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Court ruling in Fayose’s case cannot stand – EFCC

By Soni Daniel, and Adekunle Aliyu
The Economic and Financial Crimes Commission has said that the ruling by the Federal High Court in Ekiti that the commission cannot investigate state finances was an error and cannot stand the test of time.

Ibrahim Magu, EFCC boss

The commission said it would appeal against the ruling so as to prove that it has the powers to investigate state finances.

The Head of Media and Publicity of the commission, Mr. Wilson Uwujaren, gave the indication while responding to the decision of the court.

EFFC said it had already applied for the certified true copy of the ruling so as to appeal against it.

“The commission has applied for a certified true copy of the ruling of the Federal High Court, Ado Ekiti.

“We will study it and avail ourselves of the right of appeal. The EFCC is confident that the judgment cannot stand, ” Uwujaren said.

Thr High Court in Ado Ekiti, Tuesday told the Economic and Financial Crimes Commission (EFCC) that it cannot probe states finances without a report of indictment from States’ Houses of Assembly.

The court so declared in a judgement delivered in a suit filed by Ekiti State Government against the EFCC, the Inspector General of Police, the Speaker, Ekiti State House of Assembly, the Clerk and 13 others.

The state’s Attorney General filed the suit after the commission sent letters of invitation to some government officials seeking details over some financial transactions of the state.

The EFCC also sent letters to the banks seeking financial books of the state in their custody.

Justice Taiwo O Taiwo held that the financial institutions are not entitled to submit to, release to or any manner whatsoever to disclose to any person, body or agency, including the EFCC and IG, or any other investigating body, any document, financial records etc.

The court held that the EFCC cannot usurp the oversight functions vested in state assembly under Sections 128 and 129 of the 1999 Constitution to initiate a probe or criminal proceedings against a state official.

According to him, only the state legislature is vested with oversight and investigation role over state finances, appropriation and implementation after receiving a formal report from the Auditor General or the Accountant General as the case may arise.

Referring to section 125 (c) of the constitution, Justice Taiwo said, “It is unassailable that there is separation of powers.

Under a federal system, section 4, 5 and 6 of the Constitution provides separation of powers, which guarantees independence and disallow encroachment of powers.

“The power for control of fund, financial outflow, appropriation are vested in the House of Assembly.

“It is the Auditor General of the state that has the power to conduct checks on all government corporations and to submit his report to the assembly.

“Nobody, including the court can read another meaning into the clear provision of the constitution.

“The assembly has the responsibilities in the management of funds by the executives. They have the responsibility to ensure fund management, cut wastages, reject corruption,

“The first defendant (EFCC) is bound to operate within the constitution and cannot operate like the lord of the manor. It is statutory duty is not a license to contravene the Constitution.

“I can’t by any stretch of imagination see how the statutory functions of the (EFCC) can extend to a state in a federation under any guise to the extent that the eight to 18 defendants (banks) will be directed to submit bank details.

“Yes, the first defendant can investigate any person or corporate organisation, what it can’t do is to usurp the powers of the assembly.

“The Federal Government cannot impose its statutory duties on a state in flagrant disobedience of the constitution. The prosecution should not ride roughshod of the constitution. It is the duty of judges to ensure they don’t listen to sentiment of the public. I resolve all issues in favour of the plaintiff. I grant all reliefs sought by the plaintiff in view of the fact they are live issues.”

Senior counsel to the state government, Mike Ozekhome, while commenting in the development, said: “The Attorney General, Speaker, Ekiti state House of Assembly, the Ekiti State House of Assembly, Auditor General and all the plaintiffs and defendants matter in our case against the EFCC

The court made it clear today that the EFCC is not an omnibus, rampaging policeman or guardian, agent that monitors state finances, receipts, expenditure and use of state finances and that, that is the job of the State Assembly the doctrine of separation of power, horizontally and vertically, the principle of division of labour, all those doctrines propounded by great philosophers of yore, particularly as popularised by Baron De’ Montesquieu in 1748, made it clear that

The FG cannot railroad itself to begin to examine the functions, the amount received by the state, how it has been used, whether part of the money has been embezzled section 6 of the EFCC establishment ACT does not cover it

It only says it has the powers to investigate financial crimes against persons, an individual, a corporate , it didn’t say against the state government and as the judge rightly said, qouting several authorities like the supreme court of Nigeria and the Supreme court of America has made it clear again and again that the federal government does not have powers to investigate state finances, the government at the centre does not have sovereighty, if a state feels there is a financial misappropriation against an offifial of the state, it can invite the anti graft agency such as the EFCC, police or the ICPC but not for the EFCC to become a sentinel monitor general at the door step of each state of the federation watching how much that have been appropriated to that state under section 162 of the 1999 constitution is being utilised, or that money is being used or whether the money is being wasted. You cannot under the subterfuge of investigating persons Nicodemus rely sneak into a state to begin to look into its accounts.

Let us not make this mistake, people keep saying that the EFCC or ICPC or police cannot be restrained to do their job, no, it is not true, I have up to twelve decisions by several courts that say if they goes against the law, or violates people’s right in their attempt to perform their function, the law says they can be restrained by the court since the court is the last hope of the common man.

This is what the judge has courageously done today by putting the EFCC where it belongs.

The EFCC has behaved in this instance, as I’d they are above the law and like I said, we have to continue to use the court as an instrument of social engineering.

I advise the federal government to ensure that it obeys the rule of law and court orders as it has demonstrated on several cases such as Dasuki, Elyzakay and others. I also advise the EFCC to always toe the path of the law in discharging its duties. They don’t obey the rule of law, they try people in the media and get wrong advices.”

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