Attorney-general Of Abia State V Attorney-general Of The Federation & Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

W. S. N. ONNOGHEN, J.S.C. 

The plaintiff claimed 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 authorization or consent of the plaintiff. The plaintiff also alleged 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 Many 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 1st 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 organization cognizable under section 7(1) of the Economic and Financial Crimes Commission (EFCC) Act, 2004.

(g) Whether 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) Act, 2004 does not attend 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 freeze the accounts of the plaintiff without resource 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 1st 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 strifle, paralyze, curtail, or in any way or manner whatsoever, to inhibit the functions of any State Government including the plaintiff.

(vii) An order of perpetual injunction restraining the Federal Government, its functionaries or agencies whomever including (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 a of the Economic and Financial Crimes Commission (EFCC) Act, 2004 or by Sections 7, 34(1) or of the said Act or otherwise howsoever.

(viii) An order of perpetual injunction restraining the defendants a 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 1st 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 5th 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 A-G of the Federation v. A-G. of Abia State (2001) 11 NWLR (Pt. 725) 689 at 728; A-G of Ondo State v. A-G. of the Federation & 19 ors; (1983) 2 SCNLR 269; (1983) All NLR 552, A-G. of the Federation and A-G. of imo State (1983) 4 NCLR Vol. 4, 178. Referring to section 2(a) & (b) of the Economic and Financial Crimes Commission Act, 2004 learned counsel for the 5th defendant submitted that the Commission, a.k.a. EFCC is a body corporate with the capacity to sue and be sued in a court of law in the performance of its statutory functions and is not an agent of the 1st defendant; that anyone with any complaints against the EFCC ought to sue it directly and that this court is not the proper forum for such an action and urged the court to sustain the objection, which is raised in limine.

The plaintiff has not reacted to the preliminary objection of the 5th defendant as argued in the brief of argument. The provision of section 232( 1) of the 1999 Constitution, which confers original jurisdiction on this court, is very clear and unambiguous. It states as follows:-

“The Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between the Federation and a State or between States if any in so far as that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.”

It is clear from the above that for the original jurisdiction of this court to be invoked in a civil action,:

(a) the action must be between the Federation and the State(s) or between States, and there must be a dispute between the Federation and a State or States;

(b) the dispute must involve a question of law or fact or both; and

(c) the dispute must pertain to the existence or extent of a legal right.

It has been held by this court vide BELGORE, JSC (as he then was) in A-G of the Federation v.A-G of Abia State (2001) 11 NWLR (Pt. 725) 689 at 737, inter alia, that the term dispute as used in section 232(1) of the 1999 Constitution” ….. involves acts of argument, controversy, debate, claims as to rights whether in law or facts varying opinion, whether passive or violent or any disagreement that can lead to public anxiety or disquiet ”

Can it be said that the facts pleaded in the statement of claim disclose any dispute between the plaintiff and the defendants in this action within the meaning of the said section 232(1) of the 1999 Constitution The answer is clearly in the negative. There is no single Government in this action neither is there any complaint against the other defendants. All the complaints are directly against the activities of the Economic and Financial Crimes Commission (EFCC) or its agents in the exercise of the functions conferred on the organization by law. The law recognizes the fact that in the exercise of such functions, as those of EFCC, the officers might breach certain individual or corporate rights which would necessitate initiation of legal action to secure redress that is why section 2(a) and (b) of the EFCC Act, 2004 clearly clothes the said Commission with legal personality thereby making it possible for it to sue or be sued where the circumstance arises. In the instant case, I hold the considered view that the plaintiff can institute an action against EFCC in the appropriate High Court for the reliefs it deems fit but not in this court as EFCC is neither a State nor the Federation nor the National Assembly, EFCC has also not been shown to have taken the actions as agents of the 1st defendant.

In the circumstance, I hold that the preliminary objection has merit and should be sustained. I order accordingly. I therefore strike out this action on the ground that this court lacks the jurisdiction to entertain same with no order as to costs.

Case struck out.

SC.73/2006