By Deborah Musa
A Federal Capital Territory High Court, Apo on Monday, set a new date, May 15, to make a decision on the initial 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 relates to forgery, disobedience of presidential order, and corruption.
The defendant, however, denied the charges.
Agunloye’s lawyer, Adeola Adedipe (SAN) told the court that the EFCC did not have the authority to prosecute his client and claimed that, contrary to the constitutional provision, the Attorney General of the Federation did not give EFCC the permission to investigate and start proceedings in the case against him.
Adedipe informed the court that instead of obtaining the permission from the AGF, the anti-graft agency got it from the Solicitor-General of the Federation.
Referring to 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 requested the court to take judicial notice of this under Section 124 of the Evidence Act.
“The AGF did not give permission for the investigation. It was the Solicitor-General of the Federation that gave EFCC permission 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 permission,” Adedipe said.
He said the commission lacked both investigative and prosecutorial powers under Sections 6, 7, and 46 of the EFCC Act, 2004.
Agunloye contested EFCC's power to prosecute him for certain violations in the alleged $ 6 billion Mambilla Hydroelectric Power Station in Taraba State for which he is being tried.
Adedipe held that the offenses allegedly committed by Agunloye were based on his activities as a public officer.
He added that the former minister was accused of awarding 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 support his assertion and stated 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 line 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 from the start, I know that the supposed investigation and current prosecution of this charge by the EFCC is beyond its powers.”
So he asked the court to approve their request.
In response, the lawyer for the government, Abba Mohammed, stated that the Supreme Court had ruled in FRN vs Osahor and others that the power of the AGF under Section 174 of the constitution is not exclusive to him.
He explained that this meant that other authorities could start criminal proceedings in court, and in this case, the AGF did not complain that EFCC had taken his power.
Mohammed added that the Appeal Court had decided in Audu vs FRN that EFCC can prosecute offenders under the ICPC Act.
He asked the court to note 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 claimed that it traced some suspicious payments made by Sunrise Power and Transmission Company Limited to Agunloye’s accounts.
So he asked the court to ignore the defendant’s request.
After hearing arguments from both sides, the trial judge, Justice Jude Onwuegbuzie, adjourned ruling on the preliminary objection.
” Ruling on the preliminary objection is adjourned until May 15.”
Among other things, Agunloye 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.
