*EFCC Act is clear about Senate’s power
Justice John Tsoho sitting at the Federal High Court in Abuja has held that the Senate acted within the law when it rejected President Muhammadu Buhari’s nomination of Mr. Ibrahim Magu as the substantive Chairman of the Economic and Financial Crimes Commission (EFCC).
The court, in a judgment that was delivered on 15th January, but made available to newsmen on Thursday, held that section 2 (3) of the EFCC (Establishment) Act, 2004, conferred the Senate with the authority to ensure the choice of only suitable and credible persons for appointment into the EFCC’s chairmanship position.
Justice John Tsoho who delivered the verdict based on a suit that was lodged before the court by a legal practitioner, Mr. Oluwatosin Ajaomo, said the import of the EFCC Act was that the Senate does not only exit to rubberstamp the President’s appointment of any person to head the anti-graft agency. He held that the Senate was empowered to confirm or reject any appointee to the office of the Chairman of the EFCC by the President, based on facts available to it.
According to the court, section 2(3) of the EFCC Act provided that appointment of Chairman and members of the commission other than ex-officio members shall be subject of confirmation of the Senate, stressing that the wordings of the Act was very instructive to the effect that it introduced a condition that must be fulfilled.
Justice Tsoho held: “On the strength of these authorities therefore, the expression ‘subject to’ should be understood to simply mean ‘depending on’.
Accordingly, the import of section 2(3) of the EFCC Act is that the appointment of a Chairman made by the President is dependent on confirmation by the Senate.
The 1st defendant can therefore reject a statutory appointment of a Chairman of the EFCC made by the President, if there is good basis for doing so. Issue 1 stands resolved.
“On issue 2 for determination, 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 Office of 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 exits to rubberstamp 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”, Justice Tsoho held.
The plaintiff had in a suit he filed on 24th January, 2017, marked FHC/ABJ/CS/59/2017, which had the Senate President and the Attorney General of the Federation as defendants, prayed the court to determine “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 EFCC in accordance with the provisions of the EFCC 9Establishment) Act 2004.
As well as, “Whether or not the Senate was 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”.
He further sought an interpretation of the provisions of section 2 (1) (a) (i) (ii) (iii) and 2(3) of the EFCC (Establishment) Act 2004 with respect to the appointment of the Chairman of the EFCC by the President of the Federal Republic of Nigeria and the subsequent confirmation of the appointment by the Senate of the National Assembly of the Federal Republic of Nigeria according to the dictates of the law.
He argued that the reason Senate gave for its refusal of Magu’s nomination, which was a security report, which he said was mere advisory.
However, the court held that the locus-standi of the plaintiff to institute the action was doubtful, saying he failed to disclose sufficient stake or peculiar interest of the plaintiff above others that entitled him to institute the action.