By Barr.Ekene Bob-Ekechukwu
Recently the out-going Governor of Imo State, Owelle Anayo Rochas Okorocha obtained a restraining order from Justice Taiwo Taiwo of the Federal High Court, Owerri stopping his arrest and probe by the Economic and Finacial Crimes Commission (EFCC), the Department of State Services (DSS) and other security agencies. The fact that the out-going Governor obtained this order at the twilight of his administration implies that he indeed has skeletons in his cup board, because it is only the guilty that are afraid. Secondly, the granting of the injunction also implies that our government is not yet ready to extinguish corruption from our society. The granting of this order is absolutely a negation of the anticorruption posture of President Buhari’s administration.
Every action by government usually has a political and legal angle. It is often difficult to harmonize and even synchronize both angles in taking decisions in government. The ability of any government to duly consider and apply these angles in their decisions always determines the competence of that government. In this write up however, I would like to x-ray the political and legal implications of the order made by Justice Taiwo Taiwo of the Owerri Federal High Court. Like in the submission made by the Learned Counsel in the case of Peter Odili v EFCC which I copiously cited here and legally speaking, an injunction is an equitable order of a court requiring a person either to do a specific act or acts (mandatory or positive injunction) or to refrain from doing a specific act or acts (a prohibitory or negative injunction). The one overriding requirement for any type of injunction is that the plaintiff must have a cause of action in law entitling him to substantive relief. In effect, an injunction is not a cause of action but a remedy. Therefore, it is generally granted only to a plaintiff who shows that he has a cause of action against the defendant (or in the case of a quia timet injunction that there would be a cause of action if the defendant were to do the act which the plaintiff seeks to restrain). In other words, an injunctive relief protects some legal or equitable right of the plaintiff in respect of which the defendant owes him a legal duty.
The subject matter of the jurisdiction of a Court of Equity is civil property. Injury to property, whether actual or prospective, is the foundation on which its jurisdiction rests. Therefore a Court of Equity usually lacks jurisdiction in matters which do not affect any right to real or personal property. Therefore on first principle, Justice Taiwo lacked the jurisdiction to grant any equitable relief to Rochas Okorocha on the facts of this matter. However the brazenness with which our Judges have showered these illegal injunctions like confetti on unmeritorious plaintiffs in the recent past is very well known. Similarly, the fact that an injunctive relief is equitable means that, as a general rule, the order operates in personam (against particular persons) rather than in-rem (against persons generally). Therefore the judge fell in law by restraining not only the EFCC but the DSS and other security agencies from probing and or arresting Rochas Okorocha.
Furthermore, there is no substantive claim against the EFCC upon which the injunctions are predicated. It is undoubtedly the case that there is no principle in Nigerian law that confers on Rochas Okorocha (or any other person for that matter) a right to immunity from investigation, arrest, detention and prosecution by a law enforcement agency exercising lawful powers and functions. There is equally no principle in our law that imposes a legal duty on the EFCC not to investigate or arrest or detain or prosecute a suspected economic and financial criminal in perpetuity. For the avoidance of doubt, it is pertinent to note that section 45 of the 1999 Constitution expressly subjects the fundamental human rights provisions that could conceivably be relevant to this matter to any law that is reasonably justifiable in a democratic society for the purpose of protecting the public interest. The EFCC Act being such a law, there is no question of breach of human rights arising from the lawful exercise of the Commission’s statutory powers in this matter. For completeness, it should be noted that the equitable and thereby discretionary nature of the remedy means that it may be refused even if the plaintiff does establish a cause of action (which is, in any event, emphatically not the case in this matter). Two main principles on which the court exercises this discretion are particularly relevant to this matter.
First, injunction will not be granted if the conduct of the plaintiff in respect of the matter has been inequitable. This principle is expressed in the oft-quoted maxim: “he who comes to equity must come with clean hands”. Without prejudice to Rochas Okorocha’s right to presumption of innocence in a criminal trial, the fact that the EFCC, a lawful authority, informed the court that its investigation disclosed that several billions of Naira were inexplicably missing from the Imo State treasury under Rochas Okorocha’s watch indicates strongly that Okorocha lacks the necessary clean hands to obtain an equitable relief in a civil case. Besides, corroborating evidence of this allegation in the form of glaring incongruity between the lack of improvements in Imo State and the unprecedented allocation/revenue that accrued to the State under Okorocha’s watch could not have escaped the attention of a judge of a High Court sitting in Owerri. Secondly, equitable relief is granted only if it will be followed by equitable conduct on the part of the plaintiff in respect of the matter. Hence the maxim: “he who seeks equity must do equity.” Rochas Okorocha has maintained his innocence but rather than seize the opportunity to clear his “good name” and “hard-earned reputation” by facing his accusers in a criminal trial (since a “clear conscience fears no accuser”) he sought refuge in a Court of Equity of all places. Moreover, it beggars belief that this Court of Conscience would grant him any relief whatsoever in these circumstances, let alone the injunctions shielding him from investigation, arrest, prosecution etc.
It is impossible to find any principle in our law by which the injunctions ordered by Justice Taiwo can be supported; nor can one find any recorded precedent in the law of any other common law jurisdiction.
In all the above-stated circumstances, the egregious errors of laws in the order of the learned Justice Taiwo constitute clear violations of Rule 1.1 of the Code of Conduct for Judicial Powers (which requires him to comply with the law and to promote public confidence in the integrity and impartiality of the Judiciary) and Rule 2.1 of the Code of Conduct for Judicial Powers (which requires him to be faithful to the Constitution and the law and to acquire and maintain professional competence in them). Under the principle of separation of powers embodied in sections 4 to 6 of the 1999 Constitution, the powers of the Federation are divided into an executive, a legislature and a judiciary, each with separate and independent powers and areas of responsibility. Section 4 vests the legislative powers of the Federation in the National Assembly while section 5 vests the executive powers of the Federation in the President, to be exercised by him either directly or through officers in the public service of the Federation. These executive powers, according to section 5, shall extend to the execution and maintenance of the Constitution and all laws made by the National Assembly. Thus in the exercise of its legislative powers, the National Assembly enacted the EFCC Act. This Act charged the Commission with the responsibility, amongst other things, to arrest and investigate suspects of economic and financial crimes.
However, despite these very clear provisions of our law, the Hon Justice Taiwo abused flagrantly the judicial powers conferred on him by section 6 of the Constitution and violated the constitutional principle of the separation of powers by effectively rendering nugatory the powers conferred on the EFCC by the National Assembly and stopping the Commission from exercising its statutory powers and functions in relation to Rochas Okorocha. The proper action now is for the EFCC to immediately file an appeal against this order at the Court of Appeal to enable them carry out their statutory duty in this matter. Failure by the EFCC to arrest, probe and investigate Rochas Okorocha will be against public interest and may lead to a breakdown of law and order in Imo state and the Southeast where the people may take to the streets in riot and violent protest.