A Lagos-based anti-corruption advocate, Mr. Raji Rasheed Oyewunmi, has approached the Abuja Division of the Federal High Court, seeking the nullification of the rejection of Mr. Ibrahim Magu, acting Chairman of the Economic and Financial Crimes Commission (EFCC) by the Senate.
Magu’s nomination as substantive EFCC Chairman was rejected by the Senate, for the second time, on 15 March.
Joined as respondents are Senate President, Mr. Bukola Saraki; and Senate Minority Leader, Mr. Godswill Akpabio. Similarly joined are Senators Jonah Jang, Aliyu Magatakarda Wamakko, Theodore Orji, Stella Oduah, Ahmed Rufai Sani, Danjuma Goje, Adamu Abdullahi and Joshua Dariye.
Other respondents are the Clerk of the National Assembly, the Senate, Attorney-General of the Federation and Mr. Magu.
In the motion on notice filed on 30 March by his lawyer, Mr. Inibehe Effiong, Mr. Oyewunmi is seeking an order setting aside the 15 March screening, votes, proceeding and resolutions of the Senate on Magu. Mr. Oyewunmi, on 13 February, had filed a suit before the court, seeking the disqualification of Mr. Saraki from participating in Mr. Magu’s screening. He had contended that Mr. Saraki was ineligible to participate in the screening exercise due to apparent conflict of interest derivable from Mr. Magu’s role in the Senate President’s ongoing trial at the Code of Conduct Tribunal (CCT). He had also sought the disqualification, from the screening processes, all of Mr. Saraki’s colleagues listed as respondents because they have pending or ongoing cases of financial and economic crimes, which Mr. Magu was involved in investigating and supervising the prosecution.
Mr. Oyewunmi contended that Mr. Saraki and his colleagues violated the Senate Senate Standing Orders, 2015 (as amended) by their participation in the screening and subsequent rejection of the acting EFCC Chairman on 15 December, 2016 by not declaring their pecuniary interests in view of their pending or ongoing cases of financial and economic crimes. He equally sought a declaration, as illegal, the rejection of Mr. Magu for the position of EFCC Chairman because it was done without first referring him the appropriate Senate and at an executive or closed session instead of an open session. Mr. Magu, added the anti-graft campaigner, was denied fair hearing by Mr. Saraki and his colleagues.
But while the substantive suit was still pending before the court, said Mr. Oyewunmi, Mr. Saraki, on 14 March, announced at the Senate plenary session that Mr. Magu would be screened the next day.
Mr. Oyewunmi, therefore, wants the court to determine whether or not Mr. Saraki and his colleagues violated the doctrine of lis pendens when they rejected Mr. Magu during the pendency of the substantive suit, which processes were served on them. If this is determined in the affirmative, the plaintiff also wants the court to determine whether the proceedings should not be discountenanced and set aside.
“The doctrine of lis pendens, by its application, forbids the taking of any prejudicial action or step while a lawsuit is pending, which is capable of destroying the subject matter and rending any subsequent judgment by the court nugatory or foisting a fait accompli on the court,” argued Mr. Oyewunmi.
Mr. Oyewunmi maintained that Mr. Saraki and his colleagues were aware of the pendency of the substantive suit and had proper notice he had sought reliefs related to screening, voting and proceedings as they affect Mr. Magu’s nomination. He referred to the affidavit in support of his motion.
“The order for substituted service of the Originating Summons, accompanying processes and subsequent Court processes in the substantive suit on the 1st to the 13th Defendants/Respondents was made by this Honourable Court and duly effected and complied with. We refer My Lord to paragraph 6 & 7 of the supporting affidavit and Exhibit ‘R1’ annexed thereto. The law is trite that “substituted service duly ordered and effected is as effective in law as a personal service”. The authority of Madala v. Gusau (2014) LPELR-22899 (CA) at pp. 26, paras. A is apposite and we humbly commend it to the court,” said Mr. Oyewunmi.
He also drew attention to the positions of the Supreme Court and the Court of Appeal on actions taking by a party during the pendency of a litigation.
“…The Supreme Court and the Court of Appeal have stated clearly the consequence of an action taken by a party while litigation is pending. It is the law that such action will be discontinued and set aside by the court. The attitude of the court is to declare such prejudicial action or step a nullity. We reference the case of Obi v. INEC & Ors. and Amaechi v. INEC, supra,” he stated.
Disregard for these positions by Mr. Saraki and colleagues, argued Mr. Oyewunmi, amounted to an attempt at “handcuffing’ the courts” from exercising their powers under the constitution.