by Vincent Adodo

Introduction

Topical among the issues of the moment is the arraignment and trial of Hon. Justice W.S.N. Onnoghen, GCON, the now purportedly suspended Chief Justice of Nigeria (“CJN”), at the Code of Conduct Tribunal (CCT) for asset declaration fraud contrary to the Fifth Schedule to the Constitution of the Federal Republic of Nigeria 1999 (As Amended) {CFRN}. The Attorney General of the Federation (AGF), Abubakar Malami SAN, by a letter dated 17 January 2019 directed that 5 banks accounts belonging to the CJN be frozen. In doing this, the AGF relied on the Presidential Executive Order 6 (EO6) issued by President Muhammadu Buhari on 4 July 2018.

In this piece, I examine the constitutionality of this freezing directive.

Scope of the powers of the Attorney General under the CFRN

The Supreme Court of Nigeria considered the scope of the Attorney General’s status and powers under the common law and the 1979 Constitution in the case of State v. Ilori (1983) NSCC 69.  Eso, JSC (of blessed memory) in his lead judgment said:

The pre-eminent and incontestable position of the Attorney-General, under the common law, as the Chief law officer of the State, either generally as a legal adviser or specially in all court proceedings to which the State is party, has long been recognized by the courts. In regard to these powers, subject only to ultimate control by the public opinion and that of the parliament or the Legislature, the Attorney-General has, at common law, been a master unto himself, law unto himself and under no control whatsoever, judicial or otherwise, vis-à-vis his powers of instituting or discontinuing criminal proceedings.

In interpreting the provisions of section 191 (3) of the 1979 Constitution {now section 174 (3) of the CFRN}, the Court reiterated that in exercising his powers to institute or discontinue criminal proceedings, the AGF is bound only to have regard to the “public interest, the interest of justice and the need to prevent abuse of the legal process.” Even at common law, the AGF has always been expected to have regard to these three conditions in exercising his prosecutorial powers. Therefore, the pre-eminence of the AGF does not give him a leeway to act illegally or disregard the legal process.

Unconstitutionality of a Freezing Directive without a Court Order

In directing the Nigerian Financial Intelligence Unit (NFIU) to freeze the accounts of the CJN, the AGF referred to Presidential Executive Order No 6 issued by the President in July 2018. This executive order which is issued to ensure the “preservation of suspicious assets connected with corruption and other relevant offences” empowers the AGF to take certain actions with regards to the accomplishment of the objectives of the EO6.

In x-raying the legality of the actions of the AGF, recourse must be had to the provisions of the EO6 vis a vis the provisions of the CFRN. Section 1(iv) of EO6 which is very apposite in this instance, provides that:

“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”

The exercise of the powers given to the AGF under this provision is subject to section 174 of the CFRN. What this means is that the constitutional checks and balances on the powers of the AGF in section 174 (3) control the exercise of his powers to proceed against any assets linked to corrupt practices.  

In the instant case, the AGF with due respect acted illegally. By directing the NFIU to freeze the accounts of the CJN without first obtaining an order of court to that effect, the AGF has violated the provision of section 174(3) of the CFRN. When a legislation prescribes a procedure or method for doing an act, it is only such a procedure or method that is permissible and no other. This legal principle is elementary. A legion of pronouncements have been made on this elementary principle of law in Oyama v. Agibe (2016) All FWLR (pt. 840) 1274 at 1292 E-F. In that case, the Court of Appeal per Otisi JCA held that: It is trite law that where a statute provides unambiguously for an act to be done in a particular manner, failure to perform that act in the prescribed manner amounts to non-compliance and its effect cannot be waived: Niger-care Dev. Co. Ltd v. ASWB (2008) All FWLR (pt. 422) 1052, Ikpe v. Elijah (2011) LPELR-4516 (CA).

In Dangabar v. Federal Republic of Nigeria (2014) 12 NWLR (pt. 1422) 575, the Economic and Financial Crimes Commission (EFCC) obtained an ex parte order of the High Court of the Federal Capital Territory (FCT) Abuja to freeze the bank account of the appellants who were standing trial. On appeal against the ruling, one of the issues submitted to the Court of Appeal bordered on the legality of the ex parte order freezing the account of the appellant who was still standing trial before the same FCT High Court. The Court of Appeal in construing sections 28 and 34 of the Economic and Financial Crimes Commission (Establishment) Act 2004 dismissed the appeal and affirmed the powers of the High Court to issue the interim orders. The statement of the Court per Bada JCA at 611E is particularly instructive in this instance. His Lordship held that:

“It is only when an ex parte order has been made by the court that the Chairman of the EFCC will issue an order specified in Schedule B to the Act addressed to the Manager of the Bank as person in control of the account to freeze the account.”

Had inspiration been drawn from this decision, the AGF would know that the right course of action was to apply ex parte to the CCT seised of the matter to issue the interim order freezing the CJN’s accounts. After the ex parte order has been granted, the legality of the order could then be tested on appeal. This is how a democratic society predicated on the rule of law should work. Oputa, JSC (of blessed memory) had so observed in Military Governor of Lagos State v. Ojukwu (2001) FWLR (pt. 50) 1779 at 1812 F-G that:

‘The Rule of Law presupposes-…

4   That to the Judiciary is assigned both by the Rule of Law and by our Constitution the determination of ‘all actions and proceedings relating to matters in dispute between persons or between government or an authority and any person in Nigeria’  

It is indisputable that the action of the AGF falls short of the minimum constitutional expectations of his high office. The constitution expressly makes it clear by section 174 (3) that:

(3) In exercising his powers under this section, the Attorney-General of the  Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.

The illegality of the action of the AGF becomes more apparent when it is viewed from the perspective that charges had already been filed against the CJN at the CCT. The action of the AGF is no doubt a resort to self-help which is a wanton affront on the rule of law as espoused by the Supreme Court in Ojukwu’s case..

Conclusion

With the decision of the Court of Appeal in Dangabar’s case and section 1(iv) of the Presidential Executive Order 6, it is clear that no agency of government, including the NFIU, EFCC, and  Independent Corrupt Practises and Other Related Offences Commission (ICPC) have the power to freeze bank accounts or seize the assets of anybody without an order of court. Taking such illegal steps against the property of a citizen without complying with the due process of law is certainly a breach of the citizen’s right to privacy and property guaranteed under the Constitution. Nigeria is a constitutional democracy founded on the rule of law. No one, including the AGF, is above the law. As it stands today, the AGF has fallen short of the expectations of the Constitution. The AGF’s action cannot stand.

AuthorVincent Adodo is a legal practitioner. He writes from Abuja. E-mail: lordsvincenzo05@gmail.com

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Nigerian Law Today

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