Illegality Of The Injunction Obtained By Akwa Ibom Government Against EFCC, ICPC And Others
The Akwa Ibom State Government through the State Attorney General and Commissioner for Justice, Mr Uwemedimo Nwoko, Esq., filed an ex-parte motion (application) at the High Court of Akwa Ibom State, Ikot Ekpene Judicial Division, presided over by Hon. Justice NFN Ntong, sought and obtained inter alia, an order of interim injunction restraining the Federal Government or any of its agencies, including the Economic and Financial Crimes Commission (EFCC); Independent Corrupt Practices and Other Related Offences Commission (ICPC), and the Inspector General of Police from arresting, detaining or investigating any official of the state government, past or present, without any report of indictment by the Akwa Ibom State House of Assembly.
Also, the Judge granted an order of interim injunction restraining: The Speaker of Akwa Ibom State House of Assembly; The House of Assembly for Akwa Ibom State; The Clerk of Akwa Ibom State House of Assembly; The Auditor General for Akwa Ibom State and the Accountant General for Akwa Ibom State from surrendering themselves or any document or financial records to the EFCC, ICPC or any other person, authority or body.
Furthermore, the court restrained ALL commercial banks in Nigeria, including: Zenith Bank Plc; Keystone Bank Plc (formerly Bank PHB); Skye Bank Plc; First City Monument Bank Plc and United Bank for Africa Plc from submitting any document, Financial Statement/Record, Statement of Account, Cheque or Voucher related to any account of the Akwa Ibom State Government to any Agency of the Federal Government, including the EFCC, ICPC or the Inspector General of Police.
The enrolled order which I have in my possession and have dispassionately perused, was issued by Justice Ntong on July 13, 2016.
Defending the injunction, The Attorney Attorney of Akwa Ibom state, Mr. Nwoko, in an interview on Friday July 22, 2016 with Premium Times, stated that the State Government went to court because EFCC wrote letters to banks requesting documents on state government transactions.
Mr. Nwoko said Akwa Ibom is a federating unit in the Nigerian federation, and that EFCC being an agency of the federal government isn’t empowered by the Nigerian Constitution to investigate the finances of the state.
“It’s not about whether there’s anything wrong with the accounts of the Akwa Ibom state government! Why should the EFCC look into it? Is the state looking into the federal government account?”
Mr. Nwoko said other state governments that allowed EFCC and other federal agencies to investigate them may not have had the wisdom and courage to challenge the federal government.
“As the Attorney General of Akwa Ibom state, I am setting a precedent,” he said.
Contrary to the submissions of Mr Nwoko, the orders granted by Justice Ntong are not only incurably bad and illegal but constitutes a gross abuse of judicial process and powers in the light of litany of judicial decisions, including those of the highest court of the land (the Supreme Court) on the matter.
There is neither wisdom nor courage in Mr Nwoko's action.
There are at least five (5) settled principles of law that have been violated by the grant of the interim injunction which deserves elucidation.
First, the High Court of Akwa Ibom State lacks the requisite jurisdiction to entertain any subject matter or question relating to: (a) The administration, management or control of the Federal Government or any of its agencies, including the EFCC and ICPC; (b) The operation and interpretation of the Constitution in so far as it affects the Federal Government or any of its agencies and (c) Any action or proceeding for a declaration, order or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.
By virtue of Section 251 (1) (p), (q) and (r) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the jurisdiction over the subject matter listed in the preceding paragraph is conferred EXCLUSIVELY on the Federal High Court. This is a trite law that every serious student of the Nigerian Law School is familiar with. No lawyer worth his salt will contest it. The Supreme Court has repeatedly and emphatically restated this position in a plethora of cases. For ease of reference, the following cases are apt: NEPA v. Edegbero (2002) 18 NWLR (Pt. 798) 69; Benson Agbule v. Warri Refinery & Petrochemical Co. Ltd. (2013) 6 NWLR (Pt. 798) 78; Olutola v. University of Ilorin (2005) 3 MJSC 151 at Pp. 173-174; Inegbedion v. Selo-Ojemen & Anor (2013) All FWLR (Pt. 688) 907 at Pp. 922-923 and very recently, John Shoy International Limited v. Federal Housing Authority (Unreported Appeal No. SC. 98/2005) delivered July 2016 by the Supreme Court.
It is beyond argument that the suit instituted by the Attorney General of Akwa Ibom State and the orders made by Justice Ntong clearly offends the provisions 251 (1) (p), (q) and (r) of the Constitution and the Supreme Court authorities cited supra. The subject matter in the case relates to the operation and interpretation of the Constitution as it affects the EFCC and ICPC (both of which are agencies of the Federal Government). The interim injunction affects the validity of the administrative actions of the anti-corruption agencies. The law is now firmly established that proceedings no matter how well conducted and orders made by a court without jurisdiction are a nullity. The locus classicus on this is Madukolo v. Nkemdilim (1962) 2 SCNLR 341.
Since only the Federal High Court can entertain such suit, the orders made by Justice Ntong are a nullity.
Second, the Attorney General has contended that because the EFCC and ICPC are Federal Government agencies, they are not constitutionally empowered to investigate the finances of the federating units (States). Mr Nwoko wondered whether Akwa Ibom State is looking into the finances of the Federal Government to warrant the prying eyes of federal anti-corruption agencies in the affairs of the state.
With due respect, Mr Nwoko's contention is ridiculous and legally indefensible.
This is an issue that had been resolved by the Supreme Court 13 years ago, precisely on Friday the 7th day of June, 2002 in the case of Attorney General of Ondo State v. Attorney General of the Federation (2002) 9 NWLR (Pt.772) 2222. In that case, the Attorney General of Ondo State instituted a case against the Attorney General of the Federation and the Attorneys' General of the other 35 States seeking to invalidate the Corrupt Practices and Other Offences Act 2000 (which established the ICPC) because, according to the Plaintiff, the National Assembly lacked the constitutional powers to enact a law on anti-corruption to apply to the federating units (States).
Relying on Sections 4 (4) and 15 (5) and items 60 (a) and 67 of the First Schedule to the Constitution and other enabling provisions, the Apex Court upheld, validated and sustained the ICPC and its establishment Act and dismissed the arguments canvassed by Ondo State. This decision was followed consistently in subsequent cases on the subject.
The power to prosecute economic crimes is exclusive to the Federal Government. It is not shared with the States. See the Supreme Court decision in Nyame v. Federal Republic of Nigeria (2010) 11 NWLR (Pt. 1193) 344. In the Amadi v. Federal Republic of Nigeria (2008) 18 NWLR (Pt. 1119) 259 at 276, Muktar, JSC (as he then was) held that:
"Indeed, the EFCC is a common agency for both the Federal and State Economic and Financial Crimes".
In the light of the position of the law as encapsulated above, it is most shocking, regrettable and embarrassing that Mr Nwoko, who is the Chief Law Officer of Akwa Ibom State by virtue of Section 195 of the Constitution purported to set "a precedent" over an issue that the Supreme Court of Nigeria has settled. If the Attorney General is oblivious of the state of the law on a constitutional issue like this, what becomes of the rule of law and justice in Akwa Ibom State?
It is indeed very pitiable.
Third, the injunction granted by Justice Ntong is a daring slap on the face of the Supreme Court of Nigeria and a vitriolic attack on the law. No court in Nigeria is vested with the power to restrain the EFCC, ICPC, the Nigeria Police Force or other law enforcement agencies from discharging their constitutional and statutory functions, including investigation, arrest, detention and prosecution, except where the fundamental rights of a citizen is infringed.
The dangerous practice of running to court to get injunction to stop investigation by law enforcement agencies was excoriated by the Court of Appeal in the case of the Attorney General of Anambra State v. Chief Chris Uba (2005) 33 WRN 191 where Bulkachuwa, JCA (as he then was) held that:
“For a person, therefore, to go to court to be shielded against criminal investigation and prosecution is an interference of powers given by the Constitution to law officers in the control of criminal investigation. The Plaintiff has no legally recognizable right to which the court can come to his aid. His claim is not one that the Court can take cognizance of for it has disclosed no cause of action. The Plaintiff cannot expect a judicial fiat preventing a law official in the exercise of his constitutional power.”
In the recent case of Orji Uzor Kalu v. Federal Republic of Nigeria (Unreported Appeal No. SC/215/2012) delivered on March 18, 2016, the Supreme Court, Per Suleiman Galadima, JSC held that:
" For a person to rush to court to place a clog or shield against criminal prosecution is a clear interference with the powers given by law and the Constitution to the EFCC in the conduct of criminal investigations and prosecution. It is clearly an abuse of process of the law."
See the Punch Newspaper of Thursday March 31, 2016- Case Review at pages 34-35 for details of the judgment in.
Recently, a Judge of the Federal High Court, Mohammed Yunusa, was recommended by the National Judicial Council (NJC) for compulsory retirement from Office for granting injunctions against the EFCC. This shows the gravity of the conduct of Justice Ntong of the High Court of Akwa Ibom State.
Fourth, the injunction granted by Justice Ntong exceeded the legal lifespan of an interim order in the State. Under Order 39, Rule (3) of the Akwa Ibom State High Court Civil Procedure Rules, 2009, "An order of injunction made upon an application ex-parte shall abate after 7 days." By Rule 4 of the same Order 39, a Judge of the Akwa Ibom State High Court can only extern the effective period of an order made upon an application ex-parte if "he is satisfied that the Motion on Notice has been served and that such extension is necessary in the interest of justice or to prevent an irreparable or serious mischief". An application for extension must however be made before abatement of the order and such extension shall not exceed 7 days.
Justice Ntong made the order(s) upon an application ex-parte by Mr Nwoko on Wednesday the 13th day of July, 2016, which he declared shall be effective pending the determination of the Motion on Notice. Strangely, His Lordship adjourned the matter to the 5th of August, 2016 for hearing of the Motion on Notice. Simple arithmetic will show a period of 24 days between the date of the order and the date slated for hearing of the Motion on Notice.
This by implication means that contrary to the mandatory provisions of Order 39, Rule (3) & (4), the effective period of the interim injunction as stated by Justice Ntong exceeded the 7 days period allowed by law. I know as a fact that the EFCC at at Friday July 23, 2016 ( 9 days after the orders were made) had not been served with the Motion on Notice. There is no evidence that an application for extension was made before the abatement of the order(s). Supposing without conceding that the order(s) was later extended, it will still not bring it within the duration specified by the law. Which ever way one looks at it, Justice Ntong violated the Akwa Ibom State High Court Civil Procedure Rules.
The fact that all Judges in Akwa Ibom State will commence their annual vacation on the 8th of August, 2016 gives an impression of desperation and ulterior motives on the part of the Attorney General. Mr Nwoko's conduct deserves the disciplinary searchlight of the Nigerian Bar Association (NBA).
Fifth, the orders were made against persons, agencies and bodies that the Attorney General (the Plaintiff/Applicant) never joined as parties (Defendants/Respondents) in the application ex-parte. Whereas only four commercial banks were joined, Justice Ntong restrained ALL the commercial banks and financial institutions in the country from submitting any document, Financial Statement/Record, Statement of Account, Cheque or Voucher related to any account of the Akwa Ibom State Government to any agency of the Federal Government, including the EFCC, ICPC or the Inspector General of Police.
It is elementary law that only parties to a suit are bound by orders or decisions arising from the case. See. Green v. Green (1987) 3 NWLR (Pt. 61) 480. Except for declaratory judgments (in which case evidence must be adduced and and the claim proved) which binds the whole world, a court is not allowed to make orders in rem (against the whole world). Even equity acts in personam and not in rem.
The court order purports to protect all past and present officials of the Akwa Ibom State Government from arrest, detention and investigation for economic or financial crimes. This is very disheartening. The tenor of the strange order(s) suggest that the EFCC, ICPC and the Inspector General of Police cannot take legal action against anyone that has served in the Akwa Ibom State Government from September 23, 1987 when the state was created to date.
What a mockery of the legal system!
It is apparent that the ex-parte order(s) made by Justice Ntong is illegal, null and void and of no effect whatsoever.
Judges are enjoined to exercise judicial powers both judiciously and judicially and not arbitrarily. The Nigerian judiciary has been tried and crucified over the years in the court of public opinion because of the abusive conduct of some compromised judges. A nation without an independent and conscientious judiciary cannot advance or be taken seriously in the comity of nations. Strange injunctions, such as the one granted by Justice Ntong, has greatly diminished the sanctity of our courts and eroded public confidence in the administration of justice.
Interestingly, the Attorney General, Mr Nwoko, did not find it convenient to bring his illegal application for ex-parte injunction before any of the High Court Judges in Uyo, the State Capital where the bulk of the Judges, the Judiciary Headquarters and his office are domiciled, but went all the way to the Ikot Ekpene Judicial Division to obtain the injunction from Justice Ntong that was appointed a High Court Judge by the erstwhile governor of the State, Mr Godswill Akpabio, at the twilight of his administration.
I also find it rather curious that Justice Ntong described the submission of the Plaintiff/Applicant (The Attorney General) as "brilliant". This was an ex-parte application where the Defendants/Respondents were not heard. The merits (if there is any) of the case could not and cannot legally and procedurally be considered at that stage. Yet, Mr Nwoko's submission was "brilliant".
The popular perception is that the injunction was granted to enable the Akwa Ibom State Government obliterate and interfere with documents, records and other material evidence which may be required for the smooth investigation and prosecution of those found culpable of commission of economic and financial crimes which may have taken place under the immediate past administration of Senator Godswill Akpabio.
Whether this is true or not, injunction should not be used as "a weapon of mass destruction" against anti-corruption agencies. It is important for the NJC to take serious disciplinary actions against Justice Ntong. The NJC should not relent in its bid to purge the judiciary of bad eggs.
If Justice Yunusa's injunctions against the EFCC amounted to judicial misconduct and resulted in the NJC recommending him for compulsory retirement, what does the orders made by Justice Ntong amount to?
Nigerians await a satisfactory answer from the NJC.
Inibehe Effiong is a Legal Practitioner and Convener of the Coalition of Human Rights Defenders (COHRD) and can be reached at: [email protected]