•Former Kogi State governor, Yahaya Bello and EFCC logo
The Court of Appeal in Lagos has restored the interim forfeiture order obtained by the Economic and Financial Crimes Commission (EFCC) to seize 14 properties allegedly linked to ex-Kogi State governor, Yahaya Bello.
Justice Yargata Nimpar who read the unanimous judgment which was delivered virtually today, set aside a Federal High Court ruling that struck out the order and held that the lower court erred in law by relying on Section 308 of the 1999 Constitution, reports Channels TV.
Section 308 of the Constitution grants immunity to sitting governors from civil and criminal proceedings.
Justice Nimpar in restoring the preservation order held that immunity does not extend to properties suspected to be proceeds of unlawful activity, and such assets can be investigated and preserved pending the outcome of a forfeiture application.
The other justices of the panel who concurred with decision are Justice Danlami Senchi and Justice Paul Bassi. They directed the EFCC to proceed to a final forfeiture hearing.
In February 2023, Justice Nicholas Oweibo of the Federal High Court, Lagos, had granted an interim forfeiture order in favour of the EFCC.
Rotimi Oyedepo (SAN) who argued the ex parte application on behalf of the EFCC had told Justice Oweibo that the assets were suspected to be proceeds of crime.
The judge granted the order which allowed the anti-graft agency to temporarily seize 14 properties located in Lagos, Abuja, and Dubai, United Arab Emirates (UAE), which were suspected to be proceeds of unlawful activity.
The court also directed the EFCC to publish the order in two national newspapers, and to invite interested parties to show cause why the properties should not be permanently forfeited to the Federal Government.
Following the publication, Governor Bello filed a notice of intention to oppose the forfeiture and applied to vacate the interim order.
Bello argued that the properties were acquired before his election as governor and therefore could not have been purchased with Kogi State funds.
He invoked Section 308 of the Constitution, which grants immunity to sitting governors from civil and criminal proceedings, contending that the EFCC lacked the authority to institute any action against him while in office.
His legal team further argued that the Proceeds of Crime Act, 2022 could not be applied retrospectively, as the properties were allegedly acquired before the law came into effect.
They further argued that EFCC’s action violated an order of a Kogi State High Court restraining the agency from investigating state accounts and that the Federal High Court in Lagos lacked jurisdiction, as the properties were located in Abuja, Kogi, and Dubai, while he resides in Lokoja.
In response, the EFCC counsel asked the court to uphold the interim forfeiture order, arguing that no Nigerian court had barred the commission from carrying out its constitutional duties.
He maintained that the properties, including a luxury apartment at the Burj Khalifa in Dubai, were reasonably suspected to have been acquired with proceeds of unlawful activity.
He also sought the forfeiture of an additional N400 million linked to the same investigation.
The forfeiture order, which was earlier granted by Justice Nicholas Oweibo on February 22, 2023, was subsequently lifted by him on April 26, 2023, on the ground that Section 308 of the Constitution protected a sitting governor from any civil or criminal proceedings.
The judge concluded that the court lacked jurisdiction and struck out the case.
Dissatisfied with the decision, the EFCC appealed, asking the Court of Appeal to restore the interim forfeiture order.
In its judgment, delivered virtually, the appellate court agreed with the EFCC that such assets can be investigated and preserved pending the outcome of a forfeiture application.
“The trial court erred in striking out the case rather than proceeding to determine whether the properties should be finally forfeited,” the court ruled.
The Court of Appeal dismissed Bello’s preliminary objection as lacking merit, reinstated the interim forfeiture order, and directed the EFCC to proceed with the final forfeiture hearing.
