Justice Jude Onwuegbuzie of a Federal Capital Territory (FCT) High Court on Monday fixed May 15 for ruling on former former minister of power and steel, Olu Agunloye ‘s preliminary objection.
Agunloye is challenging the power of the economic and Financial Crimes Commission (EFCC) to prosecute him regarding certain infractions in the alleged 6billion dollars Mambilla Hydroelectric Power Station in Taraba.
The EFCC charged Agunloye with seven counts of forgery, disobedience of presidential order and corruption.
He was alleged to have, among others, on May 22, 2003 awarded a contract titled “Construction of 3,960 megawatt Mambilla Hydroelectric Power Station” on build, operate and transfer basis to Sunrise Power and Transmission Company Limited without any budgetary provision, approval and cash backing.
The prosecution also alleged that it traced some suspicious payments made by Sunrise Power and Transmission Company Limited to the former minister’s accounts.
The defendant, however, pleaded not guilty to the charge preferred against him.
Justice Onwuegbuzie adjourned ruling on the preliminary objection after the parties finished given their arguments.
” Ruling on the preliminary objection is adjourned until May 15.”
At the resumed hearing on the case, counsel for Agunloye, Adeola Adedipe, SAN told the court that EFCC lacked the power to prosecute his client.
He told the court that contrary to constitutional provision, the AGF did not give EFCC the fiat to investigate and institute proceeding in the case against him.
Adedipe cited section 174 of the 1999 Constitution (as amended), told the court that instead of getting such fiat from the AGF, EFCC got it from the Solicitor-General of the Federation.
He urged court to take judicial notice, under Section 124 of the Evidence Act.
Adedipe informed the court that the current AGF, Lateef Fagbemi, SAN, was sworn in on Aug. 21, 2023, while the prosecution filed the charge against Agunloye on Sept. 7, 2023.
“The AGF did not give a fiat for the investigation. It was the Solicitor-General of the Federaion that gave EFCC fiat when he does not have such power under Section 174 of the Constitution (as amende); it is the exclusive reserve of the AGF (to do so).
“This charge was filed on Sept, 7, 2023. It was filed when the AGF was on seat who did not even ratify, did not give a fiat,” the senior advocate said.
He argued that the commission lacked both investigative and prosecutorial powers under Sections 6, 7 and 46 of EFCC Act, 2004.
He noted that the offences allegedly committed by Agunloye were based on his (Agunloye’s) activities as a public officer.
He added that the former minister was alleged to have awarded the contract for the power plant without budgetary provision, approval and cash backing.
Adedipe further argued that the defendant was accused of an alleged disobedience to the directives of the President, Federal Republic of Nigeria as well as a forgery of a letter dated May 22, 2003.
He cited legal authorities to back his assertion, and submitted that the allegations against the former minister did not constitute financial crimes and as such could not be investigated and prosecuted by EFCC.
According to him, “These allegations do not constitute financial crimes which can be lawfully investigated and prosecuted by EFCC, pursuant to its powers under Section 6,7 and 46 of the Economic and Financial Crimes Commission (Establishment) Act in consonance with the supreme Court’s decision in Nwokobi vs Federal Republic of Nigeria (2002) 6 NWLR (Part 1.1826)293.”
He further argued that, “not having the mandatory statutory powers to investigate the allegations in the charge ab initio, I know that the purported investigation and current prosecution of this charge by the EFCC is ultra vires its powers.”
He therefore urged the court to grant their application.
Responding, the prosecution counsel, Abba Mohammed, said the Supreme Court had decided in FRN vs Osahor and others that the power of the AGF under Section 174 of the Constitution is not exclusive to him.
According to him,this implied that other authorities could initiate criminal proceedings in court, adding that in the instance case, the AGF did not complain that EFCC usurped his power.
Mohammed added that the Appeal Court had decided in Audu vs FRN that EFCC can prosecute offenders under the ICPC Act.
He urged the court to take judicial notice that the Solicitor-General of the Federation, who signed the fiat to prosecute the defendant was the acting AGF as of August 8, 2023 as there was no substantive AGF then.
He therefore urged the court to disregard the defendant ‘s application. ( NAN)
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