Court dismisses Anambra’s suit challenging EFCC’s power to probe its finances

The State government had approached the court presided over by Justice Nnamdi Dimgba to determine whether under the Federal System of Government, with the constitutional doctrine of Separation of Powers, “the appropriation, disbursement and or administration of funds belonging to a State Government is subject to investigation by the EFCC being an agency of the Federal Government”

In a suit number FHC/ AWK/ CS/ 22/ 2022 filed by Government of Anambra State ( 1st Plaintiff) and Attorney- General of Anambra State (2nd Plaintiff) against the EFCC (1st Defendant) and Attorney – General of the Federation (2nd Defendant), the Plaintiffs sought resolutions of the following eight questions:

1. Whether under the Federal System of Government established by Section 2 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), and the doctrine of Separation of Powers established and provided by Sections 4, 5 and 6 thereof, the appropriation, disbursement and or administration of funds belonging to the Government of a State is subject to investigation by the 1st Defendant as an agency of the Federal Government.

2. Whether the power of the 1st Defendant, as an agency of the Federal Government, is not restricted to the matters set out in the Exclusive Legislative List contained in Part I of the Second Schedule to the 1999 Constitution of the Federal Republic of Nigeria (as amended).

3. Whether the appropriation, disbursement and or administration of funds belonging to the Government of a State are not matters within the Concurrent Legislative List contained in Part II of the Second Schedule to the 1999 Constitution of the Federal Republic of Nigeria (as amended).

4. Whether from a community reading of Sections 80, 120, 121, 125, 126, 128 and 129 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the power and function to conduct investigation into the appropriation, disbursement and or administration of the public funds/accounts of the Government of a State is not reserved for the House of Assembly of the State.

5. Whether from a community reading of Sections 80, 120, 121, 125, 126, 128 and 129 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the 1st Defendant can usurp the constitutional powers and functions of the House of Assembly of a State to conduct investigation into the appropriation, disbursement and or administration/management of the funds of a State Government, including the public funds/accounts of the Government of the State which have been appropriated by the State House of Assembly in exercise of its constitutional mandate.

6. Whether from a community reading of Sections 80, 120, 121, 125, 126, 128 and 129 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the 2nd Defendant can usurp the constitutional power and function of the House of Assembly of a State to conduct investigation into the appropriation, disbursement and or administration/management of the public funds/accounts of the Government of the State.

7. Whether from a community reading of Sections 80, 120, 121, 125, 126, 128 and 129 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the 1st Defendant can purport to investigate the appropriation, disbursement and or administration of the public funds/accounts of the Government of a State without any report or input from the House of Assembly of the State.

8. Whether the 1st Defendant acting by itself, its officers, agents, privies or otherwise howsoever can legitimately conduct and or continue with investigation into the public funds of the Anambra State which have been lawfully appropriated by the Anambra State House of Assembly without any report and investigation by the Anambra State House of Assembly.

The suit was a precipitate response to series of letters of invitation by the Commission sent to the Secretary to the State Government (SSG) and the State Attorney- General seeking the release of officials of the state government to offer explanations in an alleged case of fraudulent misappropriation of funds in respect of data collection exercise for the administration of subsidy to smallholder farmers and alleged case of Abuse of Office and Misappropriation of Funds.

In his judgment, Justice Dimgba stated that the EFCC has constitutional powers to investigate any act of economic and financial crime in any part of the country, stressing that neither the authorities of a State’s House of Assembly nor Auditor- General of a State preclude the Commission from performing its mandate as contained in the Constitution.

“In my view, the questions posed is at large… Is the EFCC a federal agency exclusively for all purposes, or is it both a federal agency and a state agency for some other purposes? It all depends on the context to which the question has been posed.

“In the context of the case at hand, which is whether it is legitimate for the EFCC to commence investigative activities against the named officials of Anambra State Government as contained in Exhibit 1 concerning the manner of the management and utilization of the public funds of Anambra State, the question posed must be answered against the Plaintiffs and the corresponding reliefs sought denied”.

” …… binding judicial precedent existing is to the effect that the EFCC is an agency both for the federal government and for state governments as far as the combating of corruption and other economic crimes in Nigeria is concerned”

While agreeing with an earlier judgment that Nigeria practices co-operative federalism, Justice Dimgba said “In the co-operative federalism practiced in Nigeria, the EFCC is a common agency empowered to investigate and prosecute offenders for both the Federal and state economic and financial crimes, and as such it qualifies as ‘any other authority or person’ empowered by Section 211(1)(b) of the Constitution to institute or initiate criminal proceedings”.

The Judge further added that “EFCC is the coordinating agency for the enforcement of the provisions of any other law or regulation on economic and financial crimes, including the Criminal Code and Penal Code. The Commission has powers under Section 13(2) of the EFCC Act to prosecute offences so long as they are financial crimes.”

Continuing, he said, “I have reflected on the Judgments of this Court issued by the Port Harcourt division of this Court in AG Rivers State v EFCC & 3 Ors in Suit No: FHC/PH/CS/78/07, delivered on 20/03/2007, and that by the Ekiti Division of this Court in Suit No: FHC/AD/CS/32/2016; A.G of Ekiti State v. EFCC & 17 Ors both of which have been brought to my attention. Both judgments hold that following the principles of federalism and separation of powers, only a State House of Assembly can investigate the financial administration of a State and that the 1st Defendant, the EFCC, lacks the powers to investigate a state finances”.

“With the greatest deference to my brothers who hold such views, I take a different view, and for the reasons already explained above, I am of the view that it is not a proposition that is borne out from a proper construction of Sections 125 to 129 of the Constitution juxtaposed with the powers of the 1st Defendant under the EFCC Act”.

“Quite apart from the fact that my learned brothers might have arrived at their conclusions in the light of the factual circumstances that they had to confront with and which are different from the facts and circumstances of the present case, there are dangers in holding the general view that for all circumstances only a State House of Assembly, to the exclusion of any other body, including the 1st Defendant (EFCC), can investigate and detect corrupt practices in the financial affairs of a State.

“This Court notes the collaborative and harmonious relationship that exists in most states of the federation between the executive organ who manage the state finances and the legislative organ who are mandated to check them with a view to exposing corruption. This collaborative and harmonious relationship is not always a positive thing but can also be very negative, especially in circumstances where the leadership of the executive organ is very overbearing, or the leadership of both houses are manned or dominated by political allies.

“In that sort of situation, no real independence of the legislature exists and the idea that the state legislature really possesses and can exercise the ability to detect financial crimes in the management of the state resources by the executive government is really more theoretical and academic rather than real.

“For all you know, the legislature may well be deeply involved with the executive in the very ills which they are supposed to be detecting and exposing. It is exactly that state of affairs, a matter of our present reality that makes the existence and intervention of an external force outside of the framework of a state’s governance system, not only inevitable, but also very desirable and necessary.”

While dismissing the action, the judge further said, “I have also noted, and thus hold, that all the addressees of the EFCC letters (Exhibit 1) as fully described above, including all those which the EFCC by the letters referenced, demand that they should be released for interview for the purposes of obtaining the clarification needed for the Commission to establish if the offences which the Commission said it was investigating such as fraudulent misappropriation of funds and the like have been committed, all qualify as “persons” or , “authority” from whom by law, the Commission is entitled to receive information from. They are indeed, all subjects of the EFCC’s exercise of its powers under the law.