The controversy trailing the appointment of Ibrahim Magu as Chairman, Economic and Financial Crimes Commission (EFCC), may be far from over.
The Senate yesterday asked President Muhammadu Buhari to nominate a replacement for Magu in line with the verdict of an Abuja Federal High Court which affirmed its powers to confirm or reject the President’s appointments.
The upper chamber vowed not to consider the President’s confirmation requests until its resolution rejecting the appointment of Magu is complied with.
Justice J.I. Tsoho on January 15th said that the Senate has statutory duty to confirm appointments referred to it by Mr. President.
The chairman, Senate Committee on Media and Public Affairs, Senator Aliu Sabi Abdullahi, who briefed reporters on the court verdict, said:
“By this (court) judgment, for those who have been worried that the Monetary Policy Committee never met, I think this is a window for the MPC to see the light in meeting.
“If the Executive does the needful, provides another Nigerian of credible character of which we have millions of them – 180 million of them – even by arithmetic error, we should be able to get good people.
“So, it is our hope and prayer that our amiable President will find this judgement in order and will be submitting very soon another nominee to carry on with the good work of anti-corruption, especially now that we are very proud of him as the African Union Anti-Corruption Ambassador.”
Abdullahi recalled that the Senate rejected Magu’s nomination twice.
He noted that the then Acting President, Prof. Yemi Osinbajo, was reported to have said that the Senate lacked the power to confirm Magu.
“The issue was taken to the floor of the Senate and we resolved that the statement has to be withdrawn or we will take it that we will not confirm any other person, except those expressly listed in the Constitution,” he said.
Abdullahi said the issue was taken to court by Oluwatosin Ojaomo for the court to determine.
He noted that the judgment had been given that the Senate has the power to confirm presidential nominees.
“In fact, the intendment of the law is that we should not be a rubber stamp,” he said.
Abdullahi added: “We are happy with the judgment. We want to salute the Nigerian judiciary for always rising to the occasion when it matters most. The judgment is consistent with what has happened in the past. By this judgment, the executive will be guided to uphold the law, do the needful and it will be good for verybody.”
He said that the President should be persuaded to find another nominee in place of Magu.
Abdullahi said that the position of the Senate remained that “we have rejected a nominee and that nominee cannot continue to act as if there is no law in the country”.
Insisting that “there is nothing personal about what we did”, the Senate spokesperson said their action was guided by the Constitution.
He said: “The issue of Magu is not on our door, it is on the door of the executive to do the needful.”
Abdullahi said that until a superior court sets aside the January 15th, 2018 judgement, it remains the law.
The defendants in the suit were the Senate President, National Assembly of the Federal Republic of Nigeria and the Attorney General of the Federation, Federal Republic of Nigeria.
The judge said that the Plaintiff began the suit vide an originating summons supported by an Affidavit of 20 paragraphs deposed to by Oluwatosin Ojaomo and a written address both dated and filed on the 24th of January, 2017.
He said that the respondents di not file any reaction to the Originating Summons.
The judge said that the issue of locus standi is a threshold matter and must be first dealt with.
Justice Tsoho noted that it is also trite law that the nature of the claim and /or the cause of action determines the locus standi of the party bringing the action.
The judge said that 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.
He said that the affidavit depositions which gave background information of the Plaintiff and others ,— 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,” Justice Tsoho said.
The judge said: “Nevertheless, the court will consider the merits of the issues raised for determination by the Plaintiff.”
He said that issue 1 bordered on the power of the Senate in respect of statutory appointment under the EFCC Act referred to it by the President.
The judge said that the provision relating to appointment of the chairman of the EFCC is Section 2 (1) &(3) of the EFCC (Establishment) Act, 2004.
He said that 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.”
He declared: “Firstly, the use of the word ‘shall’ in a legislation usually denotes mandatoriness. Therefore, while the Plaintiff recognizes 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.”
The judge said: “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 of affected by; provided that or provided; answerable for. It has been categorically stated that the phrase ‘subject to’ introduces a condition, a restriction, a limitation, a proviso.”
The judge said that on the strength of these authorities he cited, 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.”
He added: “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 that 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 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.”