Alleged $6b fraud: Court dismisses Agunloye ‘s application on ”amicus curiae”

A Federal Capital Territory (FCT) High Court on Monday dismissed an application by a former Minister of Power and Steel, Dr. Olu Agunloye, inviting some legal luminaries to hear his case on alleged infractions in the Mambilla Hydroelectric Plant.

The Economic and Financial Crimes Commission (EFCC) charged Agunloye, who served as a minister in the administration of former President Olusegun Obasanjo, before Justice Jude Onwuegbuzie.

On March 21, the defendant, through his counsel, Adeola Adedipe, SAN,SAN moved a motion seeking leave of the court to allow some legal luminaries to participate in the hearing of his preliminary objection against the EFCC.

He told the court that, contrary to constitutional provision, the AGF did not give the EFCC the fiat to investigate and institute proceedings in the case against him.

Adedipe cited Section 174 of the 1999 Constitution (as amended) and told the court that instead of getting such a fiat from the AGF, the EFCC got it from the Solicitor-General of the Federation.

He urged the court to take judicial notice under Section 124 of the Evidence Act.

Adedipe informed the court that 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.

“The AGF did not give a fiat for the investigation. It was the Solicitor-General of the Federation that gave the EFCC fiat when he does 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 September 7, 2023. It was filed when the AGF was in session and did not even ratify, did not give a fiat,” the senior advocate said.

”Granting the application to allow amici curiae (friends of the court), including the AGF; the President, Nigerian Bar Association (NBA), Yakubu Maikyau SAN; a former Minister of Justice, Chief Kanu Agabi SAN; and a former NBA president, Joseph Daudu SAN, to participate in the hearing of the said preliminary objection would not prejudice the court or EFCC,” he said.

It was curious, he said, that the commission did not want its principal, the AGF, to give support to the court in the application of justice.

He added that the reason for this was very clear since the anti-graft agency did not get his AGF  fiat.

He told the court that since assuming office, the AGF had been giving directives that all corruption-related cases against public officers should be investigated by the Independent Corrupt Practices and Other Related Offences Commission (ICPC).

Adedipe said this was in line with the decision of the Supreme Court in Nwobike vs. FRN, which delimited the power of the EFCC to financial crimes alone.

He therefore urged the court to grant the application, saying that the prosecution was aware that the court had the power to grant the same, which was why it did not want the court to grant it.

Responding, the prosecution 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 this instance, the AGF did not complain that the EFCC usurped his power.

Mohammed added that the Appeal Court had decided in Audu vs. FRN that the 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.

He said that at the last sitting in the case, the court did not raise any doubt that it could determine the defendant’s preliminary objection and, as such, did not express any need to invite any amici curiea

The prosecution counsel, therefore, urged the court to decline granting the application as prayed by the defendant.

He submitted that the Supreme Court has clearly stated the situations under which the court can exercise its discretion in allowing amici curiea, which he said was only when the court was in doubt.

The judge subsequently adjourned the ruling until today.

Ruling on the motion, Justice Onwuegbuzie held that the matter is not such that amicus curiae (friends of the court) should be invited.

” The Amicus curiae are not parties to the case and can not be invited. Consequently, the application is dismissed. ”

“The court is not confused or in doubt to warrant the intervention of amici curiae.”

” An amicus “is not supposed to be invited by parties in the suit,” but that it is the responsibility of the court to do so if desirous of it,” he held.

He then adjourned until April 22 to hear the defendant‘s preliminary objection.

The former minister was charged in the suit, marked FCT/HC/CR/617/22, with a seven-count charge bordering on forgery, disobedience of presidential order, and corruption.

He was alleged to have, among others, on May 22, 2003, awarded a contract titled “Construction of a 3,960 megawatt Mambilla Hydroelectric Power Station on a build, operate, and transfer basis to Sunrise Power and Transmission Company Limited without any budgetary provision, approval, or cash backing.

The prosecution also alleged that it traced some suspicious payments made by Sunrise Power and Transmission Company Limited to the former minister’s accounts.

The defendant, however, pleaded not guilty to the charge preferred against him.