Kogi State governor, Yahaya Bello and operatives of EFCC
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Kogi State governor, Yahaya Adoza Bello, unarguably is the most investigated of all those who have governed the confluence State since its creation in 1992 and given the revelations from the investigation by the agency that has the mandate – the Economic and Financial Crimes Commission, EFCC, one could say, Bello is the only incumbent who sits under the canopy of immunity, yet the Nigerian Courts have been busied looking into argument and counter arguments over alleged illicit possession of assets while in office.
In this article, ATEKOJO SAMSON USMAN takes a look at the legal fireworks between the Economic and Financial Crimes Commission and the governor who insisted that he is covered with immunity, hence, his asset cannot be frozen at the instance of the prosecutor.
Nigeria’s Economic and Financial Crimes Commission had previously acted on a petition against governor Yahaya Bello which it carried out a diligent investigation and traced 14 properties located in Lagos, Abuja and in Dubai, the United Arab Emirate which were reasonably believed to have been owned by the governor illicitly.
Within the ambit of law establishing the EFCC, particularly with regard to the power of investigation of a public officer occupying the position of an executive governor who could only be investigated, but not prosecuted as a result of immunity as in this case, Yahaya Bello currently enjoys immunity, the EFCC approached Justice Nicholas Oweibo of the Federal High Court, Lagos where it secured a temporary forfeiture of all assets it traced to Yahaya Bello including the sum of N400 million already recovered.
Since the grant of forfeiture order by the High Court on February 22, 2023 in consonance with Sections 9 and 10 of the Proceeds of Crimes (Recovery and Management) Act, 2022. The EFCC’s counsel, Rotimi Oyedepo, SAN, told the court that the preservation order had been advertised in some national dailies, Bello has been on the kick. Legal minefield have been drafted to ensure the order was vacated. The eggheads in law have been consulted to study the development and put up a strong counter argument particularly if the EFCC have over stepped their powers.
Again, the subject matter being dragged in Court are the 14 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.”.
By and large, at the resumed hearing on March 28, 2023, Bello’s lawyer, Abdulwahab Mohammed SAN, agreed that the properties are owned by Kogi State governor, Yahaya Bello, but he sought to vacate the order of the court, when he said:
“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.”
Bello’s lawyer told the Honourable Justice Nicholas Oweibo that Bello owned the controversial properties before he became the governor of Kogi State and insisted that he is covered by immunity, hence, the EFCC lacked power to confiscate those assets that belongs to his client.
“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.
Reacting, the Lawyer to the Economic and Financial Crimes Commission (EFCC), Rotimi Oyedepo has requested Justice Nicholas Oweibo of the Federal High Court in Ikoyi, Lagos to reject Kogi State Governor Yahaya Bello’s request to lift the temporary forfeiture order relating to 14 properties and N400 million.
“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.”
The EFCC representative, Oyedepo, opposed the request by referring to the information provided in the 12-paragraph counter-affidavit and a written address, both dated March 28, 2023. Oyedepo claimed that the applicant had not responded to the counter-affidavit submitted by the prosecution.
Oyedepo averred the following arguments:
“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 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 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 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.”
Additionally, he informed the court that among all the properties that the EFCC wants to protect, only one was declared in the applicant’s Declaration of Assets Form. He stated that nothing had been mentioned in the affidavit to dispute the “reasonability of our suspicion.”
Consequently, he urged the court to dismiss the requests made by the applicant and instruct him to explain to the court how he obtained the properties.
The case has been postponed until April 20, 2023, for a verdict by Justice Oweibo.
Meanwhile, Kogi State governor never declared his assets since he was sworn into office on Wednesday January 26, 2016 even when he declared in his acceptance speech that he has zero tolerance for corruption.
A Kogi based human rights activist, Idris Miliki did counsel him to emulate President Muhammadu Buhari at ensuring that he declared his assets, but a check at the Code of Conduct Bureau shows that the 14 properties currently being disputed in Court were not part of his assets declaration.
