Can the Economic and Financial Crimes Commission (EFCC) attaché any property, including bank accounts of a serving governor without a valid court order? Lawyers say yes, no.
For the umpteenth time, Section 308 of the Constitution is raising dust barely 14 years after the nation’s apex court- the Supreme Court x-rayed its significance as applicable to some category of public officers in a suit initiated by Nigeria’s foremost rights activist and Senior Advocate, the late Chief Gani Fawehinmi.
The late Fawhinmi had by a letter dated September 21, 1999 initiated a criminal complaint against a former governor of Lagos State, Senator Bola Ahmed Tinubu, alleging some criminal infractions and asked the police to investigate the allegations.
But the police refused to accede to Fawehinmi’s request, hence the late Senior Advocate filed an originating summons on October 7, 1999 at the Federal High Court, Lagos wherein he sought among others, an order of mandamus compelling the Inspector General of Police, the Commissioner of Police, Lagos State and the Nigeria Police Force to investigate his allegations.
The suit was dismissed by the Federal High Court following a preliminary objection by the respondents on the grounds that by virtue of the immunity provisions in Section 308 of the Constitution, Tinubu who had assumed office as the governor of Lagos State could not be investigated on the said allegations.
Undaunted, Fawehinmi pursued the matter until it was determined by the Supreme Court which said although Section 308 precludes some category of public officers from criminal prosecution, it never barred any security agencies from investigating any serving governors over any criminal infractions of the Constitution.
The Supreme Court, in a lead judgement delivered on May 10, 2002, by Justice S.O. Uwaifo, said “that person protected under Section 308 of the 1999 Constitution, going by its provisions can be investigated by the police for an alleged crime or offence is, in my view, beyond dispute.”
The judgement said: “To hold otherwise is to create a monstrous situation whose manifestation may not be fully appreciated until illustrated. “I shall give three possible instances.
Suppose it is alleged that a governor, in the course of driving his personal car, recklessly ran over a man, killing him; he sends the car to a workshop for the repairs of the dented or damaged part or parts. Or that he used a pistol to shoot a man dead and threw the gun into a nearby bush.
Or that he stole public money and kept it in a particular bank or used it to acquire property. “Now, if the police became aware, could it be suggested in an open and democratic society like ours that they would be precluded by Section 308 from investigating to know the identity of the man killed, the cause of death from autopsy report, the owner of the car taken to the workshop and if there is any evidence from the inspection of the car that it hit an object recently, more particularly a human being; or to take steps to recover the gun and test for ballistic evidence; and generally to take statements from eye witnesses of either incident of killing.
“Or to find out (if possible) about the money lodged in the bank or for acquiring property, and to get particulars of the account and the source of the money; or of the property acquired? The police clearly have a duty under Section 4 of the Police Act to do all they can to investigate and preserve whatever evidence is available.
The evidence or some aspect of it may be the type which might be lost forever if not preserved while it is available.” Is the Supreme Court still valid? If yes, does the EFCC has powers to block an alleged proceed of fraud found in a bank account of a sitting governor as it did last week in a bank account allegedly owed by the Ekiti State Governor, Ayodele Fayose without a valid court order?
Lawyers say yes, no just as the Supreme Court ruled that an application to court for power to freeze the account of a governor under Section 34 (1) of the EFCC Act does not violate Section 308 (1) (c) of the Constitution which states that “no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued.”
EFCC’s power exercised on June 20, freezing Fayose’s account containing an alleged N4.745bn of the diverted $2.1bn arms cash without a court order may have pitted lawyers against each other. Can the EFCC freeze Fayose or any other sitting governors’ account without a court order?
Or does an application to the court for power to freeze a governor’s account under Section 34 (1) of the EFCC Act violate Section 308 (1) (c) of the Constitution which states that “no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued?”
Supreme Court had said “if the EFCC seeks to freeze the account of a governor, there will be no process requiring or compelling the attendance of the governor since same is ex-parte and not on notice. Therefore, Section 308 (1) (c) is neither applicable nor violated in any way.
“Freezing of accounts serves principally two purposes. First, by freezing a suspect’s account, the commission prevents the suspect from accessing, operating and drawing money from the account which may ultimately be forfeited to the government if the suspect is eventually prosecuted and convicted.
“Immunity clause cannot prevent the EFCC from securing and preserving monies found in the account of a governor provided the chairman of the EFCC is satisfied that the money is proceeds of crime. Second, the money is freezed for preservation and use as evidence during trial.”
Notwithstanding the constitutional provisions as stated by the Supreme Court that only a valid permission of the court can empower the EFCC to freeze bank accounts of sitting governors, lawyers however differ on the agency’s power to freeze Fayose’s account.
Fayose is being precluded from criminal prosecution as prescribed by Section 308. Section 308 says: Notwithstanding anything to the contrary in this Constitution but subject to subsection (2) of this section-(a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office; (b) 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 (c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued Lawyers however agreed that Section 308 does not preclude a governor from being investigated but disagreed on the EFFC’s powers to freeze a governor’s bank account without a valid court order.
Did the EFCC follow conditions precedent to the issuance of an order to freeze as contained in Section 34 (1) of the EFCC Act when it freezed Fayose’s account? This question hangs in the balance as lawyers could not agree on what the law says.
Although its decision is still subject to appeal, a High Court in Abuja presided over by Justice Gabriel Kolawole said EFCC’s administrative powers to freeze suspects bank account without obtaining a court order was a violation of the EFCC Establishment Act.
He said: “The decision by the EFCC to deploy its administrative powers to freeze applicant’s bank account without obtaining a court order to that effect, was a violation of the provision of the EFCC Establishment Act.”
Justice Kolawole position however amplified the Supreme Court’s verdict in 2001 when it ruled “that an application to court for power to freeze the account of a governor under Section 34 (1) of the EFCC Act does not violate Section 308 (1) (c) of the Constitution which states that “no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued.”
Notwithstanding, lawyers still pitted against each other on the freezing powers of the EFCC when it wielded it against a sitting governor last week. For instance, Mr. Norrison Ibinabo Quakers, SAN, a titled Christ and Senior Advocate, Mike Ozhekome, Emeka Ngige, SAN, Jibrin Okutepa SAN, an activist lawyer, Mr. Fred Agbaje, Comrade Femi Aborisade, Kayode Ajulo, Ike Ofuokwu and Chris Okhira expressed divergent views on the EFCC’s powers to freeze a governor’s bank account without any valid court order.
While Quakers, Agbaje, Ngige, Okutepa and Ofuokwu queued behind the EFCC, Ozekhome, Aborisade, Ajulo and Okhiria sharply disagreed.
They said the EFCC lacked the requisite powers to block any governor’s personal account without a lawful order. Ozekhome said EFCC had no legal right to attach any assets or account of a sitting governor under whatever guise.
He said: “It is illegal and unconstitutional because of the immunity clause in Section 308 of the Constitution of the Federal Republic of Nigeria. A sitting governor is covered by this Section and it is illegal and unconstitutional for the EFCC to attach his assets or accounts.
“Section 308 of the Constitution says no criminal or civil proceedings shall commence against any sitting governor. Freezing an account towards the commencement of an investigation is illegal.
What are you investigating after freezing an account? You want to investigate towards the commencement of an action, whether civil or criminal and Section 308 is saying you cannot even issue any order against a sitting governor.
So, even if the EFCC has gotten an order against a sitting governor, the Section said it is null and void. Even, if the EFCC got the order against a sitting Governor through an ex-parte application, the issuance of the order is illegal and unconstitutional.
That is what Section 308 says.” Ozekhome was echoed by a fiery Ibadan based activist lawyer, Aborisade, who described EFCC’s action as ‘discriminatory application of impunity’.
Aborisade said: “Until Section 308 is deleted from the Constitution, the alleged freezing of the account of Governor Fayose’s personal bank account, for example, is nothing but discriminatory application of impunity and unconstitutional misuse of power to silence the opposition ruling political party.
“It should be noted that the impunity being displayed to the major opposition ruling political party, could also be extended to some section of the labour movement and human rights organizations that are critical of the APC regime, whenever they decide to take on the regime in fighting for the welfare of ordinary people.
“In regard to the alleged freezing of Governor Fayose’s account by the EFCC, it should be made clear that under the EFCC Act, the power to confiscate and declare assets of courts, not in the EFCC.
Sections 19 to 33 of the EFCC Act empower the court to make an order of forfeiture, seizure and/ or confiscation of all assets and property, real or personal that may have been acquired, obtained and/or derived, directly or indirectly, disclosed or undisclosed in Any Assets Declaration Form.
“The EFCC is only empowered to seize defendants’ assets in appropriate cases and then apply to court for interim orders, pending final conviction in deserving cases. In fact, as far as freezing of accounts is concerned, the EFCC is mandated, in appropriate cases, to apply to the Federal High Court for an ex parte order.
The EFCC lacks the power to act without a court order. In the context of a President, Vice president, Governor or Deputy Governor, Section 308 does not allow any court process to be issued against the named public officers.
“Therefore, the freezing of the account of Governor Fayose is patently unconstitutional and illegal. The unconstitutional and illegal act must be condemned, regardless of the character of the victim. Such unconstitutional and illegal act must not be allowed to be set as precedent because it could allow a full blown totalitarianism.”
Another lawyer and rights activist, Ajulo said EFCC had no such power to freeze a state Chief Executive Officer’s (CEO) bank account without a valid court order. He said: “This indeed came as a shock considering the personality involved, a sitting governor that enjoys immunity till the termination of his office as governor of a State in Nigeria.
“It is the law that to freeze an account, there must be an order of court for the attachment of the bank account. It is also trite that for the court to make such an order, there must be papers (court process) filed in court and signed by the judge.
“By the provision of Section 308(1)(a) of our Constitution as amended, no suit can be instituted against Ayodele Fayose and/or any Nigerian governor in any court in Nigeria. “Therefore, no process of court can be issued, signed or served against Ayodele Fayose in his personal capacity, whereas the bank account in question is his personal account as such in his personal name.
“Moreover, Sections 26-34 of the EFCC Act, established a process to be followed that is, a suspect must have been arrested for his account to be frozen. However section 308 of the 1999 Constitution, exempted Ayodele Fayose from those could be arrested and his bank account cannot be frozen.
“It behoves on all right thinking Nigerians and law abiding individuals and corporate entities to ensure and insist that EFCC should act according to the law of the land and adhere to best international standard and practice.
It should be warned that EFCC is gradually turning into an unchecked tyrannical monster.” Okhiria said Section 308 of the Constitution ‘immunises’ all political officers from the rank of the president of the country, vice president, governor and his deputy from arraignment before any court of law.
He said: “He cannot be sued and can’t be arraigned before any court on any criminal and civil charges. A court of law has to pronounce on the closure of a governor’s account and there is no court that will do that in view of Section 308.
“You cannot close down a governor’s account. If you close a governor’s account, it means that you must have arraigned that governor before a court which should not also be. You can’t close his account without bringing him to court or before the EFCC which is even forbidden in this regard by Section 308 because you will be guilty of carrying out an action without a fair hearing.
“So, if you didn’t take him to court (and they couldn’t in view of Section 308 of the Constitution as amended) and you didn’t take him to the EFCC (and they couldn’t in view of the same provision) and they went ahead to freeze his account, the EFCC would have erred against the Constitution and the doctrine of ‘hear the other side’ (audi alteram partem) which is covered by Section 36 of the Constitution and any case against him will be upturned.”
To Inibehe Effiong, EFCC goofed by freezing the governor’s bank account. Effiong, who formulated two issues for determination, said there was no way the anti-graft agency with enormous power to freeze proceeds of crimes of a person covered by Section 308 without first apply to court via ex-parte for an order of seizure This, he said had violated the immunity clause as guaranteed by the Constitution.
He said: “Issue 1: Whether the EFCC has the powers under the law to freeze the bank account(s) of persons who are under criminal investigation by the commission? “Issue 2: Whether a sitting governor of a state in Nigeria can be investigated for alleged crimes, and his bank account(s) frozen by the EFCC in the course or under the pretext of criminal investigation?
“The answer to issue 1 supra (above) is found in the Economic and Financial Crimes Commission (Establishment) Act 2004 (subsequently referred to as the EFCC Act). “In recognition of the serious nature of economic and financial crimes, the National Assembly vested the EFCC with far reaching powers to enable the commission discharge its mandate of ridding the country of corruption.
Among the powers conferred on the commission as part of its general investigative powers, is the power to freeze the bank account of persons who are subject of investigation by the commission.
“Specifically, Section 34 (1) of the EFCC Act with the heading: “Freezing order on banks or other financial institutions”, provides as follows: ‘Notwithstanding anything contained in any other enactment or law, the chairman of the commission or any officer authorised by him may, if satisfied that the money in the account of a person is made through the commission of an offence under this Act and or any of the enactments specified under Section 7 (2) (a)-(f) of this Act, apply to the court ex-parte for power to issue an order as specified in Form B of the Schedule to this Act, addressed to the manager of the bank or any person in control of the financial institution or designated non-financial institution where the account is or believed by him to be or the head office of the bank, other financial institutions or designated non-financial institutions to freeze the account.
“The above provision is self-explanatory. For emphasis, I will elucidate on two principles arising from the provision. Firstly, the EFCC chairman or any other officer of the commission authorised by him can order any financial institution (including Zenith Bank of Nigeria Plc. where Governor Fayose’s account is domiciled) to freeze any account with money which he is satisfied is made through the commission of an offence under the EFCC Act, the Money Laundering (Prohibition) Act, etc.
“Satisfaction within the contemplation of this section is entirely a matter of opinion which may be formed based on the existence of certain facts and circumstances that are within the knowledge of the chairman of the commission.
“The Act has not set out any condition that should guide the chairman in determining which account to freeze. “In other words, it is a matter of discretion whether any account should be freezed or not.
All that is required of the chairman is for him to be satisfied that the money in the account is a product of crime and corruption. The second principle that deserves reiteration is that before the chairman of the commission can order a financial institution to freeze any account, he must first apply to the court ex-parte (without the attendance of the owner of the account or the financial institution in court) for power to issue the order.”
“Simply put, an application to the court for power to freeze an account and the granting of same, are conditions precedent to the issuance of an order to freeze under Section 34 (1) of the EFCC Act.
At the risk of repetition, I submit that the EFCC has no power to order any financial institution or designated non-financial institution to freeze any account without obtaining the consent of the court.
But Quakers, Agbaje, Ngige, Okutepa and Ofuokwu differed. They said notwithstanding the apex and the lower courts’ verdicts, EFCC acted within the purview of the Constitution and the Establishment Act when it freezed Governor Fayose’s bank account on the suspicion that the account contained N4.745bn of the diverted $2.1bn arms cash. Quakers said:
“The EFCC has the right to do so. You study a case done by the late Chief Gani Fawehinmi, wherein he argued that the immunity enjoyed by these set of people only extends to their prosecution while in office.”
This immunity does not preclude any agency of government from investigating any governor for allegedly committing any crime or offence while in office. The law is very clear. The EFCC has a right to investigate. They have a right to freeze any questionable account.
The only right the governor has under the immunity clause is only for the purpose that he cannot be prosecuted but he can be investigated while in office. “Investigation and prosecution are two different things. The anti-graft agency can investigate and gather the evidence together while the governor is still in office.
This can be subsequently used against the governor after leaving office. So, the EFCC is in order. The agency has a right to investigate and freeze any account under scrutiny. Attaching any asset does not amount to prosecution.
To Agbaje, the era of impunity by governors in Nigeria is gone for good. He said: “My question is, is there investigation without assets seizure? Seizing of assets is both known to the EFCC law and the Nigeria Criminal Procedure Act including Administration of Criminal Justice Act. You see, what is happening is that people are shocked because gone are those days when sitting governors in Nigeria will be milking their states dry by looting the economy of their states and claiming one bogus immunity.
“It has now been found by the people that immunity has become what these governors use to cover their bad deeds while corruptly enriching themselves. That was why the Supreme Court in a case between Fawehinmi and the Inspector General of Police, upheld the right of the EFCC and the police to investigate the President, Vice-president, Governors and their Deputies while they are still in office.