Asset Forfeiture: Court Strikes out EFCC’s Suit against Gov Bello

*Says EFCC lacks power to seize properties of sitting governor

By Wale Igbintade

Justice Nicholas Oweibo of the Federal High Court sitting in Lagos has struck out an interim order of forfeiture obtained by the Economic and Financial Crimes Commission, EFCC, seeking to seize 14 properties linked to Governor Yahaya Bello of Kogi State. 

Justice Oweibo in a ruling delivered Wednesday  held that in view of Section 308 of the 1999 Constitution, the EFCC lacked the power to institute a criminal suit against a sitting governor or the President.

Specifically, Section 308 states that 

“Notwithstanding anything to the contrary in this Constitution, but subject to subsection “No civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office.

“A person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued”.

The judge had, on February 22, granted the temporary forfeiture order, following an exparte motion filed by the anti-graft agency seeking to seize 14 properties located in Lagos, Abuja and the United Arab Emirates (UAE). 

The Court also directed EFCC to make publication in two national dailies for any interested parties to show cause why the order should not be made absolute. 

However, consequent upon the publication of the preservative order, Governor Bello filed Notice of Intention to oppose, and also an application seeking the vacation of the interim forfeiture order. 

The Governor premised his application on the ground that the property listed were not proceeds of unlawful act, as they were acquired long before he was elected as Kogi State Governor and could not have been acquired from Kogi State funds. 

He further stated that by Section 308 of the Constitution, the EFCC is prevented from instituting any civil or criminal suit against him. 

He also protested the illegality in the filing of the suit by the EFCC on the grounds that the case was in flagrant disobedience to a state high court order, which restrained the EFCC from investigating any account of the Kogi State Government pending the determination of the Motion on Notice. 

He stated that the interim forfeiture order was obtained by either suppression or misrepresentation of facts by the Commission. 

The Governor also said that the Proceeds of  Crime Act could not take effect in retrospect as the properties in dispute were acquired before he became Kogi State Governor. 

He said the validity of the Proceeds of Crime Act, 2022 was being challenged at the Supreme Court. 

Regarding jurisdiction, the Governor stated that the properties listed were in Abuja, Kogi and UAE, and the personality involved is based in Lokoja, adding that the suit ought to have been instituted either in Abuja or in Kogi State. He, therefore, asked the court to vacate the case for lack of jurisdiction. 

In his response, EFCCs lawyer Rotimi Oyedepo SAN said that the applicant had brought nothing before the court to convince the court to vacate the order. 

He said, contrary to the submissions of the Applicant, Kogi State High Court or any other court in Nigeria had not stopped the EFCC from carrying out its constitutional duties. 

He said the properties include  “Hotel Apartment Community, Burj Khalifa lying, being and situate at, Plot 160 Municipality NO 345-7562, Sky View Building No 1, Property No 401, Floor 4, Dubai U.A.E.”, were reasonably suspected to have been derived from unlawful activity.

Oyedepo also asked the court to order the forfeiture of N400 million, which he said was reasonably suspected to have been derived from unlawful activity.

In his ruling, Justice Nicholas Oweibo held that, given Section 308 of the Constitution, which provides immunity to a sitting governor from any civil/criminal prosecution, the court lacked jurisdiction to adjudicate on the matter. 

Consequently, the court struck out the suit for lack of jurisdiction.