Economic and Financial Crimes Commission (EFCC) v. The Government Of Zamfara State & Ors (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMED LAWAL SHUAIBU, JCA (Delivering the leading judgment)

This is an appeal against the judgment of the Federal High Court, sitting at Gusau, Zamfara State, Coram: Hon. Justice Aminu B. Aliyu, delivered on 31st March, 2023 granting all the reliefs sought by the plaintiffs.

The 1st and 2nd respondents commenced an action at the lower court vide an originating summons filed on 16th November, 2021 wherein they sought for the determination of the following question:

1. Whether having regard to the provisions of sections 120, 121, 122, 123, 124, 128 and 129 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and upon a calm and proper interpretation of the said provisions thereof, the 1st defendant or any authority, person, body or organization other than the House of Assembly of Zamfara State has the Constitutional Authority to exercise powers and control over public funds of Zamfara State.
2. Whether upon a calm and proper interpretation of the provisions of section 128 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the 1st respondent or any other authority, person, body or organization, other than the House of Assembly of Zamfara State has the constitutional authority or power to conduct investigation into the disbursing or administering of money appropriated or to be appropriated by the House of Assembly of Zamfara State under any law or appropriation bill, no matter whether or not the purpose for the investigation is to expose corruption, inefficiency, waste of public funds or not.
3. Whether having regard to the provisions of section 120, 121, 122, 123, 124, 125, 128 and 129 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the 1st defendant has the vires or power to invite (by letters, telephone calls or any other means of communication) serving and past officials of the 1st plaintiff for the purpose of explaining how funds meant for security votes, estacodes and travelling allowances were utilized, when such funds are such that the Auditor General and the Zamfara State House of Assembly have the Constitutional authority to conduct investigation and exercise powers and control over them.
4. Whether upon a calm and proper interpretation of the provisions of section 125 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the power to receive financial statement and annual accounts of Zamfara State is vested in the 1st defendant or any other authority, person, body or organization other than in the Auditor General for Zamfara State.
5. Whether upon a calm and proper interpretation of the provisions of section 125 of the Constitution of the Federal Republic of Nigeria, 1999, as amended , the power to audit the public accounts of Zamfara State is vested in the 1st defendant ort any other authority, person or body or organization other than in the Auditor General for Zamfara State.
6. Whether upon a proper interpretation of the provisions of section 125 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the Auditor General or any person authorized by him, can be subjected to any direction or control of the 1st and 2nd defendants or any authority, person, body or organization.
7. Whether by the combined effect of the provisions of section 125(2), (5) and (6), 128 and 129 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the 1st defendant has the powers to direct past and present officials of the 1st plaintiff for the purposes of Superintending over them or exposing any waste, corruption or inefficiency in the management of the plaintiffs consolidated funds and its general finances.

Upon the resolution of the above questions, the plaintiffs prayed for the following reliefs:

1. A declaration that having regard to the provisions of sections 120, 121, 122, 123, 124, 125, 128 and 129 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and upon a calm and proper interpretation of the said provisions thereof, the 1st defendant or any authority person, body or organization other than the House of Assembly of Zamfara State does not have the Constitutional authority to exercise powers and control over public funds of Zamfara State.
2. A declaration that having regard to the provisions of sections 120, 121, 122, 123, 124, 125, 128 and 129 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and upon a balm and proper interpretation of the said provisions thereof, the 1st defendant or any authority, person, body or organization other than the House of Assembly of Zamfara State does not have the constitutional authority to exercise power and control over public funds of Zamfara State.
3. A declaration that upon a calm and proper interpretation of the provisions of section 128 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the 1st respondent or any other authority, person, body, or organization. other than the House of Assembly of Zamfara State does not have the constitutional authority or power to conduct investigation, direct or cause to be directed, any inquiry or investigation into the disbursing or administering of money appropriated or to be appropriated by the House of Assembly of Zamfara State under any law or appropriation bill, no matter whether or not the purpose for the investigation is to expose corruption, inefficiency, waste of public funds.
4. A declaration that having regard to the provisions of sections 120, 121, 122, 123, 124, 125, 128 and 129 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the 1st defendant does not have the power to invite (by letters, telephone calls or any other means of communication), serving and past officials of the 1st plaintiff for the purpose of explaining how funds meant for security votes, estacodes and travelling allowances are utilized, when such funds were such funds were utilized or are being utilized, when such funds are such that the Auditor General and the Zamfara State House of Assembly have the constitutional authority to conduct investigation and exercise powers and control over same.
5. A declaration that upon a calm and proper interpretation of the provisions of section 125 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the power to receive financial statement and annual accounts of Zamfara State from the Accountant General of Zamfara State is not vested in the 1st defendant or any other authority, person, body or organization other than in the Auditor General for Zamfara State.
6. A declaration that upon a calm and proper interpretation of the provisions of section 125 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the power to audit the public accounts of Zamfara State is not vested in the 1st defendant or any other authority, person, body or organization other than in the Auditor General for Zamfara State.
7. A declaration that upon a calm and proper interpretation of the provisions of section 125 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the Auditor General or any person authorized by him, cannot be subjected to any direction or control of the 1st and 2nd defendants or any authority, person, body or organization.
8. A declaration that by the combined effect of the provisions of sections 125(2), (5), and (6), 128 and 129 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the 1st defendant does not have the powers to direct past and present officials of the 1st plaintiff for the purposes of superintending over them or exposing any waste in the management of the plaintiffs consolidated funds and its general finances.
9. An order of injunction restraining the 1st defendant by itself, agent. servants, detectives, employees, staff, operatives and privies from inviting, or further inviting, arresting and or detaining past or present officials of the 1st Plaintiff with respect to how funds meant for security votes, estacodes and travelling allowances were expended by the 1st plaintiff except through the House of Assembly of Zamfara State and in strict compliance with provisions of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
10. An order of injunction restraining the 1st defendant whether by itself, its agents, employees, servants, operatives, detectives, privies, investigating officer(s), and or other person by whatever name called, from inviting or further inviting, intimidating, harassing and threatening to arrest or detain or from arresting or detaining any past and present official of the 1st plaintiff on the basis of the same facts or similar facts as herein stated.
11. An order setting aside the 1st defendant’s letter of invitation to the past and serving officials of the plaintiff dated 28th September, 2021, or any other date, same being ultra vires the powers of the 1st defendant and therefore, null and void and of no effect whatsoever.
12. And for such further or other orders as this honourable court may deem fit to make in the circumstances of this case.

After hearing parties on their evidence and upon the exchange and adoption of written addresses by counsel to the respective parties, learned trial Judge found merit in the plaintiffs’ case at page 439 of the record as follows:-

I agree with the submission of the plaintiffs that under the provisions of section 125, 128, and 129 of the Constitution, it is the Auditor General and the House of Assembly that has the power to investigate the finances of a State and determine whether a crime is committed and not the 1st dependent and I so hold.

I am of the view that the plaintiffs’ case has merit and it succeeds.

He accordingly answered all the questions in the negative and granted all the prayers sought.

Dissatisfied with the judgment of the lower court, appellant appealed to this court through a notice of appeal filed on 23/6/23, containing four grounds at pages 444 – 449 of the record. Distilled therefrom, learned counsel for the appellant, Adebisi Adeniyi, Esq formulated two issues for determination as follows:-

1. Whether having regards to the doctrine of Judicial Precedence, the learned trial Judge was not wrong when His Lordship ignored the decision of the Supreme Court in A-G. Ondo State v. A-G. Federation, Kalu v. FRN and The Court of Appeal decision in Kalu v. FRN and instead relied on the unreported decision of the Federal High Court in A-G. Rivers State v. EFCC & 3 Ors and Attorney General of Ekiti State v. EFCC.
2. Whether the learned trial Judge was right in construing sections 125, 128, and 129 of the Constitution to the effect that only the Auditor General and the House of Assembly of Zamfara State have the power to investigate the finances of Zamfara State and to determine whether a crime is committed.

A calm perusal of the above as well as the record reveals that the central issue is the interpretation of the constitutional provisions, particularly sections 125, 128, and 129 of the 1999 Constitution (as amended).

Thus, issue no. 1 of the appellant’ brief of argument can be subsumed into issue no. 2 therein. Consequently, the appeal will be determined on the basis of the appellant issue no. 2 above.

It is also significant to state here, that in spite of proof of service of the appellant brief on all the respondents, none of them responded.

Hence, the appeal was heard solely on the appellants’ brief of argument, pursuant to order 19 rule 10(3) of the Court of Appeal Rules, 2021.

Proffering argument on behalf of the appellant, learned counsel contend that by the EFCC letter to the chief of staff of the Zamfara state government (exhibits ZAM-1), the EFCC was merely requesting for the release of the named officials for interview and not for auditing and or investigating the financial affairs of the government of Zamfara State.