EFCC Appeals as Court Strikes Out Suit against 14 Properties, N400m Linked to Yahaya Bello

•Judge insists anti-graft body lacks power to seize properties of sitting governor

Kingsley Nwezeh in Abuja and Wale Igbintade in Lagos

The Economic and Financial Crimes Commission (EFCC), has filed an appeal, challenging yesterday’s ruling of Justice Nicholas Oweibo of the Federal High Court sitting in Ikoyi, Lagos that struck out its suit seeking the forfeiture of 14 properties as well as the sum of N400 million linked to the Kogi State Governor, Yahaya Bello, citing his immunity from prosecution under the 1999 constitution.

A statement by the spokesman of EFCC, Wilson Uwujaren, stated that in the notice of appeal filed yesterday the commission averred that Justice Oweibo erred in law when he struck out the suit as the immunity conferred on the respondent  against any civil or criminal proceedings during his incumbency as a governor of Kogi State does not extend to properties reasonably suspected to be proceeds of crime traced to him and that the court erred and occasioned a miscarriage of justice when it refused to bind itself with the decision of the Court of Appeal in EFCC V Fayose (2018) LPELR 44131 CA and the decision of the Supreme Court in Fawehinmi V IGP (2002)7 NWLR (PT767)606, on the proper interpretation of Section 308 of the 1999 Constitution; and that the learned trial court erred in law when it struck out a preservation order of properties reasonably  suspected to have been derived from proceeds of unlawful activities notwithstanding its findings that the respondent failed to show the genuine origin of funds used to acquire the properties under the preservation order.

Justice Oweibo had, on Wednesday, February 22, 2023, granted an interim forfeiture of the properties in Lagos, Abuja and the United Arab Emirates and also ordered the preservation of the sum of N400, 000,000.00 recovered from one Aminu Falala, which “is reasonably suspected to have been derived from unlawful activity and intended to be used for the acquisition of Plot No. 1224 Bishop Oluwole Street, Victoria Island Lagos.”

Moving the application, counsel to the EFCC, Rotimi Oyedepo (SAN), had stated that the properties, including “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.

In his ruling, Justice Oweibo had granted the application, as prayed, and also directed the commission to publish the interim order within 14 days in any national newspaper and also adjourned to March 28, 2023.

During the proceedings on March 28, 2023, Oyedepo had informed the court that the commission received a notice of intention to oppose the making of the preservation order, which it had equally responded to.

Responding, Bello, in an application through his counsel, Abdulwahab Mohammed (SAN), had sought to vacate the order of the court on the grounds that most of the properties sought to be forfeited were acquired by Bello before he became the Governor of the state.

Oyedepo, in opposition to the application, drew the attention of the court to the fact that the applicant failed to respond to the depositions in the counter-affidavit.

According to him, “In Usman against Garke, it was reported in 2003, LPLR 3431, Supreme Court and our submission is that failure to reply to the counter-affidavit has a single legal consequence that the despondent are agreeing to the application. We urge your lordship to hold that the failure to respond is deemed admitted.

“It is our submission that, where a statute describes a mode of doing a thing, it is that mode that must be followed.

“We have cited authorities to this effect, one of which is Patience Jonathan and the FGN, in paragraph 1.08 of our submission.

“The Proceeds of Crime (Recovery and Management) Act, 2022 prescribes the mode of challenging the preservation order of the court and the steps to be taken by the party challenging the making of the preservation order.”

Oyedepo had also submitted that one of the requirements that the application challenging a preservation order must contain is that the applicant must show his interest in the property concerned.

In his further submissions, he had said: “Apart from Paragraph 4H and I of the affidavit in support of the notice of intention, there is nothing before this honourable court showing, by way of credible evidence, how the properties were acquired.

“In our counter-affidavit, we have established how the properties were acquired and there is nothing challenging how the properties were acquired.

“What was deposed is that most of the properties were got before he became Governor of Kogi State and the properties were not acquired through illegal means.

“Without establishing the interest of the applicant, the application is bound to fail. And having failed to show how the properties were acquired, the next thing the applicant sought to do was to tell the court that the prosecution had failed several court orders.”

In response to the immunity clause as contained in Section 308, Oyedepo had said: “the Provision of Section 308 will not and cannot be construed to a ridiculous extent of preventing the state from investigating the beneficiary of the section.

“As far back as 2002, in the case of Fawehinmi and IGP, the court mentioned that a person protected under Section 308 can be investigated; and the fact that someone is under immunity does not prevent the state from investigating.

“Where a state’s governor is reasonably suspected to have committed a financial crime, the state can investigate for evidence that will be used in prosecution when he no longer enjoys the immunity.”

Oyedepo had also argued that the steps the prosecution was taking “is a step for preservation and it cannot be stopped.”

He had further urged the court not to be persuaded by the argument of the applicant as Section 308 does not house the court’s power to determine the issue.

He had, therefore, urged the court to dismiss the prayers of the applicant and order him to tell the court how the properties were acquired.

Consequently, Justice Oweibo had adjourned the matter to April 20, 2023 for ruling.

In his ruling , Justice Oweibo said: “I have weighed the evidence on both sides. Section 74 of the Act places the burden of proof on the opposing party to show that he is the legitimate owner of the asset suspected to be proceeds of crime; that the assets are of legitimate origin and not proceeds of unlawful activity.

“The party opposing has not given any evidence in support of his claim that the properties were acquired before he became the Governor of Kogi State thereby showing the nature and extent of his interest. I believe that the evidence should show when and how these properties were acquired.

“I find that the party opposing has not placed before the court sufficient reasons to oppose the preservation order.

“The application accordingly fails.

“However, by reason of the provisions of Section 308(1) of the Constitution, this suit is struck out.”

Justice Oweibo stressed 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.”