By JOHN, OVUNDAH W.
It is trite rule in law that in exercising authority or powers bestowed on a person or authority, such must be done within the confines of the Law giving such powers. Hence, the acting outside an established authority or limit granted by law would equate such an act as Ultra vires and the consequences therefrom would be a nullity, see Lakanmi v AG (West) (1971) U.L.L.R.
The present Federal Government of Nigeria led by President Muhammadu Buhari, intends to fight corruption and this necessitated the Promugation of Executive order No.6 in 2018, the order which allows the Federal Government to freeze or seize any asset or account of a person undergoing corruption related trials pending the final determination of the suit.
On the 14th of January, 2019, this Order was again called to effect, when the Attorney General of the federation in the person of Mr. Abubakar Malami SAN, directed the Director of the Nigerian Financial Intelligence Unit (NFIU), to freeze the Account of the Chief Justice of Nigeria, Justice Walter Onnoghen(hereinafter reffered to as CJN) pending the final determination of the case against him at the Code of Conduct Tribunal(CCT). It is in light of all these that the writer wishes to review the said Executive order no. 6 vis-à-vis the directive from the Attorney General.
In trying to do justice to the topic, we shall narrow our arguments to two questions viz;
Whether the Trial of the CJN is in fact a corruption related matter?
Whether the said Executive order applies to cases outside Corruption?
1] whether the trial of the CJN is in fact a corruption related trial?
Via s.174 of the 1999 Constitution of Nigeria (CFRN), The AGF is by law empower to prosecute cases either directly or through anyone in his department. This however does not foreclose the prosecution of Offence or prohibited Actions by some establish bodies, one of such bodies is the Code of Conduct bureau (CCB) via s. 3(e) of the third schedule CFRN, however, these powers is limited to contraventions of the Code of Conduct for public Officer. It therefore follows that the CCB cannot go beyond this stipulated powers granted it by law.
The CCB in line with this power therefore brought criminal charges against the CJN on grounds of non-asset declaration and the operation of domiciliary accounts in foreign currencies contrary to the Code of Conduct for Public officers (the merits or procedure of that action will not be discussed as it isn’t the aim of the paper). It is upon this charges that the AGF ordered that the Accounts of the CJN be frozen.
The major question therefore to ask is whether the trial of the CJN is infact a corruption related case so as to necessitate the operation of the said Executive order. The answer is clearly in the Negative. There exist a fundamental difference between Corruption and the failing to declare one’s asset or operating a domiciliary account. While the former is an act which seeks to undermine the Hardwork of the general populace to the advantage of a few, the latter is but a code which binds a group of people. This is similar to a work place rule or ethics (although not in substance). It therefore follows that non-members of that group or body could “commit” the said action and won’t be liable for breach of the code, however, anti-corruption is the obligation of all citizens, hence, you needn’t be part of an association to be guilty of corruption related cases.
The failure to declare ones asset is only applicable to a public officer see s. 11 (1) and s.19(for the definition of a public officer) of the fifth schedule Part 1, CFRN and s.15(1) and (2) of the Code of Conduct Bureau and Tribunal Act 2004. It therefore is safe to say that the charges against the CJN is only applicable to him because of his being a public officer and not because he is a citizen of Nigeria. Hence, his alleged failing to declare his asset and his having domiciliary account with foreign currencies cannot be termed as corruption as any other Citizen can do same and not be guilty of any offence.
Similarly, the CCB is not empowered by law to investigate or prosecute corruption related issues, that responsibility is left to the Economic and Financial Crimes Commission(EFCC) and/or the Independent Corrupt Practice Commission (ICPC) via their enabling Acts. In otherwords, the Code of Conduct Tribunal would loose substantive jurisdiction on issues related to corruption and the high courts would assume same. In all we summit that the CJN isn’t been tried for a corruption related case but for a contravention of the public officer’s Code of conduct rules.
2) Whether the Executive order applies to Cases outside Corruption Trials?
A clear and clam perusal of the Executive order can safely answer this question in the Negative. The seven section Excutive order can be read to apply only to Corruption related issues and nothing else. The extent of the said order can easily be known via the purposive rule of statutory interpretation, see Ademolekun v The council of University of Ibadan (1958) NMLR 253. The rule states clearly that in interpretating a legislation, the underlying purpose of the law must be sought.
The puropse of the executive order is cyrstal clear, that it aims at eliminating Corruption, the introductory lines of the said order thus reads;
Whereas it is the responsibility of the Federal Government of Nigeria to protect the resources of Nigeria from all forms of Corruption;
Whereas Corruption constitutes an unusual and extraordinary threat to the well-being, national security and stability of the country’s political and economic systems, as well as its continuous existence; and must be effectively addressed;
By the powers vested in me under Section 5 of the 1999 Constitution as amended which extends to the execution and maintenance of the Constitution, all Laws made by the National Assembly (including but not limited to Section 15(5) of the Constitution) to, abolish all corrupt practices and abuse of power, it is the duty of any responsible government to restrict dealings in suspicious assets subject to corruption related investigation or inquiries in order to preserve same in accordance with the rule of law and to guarantee and safeguard the fundamental human rights;
This need to fight corruption is repeated throughout the entire Order, hence,one can safely say that it’s application is limited to Corruption realted issues and not otherwise.
Flowing from our analysis above it can be said that since the Executive order No.6 relates to only corruption related cases the punishment or consequences stated therein cannot be used for another as such would be deemed Ultra vires, hence, it is humbly submitted that the directive from the AGF ordering the Accounts of the CJN be frozen by the NFIU pending the final determination of the suit against him at the CCT is Ultra Vires and of no effect this is because the said Executive order does not cover non corruption cases and cannot be applied to it.
Assuming but not conceding that the trial of the CJN at the CCT is in fact one which relates to corruption, it still doesn’t remove the fact that the AGF fail to follow due process of law before freezing the Account. S.1(c) (iv) of the Executive order No. 6,provides for the ovtaining of a valid court order before freezing any such account intended by the Order, the section reads;
“…Where the Attorney-General has reasonable cause to believe that any funds or assets within Nigeria is connected with Corruption, the Attorney-General may, subject to his powers under Section 174 of the Constitution and other laws enabling him in that regard, approach the Court for an Order blocking or freezing or confiscating such funds or assets pending the conclusion of an investigation or legal action…”
Having regards therefore to the above it can safely be said that even where the CJN was under investigation or corrupt practices, the laid down procedure has not being followed leading to procedural ultra Vires under Administrative law, see AG Bendel v AG Federation (1982) 3NCLR 1 at 70.
Whilst it is the responsibility of the government to stamp out Corruption from the State, we humbly suggest that such obligation be carried out with due process of law and in line with the mandate or limits given by law. In a situation where we “play God” at the expense of the rule of law and due process because of our perceived desire to do “aright”, this would inevitably lead to a chaotic situation and breakdown of institutions of state.
We humbly advise the AGF to terminate that directive forwith and uphold the law for which he was appointed as Minister of Justice. The drive to play to the desires of a man or authority, shouldn’t be encouraged as laid down verifiable laws and facts should be our guiding light. The wise wisdom of Francis Becon should therefore guide us that “…in order to be just, we must cleanse our mind from all IDOLS OF THE MIND, like false fathoms we must not be swayed by any illusions that clog our perspections, but we must be swayed by only Facts…”
John, Ovundah is a student of the Faculty of Law, University of Nigeria, Nsukka.