Vanguard (Lagos)

6 February 2013

Nigeria: The Judgment That Set Peter Odili Free (II)

opinion

Justice Buba reviews Odili's 10 reliefs, six of which were declarations and four, injunctive

iii . A DECLARATION that the Defendants are not entitled to rely on, utilize or in any manner whatsoever put to any use any report, findings or conclusion produced or arrived at by the 1st Defendant as a result of the purported investigation or inquiry into the appropriation, disbursing, administering or management of funds of Rivers State.

iv. A declaration that under the Constitution of the Federal Republic of Nigeria 1999, the 1st Defendant is not entitled to share in the power of the House of Assembly for Rivers State, vested on it by virtue of section 188 of the Constitution of the Federal Republic of Nigeria 1999 and accordingly is not entitled to coerce, induce, intimidate or in any manner whatsoever influence the House of Assembly for Rivers State into removing or causing to be removed, or into taking any steps whatsoever towards removing the Governor of Rivers State or the Deputy Governor of Rivers State from office.

v. 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.

vi. 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, the purported report 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.

vii. An order of injunction restraining the 2nd to 4th Defendants by themselves or by their servants, agents or privies from receiving or putting to any use whatsoever any report or finding arising from or purporting to be the result of any inquiry or investigation conducted by the 1st Defendant into the appropriation, disbursing, administering or management of the funds of Rivers State,

viii. An order of injunction restraining the 1st Defendant by itself or by its servants or agents from inducing, coercing or in any manner whatsoever influencing the 2nd and 3rd Defendants or any member of the House of Assembly for Rivers State to commence proceedings for the removal or to remove the Governor or Deputy Governor of Rivers State from office.

For the determination of the following questions namely:

I. Whether upon a proper interpretation of the Judgment of the High Court of Rivers State in Suit No. PHC/ 114/ 2007: Attorney General, Rivers State v. The Speaker, Rivers State House of Assembly & Ors. delivered on 16th February 2007 interpreting the provisions of sections 120,121,122,124,125,128 and 188 of the Constitution of the Federal Republic of Nigeria 1999 and indeed upon a proper interpretation of the said sections of the Constitution of the Federal Republic of Nigeria 1999, the 1st Defendant is entitled to share with the Rivers State House of Assembly in its powers or to participate in the exercise of the powers of control of public funds of Rivers State including the power to inquire into or investigate the disbursing, administering or management of the funds of Rivers State or to prompt, instigate, coerce, induce or in any manner influence the 2nd and 3rd Defendants in the exercise of the powers of the Rivers State House of Assembly under S.188 of the Constitution of the Federal Republic of Nigeria 1999?

From left: Chief Judge of Rivers State, Justice Iche Ndu, the Attorney General and Commissioner for Justice, Mr. Odein Ajumogobia, SAN; Governor Peter Odili and his wife, Mary, and Justice Elizabeth Membere shortly after a special court session at the High Court Complex, Port Harcourt

II.Whether upon a proper interpretation of section 7 of the Economic and Financial Crimes Commission (Establishment) Act, the 1st Defendant is vested with any power to investigate or cause to be investigated the disbursing, administering or management of funds of a State appropriated or to be appropriated by the House of Assembly of that State or in any manner howsoever investigate the account or financial affairs of a State government?

Attached to the summons, is a 13 paragraph affidavit deposed to by Odein Ajumogobia Esq, SAN, Attorney General for Rivers State, setting out the facts relied upon in support of the originating summons. Attached to the affidavit are exhibit HAG 1, a copy of ThisDay, Tuesday 19, 2006 newspaper publication and exhibit HAG 2, a judgment of Rivers State High Court delivered on the 16th day of February 2007, in Suit No. PHC/114/2007: Attorney General and Commissioner for Justice, Rivers State vs Speaker House of Assembly Rivers State and 36 Ors. The 2nd Defendant in this suit, is the 1st Defendant in the suit in exhibit HAG 2.

The Economic and Financial Crimes Commission (hereinafter called the 1st Defendant) in this suit filed a 21 paragraph affidavit, deposed to by one Victor Pam, a Deputy Superintendent of Police.

1st DEFENDANT'S REPLY TO AFFIDAVIT OF 2ND - 4TH DEFENDANTS DATED 6TH MARCH, 2007

Paragraphs 1-14 thereof reads:

I, Victor Pam (DSP), Male, Christian, a citizen of the Federal Republic of Nigeria and a police officer attached to the Economic and Financial Crimes Commission, 6A, Olumeni Street, off Forces Avenue, Old GRA, Port Harcourt, Rivers State, do hereby make oath as follows:

1. That I am one of the operatives in the office of the Defendant assigned to investigate the complaint that occasioned this application by virtue of which I derived the facts herein deposed.

2. That I have the consent and authority of the 1st Defendant to depose to this counter affidavit.

3. That I have seen the affidavit filed on behalf of the 2nd - 4th defendants dated 6th March, 2007.

4. That paragraphs 4, 5 and 6 of the said affidavit is hereby admitted

5. That paragraphs 7 & 8 of the affidavit are facts within the knowledge of the 2nd - 4th Defendants and are hereby denied

6. That paragraph 9 of the affidavit is admitted only to the extent that the paragraph 1 & 2 of the affidavit setting out facts relied on is true.

Originating summons

7. That the facts in paragraph 3 of the Plaintiff's affidavit setting out facts relied upon in support of the originating summons, to the extent that the 2nd - 4th Defendants neglected and abdicated their constitutional roles, duties and control over the public funds of Rivers State are facts within the knowledge of the 2nd - 4th Defendants and are hereby denied.

8. That the facts in paragraphs 4-8 of the Plaintiff's affidavit setting out facts relied upon in support of the originating summons referred to by the 2nd - 4th Defendants is hereby denied and the 2nd - 4th Defendants is hereby put on the strictest proof.

9. That further to the above, the 1st Defendant is investigating criminal allegations of official corruption, diversion of public funds, stealing of public funds which the 1st Defendant is statutorily empowered to investigate.

10. The paragraph 10 of the 2nd - 4th Defendants affidavit is admitted only to the extent that the 1st defendant is investigating criminal allegations of official corruption, abuse of office, diversion of public funds, illegal acquisition of properties and stealing of public funds reported against the Speaker of the Rivers State House of Assembly and his cohorts. Attached herewith is the petition subject matter of the investigation and marked as EFCC1.

11. That paragraphs 11, 12, 13 are admitted only to the extent that the 1st Defendant is investigating the criminal allegations reported to it. The other averments deposed to therein are hereby denied.

Criminal allegation

12. That paragraph 14 of the affidavit are facts within the 2nd - 4th Defendants knowledge and are hereby denied.

13. That paragraph 15 of the 2nd - 4th Defendants affidavit is hereby denied. As the 1st Defendant is only carrying out an investigation into a criminal allegation not to audit the account of Rivers State.

14. That I was informed by G. O. Edobor Esq, counsel to the 1st Defendant today, 7th March, 2007 at about 11.00 hours in his office at 6A Olumeni Street, Old GRA, that the 1st defendant is statutorily empowered to investigate allegations of economic and financial crimes reported against any person, corporate or organisation.

Having considered the circumstances and facts of this case, the admissions vis-a-vis the provisions of the Constitution of the Federal Republic of Nigeria 1999; especially Sections 120 - 128 and Section 188 of the Constitution vis-a-vis the provisions of Sections 1, 6, 7, 34 of the EFCC Establishment Act No. 1 of 2004; the actions of the lst Defendant and the interpretation of the provisions of the said Constitution together with Exhibits HAG 1, 2 and all the averments before me, I am of the considered opinion that the case of the Plaintiff has merit. It is bound to succeed, it has succeeded.

I uphold the submissions of Learned counsel for the Plaintiff and the 2nd - 4th Defendants. Having regards to all the facts the circumstances and the position of the law; the arguments of parties and the admission of parties before me, I resolve question number one in the negative. I also answer question number two in the negative.

Having answered the two questions for determination in the negative, I have equally taken every thing into account the affidavit before me, the admission and the position of the law and the circumstances, I am of the view that the Plaintiff is entitled to the reliefs sought having regards to the position of the law. The court cannot allow one arm of the government to meddle with another and take it over. I accordingly exercise my discretion in favour of the Plaintiff and make the following declaratory orders.

Declaratory orders

i. I declare 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 monies 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. I declare that the purported investigation or inquiry 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 the 1st Defendant and accordingly null and void.

iii. I declare that the defendants are not entitled to rely on, utilize or in any manner whatsoever put to any use any report, findings or conclusion produced or arrived at by the 1st Defendant as a result of the purported investigations or inquiry into the appropriation disbursing, administering or management of funds of Rivers State.

iv. I declare that under the Constitution of the Federal Republic of Nigeria 1999, the 1st defendant is not entitled to share in the power of the House of Assembly for Rivers State, vested on it by virtue of section 188 of the Constitution of the Federal Republic of Nigeria 1999 and accordingly is not entitled to coerce, induce, intimidate or in any manner whatsoever influence the House of Assembly for Rivers State into removing or causing to be removed, or into taking any steps whatsoever towards removing the Governor of Rivers State or the Deputy Governor of Rivers State from office.

I equally grant the following injunctive reliefs sought to wit:

v. 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.

vi. 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, the purported 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.

vii. An order of injunction restraining the 2nd to 4th defendants by themselves or by their servants, agents or privies from receiving or putting to any use whatsoever any report or finding arising from or purporting to be the result of any inquiry or investigation conducted by the 1st defendant into the appropriation, disbursing, administering or management of the funds of Rivers State is also hereby made.

viii. I equally grant an order of injunction restraining the 1st defendant by itself or by its servants or agents from inducing, coercing or in any manner whatsoever influencing the 2nd and 3rd defendants or any member of the House of Assembly for Rivers State, to commence proceedings for the removal or to remove the Governor or Deputy Governor of Rivers State from office.

Before I am done, I must commend all counsel in this matter for making this matter to be heard expeditiously, and a word for the operators of our Federal system. This case reminds me of what I read on separation of powers: - the small depiction in the Bible. That there are 66 books in the Bible and 66 Chapters in Isaiah' They are clearly divided into sections. Chapters 1-39 (There are 39 books in the Old Testament, and chapters 40 - 66 (There are 27 books in the New Testament).

The theme also corresponds with the the 1st set of chapters addressing law and government of God and the second group covering grace and salvation of God.

I am done. So be it.

HON JUSTICE I. N. BUBA JUDGE 20/3/2007

Judgment delivered in open court.

O. Ugbodima with him K. U. Ubayi Esq. for the plaintiff holding the brief of E. C. Ukah Esq

Mr G. O. Edobor with him Mrs. D. Ademu-Eteh for the 1st Defendant

Mr. O. W. Arugu for the 2nd - 4th Defendants

As the handover date May 29th 2007 approached, the atmosphere was fully charged with stories that all Governors would be arrested at the Handover venues across the country because many Governors, they claimed, were planning to run away from the country. I granted an interview to the reputable Source Magazine and made it clear that Peter Odili was not going anywhere and will stay back in Nigeria after May 29, 2007 and that' s what I have done.

However, in spite of the fact that we had obtained a court judgment against the EFCC, I was contemptuously interviewed by officials of EFCC in July 2007 along with some other former Governors. I held that interview out of respect for the new Government of President Yar'Adua and the Rule of Law. The entire conversation at the interview centered on that 'so-called EFCC interim report' of December, 2006 which the court had declared NULL and VOID and prohibited from any use. The interview lasted for two hours - I was neither arrested nor detained. Till date that has remained my first and only official contact with the EFCC.

However, in the following couple of months a number of former governors were arrested, interrogated and some charged to court. Rumours and newspaper speculations kept suggesting that Odili would be in the next batch. This became so irritating that I decided to react. I instructed my legal counsel, Ifedayo Adedipe, SAN, to approach the court in my personal capacity, and find out if, in spite of the subsisting court judgment against the EFCC, they could still come after me on the basis of this contrived report.

EFCC spokesperson, Mr Osita Nwaja, expressed surprise at my new action, since, according to him they had no plans to come after me. However, the court again after a full trial ruled in my favour upholding the first judgment and further restraining the EFCC. This second judgment was delivered in March 2008. That is where we are. A reproduced copy of this judgment follows.

SUIT NO: FHC/PH/CS/1291/2007

BETWEEN

DR. PETER ODILI

AND

THE ATTORNEY GENERAL OF THE FEDERATION

THE ECONOMIC AND FINANCIAL CRIMES COMMISSION}-- DEFENDANTS

JUDGMENT

The Plaintiff, in the instant originating summons, was the former executive Governor of Rivers State; between 29th May, 1999 and 29th May 2007

Towards the end of the year 2006, (December) and parts of January 2007 The Second Defendant, the Economic and Financial Crimes Commission; (hereinafter called the "EFCC") swooped on Rivers State; arrested the speaker and key members of the Rivers State Government; including the Commissioner for Finance, Transport, Works, Local Government, the Accountant-General, the Auditor General, seeking information and documents relating to the public funds of Rivers State.

The second Defendant also invaded, the Rivers State Government bankers, which included Platinum Habib Bank Plc, Zenith Bank Plc, etc. which led to the delay in payment of salaries, for the Civil Servants of the Rivers State Government in December 2006 and inability to pay December salaries of workers in the Rivers State Local Government service, within the month of December 2006.

An un-refuted newspaper publication (This Day, Tuesday of 19/12/2006) disclosed that in arresting the Speaker of the Rivers State House of Assembly, the possibility of the impeachment of the Governor of Rivers State was within its contemplation and could not be ruled out. That the second Defendant employed harassment and intimidation of members of Houses of Assembly of various States to unlawfully bring about impeachment and impeachment proceedings in Bayelsa State, Ekiti State, Plateau State, and that the same tactic was being employed in Adamawa State.

The Attorney General and Commissioner for Justice, Rivers State sensing that taking over the State and causing impeachment of the Governor and his Deputy by the House of Assembly, amounted to the House of Assembly neglectng and abdicating its constitutional powers and control over the public fund of Rivers State. Consequently, the Attorney General filed Suit No. PHC/114/2007: Attorney General and Commissioner for Justice, Rivers State v. The Speaker Rivers State House of Assembly; at the Rivers State High Court and got judgment.

Thereafter, the said Attorney General and Commissioner for Justice, Rivers State initiated Suit No. FHC/PH/CS/78/07: Attorney General for Rivers State v. the Economic and Financial Crimes Commission & 3 others; for additional reliefs founded upon the declarations already made by the High Court of the Rivers State in Suit No. PHC/114/07 earlier stated for additional reliefs, in line with the decisions in the case of Dantata v Mohammed (2007)7 NWLR (pt 664) 176 at 196 (H)

The second Defendant in the instant suit the (EFCC) was the first Defendant in the suit that was decided by this Court on the 20th of March 2007. The second Defendant contested the suit and said it was investigating the then Speaker of official corruption, abuse of office, diversion of public funds and stealing of public funds, reported against the Speaker of Rivers State House of Assembly and his cohorts.

The position of the Attorney-General, was that the second Defendant, then was not investigating; but targeted at impeaching the Governor and interfering in the management of public fund for Rivers State.

Originating summons

The case was heard and full arguments were canvassed on all the issues in the originating summons dated the 26 day of February 2007. This Court on the 20/3/07, delivered its considered judgement, in suit No. FHC/PH/CS/78/07, granted the declaratory reliefs sought, nullified all the purported investigations and restrained the second Defendant, who was then the first Defendant in the second suit. The Court found the second Defendant's purported investigation was not geared towards finding out the truth, but geared towards taking over an arm of the Government, within a Federal set up by an agency of the Federal Government.

The Judgment was delivered a year ago. The judgment is still valid, subsisting and not set aside by an appellate court. Indeed there was no appeal against that judgment up to the time the Plaintiff filed this suit. However, I note in paragraph 8 of the affidavit of James Binang, an application for leave and extension of time to file an appeal against that judgment was filed by the second Defendant, at the Court of Appeal, in the processes before this Court, and in the instant suit.

Indeed, the second Defendant, in its Counter Claim before this court is seeking for:

"A declaration that the tenure (sic) of judgment of this Honourable Court in suit No. FHC/PH/CS/78/2007 between Attorney General for Rivers State Vs. Economic and Financial Crimes Commission & 3 others which is the substratum of the Defendant's claim in the originating summons is the subject of appeal before the Court of Appeal, Port Harcourt Judicial Division."

For whatever that is worth, there is no gain saying that the judgment of this Court delivered a year ago, precisely on the 20/3/07; is still valid and subsisting. In the course of this judgment I shall revisit the terms of that judgment and its purpose as it affects this suit.

Judgment and orders

It is clear to me that the reliefs in the instant suit is founded on the judgment and orders of this Court, made on the 20/3/07 in suit No. FHC/PH/CS/78/2007. I took the pains and liberty to state the background facts, because of the questions for determination and the reliefs sought by the Plaintiff in the instant suit. What then are the questions for determination and the reliefs sought by the Plaintiff in the instant suit?

They are:-

1. Whether, in the light of the subsisting and final judgment of the Federal High Court delivered in Suit No. FHC/PH/CS/78/2007. ATTORNEY GENERAL FOR RIVERS STATE vs. ECONOMIC AND FINANCIAL CRIMES COMMISSION, dated 20th March, 2007, the 2nd Defendant can still arrest, detain, investigate, arraign and prosecute the Plaintiff and purport to act pursuant to any of its investigative and prosecutorial powers, for alleged financial offences as they relate to his tenure as the Governor of Rivers State between 29th May 1999 and 29th May 2007?

Fromright : Gov. Rotimi Chibuike Amaechi, former Govervor Peter Odili and his wife Mary...

2. Whether the Plaintiff, as the Governor of Rivers State, from 29th May 1999 and 29th May 2007, having acted in the office of the Governor, with a State House of Assembly, can be investigated, detained, arraigned and prosecuted for alleged financial mismanagement of the Rivers State by the 2nd Defendant, Federal Agency, having regard to the Federal structure of the 1999 Constitution of the Federal Republic of Nigeria and the judgment of the Federal High Court in Suit No.FHC/PH/CS/78/2007

WHEREOF the Plaintiff claims as follows:

a. A declaration that, the 2nd Defendant cannot arrest, detain, arraign and/or prosecute the Plaintiff on the basis of its alleged investigations conducted into the affairs of Rivers State between 29th May 1999 and 29th May 2007. In the light of the final and subsisting judgment of the Federal high court in Suit no. FHC/PH/CS/78/2007;

b. A declaration that the purported findings of the investigation team of the 2nd Defendant into the activities of the Rivers State Government between the period of 29th May 1999 and 29th May 2007, the said investigation being subject-matter of a Suit FHC/PH/CS/78/2007, are invalid, unlawful, unconstitutional, null and void;

c. An order of this Court restraining the Defendants, jointly and severally from arresting, detaining, arraigning and/or prosecuting the Plaintiff in any court pursuant to any purported investigations by the 2nd Defendant in the light of the judgment in Suit No. FHC/PH/CS/78/2007;

d. An order of perpetual injunction restraining the Defendants, jointly and severally from disseminating, publishing, circulating or distributing the report of the alleged investigation conducted by the 2nd Defendant into the activities of the Rivers State Govemment under the tenure of the Plaintiff,.

Upon service of the Court process on the Defendants; the 1st Defendant, The Attorney General of the Federation, did not file and/or enter appearance in this suit. However, learned counsel Miss K. Oyir appeared in court for the 1st Defendant on the 15th of October 2007. Mr SA Okoh, also appeared for the 1st Defendant under protest on the 13/11/07, and at the resumed hearing of the matter, on the 10th of December 2007, Mr. G. F. Zi, Chief Legal Officer, appeared again for the 1st Defendant, after the matter had been mentioned. Counsel apologised for coming late. Counsel informed the Court that he filed processes that morning, but that the processes are yet to be before the Court.

The Court adjourned the case to the 16th of January 2008. On the said adjourned date, neither counsel, nor the 1st Defendant was in Court. No explanation or information was communicated to the Court, about the 1st Defendant. Consequently, the Court struck out the motions filed by the 1st Defendant and proceeded to hear the matter.

The 2nd Defendant filed a notice of Preliminary Objection dated 20th day of October 2007. The 2nd Defendant also by a motion on notice dated the 5th of October 2007, and filed on the 10th of October 2007, sought and obtained the leave of this Court, to file and serve its memorandum of conditional appearance, counter affidavit, and counter claim.

Furthermore by a motion on notice, dated 18th October 2007, and filed on 22nd October 2007, the 2nd Defendant sought and obtained the leave of this Court, to file its written argument; in support of its preliminary objection, and the motion on notice, out of time, on the 30th October 2007.

Learned counsel proposed to take the Preliminary Objection, challenging the jurisdiction of the court, together with the main application, and in line with the decisions, in the cases of Amadi vs. NNPC (2000) 10 NWLR pt 674 page 76 at 88 and Senate President vs. Nzeribe (2004) 9 NWLR pt 878 at 251 esp. 256 - 257. The court acceded to that request.

Consequently, learned counsel for the 2nd Defendant, relied on his submissions in support of the preliminary objection, as well as the written address opposing the motion on notice for interlocutory injunction. In reaction, the Plaintiff, filed his written arguments, dated the 6th day of November 2007, on the 7th of November 2007. The submissions dealt with both the preliminary action, and the main application before the Court. I shall in the course of this judgment revert and make reference to the submissions of counsel as filed before the court.

Let me say from the outset the 2nd Defendant confined its submissions only on the preliminary objection, but did not proffer alternative arguments in the main originating summons. Let me also quickly take the liberty, to say by way of preliminary point; that all submissions, on the application for interlocutory injunction, goes to no issue. Because motion on notice, for interlocutory injunction was not taken. This is as a result of an undertaking by the 2nd Defendant, until the matter got to the address stage, the motion was not taken. Indeed the motion for interlocutory injunction was struck out at the resumed hearing of this matter on the 16th of January, 2008.

In addition to the foregoing, the 2nd Defendant also filed a counter affidavit and a counter claim against the Plaintiff. The Plaintiffs questions for determination and reliefs have been reproduced elsewhere in this judgment. What is good for the goose is also good for the gander. Let me then take the liberty to reproduce the 2nd Defendants counter claim for the purposes of clarity. The counter claim reads:

(i) A Declaration that the Federal High Court of Nigeria sitting in its civil jurisdiction cannot make orders outlawing criminal investigation and prosecution of the Defendant in this Counter Claim - Dr. Peter Odili or indeed any person reasonably suspected to have committed a criminal offence.

(ii) Declaration that the Defendant in this Counter Claim - Dr. Peter Odili - was not a party to Suit No. FHC/PH/CS/78/2007 BETWEEN ATTORNEY - GENERAL FOR RIVERS STATE vs. ECONOMIC AND FINANCIAL CRIMES COMMISSION & 3 ORS, and ipso facto cannot appropriate to his benefit the tenure (sic) of the judgment of this Honourable Court delivered on the 20th of March 2007.

(iii) A. Declaration that the tenure (sic) of the judgment of this Honourable court in suit No. FHC/PH/CS/78/2007 BETWEEN ATTORNEY GENERAL FOR RIVERS STATE VS. ECONOMIC AND FlNANCIAL CRIMES COMMISSION & 3 ORS, which is the substratum of the Defendant's claim in the Originating Summons is the subject of appeal before the Court of Appeal, Port Harcourt Judicial Division.

(iv) A Declaration that all the reliefs sought by the Defendant - Dr. Peter Odili - who is the Plaintiff in the Originating Summons are before the Honourable court

(v) An award against the Defendant - Dr. Peter Odili, the sum of N1Billion only, being General Damages in favour of the Plaintiff in this counter claim - Economic and Financial Crimes Commission.

(vi) A declaration that the claims contained in the Originating summons in this case are incompetent in law and constitute a gross abuse of the court process.

Let me first deal with the Notice of Preliminary Objection, challenging the jurisdiction of this court to hear and determine this matter. Learned counsel to the 2nd Defendant, Mr. James Binang, Chief Legal Officer, argued and submitted that the 2nd Defendant/Applicant's Notice of Preliminary Objection filed on 21/09/2007 challenges the jurisdiction of this court, to entertain the Plaintiff/applicant's Motion on Notice and indeed the entire Suit on three different grounds as follows:

1. That there is a distinction and limitation between the statutory powers of the 2nd Defendant/Applicant to fight corruption in Nigeria and the powers conferred on a House of Assembly of a State to conduct investigations as prescribed under Section 129 of the constitution.

2. Declaratory and injunctive reliefs granted to the Plaintiff in suit No. FHC/PH/CS/78/2007 between Attorney-General for Rivers State vs. Economic And Financial Crimes Commission & 3 ors cannot operate to outlaw the 2nd Defendant/Applicant's performance of its statutory duties of investigation and prosecution of economic and financial crimes perpetrated by the Plaintiff/Respondent, DR. PETER ODILI, erstwhile Executive Governor of Rivers State of Nigeria, who was not a party to the said suit; and

3. All the reliefs sought in the Plaintiff/Respondent's Motion on Notice filed on 13/09/2007 are incompetent in law as they are radically the same with the relief sought in the main Suit - the Originating Summons in this case.

As stated elsewhere in this judgment the third ground becomes otiose as the motion on notice was struck out. The 2nd Defendant/Applicant, arguing the 1st ground, contended that, there is a clear distinction and limitation between the Statutory Powers of the 2nd Defendant/Applicant, to fight corruption in Nigeria, and the powers conferred on a House of Assembly of a State, to conduct investigation, under Sections 128 and 129 of the 1999 Constitution. That the 2nd Defendant/Applicant, is an agency of the Federal Government, which derives its mandate from The Economic and Financial Crimes Commission Act 2004; an Act of the National Assembly.

The law recognises all agencies of government as organs of initiative, whose powers are derived either directly from the Constitution or from the laws enacted thereunder. That Agencies of Government, therefore, stand in relationship to the constitution as it permits of their existence and function. The Court was referred to the dictum of the Nigerian Supreme Court in the case of ATTORNEY GENERAL ONDO STATE vs. ATTORNEY GENERAL OF THE FEDERATION (2002) 9 NWLR PT 772 AT 222 esp. 418 - 419.

It is submitted that, and it can therefore be argued without fear of contradiction that, The Economic and Financial Crimes Commission Act 2004 (hereinafter referred to as the EFCC Act) is an existing law within the meaning of Section 315(1) (a) of the 1999 constitution. It is submitted further that Sections 6, 7 and 46 of the EFCC Act 2004, prescribe the mandate on the 2nd Defendant/Applicant to fight both official and unofficial corruption in Nigeria, including Rivers State. That being an agency of the Federal Government, the 2nd Defendant/Applicant derives its power and function to investigate, initiate and undertake criminal prosecutions in Nigeria under Section 174(1)(b) of the 1999 Constitution. And by Section 2(c) ofthe EFCC Act 2004, the 2nd Defendant/Applicant is the designated Financial Intelligelence Unit (FlU) in Nigeria, which is charged with the responsibility of coordinating the various institutions involved in the fight against money laundering and enforcement of all laws dealing with economic and financial crimes in Nigeria.

It is submitted in this regard that all lawful appropriation of funds made by the House of Assembly of a State, qualifies as a law made by the said state House of Assembly. In the same vein, it is submitted that where there is any breach of the said State law, to the extent that it involves economic and financial crimes, the 2nd Defendant/applicant, has the mandate under the EFCC Act 2004, to investigate and prosecute offenders of the said state law.

That on the other hand, the constitutional powers of a state House of Assembly to conduct investigations under Sections 128 and 129 of the 1999 Constitution are limited in scope to the laws enacted by the State House of Assembly and cannot be interpreted to include or touch on laws made by the National Assembly.

Legislative competence

Such powers of a State House of Assembly to conduct investigations are exercisable only for the purpose of enabling the House to make laws in matters within its legislative competence and correct defects in existing laws or to expose corruption, inefficiency or waste in the execution of laws made within its legislative competence or administration of funds appropriated by it. The Court was generally referred to sections 128 and 129 of the 1999 constitution which are clear and unambiguous.

It is finally submitted on the first ground that this distinction between the statutory powers of the 2nd Defendant/Applicant to investigate and prosecute offenders of economic and financial crimes vis-a-vis the constitutional powers of a State House of Assembly is the first ground of appeal in the Notice of Appeal filed against the judgment of this Court in suit No. FHC/PH/CS/78/2007 BETWEEN THE ATTORNEY GENERAL FOR RIVERS STATE vs. ECONOMIC AND FINANCIAL CRIMES COMlMISSION & 3 ORS.

The Court was referred to generally, Exhibit EFCC 1 to the 2nd Defendant/Applicant's Counter Affidavit filed 10/10/2007.

Limited investigative powers

From the foregoing, it is submitted by the 2nd Defendant/applicant that, there exists a distinction and limitation in scope of the rather limited investigative powers of the House of Assembly of a State as provided for under Sections 128 and 129 of the Constitution vis-a-vis the unlimited investigative cum prosecutorial powers of the 2nd Defendant/applicant to enforce all laws dealing with economic and financial crimes commission, in Nigeria including but not limited to Rivers State of Nigeria. And the 2nd Defendant/Applicant urges this court to so hold.

On the second ground, it is submitted that the judgment of this Court in Suit No. FHC/PH/CS/78/2007 BETWEEN THE ATTORNEY-GENERAL FOR, RIVERS STATE vs. ECONOMIC AND FINANCIAL CRIMES COMMISSlON & 3 ORS delivered on the 20th of March, 2007, is the substratum upon which the Plaintiff rests his Case.

That the 2nd Defendant/Applicant has initiated proceedings in furtherance of an Appeal against the said Judgment. The Court of Appeal Port Harcourt Judicial Division has fixed the appeal for 30/10/2007 for Hearing.

That suffices it to note, however that the Plaintiff/Respondent - DR. PETER ODILI, erstwhile executive Governor of Rivers State of Nigeria, was not a party to the said Suit; and ipso facto cannot appropriate the tenure (sic) of that judgment. That while the 2nd Defendant/Applicant is not inviting this court to sit on appeal against its own judgment, the law remains settled, that a court cannot make orders to restrain the performance of the statutory duties of investigation and prosecution of any person who is alleged or suspected to have committed a crime. The Court was referred generally to the cases of FAWEHINMI VS. INSPECTOR GENERAL OF POLICE (2002) 7 NWLR PT. 767 AT 606 esp. 686 - 687; BAMIDELE vs. COMMISSIONER FOR LOCAL GOVERNMENT (1990) 2 NWLR PT. 329 at 568 esp. 583; NNEWI & SONS vs. COP (2002) HRLR at 156 esp. 164. That these cases settled the law that a Plaintiff cannot by merely instituting a Civil action preclude the Respondent, (the Police or similar agency of Government) from performing its statutory duties of investigation and prosecution of the offences committed against the State.

And any order of court purporting to restrain the performance of the statutory duty of investigation and prosecution of crime is incompetent, null and void ab initio and of no effect whatsoever. The court was referred to the case of ATTORNEY GENERAL OF ANAMBRA STATE vs. CHIEF CHRIS UBA, 2005 33 WRL AT 191 where Bulkachuwa, JCA held that: "For a person, therefore, to go to court to be shieided against criminal investigation and prosecution is an interference of powers given by the Constitution to law officers in the control of criminal investigation. The Plaintiff has no legal recognizable right, to which the Court can come to his aid. His claim is not one that the court can take cognisanze of, for it has disclosed no cause of action. The Plaintiff cannot expect a judicial fiat preventing a law official in the exercise of his constitutional powers."

Tomorrow

Justice I. N. Buba determines issue of whether EFCC's purported preliminary objection is a valid and sustainable objection in law and is capable of terminating the originating summons in limine

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