…Benue govt. disagrees, heads to Appeal Court
Godwin Tsa, Abuja
The Abuja Division of the Federal High Court has dismissed the suit FILED by the Benue State Government challenging the powers of the Economic and Financial Crimes Commission (EFCC) to investigate its accounts.
Justice Nnamdi Dimgba, who dismissed the suit for lacking in merit, held that the case was built on a misconception that the EFCC lacked the statutory powers to investigate the financial activities of a state government.
However, the Benue State Government, while faulting the judgment, said it would challenged it at the Court of Appeal.
Counsel to the state government, Emeka Etiaba (SAN), who was accompanied by the state’s Attorney General, Micheal Gusa, confirmed that the state would challenge the judgment at the appellate court.
While urging the EFCC to be neutral and impartial in the discharge its statutory functions, the Court noted that the Commission has a moral burden by carrying out the investigations into the accounts of Benue State as soon as the state government change her political affiliation.
Justice Dimgba held that “The powers donated to the EFCC under Section 38 of its Act are very broad and not limited to any geographical location. It is so broad that it arises even in the context of management of State financies.
“I must make bold to say that the suit rest on a fallacy that EFCC is investigating the Benue State Government. This misconception collapsed by the provision of Section 38 of the EFCC Act.
“Issues are mixed up here and the Court cannot allow itself into the misconception. What is clear to me going by the exhibits attached by the 1st Defendant is that petitions were written against some named officials in the administration of the Benue State Government containing allegations of fraud against them.
“Invitation letters were directed to some officials of Benue State Government and another letter requesting the release of some State officials.
“None of the officials is a Governor or Deputy Governor who enjoys immunity under section 308 of the 1999 constitution.
“The suggestion that EFCC is investigating Benue State Government did not hold water.
“I am of the view that EFCC acted within its powers under the law when it sent letters of invitation to some officials of the Benue State Government for the purpose of investigation, which is the subject matter before this Court.
“I don’t agree that it’s action is a usurpation of responsibilities of the State House of Assembly and the Auditor General of the State.
“The Audit function of the Auditor General did not foreclose the duties and functions of the EFCC. It is a complementary to the powers of the powers of the State Assembly under Sections 128 and 129 of the 1999 constitution.
“As far as I can see, there is nothing in section 125, 128 and 129 which for closed the investigating powers of the EFCC. The surveillance powers of the Auditor General and House of Assembly is limited.
“I am of the view that EFCC retained the powers to investigate the finances of the state. It does not do any violence to the Doctrine of federalism and separation of powers.
“Besides, the EFCC has the expertise to carry out forensic investigation of financial crimes which neither the House of Assembly and Auditor General has the special skills to investigate financial crimes.
“I differ with my brother’s decision in the case of AG Rivers V EFCC and AG Ekiti V EFCC because there is some danger in holding that only State Houses of Assembly can investigate state finances.
“This court takes a different view bearing in mind the collaborative efforts between the State and Federal government in the fight against corruption.
“EFCC has legal powers to investigate financial crimes in every strata of our public life even at Local government level.”
The court however caution the Commission to carry out its statutory functions in such a way that it would earn public confidence and must be impartial and neutral.
Justice Dimgba observed that although the Commission received the first petition against some officials of the state since June 2016 when the state governor was in the same political affiliation with the government in power, it only acted on it when there was a change in the political affiliation of the state, thus given rise to suspicion.
The EFCC had earlier this month frozen the bank account of Benue State Government claiming it was investigating alleged fraud but, quickly de-freeze the account same day the order was made.
But in an originating summons marked FHC/MKD/CS/42/18 filed by the Attorney General of Benue State, Michael Gusa, the state government challenged the powers of the EFCC to investigate or inquire into the accounts and /or appropriations, disbursements and administration of the funds of Benue State Government having regard to the clear provisions of sections 1(1) and (3), 125(2), (4) and (6), 128 and 129 of the 1999 constitution.
It has the Speaker of the Benue State House of Assembly; the Clerk, Benue State House of Assembly; Benue State House of Assembly and the Auditor-General, Benue State as other respondents.
All the parties to the suit had adopted their briefs of arguments canvassed on behalf of their counsel for and against the suit.
While Etiaba canvassed arguments on behalf of the Benue State Government, Slyvanus Tahir did same for the EFCC.
Issues brought before the court for determination are; “whether by virtue of sections 6, 7 and 38(1) of the Economic and Financial Crimes Commission, EFCC, Act 2004, or any other law, the EFCC or any other body, authority or person beyond the Benue State House of Assembly and the Auditor- General, Benue State (4th and 5th respondents), has the power to investigate or inquire into the accounts and /or appropriations, disbursements and administration of the funds of Benue State Government having regard to the clear provisions of sections 1(1) and (3), 125(2),(4) and (6), 128 and 129 of the 1999 constitution.
“Whether in the absence of any resolution duly passed by the Benue State House of Assembly authorising the EFCC or any other body, authority or person to investigate and/or inquire into the accounts or appropriations, disbursements and administration of the funds of Benue State Government, the EFCC or any other body, authority or person can lawfully and constitutionally embark on such exercise without breaching the clear provisions of Sections 1 (1) and (3), 125(2), (4) and (6), 128 and 129 of the Constitution.
“Whether the continued invitations of Officials of Benue State Government, investigations and/or inquisitions into the accounts and/or appropriations, disbursements and administration of the funds of Benue State Government by the EFCC or any other body, authority or person under any guise having regard to Sections 1(1) and (3), 125(2), (4) and (6), 128 and 129 of the Constitution do not negate the Doctrine of Separation of Powers as enshrined under Sections 4, 5 and 6 of the Constitution.
Upon favourable determination of the questions, the plaintiff is seeking “A declaration that by the provisions of Sections 6, 7 and 38(1) of the Economic and Financial Crimes Commission, EFCC, and any other law, the EFCC or any other body, authority or person does not have the power to investigate and/or inquire into the accounts and/or appropriations, disbursements and administration of the funds of Benue State Government having regard to the clear provisions of Sections 1 (1) and (3): 125(2). (4) and (6), 128 and 129 of the Constitution.
The plaintiff also wants an order of perpetual Injunction restraining the 2nd, 3rd and 4th defendants from surrendering or sharing their powers of control over the public funds of Benue State as provided under Sections 128 and 129 of the Constitution to the 1st defendant or to any other body, authority or person.
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