The Economic and Financial Crimes Commission, EFCC, on Tuesday urged Justice Nicholas Oweibo of the Federal High Court sitting in Ikoyi, Lagos to dismiss the application by Kogi State Governor, Yahaya Bello, seeking to vacate the forfeiture order in respect of 14 properties and the sum of N400m.
The court had, on February 22, granted a preservation order of the properties linked to the Kogi State government and reasonably suspected to have been derived from unlawful activities, pursuant to Sections 9 and 10 of the Proceeds of Crimes (Recovery and Management) Act, 2022.
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.
At the resumed sitting today, the EFCC counsel, Rotimi Oyedepo, SAN informed the court that the preservation order had been published in the Punch Newspaper, in line with the court’s directive to advertise the same in one of the national dailies.
Oyedepo said: “We were directed to make a publication of the said Order and we have complied with the order of the court.
“There is an affidavit to the Order dated 22nd February, 2023, which was complied with on the 24th February, 2023.
“Sequel to that, we have received a notice of intention to oppose the making of the preservation order and we have equally responded”.
Responding, the Kogi State Governor, through his counsel, Abdulwahab Mohammed SAN, sought to vacate the order of the court, saying, “We have an application subject to your lordship’s convenience. We are ready to move the application. It was filed on March 9, 2023. The application is seeking your indulgence to vacate the order of the court made on the 22nd of February, 2023.
He argued that most of the properties sought to be forfeited were acquired by Bello before he became the Governor of the state and that the Commission lacked the power to proceed against the governor as he enjoys immunity under the constitution.
“By virtue of the position of the applicant (Kogi State Governor), you cannot proceed against him under any law, according to Section 308 of the Nigerian Constitution.
“If you want to prosecute or forfeit his properties, you have to wait till he no longer enjoys those benefits of a Governor,” he argued.
He, therefore, urged the court to grant his client’s prayers and vacate the order.
In opposing the application, EFCC counsel Oyedepo relied on depositions in the 12-paragraph counter-affidavit and a written address dated 28 March, 2023, stating that the applicant failed to reply to the counter-affidavit made by the prosecution.
“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 respondents are agreeing to the application. We urge your lordship to hold that the failure to respond is deemed admitted.
“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 submitted that one of the requirements that the application must contain is that the applicant must show his interest in the property concerned.
“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 obtained 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.”
On the immunity clause as contained in Section 308 of the 1999 constitution, Oyedepo said: “the Provision of S308 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 S308 can be investigated; and the fact that someone is under immunity does not prevent the state from investigating.
“Where a state 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 also argued that the steps the prosecution was taking “is a step for preservation and it cannot be stopped.”
He further told the court that, out of the entire assets that the EFCC seeks to preserve, only one asset was declared in the applicant’s Declaration of Assets Form and that nothing had been said in the affidavit to challenge “the reasonability of our suspicion.”
He, therefore, urged the court to dismiss the prayers of the applicant and order him to tell the court how the properties were acquired.
Justice Oweibo adjourned the matter till April 20, 2023 for ruling.