Court rules in suit to scrap EFCC on December 6
By Mustapha Ogunsakin
A LAGOS High Court will on December 6 rule on the legality or otherwise of the Economic and Financial Crimes Commission (EFCC).
The ruling is sequel to a motion filed by Chief Godwin Ajayi (SAN), seeking the court to declare as illegal the commission and the Act that set it up.
Ajayi is the lawyer to Chief Emmanuel Nwude, who is currently standing trial alongside two others - Mrs. Amaka Anajemba and Chief Nzeribe Okoli, for allegedly defrauding a Brazilian bank to the tune of N36 billion.
On November 8 when Ajayi argued his application, he urged Justice Olubunmi Oyewole to strike out the charges preferred against the accused persons because, according to him, the EFCC Establishment Act (2000) and "all measures taken and things done pursuant thereto by the commission were unconstitutional, null and void for inconsistency with and violation of Section 214(1) of the 1999 Constitution".
To him, the National Assembly lacks the constitutional powers to enact the EFCC Act as it is against the content and form of Section 214 of the constitution, which established the Nigeria Police Force.
He further referred to Section Four of the Police Act, which set out the powers of the security operatives.
Ajayi said: "I submit that it is not possible to establish another body with the same powers reserved for the police, thereby circumventing them".
Besides, Ajayi argued that the offences the accused persons were standing trial for were under the state laws and that giving the attorney-general of Lagos State fiat to prosecute them was symptomatic of the arrogance of the Federal Government in its dealings with other parts that made up the federation.
But responding on Monday, the prosecutor, Mr. Rotimi Jacobs, urged the court to dismiss Ajayi's motion, saying that it was frivolous, vexatious and in bad faith.
Jacobs argued that where an application was filed under a wrong law, it could not vitiate a law if it had been filed under a new law.
He added that the competence of the information filed before the court was valid.
He said that Ajayi had not challenged the power of the Lagos State attorney-general to delegate his power but that the charges were incompetent.
Jacobs said: "At this point, the court presumes that anyone who has acted in official capacity with a duly delegated duty has already discharged his official duty".
The prosecutor argued further that Ajayi's argument on the person who signed the charges and other information on behalf of the attorney-general of the federation (AGF), was misconceived.
According to him, the EFCC Act in Section Seven says that the commission should liaise with other bodies and also serve as a co-ordinating agency.
On the issue of whether or not a court can grant ex-parte orders to seize or forfeit the accused persons' property, Jacobs submitted that the power of seizure or forfeiture was provided for under Advance-Fee-Fraud Act (2004).
He explained that the 85-count charge was preferred against the accused persons and that the charges from one to 42 were brought under the EFCC Act while charges 43-85, were brought pursuant to the Criminal Procedure Laws of Lagos State.
"The court can make an interim order of forfeiture by doubling the amount involved in the fraud. I as the prosecutor only appear in this matter. I did not initiate the motion. You will find in the information that an officer of the Federal Ministry of Justice signed the information on behalf of the AGF and also on behalf of EFCC", Jacobs said.
He, therefore, urged the court to dismiss the motion with cost.
"This is an application which ought not to have come before this court in the first instance", he concluded.
At this junction, Justice Oyewole adjourned the matter till December 6 for his ruling.
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