sections 128 and 129 of the constitution is the power vested in State House of Assembly, to superintend or police all funds appropriated by it, and to expose corruption and waste in the management of public and consolidated revenue funds of a state.

In his submission learned claimants counsel argued, that it is clear, that the framers of the constitution intended to leave the power of investigation relating to the public funds of a state, in the hands of the House of Assembly of a state. I agree with this interpretation of sections 128, by learned SAN, except to add that powers of the House of Assembly therein stated, are reserved exclusively 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.

Usurping of constitutional role

It will amount to an unconstitutional Act for EFCC or the ICPC to usurp this power of the House of Assembly. The House of Assembly cannot opt out or enter into a contract with any person, agency or an investigating agency of the Federal Government to do otherwise. Nobody or agency is expected to usurp this constitutional role of the House of Assembly. The House for its part should not abandon this role under any guise.

I shall in the light of the foregoing, also answer question 2 and 3 as formulated by the learned SAN for the claimant, in the negative. The final question for determination is question number 7. This question is: "Whether upon a proper interpretation of section 188 of the constitution, the House of Assembly for Rivers State, can exercise its powers to remove the state Governor or his Deputy from office, at behest, prompting or advice of any authority, person, body, organization or otherwise than in strict compliance witll the provisions of section 188 of the CFRN.

In his argument, leamed claimant's counsel, urged the court to hold that framers of the 1999 constitution, did not contemplate any form of external force or coercion, to be directed at the House of Assembly before they can commence impeachment proceedings aimed at removing the Governor or his Deputy.

He concluded his arguments by submitting that upon a proper interpretation of section 188 of the Constitution, the House of Assembly is not entitled to exercise its power, to remove the state Govemor or his Deputy at the behest, prompting or advice of any authority or person. Learned SAN concluded by urging the court, to also answer question No.7, in the Negative.

I have gone carefully through the provisions of section 188 of the 1999 Constitution of the Federation. That section speaks for itself. It treats in very minute details and clear terms the vexed issue of impeachment and removal from office of a state Governor or his Deputy.

The process of such a removal begins and ends with the House of Assembly. The constitution did not provide that this duty is to be carried out at the instance of any body or agency. This section does not permit or contemplate the element of coercion, arm twisting, intimidation, harassment or cajoling by any body or agency directed at the House of Assembly for it to carry out this function. For the purpose of impeachment of a Governor or his Deputy the House of Assembly is strictly on its own. Any external influence on it, to so act, will be an unconstitutional Act.

For this reason, therefore, I will also answer question Number 7 in the negative. I wish to make it abundantly clear, that from the facts deposed to by the claimant in his affidavit in support of his originating summons particularly paragraphs 3 - 6 thereof, that the following facts are very glearing.

(1) That the Rivers State House of Assembly is abdicating or surrendering its constitutional power and control over the public and Consolidated Revenue Funds of the Rivers State to the EFCC, a Federal agency, thereby endangering the Federal system of Governance which the supreme law of our land, the 1999 Constitution of the Federation specifically provides for.

(2) That the EFCC has no constitutional power and control, over public and consolidated Revenue Funds of Rivers State, and to that extend is not entitled to audit its accounts or tamper with it's Bank statements and records.

(3) That the 34th - 37th Defendants did not file any affidavit, or written statement in opposition to or in support of this originating summons. They are, therefore, deemed to have admitted as true all the facts deposed to by the claimant in his affidavit in support of this originating summons. See the case of Honda Place Ltd v Globe Motors Holdings (Nigeriia) Ltd. (2005) ALL FWLR (pt 283) 1 at 12-13.

Having answered all the seven (7) questions submitted for determination by the claimant, in the negative, I have no other choice, than to grant to him (claimant) all the reliefs sought by him, in hiis originating summons. This is the judgment of this Honourable Court, in this matter.

Appearances:

Mr. J.T.O. Ugboduma for claimants, V. Chukwu Esq. with him, holding Mr. E. C.Ukala, SAN's brief. Mr. R. Williams for 1st - 33rd Defendant, Kalu Emmanuel Esq. with him for S. R. Dappa Addo. Mr. G. Akitoye for 37th Defendant, Deima Tamuno-Opubo with him. No appearance for 34th - 36th Defendants.

P.N.C. AGUMAGU, Judge 16/2/2007.

Next we sued the EFCC at the Federal High Court, Port Harcourt. Full trial went on with all parties represented and EFCC lost the case and we were granted the reliefs sought on the 20th day of March, 2007. The most curious and instructive aspect of the judgment/trial was that on page 60/61 of the judgment, EFCC denied knowledge and ownership of that 'so-called interim report' of December, 2006.

The court restrained the EFCC from any further action against Rivers State Government/Governor. I made no publicity out of the judgment - I held it as a quiet shield. Following is part reproduction of the judgment and court orders.

SUIT NO. FHC/PH/CS/78/07

BETWEEN:

1 . ATTORNEY GENERAL FOR RIVERS STATE (Plaintiff)

& 1. THE ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC)

2. THE SPEAKER, RIVERS STATE HOUSE OF ASSEMBLY

3. THE HOUSE OF ASSEMBLY FOR RIVERS STATE

4. THE CLERK TO RIVERS STATE HOUSE OF ASSEMBLY

The Plaintiff, Attorney General for Rivers State, took out an originating summons dated the 26th day of February 2007; against the four defendants, in the instant suit claiming the following reliefs to wit:

i. A declaration that the 1st Defendant is not entitled to share in the powers, or to participate in the exercise of the powers or to prompt or instigate the 2nd and 3rd Defendants in the exercise of the powers of control of public funds vested in the House of Assembly for Rivers State by the Constitution of the Federal Republic of Nigeria 1999 including the power to direct or cause to be directed any inquiry or investigation or to investigate into the disbursing or administering of moneys appropriated or to be appropriated by the Rivers State House of Assembly for any purpose including for the purpose of exposing corruption, inefficiency or waste.

ii . A declaration that the purported investigation or inquiry carried out by the 1st Defendant or being carried out by the 1st Defendant into the disbursing, administering, or management of funds appropriated or to be appropriated by the Rivers State House of Assembly is unconstitutional, ultra vires the powers of tile 1st Defendant and accordingly null and void.

Tomorrow The Economic and Financial Crimes Commission, EFCC, filed a 21 paragraph Affidavit claiming that it was only carrying out investigation into a criminal allegation reported to it

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