The National Assembly in a bid to exercise its constitutional powers in ensuring checks and balance in the democratic system has made some provoking demands including issuing summons to some highly placed individuals and corporation. Prevalent amongst the controversial recipients of this summons includes the CG of Customs, Professor Itse Sagay, SAN and President Goodluck Jonathan GCFR respectively on different occasions. This article is an attempt to give a perspective on the scope and limitations of these powers with specific reference to the Malabugate investigation by the House of Representatives.
The combined provisions of Section 88 and 89 of the Constitution empowers the National Assembly with powers to cause investigation into the any matter with respect of which it has powers to legislate, the conduct of affairs to any person, authority, ministry or government department charged, or intended to be charged with the duty of or responsibility for, executing or administering laws enacted by National Assembly, and disbursing or administering moneys appropriated or to be appropriated by National Assembly only for the purpose of enabling it to make laws with respect to any matter within its legislative competence and to expose corruption, inefficiency or waste in the execution or administration of laws within it legislative competence and in the disbursement or administration of funds appropriated by it. It also empowers them to issue summons on persons and ask for documentary evidence where necessary in the course of these exercise.
Several controversies have arisen as to the legality of the exercise of this function with respect to private individuals, giving the fact that investigative powers is saddled with the executive arm. Opinions are divergent depending on the school of thought. It is writer’s opinion that opinion that investigation pursuant to Section 88 is only to the extent of its law making function, hence not at large.
RELEVANT BACKGROUND ON THE MALABUGATE.
Without going into the nitty-gritties of these cases, there have been cocktail of investigations, suits and countersuits involving the award, ownership and subsequent divestment of OPL 245 and the propriety or otherwise of same has continued to make the rounds. The rationale is not far fetched the block is acclaimed to be the largest deposit of crude oil in west Africa sub-region which accommodates the Zabazaba Deepwater project with an estimated deposit of about 560 Million Barrel as a standalone development and the Etan field as a tie-back to Zabazaba. Owing to the concerns beings raised by stakeholder vide petitions and revelations from litigation in Nigeria and Abroad, the 6th Assembly of the House of Representative caused an investigation through its Adhoc Committee on Transactions involving FGN, SHELL, Agip and Malabu Oil in respect of OPL 245 chaired by Hon. Leo Ogor. The investigation ended with a report which was adopted by the House on the 18th February, 2014. The resolution is now subject to a challenge Malabu in FHC/ABJ/CS/316/2014 Coram: Tsho J.
On the 28th day of January, 2016 the 8th Assembly purporting to conduct yet another to fresh investigation set-up an Adhoc Committee Chaired By Hon Razak Atunwa this time with the title “ Need to investigate the alleged corruption, Malpractices and Breach of Due process in the award of OPL 245 and recover looted funds”. The mandate of the committee includes:
- Examine the process leading to, and circumstances surrounding, the award of OPL 245;
- Identify culpability of any persons, groups, companies or organizations in relation to OPL 245;
- Consider what legal actions should be taken locally and internationally for the recovery of money due to Nigeria.
The preliminary questions to ask are thus: (i) within the context of Section 88 of the constitution, can the House validly examine an award which is outside its legislative function, (ii) can the house under the quise of an investigation identify culpability of an person, including private persons not contemplated under Section 88. (iii). Or can they recommend legal actions to be taking to recover funds? These begs for serious answers.
By way of background, at least three separate but related criminal charges have been filed against principal players in the Malabugate. Equally, was an attempt by the Chairman of EFCC vide an exparte originating summons to forfeit the block back to the Federal Government to be managed by DPR. That attempt was vehemently resisted by the IOCs in FHC/ABJ/CS/1/2016 which resulted in the setting aside of the earlier forfeiture order made exparte by TSHO J.
Consequent upon that order at least two different suits have been filed by some acclaimed shareholders of Malabu challenging the purported divestment to the IOCs. While Mr Adoke, SAN has joined the bandwagon in filing his own action challenging the Federal Government from prosecuting him on the basis of the Role he played in the course of the divestment vide FHC/ABJ/CS/446/2017 before Kafarati J.
The IOCs are not left out in avalanche of litigation, both SNEPCO and AGIP has filed separate lawsuit vide FHC/ABJ/CS/1007/2016 and FHC/ABJ/CS/443/2016 respectively challenging the House of Representative from conducting any fresh investigation whatsoever with respect of the OPL 245.
In the face of this litany of litigation bordering on the same subject matter, can the House validly proceed with its planned investigation? In the writer’s opinion the answer is simply in the negative vide Governor of Lagos State v Ojukwu (1986) 1 NWLR (pt 18) 621 per Obaseki JSC thus:
“Once a dispute has arisen between a person and the government or authority and the dispute has been brought before the court, thereby invoking the judicial powers of the state, it is the duty of the government to allow the law take its course or allow the legal and judicial process to run it full course”
Conceivably, the legislature has powers under section 88(1)(2)(b) of the constitution to conduct investigation, however, that provision does not vest powers on the legislature the general investigative powers akin to that of the executive. The exercise of the powers is limited only to investigations for the purposes prescribed under Section 88(2). The mandate of the House in this instant investigation under reference as circumscribed from their House resolution of January, 2016 tends to suggest a both an executive and a quasi-judicial function. For example the premised the House gave in inviting President Goodluck is self defeating as same is riddled with jurisdictional divesting features.
The singular fact that the House is privy to the pendency of the matter in various court home and abroad, in itself bars them from any further inquest in that regards. More fundamentally, specifically in FHC/ABJ/CS/443/2016 between SNEPCO v HOUSE OF REPRESENTATIVES Coram Abang .J. granted an injunction restraining the House from further action on the issue of breach of due process in the award of OPL 245.
On inference of the English Court proceedings, if my understanding of the inference drawn by the House is anything to go by, a sober reading of Steel .J’s comment made in passing in EVPL v MALABU, the comment was with respect of the contract between the Malabu and the Federal Government signed in 2006 reinstating the Block to Malabu, the Judge decried why the Nigeria Government would do that based on the facts and circumstances presented to him by the claimant who was seeking the freezing orders of Monies domiciled in an escrow account in English Sole purporting, which were connected OPL245. The Court further suggested some explanation from the Nigeria State who were not parties to the proceedings. That obviously presided President Jonathan tenure in office, therefore forming no basis for his impute in that regard. The Italian proceedings equally alluded to does not help their quest, as it a judicial proceedings which President Jonathan might be a material witness or co-defendant as the House claims, he certainly has a right against self incrimination, making not a compellable witness investigation. Finally, Adoke’s lawsuit alluded to by the House in the writers opinion is equally unhelpful, a careful perusal of same vide the questions for determination and reliefs sought circumscribed in the originating summons in FHC/ABJ/CS/446/2017 did not suggested that President Jonathan was complicit. He (Adoke) simply reiterated in his affidavit evidence that he acted in the best interest of the country giving the facts and circumstances involved in the very complex dispute, which would have exposed the country to a much greater liabilities, from the numerous litigation and ICSID arbitrations, above all, he ultimately acted on presidential approval, which often is the last in the transaction sequence.
It is therefore, the writer contention, that while the legislative investigation cannot be underestimated in appropriate circumstance, it is not at large as the House cannot arrogate unto itself power exclusive to the executive or the Judiciary. It will amount to taking the wind out of the sail, if the exercise is further embarked by the House in the face of this glaring legal impediment, the motive will safely be construed a fishing expedition aimed at trivialize the pending court proceedings. It is writer’s further contention that the law is clear that such exposition of corruption can only validly be done with regards to the disbursement or administration of funds appropriated by the National Assembly. See SENATE V MOMOH (1983) 4 NCLR 269 at 295 and also EL-Rufai Vs House Of Representative & Ors (2003) 46 WRN 70.