Wednesday, 29 June 2016

Opinion: EFCC in grave error over the freezing of Ayo Fayose’s Account



It is settled law that persons listed in section 308, of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)  (hereinafter referred to as 1999 Constitution (as amended) to wit: The President, Vice President, Governor and Deputy Governor are immune from criminal and civil actions while in occupation of the aforesaid offices. However, based on the Supreme Court’s verdict in Fawehinmi v IGP (2002) 7 NWLR (Pt.767) 606 such holders of aforementioned offices can be investigated. There is a crystal distinction between investigation and prosecution, thus persons with immunity can be validly investigated.
Gov. Fayose

The germane issue is whether in carrying out the investigation, the EFCC can exercise the powers pursuant to section 34, of the EFCC (Establishment) Act, 2004 on persons conferred with irrevocable immunity.

It is seminal to reproduce the provisions of sections 34, of the EFCC Act for proper appreciation. It reads thus: “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 institution or designated non-financial institution to freeze the account.”

It should be rightly stated that section according to 34 of the EFCC Act “Notwithstanding anything contained in any other enactment or law,”can only override provisions of legislations and not the constitution, the grund norm and fountain upon which every legislation derive validity. It is respectfully submitted that section 308, 1999 Constitution (as amended) is superior to section 34 EFCC Act.

It is imperative to assert that the order of freezing an account is not an administrative but judicial exercise, hence an exparte application is required to initiate the process of freezing account as contemplated by section 34 EFCC which explicitly states as follows: “apply to the Court ex-parte for power to issue an order as specified in Form B of the Schedule to this Act.”

It is apparent that an order freezing an account is beyond mere investigation, it is the beginning of preliminary action. The freezing of account is beyond preservation of record of investigation as evinced by Supreme Court in Fawehinmi v IGP (supra) in the immortal words of Justice Uwaifo, JSC, wherein he posited thus: 

“That a 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. 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…”

The EFCC has the requisite vires to conduct intelligent and forensic investigation on persons conferred with irrevocable immunity. The media had reported that “the Economic and Financial Crimes Commission (EFCC) have revealed that a personal account held with the Zenith Bank of Nigeria of Ekiti State Governor, Ayodele Fayose, was frozen in connection with over N1.2billion he took in 2014 from the disgraced National Security Adviser (NSA), Sambo Dasuki, to prosecute his re-election as governor.”

The above allegations can be forensically investigated without dramatisation by freezing the account of an incumbent Governor. It should be observed that freezing of account is a preemptive step to full scale trial. An account cannot be frozen infinitum! By freezing a suspect’s account, the EFCC prevents the suspect from accessing, operating and drawing money from the account which may ultimately be forfeited to the government if the suspect is found guilty by court of competent jurisdiction.

The sanctity of constitutional immunity cannot be jettisoned on the altar of fighting corruption as the fabric of our democratic ethos must be respected. A calm perusal of section 308 resolves the issue in favour of Ayo Fayose and renders the action by the EFCC unconstitutional and illegal and a threat to constitutional democracy where rule of law is supreme above whims and caprices of strong individuals in the society.‎
It is pertinent to state that constitutional immunity from legal proceedings under section 308 of the 1999 Constitution is absolute and subsists through the tenure of the offices specified. In Hassan v. Aliyu(2010) 17 NWLR (Pt. 1223) 547 at 597, paras, F-H, 624, paras, C-E the Supreme was explicit when it held thus:

Section 308 of the 1999 Constitution confers absolute immunity on the President, Vice President, Governor and Deputy Governor in respect of civil or criminal matters during their tenure of office. The provision clearly suspends the right of action or the right to judicial relief of an aggrieved party during the tenure of office of the officials mentioned therein. In other words, the right of action is put in limbo until the expiration of the tenure of office of the affected government official. The expiration of the tenure kick starts the accrual of the cause of action or revives same.

The provisions of section 308 of the 1999 Constitution provide for an absolute bar to civil and criminal proceedings against all Governors while in office.(Ejura v. Idris (2006) 4 NWLR (Pt. 971) 538; Inspector-General of Police v. Fayose (2007) 9 NWLR (Pt. 1039) 263 referred to).

The kernel of our submission is that the freezing of Ayo Fayose’s account constitutes commencement of legal proceedings in contravention of section 308 of the 1999 Constitution (as amended). There is no way his name will not be listed in the motion (court process) and the order obtained by EFCC authorising the freezing which adverse affects him, thus this is beyond investigation as envisaged by Supreme Court in Fawehinmi v IGP (supra). 
 
It is further submitted that time does not run against the State in prosecuting persons that enjoy immunity. At the expiration of Ayo Fayose’s tenure in 2018, the EFCC is at liberty to prosecute him. It is also doubtful if the alleged money from NSA to prosecute his re-election is still in the account. We must avoid creating constitutional crisis in turbulent time.

The essence of section 308 was succinctly captured by Supreme Court in Hassan v. Aliyu, (2010) 17 NWLR (Pt. 1223) 547 at 625-626, paras, G-A it was held:

The essence of section 308 of the 1999 Constitution is not to deny the citizen his right to access to the court; rather it is a provision put in place to enable a governor, while in office, to conduct the affairs of governance free from hindrance, embarrassment and difficulty which may arise if he is being constantly pursued and harassed with court process of a civil or criminal nature while in office.

Also in a recent case, in Mohammed Abacha v FRN held per ONNOGHEN, JSC

“The purpose of the immunity is to allow the incumbent President or Head of State, or Vice President, Governor or Deputy Governor, a completely free hand and mind to perform his or her duties and responsibilities while in office; to protect the incumbent from harassment. The immunity, however, does not extend or cover the period immediately after leaving office neither does it extend to include his family members during and after the period of his incumbency.

The provisions of section 34 of the EFFC Act cannot be used as engine of fraud or tool for raping sacred constitutional provisions that guaranteed our constitutional democracy. The Supreme Court in A-G of Bendel State v. A-G of the Federation & Ors (1981) 9 S.C 1 at 78 – 79 formulated eternal principles guiding the construction and interpretation of Constitution to wit:

a. A legal power cannot be exercised in a way that will attain unconstitutional results.
b‎. The constitution is an organic scheme of government to be dealt with in its entirety not piecemeal.
c. The constitution should not be interpreted to defeat its purpose and principles.
d. Constitution should not be construed with stultifying narrowness.
‎The immunity does not apply to actions instituted against them in their official capacities or where they are only nominal parties.

Also, the absoluteness of immunity does not extend to electoral disputes. The constitutional immunity from legal proceedings as enshrined in section 308 of the 1999 Constitution (as amended) ‎does not prevent a President or Governor, from legal action in connection with his election or in a matter connected therewith even after  he has been sworn in as President or Governor.

The Supreme Court restated the extent and scope of the immunity clause on electoral matters in the landmark case of Amaechi v. INEC. (2008) 2CCLR 1  per OGUNTADE, JSC at 77-78 paras. 25-5:
Section 308 cannot be relied upon where the nature of the suit is such that the Res in dispute will be destroyed permanently with the effluxion of time. To hold that section 308 can be invoked in a matter relating to the eligibility for a political office where the tenure of such office has been set out in the Constitution will translate into denying to a plaintiff his right of access to the court. It is only in a case where a deferment of plaintiff’s right of the action is not likely to destroy the Res in the suit that section 308 can be invoked. In this case, to ask Amaechi to wait till the end of Omehia’s tenure of office as Governor before pursuing his suit is to destroy forever his right of action.’

The rationale for suspending the operation of the immunity clause during the hearing of election petition was expatiated by the oracular jurist, late Justice Kayode Eso in Obih v. Mbakwe (1984) All NLR 134 at 148 when he wittily observed as follows: “With respect, to extend the immunity to cover the governors from being legally challenged when seeking a second term will spell injustice. I am conscious of the fact that in my interpretation of section 267 of the Constitution, I am giving that provision a narrow interpretation. This is deliberate for in my view, in the interpretation of the Constitution, care should be taken not to diminish from the justice of the matter, this is not a case of a judge engaging in legislative process.”

There are a plethora of cases where this principle have been upheld. Some of the cases are Turaki v. Dalhaltu (2003) 38 WRN 54, In Enyadike v. Omehia, (2010) 11 NWLR (Pt.1204) 92 at 121, Alliance for Democracy v. Peter Ayodele Fayose (No 1) (2004) 26 WRN 34, Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 at 598, paras, A-C, co.

However, a person cannot under the guise of election proceedings file an originating summons at a State or Federal High Court. The reliefs sought by a person will determine whether the immunity clause will be invoked to foreclose such relief. The Court of Appeal in Hassan v. Aliyu, (2010) 17 NWLR (Pt. 1223)  547 at 625-626, paras. G-A held:

By virtue of section 308 of the 1999 Constitution, there is an absolute prohibition on the courts from entertaining civil and criminal proceedings in respect of any claim or relief against the President, Vice President, Governor and Deputy Governor. Proceedings are held in abeyance until the person concerned vacates office. Thereafter, proceedings can be commenced. However, where the election of a Governor is questioned in an election tribunal, the provision of section 308 of the Constitution will not apply. What will apply is section 32(5) of Electoral Act. In the instant case, since the appellant sought to remove the 1strespondent as the Governor by an originating summons filed before the Federal High Court, the provision of section 308 would protect the 1strespondent. The trial court was therefore right to decline jurisdiction in the light of the clear provision of section 308 of the 1999 Constitution. (Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 referred to).

The act of the EFCC in freezing Ayo Fayose’s account cannot be accommodated within the ambit of electoral matters notwithstanding that the alleged money was spent to prosecute his re-election. It is an entirely criminal matter within the contemplation of section 308 (supra). The Order sought and obtained by EFCC necessitating the freezing of his personal account is within the ambit of judicial proceeding. It is immaterial whether it is preliminary to major trial. We are fortified with the excellent definition proffered by The Black’s Law Dictionary 8th Edition of a  PROCEEDING at page 1241 as:
“The business conducted by a court or other official body; a hearing…Proceeding is a word much used to express the business done in courts. A proceeding in court is an act done by the authority or direction of the court, express or implied…”

It defines ex parte proceeding as follows-

“A PROCEEDING in which not all parties are present or given the opportunity to be heard…”
The sacrosanct of section 308 of 1999 Constitution must respected by EFCC.  The witty observation of Supreme Court in Mohammed Abacha v FRN should guide anti-corruption agencies particularly EFCC. Per ARIWOOLA, JSC had observed that “It is true that the Constitution confers absolute immunity on the President, Vice President, Governor and Deputy Governor in respect of civil or criminal matters during their tenure in office. See; Section 308 of the 1999 Constitution.   Indeed, the provision clearly suspends the right of action or the right to judicial relief of an aggrieved party during the tenure of office of the officials mentioned therein. The immunity does not extend beyond the tenure in office, after which the official shall be liable to face trial.”

Chief Joshua Esim Alobo
joshuaalobo@gmail.com

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