In the ruling, Justice Nicholas Oweibo struck out the suit on the ground that Section 308 of the 1999 Constitution prevents the institution of any criminal or civil case against a sitting governor or the president.
In its notice of appeal, filed by Rotimi Oyedepo (SAN), the EFCC submitted 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.
The EFCC also submitted 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.
The trial court was also said to have 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 Gov. Yahaya Bello failed to show the genuine origin of funds used to acquire the properties under the preservation order.
On February 22, Justice Oweibo granted an interim forfeiture of the properties located in Lagos, Abuja, and the United Arab Emirates (UAE) and also ordered the preservation of the sum of N400 million recovered from one Aminu Falala, which “is reasonably suspected to have been derived from the unlawful activity and intended to be used for the acquisition of Plot No. 1224 Bishop Oluwole Street, Victoria Island Lagos”.
In moving the application which led to the interim forfeiture order, Oyedepo 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 and also directed the Commission to publish the interim order within 14 days in any national newspaper before adjourning to March 28, 2023.
During the proceedings of March 28, Oyedepo 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.
Gov. Yahaya Bello, who subsequently responded to the 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 him 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.
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.
In response to the immunity clause as contained in Section 308, Oyedepo also 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 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, therefore, urged the court to dismiss the application of Gov. Bello but instead to order him to tell the court how the properties were acquired.
Consequently, Justice Oweibo adjourned the matter to April 26 for the ruling.
In his ruling, Justice Oweibo held that “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.
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“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.”