By Deborah Musa
A Federal Capital Territory High Court, Apo on Monday, adjourned till May 15 to rule on the preliminary objection of a former Minister of Power and Steel, Dr Olu Agunloye.
The Economic and Financial Crimes Commission is prosecuting Agunloye on a seven-count- charge.
The seven-count charge bordered on forgery, disobedience of presidential order and corruption.
The defendant, however, pleaded not guilty to the charge.
Agunloye’s counsel, Adeola Adedipe (SAN) informed the court that the EFCC lacked the power to prosecute his client while he claimed that contrary to the constitutional provision, the Attorney General of the Federation did not give EFCC the fiat to investigate and institute proceedings in the case against him.
Adedipe told the court that rather than obtaining the fiat from the AGF, the anti-graft agency got it from the Solicitor-General of the Federation.
Citing section 174 of the 1999 Constitution (as amended), Adedipe said 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.
He asked the court to take judicial notice of this under Section 124 of the Evidence Act.
“The AGF did not give a fiat for the investigation. It was the Solicitor-General of the Federation that gave EFCC fiat when he did not have such power under Section 174 of the Constitution (as amended); 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 a seat that did not even ratify, did not give a fiat,” Adedipe said.
He said the commission lacked both investigative and prosecutorial powers under Sections 6, 7, and 46 of the EFCC Act, 2004.
Agunloye challenged the power of EFCC to prosecute him regarding certain infractions in the alleged $ 6 billion Mambilla Hydroelectric Power Station in Taraba State which he is standing trial.
Adedipe held that the offences allegedly committed by Agunloye were based on his 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, under 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 prosecuting 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.
The prosecution also alleged that it traced some suspicious payments made by Sunrise Power and Transmission Company Limited to Agunloye’s accounts.
He therefore urged the court to disregard the defendant’s application.
The trial judge, Justice Jude Onwuegbuzie, after taking arguments from both parties, adjourned ruling on the preliminary objection.
” Ruling on the preliminary objection is adjourned until May 15.”
Agunloye among others, was alleged to have, 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.