A Federal High Court sitting in Abuja has thrown its weight behind the Senate for rejecting Mr. Ibrahim Magu as substantive Chairman of the Economic and Financial Crimes Commission (EFCC).
This is as the Senate urged President Muhammadu Buhari to, in line with the judgement, forward name of a credible Nigerian to it for confirmation as substantive chairman of the anti-graft agency.
A concerned Nigerian, Oluwatosin Ojaomo had, on January 14, 2017, filed a suit against the Senate at a Federal High Court, Abuja for rejecting Magu’ s confirmation as EFCC Chairman.
The litigant, in the suit no FHC/ABJ/CS/59/2017, which had the Senate President and the Attorney General of the Federation as co- defendants, prayed the court to nullify Magu’s rejection by the Red Chamber, claiming that the Chamber had no power to confirm him in the first place, let alone rejecting him.
The plaintiff, who cited section 2 (1) (a) (i) (ii) (iii) and 2 (3) of EFCC (Establishment) Act, 2004 to argue his case in paragraphs 7-18, said the statutory powers of such appointment and confirmation lie with the President in line with the cited extant laws of the commission.
However, the presiding Judge of the court, Justice J.T Tsoho, in his judgement dated January 15, 2018, ruled that the Senate has constitutional powers to confirm or reject any presidential nominee forwarded to it at any time. According to the judge, Magu’s rejection was in order since the intendment of the law as regards the Senate was not to serve as a rubber stamp of the President.
The judgement reads in part: “Plaintiff raised two issues in the written address for determination, to wit: whether or not the 1st defendant can reject a valid statutory appointment made by the President of the Federal Republic of Nigeria to the Office of the Economic and Financial Crimes Commission in accordance with the provisions of the EFCC (Establishment) Act, 2004.
“Whether or not the 1st defendant is bound by the provisions of the EFCC Act, 2004 with respect to the confirmation of any appointment made by the President of the Federal Republic of Nigeria to the Office of the Chairman of the Economic and Financial Crimes Commission.
“Having regard to the questions presented for determination and the reliefs sought in the originating summons by the plaintiff in this instant suit, his locus standi, in my humble opinion, is doubtful. The affidavit depositions which give background information of the plaintiff have not disclosed sufficient stake or peculiar interest of the plaintiff above others that entitles him to institute this action.
“Paragraphs 4, 5 & 6 of the affidavit in support of the originating summons have introduced the plaintiff as a certified Legislative Counsel/Professional drafter trained by the Commonwealth Secretariat, London, United Kingdom at the Ghana School of Law, Accra, Ghana. Also, that he is a solicitor and advocate of the Supreme Court of Nigeria and currently a legal practitioner in a law firm.
This, in my humble view, does not establish any special or unique interest of the plaintiff above those of others, that entitles him to institute this action. On this premise, the suit is liable to be struck out for lack of standing to maintain the action.
“Nevertheless, the court will consider the merits of the issues raised for determination by the plaintiff. “Issue one borders on the power of the Senate in respect of statutory appointment under the EFCC Act referred to it by the President. The relevant provision relating to appointment of the Chairman of the EFCC is Section 2 (1) & (3) of the EFCC (Establishment) Act, 2004. Section 2 (3) provides as follows, “The Chairman and members of the Commission other than ex-officio members shall be appointed by the president and the appointment shall be subject to confirmation of the Senate.
“Firstly, the use of the word ‘shall’, in a legislation, usually denotes mandatoriness.
Therefore, while the plaintiff recognises the use of the word ‘shall’ as conferring mandatory and unqualified powers on the President to appoint the Chairman of the EFCC, sight must not be lost that the same word is used in respect of confirmation by the Senate of such appointment.
Therefore, interpretation of the word ‘shall’ should logically have the same effect regarding both situations.
“More importantly, the expression ‘subject to’ used in Section 2 (3) of the EFCC Act is very instructive. The expression ‘subject to’ has been interpreted to mean liable, subordinate, subservient, or inferior to; governed or affected by; provide that or provided; answerable for. ‘It has been categorically stated that the phrase ‘subject to’ introduces a condition, a restriction, a limitation, a proviso.” Justice Tsoho also ruled on the powers of confirmation by the Senate.
“On issue two for deter-mination, there is no doubt that the 1st defendant is bound by the provisions of the EFCC Act with respect to appointment of Chairman of the EFCC by the president. “It should be realised that the provision of Section 2(3) of the EFCC Act, empowers the Senate, headed by the 1st defendant, to confirm an appointee to the Chairman of the EFCC by the President.
The Senate is thus conferred with authority to ensure the choice of only suitable and credible persons for appointment to that office. The submission of the plaintiff, however, gives the impression that the Senate only exists to rubber stamp the president’s appointment of a Chairman.
Such viewpoint runs counter to the proper intendment of Section 2 (3) of the EFCC Act and is misconceived. Issue 2 is also resolved. “The point must be made that it is trite law generally, that where a plaintiff ’s claim is unchallenged and uncontroverted, the court will accept the available evidence and act on it.
“There is, however, exception to this, where the court finds that the plaintiff’s action is not maintainable, despite being unchallenged. This, I humbly hold to be the position in the instant suit, as I regard as doubtful the plaintiff’s capacity or competence to maintain the action. Consequently, this suit is struck out.”
Reacting to the judgement yesterday, the Senate’s spokesman, Dr. Aliyu Sabi, said that the apex legislative chamber had been vindicated by the judgement of the court. Senator Sabi (APC, Niger North) argued that the ruling having vindicated the Senate for its decision on Magu, President Buhari should therefore, search for another nominee, who must be a credible Nigerian to replace the Acting Chairman of the EFCC.
“We are pleased with this judgement and salute the judiciary for rising up to defend our democracy and the rule of law. “With this, the Senate expects the executive to be guided by the court decision and do the needful by forwarding name of any credible Nigerian for the EFCC office.
There is nothing personal in the whole thing. The court had ruled and all parties concerned must obey,” Sabi urged. The Senate had rejected the nomination of Magu twice based on the recommendations of the Department of State Services (DSS) which stated that the acting EFCC chairman is unfit to hold such sensitive position.