YESTERDAY

Justice Buba examines EFCC’s preliminary objection and observes that for whatever it is worth, the judgment of the court delivered March 20, 2007 was still valid

THE 2nd Defendant/Applicant submitted that no court can make an order capable of turning a citizen into an outlaw; as this can lead to a state of general break down of law and order and if the current trend of rushing to court for injunctive orders restraining criminal prosecution by some powerful individuals is not quickly halted by this Court, then Nigeria shall soon be witnessing a situation where armed robbery and murder suspects will obtain orders to restrain the Police from arresting, investigating and prosecuting them. After all they too are entitled to secure the enforcement of their fundamental rights under the rule of law.

That on the unequivocal power of the State to derogate from the fundamental rights of citizens to personal liberty where they are alleged to have committed criminal offences, it was held by the Court of Appeal in the case of EKWENUGO vs. FR.N (2001) 6 NWLR (PT 708) at 171 at 185 that: “If there is a reasonable suspicion that a person has committed an offence, his liberty may be impaired temporarily. In the same vein, a person’s liberty may be tampered with so as to prevent him from committing an offence. In short, it is clear that no citizen’s freedom or liberty is absolute. The freedom or liberty of a citizen ends where that of the other man starts.”

It is submitted that in the same vein, the Community Court of Justice has recently decided in the case of ALHAJI HAMMANI TIDJANi vs. FRN & ORS. (Unreported Suit No. ECW/CCJ/APP/01/06) that the member States of Economic Community of West African States (ECOWAS) cannot be prevented from trying any one alleged to have committed a criminal offence in their territories. Notwithstanding that the Plaintiff, a Niger national was abducted by the Nigerian Police in Cotonou, Benin Republic, the application for the enforcement of his fundamental rights was dismissed by the Community Court on grounds that:

“Article 6 of the African Charter on Human and People’s Rights duly recognises the right of states to prosecute suspects for criminal offences and does not seek to interfere with that except where the suspect has been arrested, detained and/or tried under or detention or for an offence which did not exist at the time of his arrest or detention.”

It is contended by the 2nd Defendant/Applicant that the fundamental rights of the Plaintiff/Respondent guaranteed under the Constitution are not absolute. Neither does the Plaintiff/Respondent have a right against prosecution, having been indicted by the investigations carried out by the 2nd Defendant/Applicant. There are derogations that have been recognised in the interest of public morality. For instance the Court of Appeal in the case of EKWENUGO vs. FRN (supra) held that the right for personal liberty of any person can be justifiably violated “for the purpose of bringing him before a court in execution of the order of a court or upon reasonable suspicion of his having committed a criminal offence.”

The Court was referred to Section 35(i)(c) of the 1999 Constitution of The Federal Republic of Nigeria.

It is argued that the 2nd Defendant/Applicant has averred in paragraph 5 of counter affidavit that the Plaintiff/Respondent along with some officers who worked with him have been indicted by its investigation on allegations of abuse of office, corruption and looting of the treasury of Rivers State of Nigeria, whilst the Plaintiff/Respondent served as the executive Governor of Rivers State. That these averments in the 2nd Defendant/Respondent’s Counter Affidavit have not been refuted by the Plaintiff/Respondent. That the position of the law is that these uncontradicted averments should be deemed to be true and correct. The Court was referred to the case of BESTVISION LTD vs. UACN. (2003)13 NWLR PT 838 at 594 esp. 607. And the case of HONDA PLACE LTD vs. GLOBE MOTORS HOLDINGS NIG. LTD. (2005) 11 MJSC at 1.

Therefore, it is contended that in line with decided authorities cited above this court was urged to uphold the second ground of the 2nd Defendant/Applicant’s Preliminary objection and dismiss the Plaintiff/Respondent’s Motion seeking to restrain the 2nd Defendant/Applicant from  further exercise of its statutory duties of investigation and prosecution.

The Court was referred to the cases of ATTORNEY-GENERAL ANAMBRA STATE vs. UBA (2006) 16 NWLR PT 1005 at 265 esp 389 where Niki Tobi JSC warned every alleged treasury looter to desist from his nefarious activities as: “the Independent Corrupt Practices and other related Offences Commission (ICPC) and the Economic and Financial Crimes Commission (EFCC) are watching him very closely and will, without notice pounce on him for incarceration after due process.”

Learned counsel for the plaintiff, Mr. I. A. Adedipe, SAN, submitted that the dominant issues of law that calls for determination by the court by reason of the preliminary objection are two, namely:

1. Whether the purported preliminary objection of the 2nd defendant is a valid and sustainable objection in law capable of terminating the originating summons in limine.

2. Whether the plaintiff has the locus standi to bring this suit on the basis of the judgment of this Honourable court in Suit No. FHC/PH/CS/78/2007, even though he was not, a named party in it.

ON WHETHER THE PURPORTED PRELIMINARY OBJECTION OF THE 2ND DEFENDANT IS A VALID AND SUSTAINABLE OBJECTION IN LAW CAPABLE OF TERMINATING THE ORIGINATING SUMMONS IN LIMINE

It is submitted that the arguments of the 2nd defendant are misconceived as there are no basis for the submissions, as the suit before this Court is not about the distinction between the powers and functions of the 2nd defendant and the Rivers State House of Assembly as regards fighthg corruption. Even if it is about such a distinction; (which point is not admitted), that is not a matter for preliminary objection.

A fortiori, it cannot be the basis of a challenge to jurisdiction of the Court to hear the case. The second point that the plaintiff was not a party to the earlier suit upon which the judgment is based is an argument that is best reserved for the main suit and, not a matter of preliminary objection.

In a nutshell, the contention of the 2nd defendant/applicant that this Court has no jurisdiction to entertain both the motion for interlocutory injunction, as well as the substantive suit has not been supported by any argument or decided judicial authority. Furthermore, it is submitted that the preliminary objection is misconceived and cannot be supported, having regard to the provisions of the law on preliminary objections, interlocutory injunctions as well as the thrust of the originating summons now under consideration.

The plaintiff submits that the starting point is to address the issue of the jurisdiction of this court to entertain both the originating summons as well as the main case.

That the learned authors of Halsbury’s Laws of England, 4th Edition page 323 paragraph 715 defined jurisdictions as follows: “By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by similar means.”

The Supreme Court in the cases of JACOB NDAEYO VS. GODWIN OGUNNAYA 1977 1 S.C. 11 at 24, and NATIONAL BANK OF NIG.LTD VS. JOHN SHOYOYE 1977 A.N.L.R. 168 adopted the above definition.

That in the case of MADUKOLU VS. NKEMDILIM 1962 A.N.L.R. 581 the Supreme Court at page 589 made the following observation on jurisdiction and competence of a court. The court stated as follows that a court is competent when –

Exercise of jurisdiction

1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and

2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and

3. The case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.

That there is no suggestion, by the 2nd defendant that, the court does not possess the requisite qualification to preside over these proceedings. There is equally no allegation that the subject matter, namely the determination of the questions raised in the originating summons, cannot be undertaken by this court. No allegation is equally raised about the non fulfilment of any condition precedent to adjudication process.

It is argued that by a long line of judicial decisions, it has been firmly established that it is the claim of the plaintiff that determines the jurisdiction of the court, and not the defence of the defendant. The position of the law was stated by the Supreme Court in the case of ADEYEMI vs. OPEYORI1976 N.S.C.C. PAGE 455 at 464 where the court adopted the position of the law as stated by the W.A.C.A in AJAKA IZENKWE vs. ONYEMUCHE NNADOZIE (1953) 14 W.A.C.A. 361 to the following effect:  “… in the first place it is a fundamental principle that jurisdiction is determined by the plaintiff’s demand and not by a defendant’s answer which as in this case, only disputes the existence of the claim, but does not alter or affect its nature. In other words ordinarily it is the claim and not the defence which is to be looked at to determine jurisdiction .”

That it is appropriate, for the court to advert to the claims before the court. The claim had been reproduced elsewhere in this judgment. It is submitted that the Federal High Court is a superior court of record, with all the powers and jurisdiction of such a court, save for matters that are expressly excluded from its jurisdiction by its enabling law. The court is established by Section 249(1) of the 1999 Constitution of the Federal Republic of Nigeria. The civil jurisdiction of the court is prescribed by Section 251(1) of the said constitution.

Limits of civil jurisdiction

That by sections 7, 9, 10, 11, 12, 13, 14, and 15 of the Federal High Court Act CAP. F12 Laws of the Federation 2004, the extent and limits of the civil jurisdiction of the court, are spelt out. Under Order 40 of the Federal High Court (Civil Procedure) Rules, 2000,  provisions are made for the hearing and determination of originating summons, such as the one filed by the plaintiff. The defendants on record are federal agencies, over whom the Federal High Court is empowered to exercise jurisdiction. It is submitted that from whatever angle one approaches the present case, this court has the jurisdiction to entertain it in the light of the above submissions.

The plaintiff submits that the present preliminary objection is strange and unknown to law. This is because, the arguments being canvassed to support it, are matters directed at the findings, conclusions and orders of this court in Suit No. FHC/PH/CS/78/2007. The best one can say is that those arguments should be taken at the appellate court.

Secondly, the procedure by way of preliminary point of law is in general only satisfactory when whichever way it be decided, it is conclusive of the whole matter. The court was referred to the cases of WINDSOR REFRIGERATOR CO. LTD vs. BRANCH NOMINEE LTD (1961) Ch. 0.275 at 382; AINA vs. THE TRUSTEES OF NIGERIAN RAILWAY PENSION FUND (1970) 1 ALL N.L.R. 281.

Thirdly under Order 25 of the Federal High Court (Civil Procedure), Rules 2000, demurer is abolished, and parties are only entitled to raise by their pleading any point of law, and any point so raised shall be disposed by the judge who tries the cause at or after the trial.

In the case of KWARA HOTELS LTD. VS. ISHOLA (2002) 9. N.W.L.R. (PART 773) 604 at 627, the Court of Appeal, in dismissing a preliminary objection brought by the defence in that case, construed the provisions of Order 23 of the High Court of Kwara State (Civil Procedure) Rules, 1989, which is in pari materia with Order 25 of the Federal High Court (Civil Procedure) Rules, 2000 observed, and held as follows:

Rules of court

“I have gone through the statement of defence and it is obvious that the appellant never raised the objections by way of points of law in his defence as required by the rules of court reproduced. To that extent, it is my view that the notice of preliminary objection of the appellant in so far as it purports to be a demurrer which has been abolished, is incompetent before the lower court since it was not raised in the statement of defence”

That in the case of AINA vs. THE TRUSTEES OF NIGERIAN RAILWAY CORPORATION PENSIONS FUND 1970 16 N.S.C.C 255 at 229 the Supreme Court cautioned, on this point of raising preliminary objections thus:

“It is only in exceptional cases and when it is absolutely clear and it is likely to dispose of the action that a judge should consent to a hearing of a preliminary issue even on a point of law before the action is heard in full – such points could always be taken in the course of the hearing of the action if there is any doubt whether hearing a preliminary issue will dispose of the matter.”

It is contended on the state of the available evidence in this case, and having regard to the state of the law, the preliminary objection is misconceived and should be dismissed.

That a major misconception; on the part of the 2nd defendant’s submission is in the abysmal failure to know that the judgment of the Federal High Court in Suit No. FHC/PH/CS/78/2007 being a final judgment, over an issue, such issue cannot be reopened except by way of review by an appellate court.

Secondly, the judgment, being a judgment in rem is enforceable against the whole world by anyone since it declared invalid, the purported investigations and findings of the 2nd defendant. In the eyes of the law, no findings or investigations by the 2nd defendant exist anymore. It is, therefore, misconceived and unacceptable to refer to it and argue that no court can stop the 2nd defendant from carrying out its statutory functions. That in fact is not the focus of this action; nor is such conclusion the ratio decidendi of the judgment in Suit No. FHC/PH/CS/78/2007.

On the issue that a plaintiff is not a party to suit No. FHC/PH/CS/78/07 and thus has no locus; the plaintiffs submit that the term locus standi, or standing to sue signifies the existence of a right of an individual or group of individuals to secure the court’s audience over an issue before it. Put in another form, the term denotes legal capacity to institute proceedings in a court of law. The Supreme Court, in the case of SENATOR ADESANYA VS. PRESIDENT OF NIGERIA (1981) A.N.L.R. 1, discussed at length, the true meaning and incidents of the rights giving a standing to a litigant to approach the court, and held, amongst others that, the question whether or not a claimant has sufficient justiciable interest or sufferance or injury or damage, depends on the facts and circumstances of each case. It is a matter of record, for which this Court can take judicial notice of, that the plaintiff, was the immediate past governor of Rivers State. It is equally matters of common knowledge that immediate past governors across the country are generally accused, of all manners of abuse of office, graft, and other wrongdoings by the 2nd defendant.

Indeed, some former governors are currently standing trial in various courts across the country. In the case of the plaintiff, he had appeared before officials of the 2nd defendant, who had confronted him, with their alleged findings and report of mismanagement of the resources of Rivers State while he was governor, between 29th May, 1999 and 29th of May, 2007.

However, the powers of the 2nd defendant to investigate the finances, expenditure, disbursement and operations of the funds of the Rivers State, came up for consideration in Suit No. FHC/PH/CS/78/2007. A decision declaring as unconstitutional, invalid, null and void, all the investigations, findings and report of findings of the 2nd defendant, was entered, against the 2nd defendant. That decision is just now being challenged. However, there is no order staying the legal operation of that judgment.

That in the circumstances the question that readily comes to mind is: what does a citizen, against whom an agency intends to proceed, do when the basis of such action has been nullified by a competent court of law? To say that he cannot challenge such move is to be mischievous. Such a citizen has a constitutional right to approach the court to seek redress against obvious illegality. The contention that the plaintiff was not a party to Suit No. FHC/PH/CS/78/2007 fails to take into account the nature of judgment that was given in that suit. Concisely stated, the judgment in that case is a judgment in rem. It is the humble submission of the plaintiff herein that a judgment in rem is a decision of a court of competent jurisdiction which makes pronouncement on the status of a particular thing or subject matter, including a person. Commenting on the nature and effect of a judgment in rem, the Supreme Court in the case of ADESINA OKE vs. SHITTU ATOLOYE & OTHERS (1986) 1 NWLR. (PART 15) page 241 at 242 held that: “a judgment in rem is binding on all the world, parties as well as non-­parties.”

In conclusion, it is submitted for the plaintiff that the preliminary objection is misconceived and same should be dismissed for the following reasons.

(1) The Federal High Court is a superior court of record created by the constitution, and its jurisdiction covers the making of such declarations as sought for herein

(2) No legal basis exist for this objection as all the conditions precedent to adjudication have been fulfilled

(3) The judgment in Suit No. FHC/PH/CS/78/2007 is a judgment in rem which has voided the purported investigations and findings of the 2nd defendant in Rivers State

Arguing the main application, Learned Senior Counsel for the plaintiff contended that agreed facts showed that on the 20th of March, 2007, the Federal High Court gave a judgment in Suit No. FHC/PH/CS/78/2007 between the Attorney-General of Rivers State and the Economic and Financial Crimes Commission which is the 2nd defendant on record. The judgment is the foundation of the present suit.

Up till now, there is no appeal against that judgment by the 2nd defendant. The judgment is Exhibit ‘A.’

Appeal against judgment

 

The plaintiff on record was the elected governor of Rivers State between May 29th 1999, and May 29th 2007. The judgment referred to above covers the investigations and other activities of the 2nd defendant, which it carried out between 5th December 2006 and 14th December 2006 pursuant to an alleged petition it received concerning the administration then headed by the plaintifff.

Upon the plaintiff leaving office, however, and without any appeal against the judgment which had effectively nullified the findings and investigations carried out during the tenure of the plaintiff, the 2nd defendant, invited the plaintiff along with other former governors, and confronted him with the report of its findings and investigations. The 2nd defendant equally made known its intentions to proceed against the plaintiff on the strength of the nullified reports and findings.

That indeed, in the counter affidavit deposed to by one James Binang, a chief legal officer of the 2nd defendant, dated 5th October and filed on 10th October 2007, he deposed in paragraph 5 to the effect that indeed an investigation was carried out between 5th of December 2006 and 14th of December 2006, thus confirming the claims of the plaintiff.

The plaintiff submitted that the major, and indeed the dominant issues of law that call for determination in these proceedings are three, namely the two questions raised under the originating summons as well as whether the 2nd defendant has established a legal basis for the counter-claim it has submitted for consideration.

ON 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?

It is submitted for the plaintiff, that the present suit, is, in effect an invitation to the court to pronounce on the legality of the defendants, particularly the 2nd defendant’s decision or attempt to ignore the judgment of this Court in Suit No. FHC/PH/CS/78/2007 which was decided on the 20th March, 2007 by this Court. The present 2nd defendant was the first defendant to that suit. A certified true copy of the said judgment is the only Exhibit in these proceedings. It is submitted for the plaintiff, that in the light of that judgment, the defendants, particularly the 2nd defendant cannot use the report of its alleged investigation into the affairs of Rivers State, between 29th May 1999, and December 2007 as a basis to arrest, invite, detain, arraign, prosecute or in any manner whatsoever, rely on the said report, or investigation, for any purpose. The bases for the above submission are:

That it is appropriate, to begin with facts that are not in dispute, and they are, that between 29th May 1999, and 29th May, 2007, the plaintiff was the elected governor of Rivers State, operating with a House of Assembly; that sometimes between December, 2006 and January 2007, the 2nd defendant, came to the State allegedly in response to a petition against the government of Rivers State, headed by the plaintiff; that it launched an investigation into the finances of the State and arrested senior members of the government; froze the accounts of the government in various banks and disrupted the activities of the government; that the Attorney-General of the State, as the chief law officer of the State, instituted Suit No. FHC/PH/CS/78/2007 against the 2nd defendant. After a full hearing, this Court entered judgment against the 2nd defendant, and granted all the reliefs prayed for by the plaintiff, in the case.

The Court in the judgment granted a total of four declarations and four injunctive reliefs. Among the reliefs and injunctions are the following:

(1) A declaration that the purported investigation or inquiry carried out by the 1st defendant or being carried out by the 1st defendant into the disbursing, administering, or management of funds appropriated by the Rivers State House of Assembly is unconstitutional, ultra vires the powers of the 1st defendant and accordingly null and void.

(2) 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.

(3) An order of injunction restraining the 1st defendant by itself or 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.

(4) An order of injunction restraining the 1st defendant by itself or by its 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 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 is hereby made.

It is submitted that the legal effect of the above declarations and injunctions on the alleged investigation and findings by the 2nd defendant herein, on the alleged mismanagement of the funds of Rivers State, is to render such findings and investigation useless and of no probative value since such report and findings had been declared unconstitutional, and nullified. As the court decreed, the investigation and findings cannot be used, either in part or in whole for whatever purpose. Unless, and until set aside, the judgment is binding and cannot be ignored by the defendants.

That it has been decided by high judicial authorities, that a person who knows of a judgment, whether null or valid given against him by a court of competent jurisdiction cannot be permitted to disobey it. His unqualified obligation is to obey it unless and until that judgment has been set aside. In the case of BABATUNDE vs. OLATUNJI (2000) 2 S.C.N.J. 26 the Supreme Court held at page 33 as follows: “I think the option open to a person against whom an order was made or a judgment given is plain. He should apply to the court to discharge the order or appeal against the judgment that it might be set aside as the case may be. This is good sense, for as long as the order or judgment existed, it must not be disobeyed. A judgment of a court of competent jurisdiction remains valid and binding, even when the person affected by it believes that it is void, until it is set aside by a court of competent jurisdiction.”

Obedience of court orders

That in CHUK vs. CREMER (1846) 47 E.R. 884, Lord Cottenham L.C. said: “A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it…. it would be most dangerous to hold that the suitors, or the solicitors, could themselves judge whether an order was null or valid, whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must be obeyed.”

That this view was re-echoed by ROMER L. J in HADKINSON vs. HADKINSON (1952) 2 All E.R. 567 where he said: “It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends to cases where the person affected by an order believes it to be irregular or even void.”

Presumption of correctness

That in the case of BABATUNDE vs. OLATUNJI (supra) the jurisprudential basis for the above position of the law was explained by KATSINA-ALU J.S.C at page 34 of the law report thus:  “It is settled practice that there is a presumption of correctness in favour of a court’s judgment. Unless and until that presumption is rebutted and the judgment set aside, it subsists and must be obeyed. It cannot for any reason under our law be ignored.”

On the same point, in the case of OBA ALADEGBEMI vs. OBA FASANMADE (1988) 3 N.W.LR. (Part 81) page 129, ESO J.S.C held thus: “for a court of competent jurisdiction, not necessarily of unlimited jurisdiction (and I will come to this anon) has jurisdiction to decide a matter rightly or wrongly. If that court never had jurisdiction in the matter, then its decision is, without jurisdiction, void, but then should a court of law not even decide the point? This is, the court without jurisdiction decided without jurisdiction? Should the decision just be ignored? Surely it would not make for peace and finality which a decision of a court seeks to attain. It would at least be against public policy for persons, without the backing of the court, to pronounce a court decision a nullity, act in breach of the decision whereas others may set out to obey it. In my respectful view it is not only desirable but necessary to have such decisions set aside first by another court before any act is built upon it despite the colourful dictum of the law Lord in UAC vs MACFOY”

The 1999 Constitution of the country in Section 287 (3) provides as follows: “The decisions of the Federal High Court, a High Court and of all other courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other courts of law with subordinate jurisdiction to that of the Federal High Court, a High Court and those other courts, respectively.”

Mr. Adedipe, SAN, for the plaintiff contended further that it remains to add, that it was after the institution of this suit that the 2nd defendant realised that it ought to appeal against the judgment delivered on the 20th March 2007.

To this end, the available records showed that an application for extension of time within which to appeal is presently before the Court of Appeal. It is, however, submitted for the plaintiff, that an extension of time to appeal is not the same thing as a successful appeal, against a subsisting judgment, which enjoys a legal presumption of correctness until reversed or set aside. Put differently, there is no legal basis for anybody to ignore the judgment of 20th March, 2007. That judgment is binding on the defendants, and the court is urged to so hold.

It was further argued that in the notice of preliminary objection filed by the 2nd Defendant, contended that the plaintiff herein was not a party to Suit No. FHC/PH/CS/78/2007 and, therefore, cannot take the benefit of it. In reply to that point, the plaintiff had submitted that the contention of the 2nd defendant was erroneous, that it is also appropriate that the issue be fully addressed at this point.

Judgment in rem

It is the submission of the plaintiff that the judgment delivered in Suit No. FHC/PH/CS/78/2007 between the Attorney- General for Rivers State vs. the Economic and Financial Crimes Commission and three others is a judgment in rem. A judgment is said to be in rem when it is an adjudication pronounced upon the status of some particular thing or subject matter by a court or tribunal having the jurisdiction and competence to pronounce on that status. Such a judgment is usually and invariably founded on proceedings instituted against or on something or subject-matter whose status or condition is to be determined. It is thus a solemn declaration on the status of some persons or thing. It is, therefore, binding on all persons in so far as their interests in the status of that person or thing are concerned. That is why a judgment in rem is binding on the whole world, parties as well as non-parties. The above submission is based on the opinion of OPUTA J.S.C in the case of DIKE vs. NZEKA (1986) 4 N.W.L.R. (PART) 144. The court was also referred to the case of ADESHOYE OLOWOLAGBA (1996) 12 SCNJ 95 at 120.

The plaintiff posits further that a fair reading of the judgment of the court under consideration will show that the status of the investigation, inquiry, findings, report, and the right to use, and disseminate the same, for whatever purpose, was solemnly pronounced upon by the court in Suit No. FHC/PH/CS/78/2007. It is submitted for the plaintiff that the judgment is a judgment in rem, binding on the whole world, parties and non-parties alike. The court is urged to so hold. The submission of the 2nd defendant on the right of the plaintiff to rely on the said judgment should be rejected as misconceived.

In conclusion, the court was urged to answer the question, raised by issue one of the originating summons in the negative, and hold that the defendants cannot ignore the binding judgment in Suit No. FHC/PH/CS/78/2007, dated 20th March 2007. Accordingly, the defendants cannot utilize the purported findings by the 2nd defendant, during the tenure of the plaintiff, as governor of Rivers State as a basis to arrest, detain, and or prosecute him on the basis of such investigation and reports.

ON WHETHER THE PLAINTIFF, AS 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, A 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?

It is submitted for the plaintiff, that question two raised two issues together namely: the constitutionality of the powers of the 2nd defendant, a Federal Agency, to investigate a state official of a component state of the country. Concisely stated, is it in accord with Federal principle established by the 1999 Constitution that a Federal Agency can purport to act, and superintend the affairs of a state? The second issue is, even if the 2nd defendant can investigate a state official, who has already left office, can it be done by the defendants against the plaintiff herein, in the face of the subsisting judgment in Suit No. FHC/PH/CS/78/2007.

It is humbly submitted, that the EFCC has no powers to investigate a state official, who has left office, and who was never accused of wrongdoing by the state House of Assembly that served with him. It is argued that the Nigerian Constitution, 1999 is a Federal Constitution. And in the case of A-G ABIA STATE vs. A-G FEDERATION & ORS. (2006) 16 N.W.L.R. (PART 1005) PAGE 265, the Supreme Court stated thus:

Federal arrangement

“This court has construed federalism and the federal structure in the Constitution of the Federal Republic of Nigeria, 1999. In A-G. Lagos State vs. A-G. Federation, this court held that by the doctrine of federalism which has been adopted by virtue of section 2{2} of the 1999 Constitution, the autonomy of each government, which presupposes its separate existence and its independence from the Federal Government, is essential to Federal arrangement.

Therefore, each government exists not as appendage of another government but as an autonomous entity in the sense of being able to exercise its own will in the conduct of its affairs, free from direction by another government.

In Chief Olafisoye v. Federal Republic of Nigeria (2004) 4 NWLR (Pt.864) 580, this court also held that the concept of State autonomy must be examined in the context of the Constitution of the Federal Republic of Nigeria, 1999. This is because it will not be a useful exercise to take the concept outside the constitutional arrangement and therefore in a vaccum or in vacuo.

… Nigeria, as a Federation, operates federalism. This is made possible by the Federal Constitutions enacted in the past, culminating in the current Constitution of the Federal Republic of Nigeria. Chapter 1, Part 1, clearly described Nigeria as a Federal Republic. The Part contains three strongly worded sections.

In the true culture and tenet of federalism, the Constitution of the Federal Republic of Nigeria, 1999, makes a clear distinction between legislative powers of the National Assembly and House of Assembly of a State.

Section 4 is the source of the legislative powers of the Legislatures. While section 4(1) to (4) provides for the legislative powers of the National Assembly, section 4(6) and (7) provides for the legislative powers of the House of Assembly of a State. Section 4(5) provides for the common law doctrine of covering the field.”

The court was also referred to the cases of

1. A-G LAGOS STATE vs.A-G FEDERATlON (2003) 12 NWLR. (PART 833) 1.

2.. OLAFISOYE vs. FEDERAL REPUBLIC OF NIGERIA (2004) 4 NWLR. (PART 864) 580.

That the legal and constitutional implication of federalism was explained by the Court of Appeal in the case of FEDERAL MINISTER OF INTERNAL AFFAIRS & ORS. vs. SHUGABA,(1982, 3 N.C.L.R. 915 thus: “The president has no power or authority, save as may be clearly provided by the Constitution, to interfere with the powers or authority of a state governor. The governor also has no power or authority to interfere with the functions of the chief executive of the Federation. This same principle applies to the relationship of the National Assembly and a House of Assembly of a State in their respective powers of law making or other responsibility assigned to them by the Constitution.

The same principle of non-interference applies to the relationship of the Judiciary of the Federation and the Judiciary of a state in the exercise and control of judicial powers and jurisdiction of the courts established for the federation and those for the State.”

It is argued that the investigation of a state’s account by the EFCC for whatever reason is unconstitutional. The basis for the above submission is that EFCC being a Federal Agency can only act pursuant to the laws made by the National Assembly in accordance with Section 4(2) of the 1999 Constitution.

Indeed, the Federal High Court, in Suit No. FHC/PH/CS/78/2007, delivered on 20th March 2007, which is Exhibit ‘A’, in these proceedings had clearly stated the correct legal position, that in a federal set up, it will be inimical to order and good governance, contrary to the doctrine of separation of powers and the principles of federalism, enshrined in our constitution, for the 2nd defendant to interfere in the management of the government of Rivers State. Before then, the Honourable Court had considered the provisions of Sections 6, 7, and 40 of the EFCC Act, 2004 alongside the provisions of Sections 120 to 128 of the 1999 Constitution, and concluded that the two questions formulated for determination by the plaintiff in the suit must be answered in the negative. As pointed out earlier, there is yet no appeal against that decision.

It is argued on the status of the plaintiff, who as at now, is a private citizen of Nigeria. There is no allegation of any type against him as a private citizen. It is the alleged complaint against him, while he was in office, as the Governor of Rivers State, that triggered the investigations, and alleged findings and report, against, him, while he was in office. Indeed, in the counter-affidavit of the 2nd defendant, paragraph 5, it was made clear that it was the conduct of the plaintiff, while he was in office, and those of his government officials that was the focus of investigation carried out by the 2nd defendan between 5th December and 14th December 2006.

That in the preliminary objection, the 2nd defendant had submitted as follows: “It is submitted in this regard that all lawful appropriation of funds made by the House of Assembly of a state qualifies as law made by the said 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 crime, the 2nd defendant/applicant has the mandate under EFCC Act 2004 to investigate and prosecute offenders of the said state law.”

It is submitted, that, since the allegations, investigations findings and report, are based on his conduct while in office, they cannot be used as a basis to proceed against him, in his personal capacity. First, in his personal capacity there is no allegation against him. Secondly, the allegation, investigations, findings and report, against him and other officials of his government was nullified in Suit No. FHC/PH/CS/78/2007.

It is argued further that the proposed action, or the submission of the defendant, under the existing facts and law, is not in accordance with both the Constitution of 1999. In this connection, the plaintiff submits that the 2nd defendant cannot proceed against him, for any alleged breach of state law; this is because the 2nd defendant, as a Federal Agency, cannot be empowered to enforce any state law. The provisions of the EFCC Act 2004 do not so provide.

And that secondly, as observed by the Supreme Court in Federal Ministry of Internal Affairs & Ors vs. SHUGABA (supra)

“The president has no power or authority, save as may be clearly provided by the Constitution, to interfere with the powers or authority of a state governor. The governor also has no power or authority to interfere with the functions of the chief executive of the Federation. This same principle applies to the relationship of the National Assembly and a House of Assembly of a State in their respective powers of law making or other responsibility assigned to them by the Constitution. The same principle of non-interference applies to the relationship of the Judiciary of the Federation and the Judiciary of a state in the exercise and control of judicial powers and jurisdiction of the courts established for the federation and those for the State.”

The second observation is that the 2nd defendant seems unwilling to accept the finality of the decision in Suit No. FHC/PH/CS/78/2007, which had expressly stated that the investigation of the Government of Rivers State is unlawful.

Tomorrow

Justice I. N. Buba  accuses EFCC  of losing sight of a valid judgment of
a competent court which had declared its action on Odili ultra vires, unconstitutional, null and void