Supreme Court Dismisses States’ Suit Against EFCC

The Supreme Court has dismissed the suit of some states of the federation challenging the legality of the law that established the Economic and Financial Crimes Commission (EFCC).

The apex court, in its judgement delivered yesterday by Justice Uwani Abba-Aji, dismissed the suit for lacking in merit.

Last month, the Supreme Court reserved judgment in the suit filed by 16 states of the federation challenging the constitutionality of the law establishing the EFCC.

Before the case was adjourned for judgement, Imo, Bauchi and Osun states joined the suit as co-plaintiffs while Anambra, Ebonyi and Adamawa states withdrew their suits.

Accordingly, the trio’s suits were struck out by the court.

In the suit, the plaintiffs had argued that the Supreme Court in Dr Joseph Nwobike Vs Federal Republic of Nigeria, held that it was a United Nations (UN) convention against corruption that was reduced into the EFCC Establishment Act and that in enacting the law in 2004, the provision of Section 12 of the 1999 Constitution (as amended) was not followed.

They argued that in bringing a convention into the Nigerian law, the provision of Section 12 must be complied with.

According to them, the provision of the constitution necessitated the majority of the states’ Houses of Assembly agreeing to bringing the convention in before passing the EFCC Act and others, which was allegedly never done.

While delivering the judgement, Justice Abba-Aji, who led a seven-member panel of justices of the apex court, held that “the EFCC Act, which is not a treaty but a convention, does not need the ratification of the Houses of Assembly.

“Let me first look at the constitutional provision. The plaintiffs rely on Section 12 of the constitution in their argument. A treaty is an agreement reached by two or more countries which has to be ratified.

“Convention: Conventions are agreed by a larger number of nations. Conventions only come into force when a larger number of countries agree.

“Therefore, the EFCC Act, which is not a treaty but a convention, does not need the ratification of the Houses of Assembly. A convention would have been ratified by member-states and the National Assembly (NASS) can make laws from it, which will be binding on all the states in Nigeria as it is the case of the EFCC Establishment Act.”

The Supreme Court therefore dismissed the suit in its entirety and resolved the case against the plaintiffs.

“In a country like Nigeria, the federating units do not have absolute power. The NFIU guideline is to present a benchmark and not to control the funds.

“Where an Act of law is made by NASS like the NFIU and its guideline, it is binding on all. Any act that has been competently enacted by the NASS cannot be said to be inconsistent.

“Where the NASS has enacted several laws on corruption, money laundering, etc, no state has the right to make law to compete with it. The investigative power of the EFCC cannot be said to be in conflict with legislative powers of the state assembly.

“I must agree with the AGF that the plaintiffs’ argument, that is, the houses of assembly of the plaintiff-states is not tenable in law,” the Supreme Court added.

The apex court ruled that the NFIU guideline had not contravened the provision of the constitution to manage the funds of their states and resolve the issues against the plaintiffs.

All other judges agreed with the lead judgment, saying all the issues raised in the states’ suit had no merit “and are accordingly dismissed.”

LEADERSHIP Weekend recalls that a professor of law and former attorney-general of Abia State, Chief Awa Kalu (SAN), had in 2007 filed a similar case before the apex court.

Unlike the dismissed case yesterday where 19 state governors dragged the federal government before the court over the Establishment Act of the EFCC, Kalu filed the case on behalf of Abia State as the sole plaintiff and had the federal government and the 35 states as defendants in the matter.

In the suit, he had argued that EFCC had 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.

He also alleged that the EFCC received copies of statements of account of the state government from its bankers, saying 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 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 were not within the contemplation of the EFCC Act; 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 therefore claimed the following reliefs: A determination of the question whether section 40 of the EFCC (Establishment) Act, 2004 was not a legislative judgment.

A determination of the question whether the powers conferred on the EFCC by section 7(1) of the EFCC Act, 2004 extends to investigation into the financial affairs of a state Government.

A declaration that it was unlawful for the EFCC to freeze or render inoperative the account or accounts of any government of a state including the plaintiff’s.

The state government lost the suit as the apex court dismissed it