Conscience and History – My Story,

by Peter Odili

*An Autobiography by Dr. Peter Otunuya Odili

HOW IT ALL STARTED: THE PLOT-THE GREAT GANG UP

I, DR. Peter Otunuya Odili, became the elected Governor of the new Rivers on the 29th day

of May, 1999, after a well contested and won election against a strong opponent Chief

Ebenezer Isokariari who was the then immediate past Secretary to the State Military

Government under Gen. Sani Abacha regime.

With my team of appointees, we set out on a “Restoration” agenda in fulfillment of my

campaign promises – “Letter to Rivers people.” We made a success of the programme and

the details of our performance are set out elsewhere in this „book‟. The highpoints were that

in 2002 a team of over 500 journalists in collaboration with the Federal Ministry of

Information under Prof. Jerry Gana, after inspection tours of executed projects by State

Governments across the country declared Rivers State the best performing State Government

and Dr Peter Odili was presented with the Gold Trophy as the best performing-Governor in

Nigeria.

The trophy was presented by the then Vice President Atiku Abubakar on behalf of President

Obasanjo. No other credible contest has taken place since then.

Free school bus scheme

We built 1200 low cost houses across the State in our first 100 days in office in 1999. We

introduced „Free School Bussing Scheme‟, free education at primary and secondary levels,

and free medical treatment for under 6 years and over 60 years.

The other high point of our first term was the commissioning of the first independent power

plant, Trans-Amadi Phase 1, designed, built and made operational by any State Government

in Nigeria under the Obasanjo administration. The commissioning ceremony was performed

by the President Chief Olusegun Obasanjo on the 2nd of October, 2002. This plant brought

36 Mega Watts of electricity into the national grid.

Dr. and Justice (Mrs) Peter Odili and children: Adaeze, Peter (Jnr), Chinelo and Njideka

In 2003 I declared my intention for a 2nd term, contested and won and was sworn in for the

2nd term on the 29th day of May, 2003 with minimal changes in my team. We set out in

continuation of the restoration and consolidation programme. The details are set out

elsewhere in the book. From 1999-2006 there were of course challenges that every

Government in developing and even the developed world must encounter (details of some of

these challenges are set out elsewhere in the book). We confronted these challenges and made

successes out of them.

But it is significant to note that at no point in the period 1999-2006 was the executive branch

under my leadership investigated by the State Assembly whose constitutional responsibility it

was so to do, or by any other body or organ of Government legally charged to do so.

„THE PLOT‟: With the failure of the constitutional amendments which included tenure

elongation, campaigns for the presidency in 2007 took off about the 3rd quarter of 2006,

across the country. By October/November my campaign, led by Dr. Raymond Dokpesi, had

penetrated every state in the Federation and it became obvious that the Odili candidacy had

attained national acceptance and had become a movement. Odili was seen as the front runner,

the candidate to beat. Traditional Rulers, Emirs, Tribal leaders, Labour unions, Stakeholders,

etc had embraced and were favourably disposed to Odili. For some inexplicable reason, the

plot to stop him, by some people, became pathologically „urgent‟. The PDP convention for

nomination of the Presidential Candidate was slated for 16th December, 2006.

Biggest power plant

The commissioning of the Omoku Power plant of 150 Mega Watts, and 120 km double

circuit Transmission Line to Port Harcourt, by President Olusegun Obasanjo, took place on

the 5th December, 2006. This again was the biggest power plant designed, constructed,

completed and functional, by any State Government, between 1999 and 2006, the second by

Rivers State Government under Dr Peter Odili. We were lauded very generously and extolled

for the unprecedented feat.

Exactly one week later, 12th December, a spurious and anonymous petition was posted in the

internet from a questionable „source‟ alleging CORRUPT practices against the Rivers State

Government under me. These allegations were converted into a petition by the EFCC under

Nuhu Ribadu‟s hand, to the President same day. On the 13th of December, 2006 Mr President

directed EFCC to investigate. On the 14th day of December, 2006, EFCC submitted a so-

called “interim” report to the then President who promptly minuted for my response on the

same 14th December, 2006, but forwarded to me on 15/12/06, a day to convention vide ref.

PRES/44. I assembled what was left of my cabinet team, a few having been arrested and kept

at the EFCC office in Lagos within these few days of urgent dramatic action. We submitted

our response on the 15th day of December, 2006 by which time it had become clear what the

whole exercise was about – “Get Odili out of the race for the Presidency, at all cost.”

For maximum mischievous damage this contrived so-called „interim report‟ was hurriedly

uploaded into the internet, but when our response to the spurious allegations was submitted

on the 15th of December 2006, it was not accorded the same treatment. Why, you may ask?

Some sense of fair hearing isn‟t it? Till date the innocent uninformed still make reference to

that judicially nullified and voided report.

This became lucidly clear with the instant release of my staff who were being detained in

Lagos by the EFCC as soon as I voluntarily and wisely withdrew from the contest. There was

jubilation at the EFCC office immediately the news of my withdrawal broke and all my staff

were asked by EFCC to go home immediately. This was on the 15th of December. Then

came the „D‟ Day 16th December, 2006 – the date of the convention. I was invited for

morning prayers with the President at the Presidential Villa and after the prayers I had a brief

chat with the then President in his private study at the residence. He acknowledged my letter

of withdrawal from the race and informed me of his intention to get Umaru Yar‟Adua – the

now expected winner of the upcoming primaries at the Convention, to make me his running

mate.

I thanked him for his kind thoughts and assured him that I bore no grudge or ill-will for the

turn of events and that all through my campaigns I had ended my speeches on the note „let

God‟s will be done‟. I left him on that note at about 7.30-8.00am. The convention was to start

at l0am. As at 12.30pm the venue was literally empty. I was informed that most of the

delegates who were in support of my candidature were upset and unwilling to go to the

venue. It took the extra-effort and persuasion of my campaign organisation leader, Dr.

Raymond Dokpesi, and some key Directors of my campaign to get most of the delegates out

to the Eagle Square. By 3pm the venue became fairly full.

I was persuaded to go and accompany Umaru to the venue. I had been informed earlier in the

day that the news of my pairing with Umaru was in the air and that „some people‟ were

already ganging up to oppose the proposed pairing. It was, however, noteworthy that when I

got to the Katsina State Lodge to join Umaru to proceed to the Eagle Square I met him

downstairs in the company of some party leaders – Chief James Ibori, Chief Lucky

Igbinedion, Dr. Bukola Saraki, Alhaji Aliko Dangote, Mallam Nuhu Ribadu and Nassir El-

Rufai. Their conversation stopped when I walked in but I read nothing sinister to the

gathering or reaction to my entry. Umaru quickly took me upstairs and thanked me for

coming and assured me of his happiness at the prospect of our working together. He called

his wife Turai into the room and introduced us.

We later proceeded to the Eagle Square together and were joined by other colleagues in

walking round the square.

Convention started after the arrival of all dignitaries and convention events proceeded

peacefully. In the course of the night I was invited to the VIP Guest Room at Eagle Square

and was privileged to sight the typed copy of Umaru‟s prepared acceptance speech. It was

clearly stated that he had nominated Dr. Peter Odili as his running-mate for the Presidential

race. This was at about midnight or so. In the course of the next few hours information started

reaching me that there was strong pressure to drop me from the ticket. Since I did not lobby

for it, I wasn‟t bothered – I remained with my State delegates.

At about 3.30 am or so, I was again invited to the VIP Guest room at the Eagle Square and

informed that there was a strong challenge to my being the running-mate based on „some

fresh information‟ just received, from Nuhu Ribadu, that would need to be sorted out later in

the day. I took the information in my stride and went back to my Rivers Delegates stand and

didn‟t say a word about it to anyone. By the close of convention at dawn only two State

delegate Stands were still full- Katsina and Rivers all others were either empty or had one or

two people left.

The result was announced – Umaru was the winner and he promptly read a handwritten

acceptance speech that excluded my name. He announced that further consultations were

being made on the matter of his running mate. End of Story.

The plot had worked. This confirms what Russel Wayne Baker, an American Columnist said

in 1925 in “the sayings of Par Russel”: “The dirty work of Political Conventions is almost

always done in the grim hours between midnight and dawn. Hangmen and politicians work

best when the human spirit is at its lowest ebb.”

By 4pm Sunday 17th December, 2006 Dr Jonathan was announced as the running mate to

Umaru Yar‟Adua. By Monday 18th December I congratulated Umaru and Jonathan and

urged all my supporters nationwide and Rivers people to support the ticket. Odili was out of

the race and the ticket.

At the general election in April, 2007, Rivers State under my Leadership returned the highest

votes in the country for Yar‟Adua/Jonathan ticket for the Presidency. But „how did water

enter mellon‟? Let‟s try to find out. So many conspiracy theories emerged in the days and

months that followed. Since nothing is hidden under the sun someday God will reveal the

truth.

What was the genesis of the fight against the possibility of an Odili Presidency? Who was

threatened by that possibility and why? Whose decision and when was it made to stop Odili

by all means possible? Who was the fulcrum of the execution of that decision? How come

that for seven and half years nothing was raised by EFCC or any relevant agency against

Odili‟s Government in Rivers State and suddenly on the „eve‟ of the PDP Presidential

Primaries all conceivable vile allegations were unleashed?

When did we Nigerians acquire such meteoric and forensic expertise and competence to

produce a report within 36 hours of instruction to investigate? Just in time for the deadline –

December 16th 2006. These are questions yawning for answers. God‟s time will tell.

Rev. Fr. N. C. Tagbo, former principal of CKC Onitsha with Dr. and Mrs. Peter Odili

THE EFCC ROLE

On Sunday the 17th day of December, 2006 at about 3pm I was invited to the Villa to see the

President. When I got there I met him sitting in his private study at the Residence with Chief

Tony Anenih then Chairman of the Board of Trustees of the party, Dr. Ahmadu Ali then

Chairman of the party, the Late Yar‟ Adua then flag-bearer of the party and Chief Bode

George then Deputy National Chairman of the party. It was there and then I was informed

that Nuhu Ribadu had informed the President that some „Foreign Missions‟ in Abuja will not

be happy to see me on the PDP ticket on the basis of the so-called “EFCC interim Report”

which had been circulated to them. I was now formally told that I have been taken off the

ticket.

I thanked them, congratulated Yar‟Adua, wished him well, assured him of my support and

then said to President Obasanjo to please now close the EFCC chapter since it was clear the

aim had been achieved.

Driving out of the Villa

He in no uncertain terms assured me that he would ensure that was done. On that note I left

the Villa. As I was driving out of the Villa gate „then Governor‟ Goodluck Jonathan was

driving in at about 3.40pm, December 17th, 2006. A few moments later the announcement of

Goodluck Jonathan as the running mate to Yar‟Adua hit the air-waves. Mission

accomplished. I got back to Port Harcourt at about mid day Monday the 18th December,

2006 and addressed the press urging and declaring support for the Yar‟Adua/Jonathan ticket.

At the new year 1st January, 2007 banquet at the new Government House Port Harcourt, I

assured the public that the (false) and contrived allegations maliciously made against me and

my administration were untrue and that „we shall be vindicated in due course.‟ This statement

appeared not to have been kindly received in some quarters because a few days into the new

year, January, 2007, I was informed that EFCC operatives had invited some of my officials to

Lagos for interrogation. I allowed them to go, to show that we had nothing to hide. I promptly

informed the Presidency of the development and was assured that the unnecessary harassment

would be stopped.

Seizure of documents

The EFCC menace, rather than cease, increased with the seizure of documents from some

ministries by EFCC carting them away to their offices. I again lifted no finger to stop them,

just to show that we were not afraid of anything. I, however, decided to go and speak to the

President in Abuja. In my presence Nuhu Ribadu was supposedly called on the phone and

instructed to stop the contrived operation in Rivers State. The President again reassured me

and I left back to Port Harcourt.

A few days later more stories of EFCC rampage in my ministries got to me. I once more

made contact with the President and expressed my displeasure and dissatisfaction with this

matter. I was again assured by him that nothing would happen. By this time I was beginning

to smell something sinister. I thought through the entire saga from December 12th, 2006 to

about the end of January, 2007. I decided it was time to take care of the developing situation.

I got my legal team together and we looked at the whole picture. It became clear that having

concocted and contrived a spurious petition, produced a pre-determined and malicious report,

achieved the goal it was meant for and now, afraid of the possible repercussions of an evil

agenda, it was now imperative for the plotters to find a way to justify their action by finding

„something‟ against Odili. Logical. The only thing to do was to work backwards from the

already predetermined and executed end to find „something‟. Common sense. I was

„frightened‟ by the sudden realization that human beings could be this perfidious and evil. I

prayed over the situation with my family and, with that, set my legal team to work.

Principle of self preservation

I decided to legally fight back invoking the principle of “self preservation”. Within a few

days our papers were ready for various judicial battles. Out of a sense of patriotic

commitment to a Government I was considered a friend of, in the public eye, I told my legal

team to stay action. It was after a very astonishing meeting at the Presidency over the matter

of my successor as Governor of Rivers State that I instructed my legal team led by the

Attorney General Odein Ajumogobia SAN, to commence legal action first at the State High

Court and then at the Federal High Court , Port Harcourt, against EFCC .

The first case went through full trial at the High Court of Rivers State, with all parties fully

and properly represented. Trial lasted several weeks and judgment was delivered on the 16th

day of February, 2007. Following is full reproduction of the judgment

SUIT NO: PHC/114/2007

BETWEEN:

ATTORNEY-GENERAL FOR RIVERS STATE Claimant/Applicant

AND THE SPEAKER, RlVERS STATE HOUSE OF ASSEMBLY & 36 OTHERS}

Defendants

JUDGMENT

By his originating summons

issued and dated 31st January 2007 the Claimant seeks from this court, ten (10) reliefs. The

first six are declarations, while the remaining four (4) are injunctive reliefs: They are as

follows:

i) A declaration that the House of Assembly for Rivers State (now consisting of the 1st to

31st Defendants) is not entitled to surrender to any person, body or organization (including

the Independent Corrupt Practices and other Related Offences Commission, ICPC; the

Economic and Financial Crimes Commission, EFCC; or any other investigative body), is not

entitled to share with any person or abdicate its powers of control over the public funds of

Rivers State as vested in it by the Constitution of the Federal Republic of Nigeria 1999.

(ii) A declaration that under the Constitution of the Federal Republic of Nigeria 1999, only

the House of Assembly for Rivers State is entitled to direct or cause to be directed an inquiry

or investigation into the disbursing or the administering of moneys appropriated or to be

appropriated under any appropriation bill passed by the House, (whether for the purpose of

exposing corruption, inefficiency or waste) and that the said House of Assembly is not

entitled to share, surrender or abdicate the constitutional powers so vested in it with, or to any

other person, body, agency or organization no matter how described.

Public account of a state

(iii) A declaration that under the constitution of the Federal Republic of Nigeria 1999 the

power to audit the public account of a state of all offices and all courts of Rivers State is

vested in the Auditor-General for Rivers State and that the said Auditor-General in the

exercise of the constitutional duties is not subject to the direction or control of any authority

or person and is not entitled to surrender its powers, abdicate or share its powers with any

person, body authority or organization no matter how described.

(iv) A declaration that under the constitution of the Federal Republic of Nigeria 1999, the

Accountant General for Rivers State is the only person entitled to prepare and present the

financial statement and annual accounts of Rivers State to the Auditor-General (who in turn

presents the same to the House of Assembly) and not any other authority, person, body or

organization and accordingly the Accountant General of Rivers State is not entitled to submit

financial statements, report of annual or other accounts of Rivers State, documents, or

vouchers or other financial records/statements of Rivers State to any other authority, person,

body or organization (including the Independent Corrupt Practices and Other Related

Offences Commission, ICPC; the Economic and Financial Crimes Commission, EFCC; or

any other investigative body).

From left: Chief Judge of Rivers State, Justice Iche Ndu, the Attorney General and

Commissioner for Justice, Mr. Odein Ajumogobia, SAN; Governor Peter Odili and his wife,

Mary, and Justice Elizabeth Membere shortly after a special court session at the High Court

Complex, Port Harcourt

(v) A declaration that the 35th and 37th Defendants or indeed any other bank or financial

institution are not entitled to submit to, to release to, or in any manner whatsoever to disclose

to any person, body or agency (including the Independent Corrupt Practices and other Related

Offences Commission, ICPC; the Economic and Financial Crimes Commission, EFCC; or

any other investigative body) any document, financial statement/records, statement of

account, cheques, vouchers or any information relating to the Bank Account(s) of the Rivers

State Government other than to the House of Assembly for Rivers State in strict compliance

with the Constitution of the Federal Republic of Nigeria 1999.

(vi) A declaration that the power of removal from office of a Governor or his deputy vested

in the House of Assembly for Rivers State under the Constitution of the Federal Republic of

Nigeria 1999 is to be exercised independently by the House of Assembly and that the said

House of Assembly and its members are not entitled to act in collusion with, or under

coercion, inducement or influence of whatever nature from any authority, person, body or

organization (including the Independent Corrupt Practices And Other Related Offences

Commission, ICPC; the Economic and Financial Crimes Commission, EFCC; and other such

related bodies.)

(vii ) An order of injunction restraining the Defendants by themselves or by their servants,

agents, and privies from surrendering their constitutionally assigned roles, sharing their

constitutionally assigned roles, including the power of control over the public funds of Rivers

State, the duty to direct or cause to be directed the investigation of the disbursement and

administration of moneys appropriated or to be appropriated under any appropriation bill

passed by the House of Assembly or as enabled under the Constitution.

(viii) An order of injunction restraining the Defendants by themselves or by their servants,

agents and privies from submitting to, surrendering to, or in any manner whatsoever

disclosing to any authority, person, body, agency or organization (including the Independent

Corrupt Practices And Other Related Offences Commission, ICPC, the Economic and

Financial Crimes Commission- EFCC) any document, financial statement or information

relating to the public funds of the Rivers State other than in strict compliance with the

Constitution of the Federal Republic of Nigeria 1999.

(ix) An order of injunction restraining the 36th and 37th defendants by themselves or by their

servants or agents from disclosing any information relating to the bank account(s) of the

Rivers State Government, from submitting any document, financial statement, record,

statement of account, cheque or voucher in respect of or relating to the bank account(s) of the

Rivers State Government or in any manner whatsoever releasing or allowing access to any

document or information relating to any bank account(s) of the Rivers State Government, to

any person, body, authority, organization or agency (including the Independent Corrupt

Practices and other Related Offences Commission, ICPC; the Economic and Financial

Crimes Commission, EFCC; and other such bodies) other than to the House of Assembly for

Rivers State and in strict compliance with the Constitution of the Federal Republic of Nigeria

1999 or from acting in or continuing to act on the instruction of any other person, body or

organization (including but not limited to the Economic and Financial Crimes Commission)

other than the duly authorized signatories of the Rivers State Government in respect of all

accounts of the Rivers State Government kept in the 36th and 37th Defendants Banks.

(x) An order of injunction restraining the 1st and 33rd Defendants by themselves or by their

servants, agents and privies from commencing or continuing with any process or proceeding

for the removal of the Governor of Rivers State or the Deputy Governor of Rivers State from

office at the behest, prompting or advise of any authority, person, body, agency or

organization (including the Police, the Independent Corrupt Practices And Other Related

Offences Commission, ICPC; the Economic and Financial Crimes Commission, EFCC) other

than in accordance with strict compliance with the Constitution of the Federal Republic of

Nigeria 1999.

From the affidavit filed in this case, this court is able to put together, facts upon which this

summons is founded. The claimant is the Attorney-General for Rivers State. He instituted this

case in such capacity on behalf of the Government of Rivers State of Nigeria. The 32nd

Defendant is the Legislative arm of the Government of Rivers State, while the 1st-31st

Defendants are its elected members. The 33rd Defendant is the Chief Administrative Officer

or Clerk of the House. The 34th Defendant is the Auditor-General for Rivers State, while the

35th Defendant is the Accountant General for Rivers State. The 36th and 37th Defendants are

commercial banks and they hold some Accounts of the Rivers State Government.

Tomorrow

Justice I. N. Buba gives judgment in Suit No. PHC/114/2007 between Attorney General for

Rivers State and the speaker, Rivers State House of Assembly & 36 other defendants

Constitution, Federalism and Rule of Law

On February 5, 2013 · In BOOK SERIAL

The judgment that set Peter Odili free

YESTERDAY

Dr. Peter Otunuya Odili, former Governor of Rivers State explains in his Autobiography, the

plot that led to his withdrawal from the 2007 presidential race

IN the course of this proceeding, the 1st -32nd Defendants were represented by counsel, so

also the 37th Defendant. The 34th-36th Defendants neither put up appearance in court, nor

were they represented by counsel.

Records of this court, as gleaned from the affidavit of service deposed to by Mr. Livinus

Akere, a bailiff in the office of the Deputy Sheriff, shows that on the 1st of February, 2007

they were all personally served with this originating summons, and all processes filed in

support.

They willfully elected, refused and or neglected to file any process in opposition to this

application within the time allowed by the rules of this court, as commanded by an order of

court made on the 31st of January 2007.

Constitutional interpretation

The issue at stake in this case, is one of constitutional interpretation, of some provisions of

the Constitution of the Federal Republic of Nigeria, especially provisions of sections

120,125, 121, 128 and 129. The case for the claimant is that under these provisions, the duty

of control of public funds of Rivers State is vested in the House of Assembly of Rivers State.

That by virtue of the provisions of sections 120 and 121 of the Constitution of the Federation

that appropriation of funds, has to be in accordance with an Appropriation Bill presented to

the House of Assembly.

It is also the case of the claimant that under section 125 of the same constitution, the Auditor-

General for Rivers State is the one vested with the power to audit the accounts relating to

appropriation of Rivers State funds, made by the House of Assembly of Rivers State. He is

also under a duty to submit his report to the House of Assembly of Rivers State.

The claimant is contending that under section 128 of the Constitution, the House of Assembly

is vested with the power to investigate the disbursing or administering money appropriated or

to be appropriated by the Rivers State House of Assembly, for Rivers State. This power,

claimant further contends, extends to the power to expose corruption and inefficiency or

waste either in the process of disbursement, or administering of money duly appropriated.

In essence, the case of the claimant here, is that the constitution vests on the Rivers State

House of Assembly power to investigate the financial affairs of Rivers State Government and

that power is not vested in any other body, not even the Federal Government of Nigeria or

any of its agencies like the Economic and Financial Crimes Commission (EFCC).

The grouse of the complainant is that in spite of these clear constitutional provisions, the

Rivers State House of Assembly, the Auditor General for Rivers State as well as the 35th

Defendant, the Accountant-General for Rivers State, have begun to show signs of

surrendering these constitutional responsibilities, and abdicating same to other bodies foreign

to the Constitution of the Federal Republic of Nigeria.

Shirking of responsibility

The complainant contends that following this impetus evidenced by the shirking of

responsibility by Rivers State House of Assembly, the Auditor General and Accountant

General for Rivers State, smooth governance of Rivers State in accordance with the

constitution and the law, is becoming difficult. At paragraph 12 of the affidavit in support of

this summons, the complainant deposed to the fact that the inaction of the Rivers State House

of Assembly, will continue to destabilize good governance in the Rivers State unless put in

check by this Honourable Court. It is this inaction, claimant contended, that led to delay of

payment of December 2006 salaries of Rivers State workers, many of whom spent the

Christmas festive season without money, a condition grave and sufficient enough to set the

entire Rivers State ablaze.

The claimant is also complaining as deposed to by him at paragraphs 7 and 8 of the same

affidavit in support of this originating summons, that it is this shirking of responsibility by the

Rivers State House of Assembly, that is giving life to an unconstitutional purpose, which has

been confessed by an agency of the Federal Government of Nigeria known as the EFCC to

the effect that they have as part of their Agency‟s agenda, the possibility of generating

impeachment proceedings in the Rivers State House of Assembly, for the purpose or

removing the Governor of Rivers State from office. A publication in the This Day Newspaper

edition of Tuesday, December 19th 2006 was annexed as exhibit HAG 1, in support of this

deposition.

It is the contention of the Honourable Attorney-General for Rivers State that except this

Honourable Court intervenes now, this shirking of its responsibility by the Rivers State

House of Assembly will lead to the complete paralysis of the constitutional Administration of

Rivers State, and foist a state of anarchy, with far reaching negative consequences, on this

state. It is based on the foregoing facts, that the claimant submitted seven questions for

determination in this judgment.

They are as follows:

1. whether upon a proper interpretation of the provisions of sections 120, 121, 122, 123, 124

and 125 of the Constitution of the Federal Republic of Nigeria, 1999, any authority, person

body or organization, other than the House of Assembly for Rivers State has the

constitutional authority to exercise powers and control over the public funds of Rivers State.

2. whether upon a proper interpretation of section 128 of the Constitution of the Federation

1999, any other authority, person, body or organization, other than the House of Assembly

for Hivers State, has the constitutional authority or power to conduct investigation into the

disbursing or administering of money appropriated or to be appropriated by Rivers State

House of Assembly whether the purpose for the investigation/inquiry is to expose corruption,

inefficiency or waste of public funds or not.

3. whether upon a proper interpretation of section 128 of the Constitution of the Federation,

the 36th and 37th Defendants or indeed any other bank or financial institution is entitled to

submit, release, or in any manner whatsoever disclose any information, financial

statement/records, statement of account, vouchers or cheque in respect of or relating to the

Bank accounts of the Rivers State Government, to anybody, person, authority, organization or

agency including the ICPC, EFCC, or any other such body or organization, other than the

Rivers State House of Assembly.

4. whether upon a proper interpretation of the provisions of section 125 of the constitution of

Federal Republic of Nigeria, the power to receive financial statements and annual accounts of

the Rivers State Government from Accountant-General is vested in any other authority,

person, body or organization other than the Auditor-General for Rivers State.

5. whether upon a proper interpretation of the provisions of section 125 of the Constitution of

the Federal Republic of Nigeria 1999, the power to audit the public accounts of Rivers State,

is vested in any authority, person, body or organization other than the Auditor-General for

Rivers State.

6. whether upon a proper interpretation of section 125 of the Constitution, the Auditor -

General for Rivers State can be subjected to any direction, or control of any authority, person,

body or organization.

7. whether upon a proper interpretation of section 188 of the Constitution of the Federal

Republic of Nigeria, 1999, the House of Assembly for Rivers State, can exercise its powers to

remove the State Governor or his Deputy at the behest, prompting, or advise of any authority,

person, body, or organization or otherwise, than in strict compliance with the provisions of

the constitution of the Federation 1999.

1st to 33rd Defendants are not opposed to the grant to the claimant, of all the reliefs claimed

by him in this application. In their written submission filed on 6th of February 2007, their

counsel, S.R. Dappa-Addo Esq. submitted thus: “The 1st-33rd Defendants, therefore, humbly

submit that in-principle, they have no objection to the Honourable Court, granting all the

reliefs claimed and we so urge the court.”

Principles of interpretation

In the light of this submission by their learned defence counsel, it is safe for me to presume

that the 1st -33rd Defendants fully adopt and associate themselves with the arguments of Mr.

E. C. Ukala, SAN, leamed claimants counsel in support of this originating summons.

While arguing in support of this originating summons, learned counsel for the claimant

lumped issues 1, 4, 5, and 6 as hereinabove stated, and argued them together. It is his

submission that in order to resolve the questions posed under those heads, that it is important

that the age old general purpose and principles- of interpretation be reiterated.

He referred the Court to the case of,

1. A. G. ABIA STATE v. A.G. FED. [2005] ALL FWLR (pt 275) 414 at 450.

2. A. G. Ondo State v. A.G. Ekiti State [2001] FWLR (pt 79) 1431 at 143)

And submitted that it is the principle that the court must adopt a liberal approach to the

interpretation of a constitutional provision. That it is the duty of a court, to construe a

constitutional provision such as not to defeat the obvious ends which the constitution was

designed to serve. He further referred the court to the case of TUKUR v Government of

Gongola State [1989] 4 NWLR (pt1l7) 517 at 579.

Mr. Ukala, learned SAN, urged the court to interpret the provisions of the various sections of

the constitution submitted to it by the claimant against this background of judicial

interpretation, and to recognize that the system, which the Constitution of the Federal

Republic of Nigeria 1999, has put in place, is the Federal system of governance.

I wish to state that it is now a fact universally accepted and beyond argument, that Nigeria

operates a Federal system of Government. Any attempt made at interpreting any section of

the constitution of Nigeria must be an attempt aimed at giving effect to the smooth operation

of a Federal State.

The construction which a court will give a constitutional provision must be such that will best

serve the interest of the constitution. Thus, the courts are enjoined to adopt such construction

that will promote the purpose behind the constitution. The legislature in putting in place the

Nigerian Constitution 1999, in my view, intended that this nation should operate as a

Federation and that the principles of a Federal system of governance should prevail, in the

running of the Nigerian state.

Thus in AG.Ondo State v A G. Fed. [2002J 9 NWLR (pt 772) 227 at 418- 419, Uwaifo JSC,

said: “It must be recognized that our constitution is an organic instrument which confers

power and also creates rights, and limitations.........All agencies of government are organs of

its initiative whose powers are derived either directly from the constitution or from law

created there under. They, therefore, stand in relationship to the constitution as it permits of

their existence and functions”.

Also in the case of AG. of Lagos State v A G of the Federation [2004] 18 NWLR (pt 904) 1

at 142, the Supreme Court had this to say, “Nigeria is a Federation, and operates a Federal

Constitution. An important attribute of a Federal Constitution is that there is a division of

power between the centre or the Federal Government and the states. The power and role

given to each of the governments are defined and set out in the constitution. None of the

Governments is allowed to set out of its assigned field”.

In interpreting the provisionsof the 1999 constitution of the Federation, now in issue, this

court shall be guided by the general kernels of interpretation herein above mentioned. This

court is duty bound to give such interpretations as shall enhance the running of a Federal

system of governance, which characteristically assigns specific spheres of influence to the

Federal authority and the Federating states, such that the boundaries in their areas or spheres

of competence, shall be emphasized.

With particular reference to issues 1, 4, 5 and 6 hereinabove formulated for determination by

learned claimant‟s counsel, it will be necessary for me to examine and interpret sections

120,121,122, 123 and 124 of the constitution. These sections are contained in chapter 5 of the

1999 Constitution, part 2, which is· captioned “Power and control over Public Funds”.

This chapter made adequate provisions for the policing of funds belonging to the state

Governments. Section 120(1) esiablishes the consolidated revenue fund of a state, sections

120 (3) and 120 (4) provide as follows:

“(3) No moneys shall be withdrawn from any public fund of the state, … unless the issue of

those moneys has been authorized by a law of the Houlse of Assembly of the state”

“(4) No moneys shall be withdrawn from the Consolidated Revenue of the state or any other

public fund of the state except in the manner prescribed by the House of Assembly”.

Mr. Ukala SAN for the claimant submitted with regards to these sections of the constitution,

that it is clear that section 120 of the constitution intends to place the power and control of

public funds whether ordinary revenue of the state or revenue in the consolidated revenue

fund, of a state in the House of Assembly for the state, and not in the National Assembly or

the Federal Government of Nigeria.

I agree and accept this submission, and I wish to add that sections 120(3) and 120 (4) in

addition, give effect to the principle of Federalism as they expressly provide that only a state

House of Assembly to the exclusion of the National Assembly or Federal Government of

Nigeria, can authorize the withdrawal of money from a state public fund or consolidated

revenue fund. Section 121(1) of the 1999 constitution states.

Estimates of revenues

“The Governor shall cause to be prepared, and laid before the House of Assembly at any time

before the commencement of each financial year, estimates of the revenues and expenditure

of the state for the next following financial year.”

This section, in its true meaning confers on the House of Assembly of a state, power to

control the expenditure profile of a state government on annual basis, that is for each

financial year. Sections 121, 122, 123 and 124 of the 1999 Constitution, submitted for

interpretation by the claimant, in their ordinary meaning and going by the canons of judicial

interpretation of statutes, in my view, simply provide for the method to be employed, by the

state House of Assembly to authorize distribution of state funds, appropriated under the

appropriation law of the state.

These sections learned SAN, Mr. Ukala submitted, underscore the powers of the House of

Assembly in relation to all public funds of the state including contingency funds and other

funds in the consolidated revenue fund of the state.

Control of state funds

I cannot agree more with this view. These sections bring out completely the intention of the

law makers with regards to management and control of state funds. Those sections, apply

strictly to the powers of a state House of Assembly, in matters connected with appropriation

of public funds of a state.

Equivalent powers with regards to public funds of the Federation, are vested in the National

Assembly by virtue of sections 80-89 of the constitution. It follows, therefore, that going by

these provisions neither the Federal Government nor the National Assembly can

constitutionally be vested with powers to appropriate, or monitor how appropriated funds of a

state are used and to what use or uses they have been put. To so do, will amount to an

unconstitutional act, and a complete negation of the principles of Federalism.

Section 125 of the constitution vests the power to audit public funds of a state in the Auditor-

General of the state. Section 125 (2) specially provides that,

“(2) the Public Accounts of a state and all offices and courts of the state, shall be audited by

the Auditor General for the state who shall submit his report to the House of Assembly of the

state concerned and for that purpose the Auditor-General or any person authorized by him in

that behalf shall have access to all the books, records, returns and other documents relating to

these accounts”.

Section 125 (5) goes on to provide that; “(5) The Auditor-General for a state shall, within

ninety days of receipt of the Accountant-General‟s financial statement, and annual accounts

of the state submit his report to the House of Assembly of the state, and the House shall cause

the report to be considered by a committee of the House responsible for public accounts.”

Section 125(4) also confers on the Auditor-General, power to conduct periodic checks and

inspections of accounts of all statutory corporations, commissions, authorities, agencies of the

state et cetera.

An interpretation of section 125 (2) and (5), simply put is to the effect:

1. That the House of Assembly of a state has the final say in respect of all public funds of the

state since it is the body to which all reports, relating to the accounts of a state, must

ultimately be submitted to.

2. That the Auditor-General of the state has the constitutional responsibility to audit all public

accounts of a state and thereafter to submit the report to the House of Assembly.

3. That the Auditor-General is empowered to have access to all books of accounts, records

returns and other documents in respect of public funds for the purpose of carrying out his

duties. This power does not extend to his power to surrender, submit, handover or pass same

over to other bodies or agencies or investigating bodies.

4. This section also commands the Accountant-General to submit to the Auditor-General,

financial statements and annual accounts of the state and the Auditor-General shall in turn

submit same to the House of Assembly.

Power to audit accounts

Under section 125 (6) all these functions are to be exercised independently and without

direction, dictation, control, manipulation, or control of any other authority or person. The

constitution does not vest any of these functions on an investigating body like the Police or

the EFCC. The Federal Government of Nigeria does not have powers to perform, direct or

control the performance of these functions by the Auditor-General and Accountant General of

a state respectively.

From the foregoing, one cannot but conclude that the power to audit all accounts of the

Rivers State Government, is vested solely in the State‟s Auditor-General. Learned claimant‟s

counsel, in his concluding arguments in respect of question 1, 4, 5 and 6, as hereinabove

formulated by him, urged this Honourable Court, to resolve questions, embodied in them in

the negative. On my part, I wish to state that in the light of the arguments adduced by learned

SAN, Mr. Ukala, and my interpretation and understanding of sections 121, 122, 123 and 125

of the 1999 Constitution of the Federal Republic of Nigeria that those questions be resolved

in the negative.

In respect of questions 2 and 3 above, it is the submission of Mr. Ukala SA.N, that the

provisions of section 128 of the constitution are clear and unambiguous. This section he

further submitted vests in the House of Assembly the power of investigation in respect of the

“disbursing or administering” of “moneys appropriated or to be appropriated” by the House

of Assembly. Such moneys learned SAN contended, include moneys in the Consolidated

Revenue Fund, and other funds, received by the state.

In order to appreciate and to interpret this section, (section 128) accuralely, it will be

necessary for me to reproduce verbatim, section 128 (b) (2) of tile constitution. This section

provides as follows;

“128 (2) (b). The powers conferred on the House of Assembly under tbe provisions of this

section, Are exercisable only for the purpose of enabling the House to. (b) expose corruption,

inefficiency or waste in the execution and administration of laws within its Legislative

competence and in the disbursement or administration of funds appropriated by it.” In order

to grasp fully the real meaning of this provision, it will be necessary for me to also reproduce

the provisions of section 129 of our constitution. That section reads as follows;

Purpose of any investigation

“129 (1). For the purpose of any investigation under Section 128 of the constitution, and

subject to the Provisions thereof, a House of Assembly or a Committee appointed in

accordance with section 103 of this constitution shall have power to-

(a) procure all such evidence written or oral, direct or circumstantial, as it may think

necessary or desirable, and examine all persons, as witnesses whose evidence may be

material or relevant to the subject matter.. “

The combined effect of sections 128 and 129 of the constitution is the power vested in State

House of Assembly, to superintend or police all funds appropriated by it, and to expose

corruption and waste in the management of public and consolidated revenue funds of a state.

In his submission learned claimants counsel argued, that it is clear, that the framers of the

constitution intended to leave the power of investigation relating to the public funds of a

state, in the hands of the House of Assembly of a state. I agree with this interpretation of

sections 128, by learned SAN, except to add that powers of the House of Assembly therein

stated, are reserved exclusively for them. The Federal Government or any of its agencies does

not share this power with the House of Assembly. Neither the Police, nor the EFCC is

constitutionally empowered to share power with the House of Assembly.

Usurping of constitutional role

It will amount to an unconstitutional Act for EFCC or the ICPC to usurp this power of the

House of Assembly. The House of Assembly cannot opt out or enter into a contract with any

person, agency or an investigating agency of the Federal Government to do otherwise.

Nobody or agency is expected to usurp this constitutional role of the House of Assembly. The

House for its part should not abandon this role under any guise.

I shall in the light of the foregoing, also answer question 2 and 3 as formulated by the

learned SAN for the claimant, in the negative. The final question for determination is

question number 7. This question is: “Whether upon a proper interpretation of section 188 of

the constitution, the House of Assembly for Rivers State, can exercise its powers to remove

the state Governor or his Deputy from office, at behest, prompting or advice of any authority,

person, body, organization or otherwise than in strict compliance witll the provisions of

section 188 of the CFRN.

In his argument, leamed claimant‟s counsel, urged the court to hold that framers of the 1999

constitution, did not contemplate any form of external force or coercion, to be directed at the

House of Assembly before they can commence impeachment proceedings aimed at removing

the Governor or his Deputy.

He concluded his arguments by submitting that upon a proper interpretation of section 188 of

the Constitution, the House of Assembly is not entitled to exercise its power, to remove the

state Govemor or his Deputy at the behest, prompting or advice of any authority or person.

Learned SAN concluded by urging the court, to also answer question No.7, in the Negative.

I have gone carefully through the provisions of section 188 of the 1999 Constitution of the

Federation. That section speaks for itself. It treats in very minute details and clear terms the

vexed issue of impeachment and removal from office of a state Governor or his Deputy.

The process of such a removal begins and ends with the House of Assembly. The constitution

did not provide that this duty is to be carried out at the instance of any body or agency. This

section does not permit or contemplate the element of coercion, arm twisting, intimidation,

harassment or cajoling by any body or agency directed at the House of Assembly for it to

carry out this function. For the purpose of impeachment of a Governor or his Deputy the

House of Assembly is strictly on its own. Any external influence on it, to so act, will be an

unconstitutional Act.

For this reason, therefore, I will also answer question Number 7 in the negative. I wish to

make it abundantly clear, that from the facts deposed to by the claimant in his affidavit in

support of his originating summons particularly paragraphs 3 – 6 thereof, that the following

facts are very glearing.

(1) That the Rivers State House of Assembly is abdicating or surrendering its constitutional

power and control over the public and Consolidated Revenue Funds of the Rivers State to the

EFCC, a Federal agency, thereby endangering the Federal system of Governance which the

supreme law of our land, the 1999 Constitution of the Federation specifically provides for.

(2) That the EFCC has no constitutional power and control, over public and consolidated

Revenue Funds of Rivers State, and to that extend is not entitled to audit its accounts or

tamper with it‟s Bank statements and records.

(3) That the 34th – 37th Defendants did not file any affidavit, or written statement in

opposition to or in support of this originating summons. They are, therefore, deemed to have

admitted as true all the facts deposed to by the claimant in his affidavit in support of this

originating summons. See the case of Honda Place Ltd v Globe Motors Holdings (Nigeriia)

Ltd. (2005) ALL FWLR (pt 283) 1 at 12-13.

Having answered all the seven (7) questions submitted for determination by the claimant, in

the negative, I have no other choice, than to grant to him (claimant) all the reliefs sought by

him, in hiis originating summons. This is the judgment of this Honourable Court, in this

matter.

Appearances:

Mr. J.T.O. Ugboduma for claimants, V. Chukwu Esq. with him, holding Mr. E. C.Ukala,

SAN‟s brief. Mr. R. Williams for 1st – 33rd Defendant, Kalu Emmanuel Esq. with him for S.

R. Dappa Addo. Mr. G. Akitoye for 37th Defendant, Deima Tamuno-Opubo with him. No

appearance for 34th – 36th Defendants.

P.N.C. AGUMAGU, Judge 16/2/2007.

Next we sued the EFCC at the Federal High Court, Port Harcourt. Full trial went on with all

parties represented and EFCC lost the case and we were granted the reliefs sought on the 20th

day of March, 2007. The most curious and instructive aspect of the judgment/trial was that on

page 60/61 of the judgment, EFCC denied knowledge and ownership of that „so-called

interim report‟ of December, 2006.

The court restrained the EFCC from any further action against Rivers State

Government/Governor. I made no publicity out of the judgment – I held it as a quiet shield.

Following is part reproduction of the judgment and court orders.

SUIT NO. FHC/PH/CS/78/07

BETWEEN:

1 . ATTORNEY GENERAL FOR RIVERS STATE (Plaintiff)

& 1. THE ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFCC)

2. THE SPEAKER, RIVERS STATE HOUSE OF ASSEMBLY

3. THE HOUSE OF ASSEMBLY FOR RIVERS STATE

4. THE CLERK TO RIVERS STATE HOUSE OF ASSEMBLY

The Plaintiff, Attorney General for Rivers State, took out an originating summons dated the

26th day of February 2007; against the four defendants, in the instant suit claiming the

following reliefs to wit:

i. A declaration that the 1st Defendant is not entitled to share in the powers, or to participate

in the exercise of the powers or to prompt or instigate the 2nd and 3rd Defendants in the

exercise of the powers of control of public funds vested in the House of Assembly for Rivers

State by the Constitution of the Federal Republic of Nigeria 1999 including the power to

direct or cause to be directed any inquiry or investigation or to investigate into the disbursing

or administering of moneys appropriated or to be appropriated by the Rivers State House of

Assembly for any purpose including for the purpose of exposing corruption, inefficiency or

waste.

ii . 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 or to be appropriated by the Rivers State House of Assembly is

unconstitutional, ultra vires the powers of tile 1st Defendant and accordingly null and void.

Tomorrow The Economic and Financial Crimes Commission, EFCC, filed a 21 paragraph

Affidavit claiming that it was only carrying out investigation into a criminal allegation

reported to it

iii . 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.

Odili

iv. A declaration that under the Constitution of the Federal Republic of Nigeria 1999, the 1st

Defendant is not entitled to share in the power of the House of Assembly for Rivers State,

vested on it by virtue of section 188 of the Constitution of the Federal Republic of Nigeria

1999 and accordingly is not entitled to coerce, induce, intimidate or in any manner

whatsoever influence the House of Assembly for Rivers State into removing or causing to be

removed, or into taking any steps whatsoever towards removing the Governor of Rivers State

or the Deputy Governor of Rivers State from office.

v. An order of injunction restraining the 1st Defendant by itself or by its 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.

vi. An order of injunction restraining the 1st Defendant by itself or by its servants or 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 report 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.

vii. An order of injunction restraining the 2nd to 4th Defendants by themselves or by their

servants, agents or privies from receiving or putting to any use whatsoever any report or

finding arising from or purporting to be the result of any inquiry or investigation conducted

by the 1st Defendant into the appropriation, disbursing, administering or management of the

funds of Rivers State,

viii. An order of injunction restraining the 1st Defendant by itself or by its servants or agents

from inducing, coercing or in any manner whatsoever influencing the 2nd and 3rd Defendants

or any member of the House of Assembly for Rivers State to commence proceedings for the

removal or to remove the Governor or Deputy Governor of Rivers State from office.

For the determination of the following questions namely:

I. Whether upon a proper interpretation of the Judgment of the High Court of Rivers State in

Suit No. PHC/ 114/ 2007: Attorney General, Rivers State v. The Speaker, Rivers State House

of Assembly & Ors. delivered on 16th February 2007 interpreting the provisions of sections

120,121,122,124,125,128 and 188 of the Constitution of the Federal Republic of Nigeria

1999 and indeed upon a proper interpretation of the said sections of the Constitution of the

Federal Republic of Nigeria 1999, the 1st Defendant is entitled to share with the Rivers State

House of Assembly in its powers or to participate in the exercise of the powers of control of

public funds of Rivers State including the power to inquire into or investigate the disbursing,

administering or management of the funds of Rivers State or to prompt, instigate, coerce,

induce or in any manner influence the 2nd and 3rd Defendants in the exercise of the powers

of the Rivers State House of Assembly under S.188 of the Constitution of the Federal

Republic of Nigeria 1999?

From left: Chief Judge of Rivers State, Justice Iche Ndu, the Attorney General and

Commissioner for Justice, Mr. Odein Ajumogobia, SAN; Governor Peter Odili and his wife,

Mary, and Justice Elizabeth Membere shortly after a special court session at the High Court

Complex, Port Harcourt

II.Whether upon a proper interpretation of section 7 of the Economic and Financial Crimes

Commission (Establishment) Act, the 1st Defendant is vested with any power to investigate

or cause to be investigated the disbursing, administering or management of funds of a State

appropriated or to be appropriated by the House of Assembly of that State or in any manner

howsoever investigate the account or financial affairs of a State government?

Attached to the summons, is a 13 paragraph affidavit deposed to by Odein Ajumogobia Esq,

SAN, Attorney General for Rivers State, setting out the facts relied upon in support of the

originating summons. Attached to the affidavit are exhibit HAG 1, a copy of ThisDay,

Tuesday 19, 2006 newspaper publication and exhibit HAG 2, a judgment of Rivers State

High Court delivered on the 16th day of February 2007, in Suit No. PHC/114/2007: Attorney

General and Commissioner for Justice, Rivers State vs Speaker House of Assembly Rivers

State and 36 Ors. The 2nd Defendant in this suit, is the 1st Defendant in the suit in exhibit

HAG 2.

The Economic and Financial Crimes Commission (hereinafter called the 1st Defendant) in

this suit filed a 21 paragraph affidavit, deposed to by one Victor Pam, a Deputy

Superintendent of Police.

1st DEFENDANT’S REPLY TO AFFIDAVIT OF 2ND – 4TH DEFENDANTS DATED

6TH MARCH, 2007

Paragraphs 1-14 thereof reads:

I, Victor Pam (DSP), Male, Christian, a citizen of the Federal Republic of Nigeria and a

police officer attached to the Economic and Financial Crimes Commission, 6A, Olumeni

Street, off Forces Avenue, Old GRA, Port Harcourt, Rivers State, do hereby make oath as

follows:

1. That I am one of the operatives in the office of the Defendant assigned to investigate the

complaint that occasioned this application by virtue of which I derived the facts herein

deposed.

2. That I have the consent and authority of the 1st Defendant to depose to this counter

affidavit.

3. That I have seen the affidavit filed on behalf of the 2nd – 4th defendants dated 6th March,

2007.

4. That paragraphs 4, 5 and 6 of the said affidavit is hereby admitted

5. That paragraphs 7 & 8 of the affidavit are facts within the knowledge of the 2nd – 4th

Defendants and are hereby denied

6. That paragraph 9 of the affidavit is admitted only to the extent that the paragraph 1 & 2 of

the affidavit setting out facts relied on is true.

Originating summons

7. That the facts in paragraph 3 of the Plaintiff‟s affidavit setting out facts relied upon in

support of the originating summons, to the extent that the 2nd – 4th Defendants neglected and

abdicated their constitutional roles, duties and control over the public funds of Rivers State

are facts within the knowledge of the 2nd – 4th Defendants and are hereby denied.

8. That the facts in paragraphs 4-8 of the Plaintiff‟s affidavit setting out facts relied upon in

support of the originating summons referred to by the 2nd – 4th Defendants is hereby denied

and the 2nd – 4th Defendants is hereby put on the strictest proof.

9. That further to the above, the 1st Defendant is investigating criminal allegations of official

corruption, diversion of public funds, stealing of public funds which the 1st Defendant is

statutorily empowered to investigate.

10. The paragraph 10 of the 2nd – 4th Defendants affidavit is admitted only to the extent that

the 1st defendant is investigating criminal allegations of official corruption, abuse of office,

diversion of public funds, illegal acquisition of properties and stealing of public funds

reported against the Speaker of the Rivers State House of Assembly and his cohorts. Attached

herewith is the petition subject matter of the investigation and marked as EFCC1.

11. That paragraphs 11, 12, 13 are admitted only to the extent that the 1st Defendant is

investigating the criminal allegations reported to it. The other averments deposed to therein

are hereby denied.

Criminal allegation

12. That paragraph 14 of the affidavit are facts within the 2nd – 4th Defendants knowledge

and are hereby denied.

13. That paragraph 15 of the 2nd – 4th Defendants affidavit is hereby denied. As the 1st

Defendant is only carrying out an investigation into a criminal allegation not to audit the

account of Rivers State.

14. That I was informed by G. O. Edobor Esq, counsel to the 1st Defendant today, 7th March,

2007 at about 11.00 hours in his office at 6A Olumeni Street, Old GRA, that the 1st

defendant is statutorily empowered to investigate allegations of economic and financial

crimes reported against any person, corporate or organisation.

Having considered the circumstances and facts of this case, the admissions vis-a-vis the

provisions of the Constitution of the Federal Republic of Nigeria 1999; especially Sections

120 – 128 and Section 188 of the Constitution vis-a-vis the provisions of Sections 1, 6, 7, 34

of the EFCC Establishment Act No. 1 of 2004; the actions of the lst Defendant and the

interpretation of the provisions of the said Constitution together with Exhibits HAG 1, 2 and

all the averments before me, I am of the considered opinion that the case of the Plaintiff has

merit. It is bound to succeed, it has succeeded.

I uphold the submissions of Learned counsel for the Plaintiff and the 2nd – 4th Defendants.

Having regards to all the facts the circumstances and the position of the law; the arguments of

parties and the admission of parties before me, I resolve question number one in the

negative. I also answer question number two in the negative.

Having answered the two questions for determination in the negative, I have equally taken

every thing into account the affidavit before me, the admission and the position of the law

and the circumstances, I am of the view that the Plaintiff is entitled to the reliefs sought

having regards to the position of the law. The court cannot allow one arm of the government

to meddle with another and take it over. I accordingly exercise my discretion in favour of the

Plaintiff and make the following declaratory orders.

Declaratory orders

i. I declare that the 1st Defendant is not entitled to share in the powers, or to participate in the

exercise of the powers or to prompt or instigate the 2nd and 3rd defendants in the exercise of

the powers of control of public funds vested in the House of Assembly for Rivers State by the

Constitution of the Federal Republic of Nigeria 1999 including the power to direct or cause to

be directed any inquiry or investigation or to investigate into the disbursing or administering

of monies appropriated or to be appropriated by the Rivers State House of Assembly for any

purpose including for the purpose of exposing corruption, inefficiency or waste.

ii. I declare that the purported investigation or inquiry carried out by the 1st Defendant into

the disbursing, administering, or management of funds appropriated or to be appropriated by

the Rivers State House of Assembly is unconstitutional, ultra vires the powers of the 1st

Defendant and accordingly null and void.

iii. I declare 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 investigations or inquiry into the appropriation

disbursing, administering or management of funds of Rivers State.

iv. I declare that under the Constitution of the Federal Republic of Nigeria 1999, the 1st

defendant is not entitled to share in the power of the House of Assembly for Rivers State,

vested on it by virtue of section 188 of the Constitution of the Federal Republic of Nigeria

1999 and accordingly is not entitled to coerce, induce, intimidate or in any manner

whatsoever influence the House of Assembly for Rivers State into removing or causing to be

removed, or into taking any steps whatsoever towards removing the Governor of Rivers State

or the Deputy Governor of Rivers State from office.

I equally grant the following injunctive reliefs sought to wit:

v. an order of injunction restraining the 1st Defendant by itself or by its 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.

vi. An order of injunction restraining the 1st defendant by itself or by its servants or 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 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.

vii. An order of injunction restraining the 2nd to 4th defendants by themselves or by their

servants, agents or privies from receiving or putting to any use whatsoever any report or

finding arising from or purporting to be the result of any inquiry or investigation conducted

by the 1st defendant into the appropriation, disbursing, administering or management of the

funds of Rivers State is also hereby made.

viii. I equally grant an order of injunction restraining the 1st defendant by itself or by its

servants or agents from inducing, coercing or in any manner whatsoever influencing the 2nd

and 3rd defendants or any member of the House of Assembly for Rivers State, to commence

proceedings for the removal or to remove the Governor or Deputy Governor of Rivers State

from office.

Before I am done, I must commend all counsel in this matter for making this matter to be

heard expeditiously, and a word for the operators of our Federal system. This case reminds

me of what I read on separation of powers: – the small depiction in the Bible. That there are

66 books in the Bible and 66 Chapters in Isaiah‟ They are clearly divided into sections.

Chapters 1-39 (There are 39 books in the Old Testament, and chapters 40 – 66 (There are 27

books in the New Testament).

The theme also corresponds with the the 1st set of chapters addressing law and government

of God and the second group covering grace and salvation of God.

I am done. So be it.

HON JUSTICE I. N. BUBA JUDGE 20/3/2007

Judgment delivered in open court.

O. Ugbodima with him K. U. Ubayi Esq. for the plaintiff holding the brief of E. C. Ukah Esq

Mr G. O. Edobor with him Mrs. D. Ademu-Eteh for the 1st Defendant

Mr. O. W. Arugu for the 2nd – 4th Defendants

As the handover date May 29th 2007 approached, the atmosphere was fully charged with

stories that all Governors would be arrested at the Handover venues across the country

because many Governors, they claimed, were planning to run away from the country. I

granted an interview to the reputable Source Magazine and made it clear that Peter Odili was

not going anywhere and will stay back in Nigeria after May 29, 2007 and that‟ s what I have

done.

However, in spite of the fact that we had obtained a court judgment against the EFCC, I was

contemptuously interviewed by officials of EFCC in July 2007 along with some other former

Governors. I held that interview out of respect for the new Government of President

Yar‟Adua and the Rule of Law. The entire conversation at the interview centered on that „so-

called EFCC interim report‟ of December, 2006 which the court had declared NULL and

VOID and prohibited from any use. The interview lasted for two hours – I was neither

arrested nor detained. Till date that has remained my first and only official contact with the

EFCC.

However, in the following couple of months a number of former governors were arrested,

interrogated and some charged to court. Rumours and newspaper speculations kept

suggesting that Odili would be in the next batch. This became so irritating that I decided to

react. I instructed my legal counsel, Ifedayo Adedipe, SAN, to approach the court in my

personal capacity, and find out if, in spite of the subsisting court judgment against the EFCC,

they could still come after me on the basis of this contrived report.

EFCC spokesperson, Mr Osita Nwaja, expressed surprise at my new action, since, according

to him they had no plans to come after me. However, the court again after a full trial ruled in

my favour upholding the first judgment and further restraining the EFCC. This second

judgment was delivered in March 2008. That is where we are. A reproduced copy of this

judgment follows.

SUIT NO: FHC/PH/CS/1291/2007

BETWEEN

DR. PETER ODILI

AND

THE ATTORNEY GENERAL OF THE FEDERATION

THE ECONOMIC AND FINANCIAL CRIMES COMMISSION}— DEFENDANTS

JUDGMENT

The Plaintiff, in the instant originating summons, was the former executive Governor of

Rivers State; between 29th May, 1999 and 29th May 2007

Towards the end of the year 2006, (December) and parts of January 2007 The Second

Defendant, the Economic and Financial Crimes Commission; (hereinafter called the “EFCC”)

swooped on Rivers State; arrested the speaker and key members of the Rivers State

Government; including the Commissioner for Finance, Transport, Works, Local Government,

the Accountant-General, the Auditor General, seeking information and documents relating to

the public funds of Rivers State.

The second Defendant also invaded, the Rivers State Government bankers, which included

Platinum Habib Bank Plc, Zenith Bank Plc, etc. which led to the delay in payment of salaries,

for the Civil Servants of the Rivers State Government in December 2006 and inability to pay

December salaries of workers in the Rivers State Local Government service, within the

month of December 2006.

An un-refuted newspaper publication (This Day, Tuesday of 19/12/2006) disclosed that in

arresting the Speaker of the Rivers State House of Assembly, the possibility of the

impeachment of the Governor of Rivers State was within its contemplation and could not be

ruled out. That the second Defendant employed harassment and intimidation of members of

Houses of Assembly of various States to unlawfully bring about impeachment and

impeachment proceedings in Bayelsa State, Ekiti State, Plateau State, and that the same tactic

was being employed in Adamawa State.

The Attorney General and Commissioner for Justice, Rivers State sensing that taking over the

State and causing impeachment of the Governor and his Deputy by the House of Assembly,

amounted to the House of Assembly neglectng and abdicating its constitutional powers and

control over the public fund of Rivers State. Consequently, the Attorney General filed Suit

No. PHC/114/2007: Attorney General and Commissioner for Justice, Rivers State v. The

Speaker Rivers State House of Assembly; at the Rivers State High Court and got judgment.

Thereafter, the said Attorney General and Commissioner for Justice, Rivers State initiated

Suit No. FHC/PH/CS/78/07: Attorney General for Rivers State v. the Economic and Financial

Crimes Commission & 3 others; for additional reliefs founded upon the declarations already

made by the High Court of the Rivers State in Suit No. PHC/114/07 earlier stated for

additional reliefs, in line with the decisions in the case of Dantata v Mohammed (2007)7

NWLR (pt 664) 176 at 196 (H)

The second Defendant in the instant suit the (EFCC) was the first Defendant in the suit that

was decided by this Court on the 20th of March 2007. The second Defendant contested the

suit and said it was investigating the then Speaker of official corruption, abuse of office,

diversion of public funds and stealing of public funds, reported against the Speaker of Rivers

State House of Assembly and his cohorts.

The position of the Attorney-General, was that the second Defendant, then was not

investigating; but targeted at impeaching the Governor and interfering in the management of

public fund for Rivers State.

Originating summons

The case was heard and full arguments were canvassed on all the issues in the originating

summons dated the 26 day of February 2007. This Court on the 20/3/07, delivered its

considered judgement, in suit No. FHC/PH/CS/78/07, granted the declaratory reliefs sought,

nullified all the purported investigations and restrained the second Defendant, who was then

the first Defendant in the second suit. The Court found the second Defendant‟s purported

investigation was not geared towards finding out the truth, but geared towards taking over an

arm of the Government, within a Federal set up by an agency of the Federal Government.

The Judgment was delivered a year ago. The judgment is still valid, subsisting and not set

aside by an appellate court. Indeed there was no appeal against that judgment up to the time

the Plaintiff filed this suit. However, I note in paragraph 8 of the affidavit of James Binang,

an application for leave and extension of time to file an appeal against that judgment was

filed by the second Defendant, at the Court of Appeal, in the processes before this Court, and

in the instant suit.

Indeed, the second Defendant, in its Counter Claim before this court is seeking for:

“A declaration that the tenure (sic) of judgment of this Honourable Court in suit No.

FHC/PH/CS/78/2007 between Attorney General for Rivers State Vs. Economic and

Financial Crimes Commission & 3 others which is the substratum of the Defendant’s

claim in the originating summons is the subject of appeal before the Court of Appeal,

Port Harcourt Judicial Division.‖

For whatever that is worth, there is no gain saying that the judgment of this Court delivered a

year ago, precisely on the 20/3/07; is still valid and subsisting. In the course of this judgment

I shall revisit the terms of that judgment and its purpose as it affects this suit.

Judgment and orders

It is clear to me that the reliefs in the instant suit is founded on the judgment and orders of

this Court, made on the 20/3/07 in suit No. FHC/PH/CS/78/2007. I took the pains and liberty

to state the background facts, because of the questions for determination and the reliefs

sought by the Plaintiff in the instant suit. What then are the questions for determination and

the reliefs sought by the Plaintiff in the instant suit?

They are:-

1. 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?

Fromright : Gov. Rotimi Chibuike Amaechi, former Govervor Peter Odili and his wife

Mary…

2. Whether the Plaintiff, as the 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, 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

WHEREOF the Plaintiff claims as follows:

a. A declaration that, the 2nd Defendant cannot arrest, detain, arraign and/or prosecute the

Plaintiff on the basis of its alleged investigations conducted into the affairs of Rivers State

between 29th May 1999 and 29th May 2007. In the light of the final and subsisting judgment

of the Federal high court in Suit no. FHC/PH/CS/78/2007;

b. A declaration that the purported findings of the investigation team of the 2nd Defendant

into the activities of the Rivers State Government between the period of 29th May 1999 and

29th May 2007, the said investigation being subject-matter of a Suit FHC/PH/CS/78/2007,

are invalid, unlawful, unconstitutional, null and void;

c. An order of this Court restraining the Defendants, jointly and severally from arresting,

detaining, arraigning and/or prosecuting the Plaintiff in any court pursuant to any purported

investigations by the 2nd Defendant in the light of the judgment in Suit No.

FHC/PH/CS/78/2007;

d. An order of perpetual injunction restraining the Defendants, jointly and severally from

disseminating, publishing, circulating or distributing the report of the alleged investigation

conducted by the 2nd Defendant into the activities of the Rivers State Govemment under the

tenure of the Plaintiff,.

Upon service of the Court process on the Defendants; the 1st Defendant, The Attorney

General of the Federation, did not file and/or enter appearance in this suit. However, learned

counsel Miss K. Oyir appeared in court for the 1st Defendant on the 15th of October 2007.

Mr SA Okoh, also appeared for the 1st Defendant under protest on the 13/11/07, and at the

resumed hearing of the matter, on the 10th of December 2007, Mr. G. F. Zi, Chief Legal

Officer, appeared again for the 1st Defendant, after the matter had been mentioned. Counsel

apologised for coming late. Counsel informed the Court that he filed processes that morning,

but that the processes are yet to be before the Court.

The Court adjourned the case to the 16th of January 2008. On the said adjourned date, neither

counsel, nor the 1st Defendant was in Court. No explanation or information was

communicated to the Court, about the 1st Defendant. Consequently, the Court struck out the

motions filed by the 1st Defendant and proceeded to hear the matter.

The 2nd Defendant filed a notice of Preliminary Objection dated 20th day of October 2007.

The 2nd Defendant also by a motion on notice dated the 5th of October 2007, and filed on the

10th of October 2007, sought and obtained the leave of this Court, to file and serve its

memorandum of conditional appearance, counter affidavit, and counter claim.

Furthermore by a motion on notice, dated 18th October 2007, and filed on 22nd October

2007, the 2nd Defendant sought and obtained the leave of this Court, to file its written

argument; in support of its preliminary objection, and the motion on notice, out of time, on

the 30th October 2007.

Learned counsel proposed to take the Preliminary Objection, challenging the jurisdiction of

the court, together with the main application, and in line with the decisions, in the cases of

Amadi vs. NNPC (2000) 10 NWLR pt 674 page 76 at 88 and Senate President vs. Nzeribe

(2004) 9 NWLR pt 878 at 251 esp. 256 – 257. The court acceded to that request.

Consequently, learned counsel for the 2nd Defendant, relied on his submissions in support of

the preliminary objection, as well as the written address opposing the motion on notice for

interlocutory injunction. In reaction, the Plaintiff, filed his written arguments, dated the 6th

day of November 2007, on the 7th of November 2007. The submissions dealt with both the

preliminary action, and the main application before the Court. I shall in the course of this

judgment revert and make reference to the submissions of counsel as filed before the court.

Let me say from the outset the 2nd Defendant confined its submissions only on the

preliminary objection, but did not proffer alternative arguments in the main originating

summons. Let me also quickly take the liberty, to say by way of preliminary point; that all

submissions, on the application for interlocutory injunction, goes to no issue. Because motion

on notice, for interlocutory injunction was not taken. This is as a result of an undertaking by

the 2nd Defendant, until the matter got to the address stage, the motion was not taken. Indeed

the motion for interlocutory injunction was struck out at the resumed hearing of this matter

on the 16th of January, 2008.

In addition to the foregoing, the 2nd Defendant also filed a counter affidavit and a counter

claim against the Plaintiff. The Plaintiffs questions for determination and reliefs have been

reproduced elsewhere in this judgment. What is good for the goose is also good for the

gander. Let me then take the liberty to reproduce the 2nd Defendants counter claim for the

purposes of clarity. The counter claim reads:

(i) A Declaration that the Federal High Court of Nigeria sitting in its civil jurisdiction cannot

make orders outlawing criminal investigation and prosecution of the Defendant in this

Counter Claim – Dr. Peter Odili or indeed any person reasonably suspected to have

committed a criminal offence.

(ii) Declaration that the Defendant in this Counter Claim – Dr. Peter Odili – was not a party

to Suit No. FHC/PH/CS/78/2007 BETWEEN ATTORNEY – GENERAL FOR RIVERS

STATE vs. ECONOMIC AND FINANCIAL CRIMES COMMISSION & 3 ORS, and ipso

facto cannot appropriate to his benefit the tenure (sic) of the judgment of this Honourable

Court delivered on the 20th of March 2007.

(iii) A. Declaration that the tenure (sic) of the judgment of this Honourable court in suit No.

FHC/PH/CS/78/2007 BETWEEN ATTORNEY GENERAL FOR RIVERS STATE VS.

ECONOMIC AND FlNANCIAL CRIMES COMMISSION & 3 ORS, which is the

substratum of the Defendant‟s claim in the Originating Summons is the subject of appeal

before the Court of Appeal, Port Harcourt Judicial Division.

(iv) A Declaration that all the reliefs sought by the Defendant – Dr. Peter Odili – who is the

Plaintiff in the Originating Summons are before the Honourable court

(v) An award against the Defendant – Dr. Peter Odili, the sum of N1Billion only, being

General Damages in favour of the Plaintiff in this counter claim – Economic and Financial

Crimes Commission.

(vi) A declaration that the claims contained in the Originating summons in this case are

incompetent in law and constitute a gross abuse of the court process.

Let me first deal with the Notice of Preliminary Objection, challenging the jurisdiction of this

court to hear and determine this matter. Learned counsel to the 2nd Defendant, Mr. James

Binang, Chief Legal Officer, argued and submitted that the 2nd Defendant/Applicant‟s

Notice of Preliminary Objection filed on 21/09/2007 challenges the jurisdiction of this court,

to entertain the Plaintiff/applicant‟s Motion on Notice and indeed the entire Suit on three

different grounds as follows:

1. That there is a distinction and limitation between the statutory powers of the 2nd

Defendant/Applicant to fight corruption in Nigeria and the powers conferred on a House of

Assembly of a State to conduct investigations as prescribed under Section 129 of the

constitution.

2. Declaratory and injunctive reliefs granted to the Plaintiff in suit No. FHC/PH/CS/78/2007

between Attorney-General for Rivers State vs. Economic And Financial Crimes Commission

& 3 ors cannot operate to outlaw the 2nd Defendant/Applicant’s performance of its statutory

duties of investigation and prosecution of economic and financial crimes perpetrated by the

Plaintiff/Respondent, DR. PETER ODILI, erstwhile Executive Governor of Rivers State of

Nigeria, who was not a party to the said suit; and

3. All the reliefs sought in the Plaintiff/Respondent’s Motion on Notice filed on 13/09/2007

are incompetent in law as they are radically the same with the relief sought in the main Suit –

the Originating Summons in this case.

As stated elsewhere in this judgment the third ground becomes otiose as the motion on notice

was struck out. The 2nd Defendant/Applicant, arguing the 1st ground, contended that, there is

a clear distinction and limitation between the Statutory Powers of the 2nd

Defendant/Applicant, to fight corruption in Nigeria, and the powers conferred on a House of

Assembly of a State, to conduct investigation, under Sections 128 and 129 of the 1999

Constitution. That the 2nd Defendant/Applicant, is an agency of the Federal Government,

which derives its mandate from The Economic and Financial Crimes Commission Act 2004;

an Act of the National Assembly.

The law recognises all agencies of government as organs of initiative, whose powers are

derived either directly from the Constitution or from the laws enacted thereunder. That

Agencies of Government, therefore, stand in relationship to the constitution as it permits of

their existence and function. The Court was referred to the dictum of the Nigerian Supreme

Court in the case of ATTORNEY GENERAL ONDO STATE vs. ATTORNEY

GENERAL OF THE FEDERATION (2002) 9 NWLR PT 772 AT 222 esp. 418 – 419.

It is submitted that, and it can therefore be argued without fear of contradiction that, The

Economic and Financial Crimes Commission Act 2004 (hereinafter referred to as the EFCC

Act) is an existing law within the meaning of Section 315(1) (a) of the 1999 constitution. It is

submitted further that Sections 6, 7 and 46 of the EFCC Act 2004, prescribe the mandate on

the 2nd Defendant/Applicant to fight both official and unofficial corruption in Nigeria,

including Rivers State. That being an agency of the Federal Government, the 2nd

Defendant/Applicant derives its power and function to investigate, initiate and undertake

criminal prosecutions in Nigeria under Section 174(1)(b) of the 1999 Constitution. And by

Section 2(c) ofthe EFCC Act 2004, the 2nd Defendant/Applicant is the designated

Financial Intelligelence Unit (FlU) in Nigeria, which is charged with the responsibility of

coordinating the various institutions involved in the fight against money laundering and

enforcement of all laws dealing with economic and financial crimes in Nigeria.

It is submitted in this regard that all lawful appropriation of funds made by the House of

Assembly of a State, qualifies as a law made by the said state 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 crimes, the 2nd Defendant/applicant, has the mandate

under the EFCC Act 2004, to investigate and prosecute offenders of the said state law.

That on the other hand, the constitutional powers of a state House of Assembly to conduct

investigations under Sections 128 and 129 of the 1999 Constitution are limited in scope

to the laws enacted by the State House of Assembly and cannot be interpreted to include

or touch on laws made by the National Assembly.

Legislative competence

Such powers of a State House of Assembly to conduct investigations are exercisable only

for the purpose of enabling the House to make laws in matters within its legislative

competence and correct defects in existing laws or to expose corruption, inefficiency or

waste in the execution of laws made within its legislative competence or administration

of funds appropriated by it. The Court was generally referred to sections 128 and 129 of

the 1999 constitution which are clear and unambiguous.

It is finally submitted on the first ground that this distinction between the statutory powers of

the 2nd Defendant/Applicant to investigate and prosecute offenders of economic and

financial crimes vis-a-vis the constitutional powers of a State House of Assembly is the first

ground of appeal in the Notice of Appeal filed against the judgment of this Court in suit No.

FHC/PH/CS/78/2007 BETWEEN THE ATTORNEY GENERAL FOR RIVERS STATE vs.

ECONOMIC AND FINANCIAL CRIMES COMlMISSION & 3 ORS.

The Court was referred to generally, Exhibit EFCC 1 to the 2nd Defendant/Applicant‟s

Counter Affidavit filed 10/10/2007.

Limited investigative powers

From the foregoing, it is submitted by the 2nd Defendant/applicant that, there exists a

distinction and limitation in scope of the rather limited investigative powers of the House of

Assembly of a State as provided for under Sections 128 and 129 of the Constitution vis-a-vis

the unlimited investigative cum prosecutorial powers of the 2nd Defendant/applicant to

enforce all laws dealing with economic and financial crimes commission, in Nigeria

including but not limited to Rivers State of Nigeria. And the 2nd Defendant/Applicant urges

this court to so hold.

On the second ground, it is submitted that the judgment of this Court in Suit No.

FHC/PH/CS/78/2007 BETWEEN THE ATTORNEY-GENERAL FOR, RIVERS STATE vs.

ECONOMIC AND FINANCIAL CRIMES COMMISSlON & 3 ORS delivered on the 20th

of March, 2007, is the substratum upon which the Plaintiff rests his Case.

That the 2nd Defendant/Applicant has initiated proceedings in furtherance of an Appeal

against the said Judgment. The Court of Appeal Port Harcourt Judicial Division has fixed the

appeal for 30/10/2007 for Hearing.

That suffices it to note, however that the Plaintiff/Respondent – DR. PETER ODILI,

erstwhile executive Governor of Rivers State of Nigeria, was not a party to the said Suit; and

ipso facto cannot appropriate the tenure (sic) of that judgment. That while the 2nd

Defendant/Applicant is not inviting this court to sit on appeal against its own judgment, the

law remains settled, that a court cannot make orders to restrain the performance of the

statutory duties of investigation and prosecution of any person who is alleged or suspected to

have committed a crime. The Court was referred generally to the cases of FAWEHINMI VS.

INSPECTOR GENERAL OF POLICE (2002) 7 NWLR PT. 767 AT 606 esp. 686 – 687;

BAMIDELE vs. COMMISSIONER FOR LOCAL GOVERNMENT (1990) 2 NWLR PT.

329 at 568 esp. 583; NNEWI & SONS vs. COP (2002) HRLR at 156 esp. 164. That these

cases settled the law that a Plaintiff cannot by merely instituting a Civil action preclude the

Respondent, (the Police or similar agency of Government) from performing its statutory

duties of investigation and prosecution of the offences committed against the State.

And any order of court purporting to restrain the performance of the statutory duty of

investigation and prosecution of crime is incompetent, null and void ab initio and of no effect

whatsoever. The court was referred to the case of ATTORNEY GENERAL OF ANAMBRA

STATE vs. CHIEF CHRIS UBA, 2005 33 WRL AT 191 where Bulkachuwa, JCA held that:

“For a person, therefore, to go to court to be shieided 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 legal recognizable right, to which the

Court can come to his aid. His claim is not one that the court can take cognisanze 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 powers.”

Tomorrow

Justice I. N. Buba determines issue of whether EFCC‟s purported preliminary objection is a

valid and sustainable objection in law and is capable of terminating the originating summons

in limine

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.

THIRDLY, it is clear, that the 2nd defendant has not alleged any offence against the plaintiff

in his personal capacity. Rather, the allegation is about what he did in his official capacity as

Governor of Rivers State. It is argued that it remains to add by way of further elucidation,

that although the 2nd defendant had raised a preliminary objection challenging the suit, on

grounds of jurisdiction, it never, addressed the issues raised by the plaintiff, for

determination.

The questions before the Court do not seek to delimit the statutory powers of the 2nd

defendant. The questions deal with, whether the 2nd defendant can ignore a subsisting, valid

and final judgment of a duly constituted court. All the points being canvassed by the 2nd

defendant about a court order purporting to restrain the performance of a statutory duty, are

beside the point. It would have, perhaps, been a different matter if judgment in Suit No.

FHC/PH/CS/78/2007 has not been delivered. It is submitted, therefore, that the 2nd defendant

has not addressed the issues raised by the Originating Summons in these proceedings.

In conclusion, it is submitted that the argument raised under issue number two, Court is

urged, to answer the question posed in the negative, and hold that the 2nd defendant cannot

proceed against the plaintiff for any alleged offence committed while in office, since the

investigations and findings for that period have been voided by the court.

It is argued by the plaintiff that the 2nd defendant filed term counter claim, and sought for

One billion naira (N1,000,000,000.00) damages, against the plaintiff. It is, however, evident

from all account, that it was a claim made in jest, and for the purpose of cheap publicity. No

evidence was advanced; no argument proffered.

Indeed, the so called

counter claim is incompetent, and should be dismissed as an abuse of court process.

In conclusion, the plaintiff urged the Court, to answer the two questions raised in the

originating summons in the negative, and also dismiss the preliminary objection as well as

the Counter-Claim for the following reasons.

1. The subsisting judgment of the Federal High Court in Suit No.FHC/PH/CS/78/2007 is a

final judgment and binding on all parties, and non-parties alike.

2. The said judgment, being a judgment in rem, has pronounced on the status of the alleged

investigation conducted by the 2nd defendant into the affairs of Rivers State and declared

same unconstitutional, null and void.