The Supreme Court of Nigeria delivered judgment last week, on Friday, November 15, 2024, in Suit No.: SC/CV/178/2023. The case involved the Attorney Generals of 15 States – Kogi, Kebbi, Katsina, Sokoto, Jigawa, Enugu, Oyo, Benue, Anambra, Plateau, Cross River, Ondo, Niger, Edo, Bauchi, Adamawa, Taraba, Ebonyi, and Imo – and the Attorney General of the Federation. Initially, all 19 States were plaintiffs, but Anambra, Adamawa, Benue, and Ebonyi later withdrew.

This landmark case questioned the legal existence of the Economic and Financial Crimes Commission (EFCC). At its core, the case aimed to strengthen federalism, ensuring fiscal responsibility and combating financial crimes and corruption. In essence, the states sought the Supreme Court’s ruling to limit the EFCC’s authority over state and local government funds.

From a societal perspective, this case questioned the legal existence of the Economic and Financial Crimes Commission (EFCC), but there’s more to it than meets the eye. A glimpse of the Court papers however reveals the case was undoubtedly premised on the need to entrench federalism, whilst ensuring fiscal responsibility, checking financial crimes, and combating corrupt practices. In summary, the States sought the apex court’s pronouncement to limit the EFCC’s supervisory and investigative authority over the regulation and administration of state and local government funds.

This is evident from a cursory examination of the Constitutional provisions grounding the questions for determination and the reliefs sought in the case. The plaintiffs sought interpretation of Sections 1, 4(6), 4(7)(a), (b), and (c), 7(1) and (2)(b), 90, 100, 120(3) and (4), 121, 122, 123, 128, 174(1)(a), and 195, as well as Parts 1 and 2, Second Schedule of the Constitution of the Federal Republic of Nigeria. Furthermore, they invoked the stare decisis principle (standing by earlier decisions) to assert that the Supreme Court should rely on its judgment in Nwobike v. FRN [2022] 6 NWLR (Pt. 1826) as a basis for invalidating the EFCC’s enabling Act.

In this part of my column on this issue, I shall provide initial introductions to give you sufficient perspective on the laws considered and the crux of the case. Section 1 of the Constitution, the supremacy clause, features prominently in any lawsuit involving interpretation and enforcement of the Nigerian Constitution. It asserts its binding effect on all authorities and persons, ensuring that no part of the nation can be governed in a manner inconsistent with the Constitution. Furthermore, no law can counter the Constitution; any inconsistency renders it (such law) void to the extent of that inconsistency.

The portions of Sections 4 and 7 of the Constitution also referenced by the plaintiffs guarantee the existence of local governments and further relate to the powers of States, as the second tier of government, to establish local governments under a law that provides for their establishment, structure, composition, finance, and functions. The phrase ‘under a law’ might be taken out of context to suggest an Act, but Section 8(3) of the Constitution squarely places this within the legislative competence of a State House of Assembly. This assembly is established under Section 100 of the Constitution and empowered under Sections 120(3) and (4) as the authority to approve appropriation or withdrawals from the Consolidated Revenue Funds of respective states.

The Houses of Assembly of the States, beyond ensuring the existence and financing of both States and local governments, have powers (Section 128(2)(b) of the Constitution) to investigate fund utilization. This investigation aims to expose corruption, inefficiency, or waste in fund disbursement or administration. This power extends to gathering evidence in a quasi-judicial capacity. Furthermore, Section 125 of the Constitution provides for the auditing of State and local government funds by the Auditor-General of the State, whose role or findings/reports should ideally support the Houses of Assembly’s oversight functions.

Now, the key contentions in the case were that certain guidelines and advisories issued by the Nigerian Financial Intelligence Unit (NFIU) to monitor access to local government funds were inconsistent with the Constitution. Another major contention was that the instruments establishing anti-graft agencies lack constitutional roots, referencing an earlier Supreme Court decision. Furthermore, it was argued that the power to prosecute misappropriation of State and local government funds does not rest with the Attorney General of the Federation.

I leave you with this background on the case’s key issues and constitutional provisions. Next week, in Part 2, I will delve into the legal intricacies to answer the burning questions:
What did the Supreme Court really decide?
Was the case a challenge to the legal existence of anti-graft agencies?
Were these agencies lawfully established, and what is the scope of their power?
Have their existence and operations undermined the Constitution’s supreme provisions?
Is the suit’s primary aim to strengthen federalism or evade prosecution (through the hands of Esau)?
Join me next week!

Q & A – The Lawyer’s Feedback

A man married his 1st wife traditionally, his 2nd wife through white wedding, and 3rd wife through court. Please who is the Real/Legal wife?

Position of the Law
I received this viral and intriguing legal question from one of my readers, which I’ll address in today’s column.
1) Firstly, the facts don’t reveal the man’s cultural or religious background, but his wedding to a third wife suggests he is likely not Muslim.
2) By the way, Islamic law permits polygamy up to four wives, provided the man balances care and attention equally among them.
3) For non-Muslims, customary law allows polygamy with no specific limit on the number of wives.
4) The Marriage Act, Cap. M6, LFN 2004 only recognizes monogamy and as such endorses statutory or registry marriage. This is what is often referred to as “court marriage”, integrated into solemnization of marriage or “white wedding/church blessing” by licensed places of worship.
5) A man cannot transition from a traditional marriage to a marriage under the Act without dissolving the previous union or if the spouse is deceased.
6) Section 33, Marriage Act states: “No marriage in Nigeria shall be valid where either party is married under customary law to someone other than the person they are marrying.”
7) It is prohibited (a crime) to marry someone under the Act if already married to another person under customary law.
Yours truly, JD

***
Readers and followers are advised to keep the questions coming and don’t be discouraged if I am yet to pick and answer yours. The questions are picked randomly. So keep sending them in through all of my official channels of communication as disclosed in this column (jdaniel.nig@gmail.com; twitter click x.com/attorney_ng or search @attorney_ng and Whatsapp +234 802 746 2264)

Notable Pronouncement/Quote

Undoubtedly, corruption erodes public trust, weakens democracy, endangers economic development, and further exacerbates social and economic inequality, poverty in the country.

– Per SAULAWA, J. S.C. Lawan v. F.R.N. [2024] 12 NWLR (Pt. 1953) SC 501 at 567, Para. G