EFCC, Yahaya Bello and the Law 

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

“The World is a Stage, and We are all Actors”

As You Like It, William Shakespeare 

Presently, Governor Ahmed Ododo and Yahaya Bello are making Nigeria look like a movie set crime scene – going to Yahaya Bello’s Abuja residence to smuggle him out and flee from the EFCC! A tremendously huge responsibility, lies on the shoulders of President Bola Ahmed Tinubu and his administration, to raise the bar in governance. As far as the Fourth Republic is concerned, the truth of the matter is that, right from the time President Umaru Yar’Adua became incapacitated as a result of ill-health and unknown people took over the reins of government, the downward trend in the quality of officials/government agencies intensified. Institutions have progressively weakened, and unfortunately, most fell to almost Ground Zero by the time we had completed the eight long years of the Buhari administration. Of course, the deterioration in the quality of civil/public servants and politicians, hasn’t helped matters. 

Runaway and Escapee Public Officials 

Have we already forgotten “Mainagate”? The scandal involving the former Chairman of the Pension Reform Task Team, Abdulrasheed Maina, who was not only reinstated to the Ministry of Interior, but was promoted from Assistant Director to Director, when all the while he had been declared wanted by Nigerian law enforcement for money laundering to the tune of N2 billion? He escaped from the country, returned and resumed work secretly. A well-known flight risk, Maina was granted bail. Of course, Maina fled to Chad or wherever he was eventually apprehended, and brought back to face prosecution. See the case of Suleman & Anor v COP Plateau State (2008) LPELR-3126(SC) per Niki Tobi, JSC on the principles guiding the grant of bail. 

Neither have we forgotten Senator Dino Melaye, who recently released a music video to celebrate the travails of Yahaya Bello, when he himself jumped out of a moving Police vehicle to avoid being taken to Lokoja to answer questions concerning a murder case, and on another occasion, also barricaded himself in his house for a week or more, to avoid arrest concerning a case that involved the shooting of a Policeman. 

Governor Ododo and his Predecessor, Yahaya Bello: Aiding and Abetting 

So, should anyone really be shocked that we have sunk to the level where we have Governors who also behave like common criminals? It’s not only about them looting the treasury of their States while doing little or nothing there (which Nigerians can see from their gross non-performance), and the corruption cases levelled against many of them. 

Take Governor Ahmed Usman Ododo of Kogi State for example, he and Yahaya Bello are simply following laid down precedent of public officials running away from justice, similar to what I have outlined above. Aside from the fact that former Governor Yahaya Bello is no longer covered by Section 308 of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution) which grants immunity from suit and legal process to the President, Vice President, Governors and Deputy Governors, the immunity cannot also be extended by Governor Ododo to cover Yahaya Bello, like two people sharing an umbrella in the rain. Just a few months into office, Governor Ododo has started to abuse his office by committing crimes like obstruction of justice – see Section 145 of the Criminal Code Act 2004 (CCA); possibly aiding and abetting a crime, that is, assisting Yahaya Bello to escape from the EFCC – see Section 7 of the CCA & Section 85 of the Penal Code Act 2004 (PCA), to mention but a few. Additionally, Section 38(2) of the Economic and Financial Crimes (Establishment) Act 2004 (EFCC Act) makes it an offence for anyone to wilfully obstruct the EFCC from going about its lawful duties as provided by the EFCC Act. Conviction for this offence, attracts up to five years imprisonment. 

Ododo’s actions are truly shameful, and they paint Nigeria in a negative light – a serving Governor, blatantly assisting a fugitive (Yahaya Bello has been declared wanted by the EFCC). This is yet another litmus test for the Tinubu administration in how this matter will be handled, as the world is watching whether it will be business as usual or whether there is a new dawn under the Tinubu administration. 

It is therefore, encouraging that, unlike former Attorney-General of the Federation (AGF), Abubakar Malami, SAN and then Minister of Interior, Abdulrahman Dambazau, who were fingered in the reinstatement and promotion of Maina, instead of handing him over to the EFCC for prosecution, the current AGF, Prince Lateef Fagbemi, SAN, issued a statement last week, condemning what he described as Yahaya Bello’s “flight from law”. It’s also rather amusing that Yahaya Bello aka “I know too much”, who was once so mouthy and a law unto himself while he was in office, seems to have swiftly transformed from a white lion that he is alleged to have considered himself to be, into a mouse running away from a cat! 

It appears that whether the position of the law in England, that is, “knowledge of the criminal purpose coupled with voluntary assistance” being enough to incur liability in aiding the commission of an offence – see the case of National Coal Board v Gamble (1959) 1 Q.B.11, or the Nigerian position which imposes liability when the secondary participant acts for the purposes of enabling or facilitating the commission of the offence (see Sections 7(b) & 83(c) of the CCA & PCA respectively), Governor Ododo’s actions seem to fit like a glove into the English and Nigerian positions of aiding and abetting, as the whole of Nigeria including him, are aware that the EFCC is looking for Yahaya Bello in connection with the alleged misappropriation of an amount in excess of N80 billion, and he was required to report to the law enforcement agency. 

Kogi State High Court: Forum Shopping

Why did Yahaya Bello proceed to the Kogi State High Court (KHC) to procure an order to restrain the EFCC from arresting him, if not because of forum shopping in a favourable store? Is he relying on Section 46(1) of the Constitution that allows a person who alleges that his Chapter IV constitutional rights have been or are likely to be contravened in any State to apply to that State High Court for redress? In my humble opinion, Section 251(1) of the Constitution overrides Section 46(1) when the the one who allegedly breaches those rights is a government agency, as it provides inter alia that “Notwithstanding anything to the contrary contained in this Constitution….the Federal High Court shall have and exercise jurisdiction ‘to the exclusion of any other court’ in civil causes and maters…..”. Therefore, by virtue of Section 251(1)(r) of the Constitution, the Federal High Court (FHC) appears to be the court conferred with the jurisdiction to hear any matter concerned with inter alia, seeking an injunction affecting the validity of any executive or administrative action or decision of the Federal Government or any of its agencies, and not the State High Court. See the cases of Gabriel Madukolu & Ors v Johnson Nkemdilim 1962 2 SCNLR 341 per Vahe Robert Bairamian, JSC; NPA v Panalpina World Transport & Ors (1973) LPELR-2032 (SC) per George Baptist Ayodola Coker, JSC on the effect of lack of jurisdiction resulting in a nullity in the proceedings conducted without it. 

However, I am aware of the decision in EFCC v REINL (2020) LPELR-49387(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC, that in a matter involving an agency like the EFCC, as long as the claim for enforcement of rights is the main and not ancillary claim in the suit, the FHC and State High Court, in that particular case, the FCT High Court, have concurrent jurisdiction to hear it. Yahaya Bello’s KHC case is not at all on all fours with EFCC v REINL (Supra) in which the Respondent in that case contended that he was unlawfully detained without being informed in writing of his alleged offence, and without being charged before a court of competent jurisdiction. In Yahaya Bello’s case nothing of the sort happened; he has since been charged before a court of competent jurisdiction, and does not appear to have any rights to enforce, but, on the contrary, appears to be seeking to use Section 46(1) of the Constitution or the KHC as some sort of preemptive shield to avoid facing the law. We have all heard the talk of Yahaya Bello not being properly invited to the EFCC. How do you personally invite a person who has become evasive, and turned themselves into the ‘Elusive Pimpernel’? I’m sure that was why the EFCC was constrained to declare Yahaya Bello wanted; a sort of substituted service of the invitation to report.

Interim Order

Again, it is hard to understand the rationale behind obtaining an interim order preventing the EFCC from arresting, harassing or detaining not only Yahaya Bello, his former appointees, staff and family members, pending the hearing of a substantial motion to enforce his rights. I’m wondering which rights that would be. Section 35(1) of the Constitution  guarantees every individual’s right to liberty except in certain circumstances, including when there’s reasonable suspicion that the individual has committed a criminal offence – Section 35 (1)(c) of the Constitution allows Yahaya Bello to be arrested or deprived of his liberty by the EFCC, in accordance with a procedure permitted by the law. This new fashion of obtaining a court order to prevent arrest and detention/prosecution  based on nothing but the desire to escape justice is bizarre and untenable. We are no longer in a military dispensation where it may have been necessary to obtain such orders to prevent arbitrary arrest by government agencies for no reason, or reasons as flimsy as calling for the military to give way to democracy which would put such a freedom fighter on a collision course with the dictatorship. Section 3 of the Administration of Criminal Justice Act 2015 (ACJA) also allows the arrest and investigation of a suspect, alleged to have committed a crime. 

Partiality & Compromise in Law Enforcement 

If those who went to arrest Yahaya Bello were committed to their task, or his security details were in the least bit interested in upholding the law, he would have been arrested. It also shows a clear lack of coordination, between law enforcement agencies. In 2022, when Senator Rochas Okorocha took refuge in his house in Abuja, refusing to turn himself in to the EFCC, they laid siege on his house for over six hours, and eventually arrested him. 

Conclusion

It is trite that all court orders should be obeyed; but, it is also trite that the order of a court of coordinate jurisdiction like the KHC cannot affect the proceedings at the FHC, since they are courts of coordinate jurisdiction – one is not higher than the other. See the case of Orji Uzor Kalu v FRN & Ors (2016) LPELR-40108 (SC) per Sulaiman Galadima, JSC. Be that as it may, assuming without conceding that the KHC Interim Order  was binding on the FHC, I read somewhere that the said Order elapsed last week (possibly the day the EFCC laid siege to his house in Abuja), as the KHC was said to have ruled on the substantive matter that same day, granting leave to the EFCC to proceed against Yahaya Bello, provided that leave to do so was first sought and obtained from the FHC. The EFCC appears to have done so. Whatever rights Yahaya Bello seeks to enforce, they cannot stop the EFCC from charging him to court. The EFCC must then prove their case beyond reasonable doubt, to secure a conviction. Financial offences are bailable anyway, so why doesn’t Yahaya Bello man up like Ayodele Fayose, the former Governor of Ekiti State, who happily presented himself to the EFCC complete with his “EFCC, I am here” tee shirt; turn himself in, if he is detained, his Lawyer can apply to the court for bail since charges have already been filed against him. He’s already setting himself up to look like a flight risk, with this behaviour. See the case of Suleman & Anor v COP Plateau State (Supra). Above all, Nigerians expect the EFCC to operate within the ambits of the law; upholding the rule of law, is part of that litmus test for the Tinubu administration.