Ayi-Ekpenyong Imah|2 July 2016|6:39am
On 20th June 2016, the Governor of Ekiti State, Mr. Ayodele Fayose alleged that his personal account with Zenith Bank had been frozen by the Economic and Financial Crimes Commission (“EFCC”). In an online publication by Vanguard newspaper posted on 21st June 2016 at 12:09am titled “EFCC freezes Gov Fayose’s account”, it was reported that while at the premises of Zenith Bank, Ado Ekiti, the Governor stated that he had earlier issued a counter cheque to make a withdrawal at Zenith Bank at the Onigari GRA branch of the bank in Ado Ekiti, but that the counter cheque was rejected by the bank on the basis that his personal account has been frozen by the EFCC. The Governor described such act as unconstitutional and illegal on the grounds that as a Governor, he enjoys immunity under Section 308 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and as such he cannot be investigated and his account cannot be frozen.
The EFCC on 21st June 2016 released a statement through its Head of Media and Publicity, Mr. Wilson Uwujaren, justifying their reasons for freezing Mr. Fayose’s personal bank account. Mr. Wilson contended that immunity does not cover investigation and that the EFCC has the power to freeze any bank account subject to investigation.This has created a lot of turmoil and has given rise to divergent opinions among lawyers. While erudite lawyers such as Prof. Itse Sagay, SAN, Chief Emeka Ngige, SAN and Nnamdi Chukwuwa have justified such act as legal, on the basis that immunity shields a governor from arrest and prosecution and not investigation, others such as Chief Wole Olanipekun, SAN, Dr. Olisa Agbakoba, SAN, and Kayode Ajulo have condemned, in its entirety, such act by the EFCC for being illegal and unconstitutional on the rationale that Mr. Fayose enjoys immunity.
This act by the EFCC has left many Nigerians to ponder whether the Buhari led administration is non-discriminatory in its fight against corruption. Copious Nigerians have formed the opinion that the EFCC is being used as an agent of political destruction against strong members of the People’s Democratic Party (“PDP”). It is therefore the very essence of this piece to determine whether or not such act by the EFCC is legal. It is advisable at this point that this piece be read with a mind devoid of sentiment whether political, emotional or religious.
Having considered the dissenting opinions by Nigerians, it is submitted here that in order to achieve the aim of this piece, the following questions will be determined:
*Whether the EFCC has the power to investigate Mr. Fayose ( a sitting governor)
*Whether immunity granted to the Executive President, Vice President, Governors and Deputy Governors under Section 308 of the 1999 Constitution shields Governor Fayose from being investigated
*Whether the EFCC can freeze the bank account of Governor Fayose without a Court order
The Economic and Financial Crimes Commission is a law enforcement agency established under Section 1 of the Economic and Financial Crimes Commission (Establishment, etc.) Act, 2004. The Commission is empowered under Section 6 of the EFCC Act to investigate all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures, market fraud, fraudulent encashment of negotiable instrument, computer credit card fraud, contract scam, etc. The EFCC is also granted special power under Section 7 of the Act to cause investigation into the properties of any person or to investigate whether any person, corporate body or organization has committed an offence under the EFCC Act or any other law relating to economic and financial crimes.
In view of the above, it is therefore the submission of this author that the word “any person” presupposes the point that even a Governor can be investigated; consequently, Mr. Fayose can be investigated by the EFCC. To buttress this point, the Apex Court has held in FAWEHINMI v. IGP that any of the office holders mentioned in Section 308 (3) of the 1999 Constitution (the President, Vice President, Governor and Deputy Governor) can be investigated by the police or any other law enforcement agency for any allegation of crime or offence against him while his in office.
On whether immunity under Section 308 of the 1999 Constitution shields Governor Fayose from being investigated, it is my opinion that the said section does not confer immunity on a governor from being investigated. For better understanding, Section 308 is lucidly reproduced below.
“(1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section –
(a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;
(b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and
(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued”.
It is glaring that nothing in the above section protects a governor from investigation. This issue has long been settled by the Supreme Court in the celebrated case of Fawehinmi v. IGP (supra) wherein the Court held that the immunity conferred by Section 308 of the 1999 Constitution does not confer immunity from investigation. The office holders mentioned in Section 308 can be investigated during the pendency of their tenure in office.
Although, some lawyers have argued that investigation forms part of criminal proceedings and as such investigating a sitting governor is a breach of the immunity he enjoys, this argument, in my humble opinion is erroneous, misleading and untenable as investigation is different from criminal proceedings. Investigation is simply a careful search, study, close inquiry, scrutiny, detail examination, collection of facts and systematic search. While investigation is a preliminary course which may or may not result in a criminal proceeding, criminal proceeding is commenced when an accused person is arraigned before a Court or at least when an information or charge has been filed against him.
On whether EFCC can freeze Mr. Fayose’s bank account without a court order, I am of the opinion that although the EFCC has the power to order an account of a person not arrested to be frozen, the Commission is required to obtain a prior interim order from the court. Section 34 of the EFCC Act 2004 expressly and unequivocally lays down the procedure the Commission should comply with in freezing the account of any person who is suspected of having money in his bank account through the commission of an offence. The Section provides thus:
“34.-{ I) Notwithstanding anything contained in any other enactment or law, the Chairman of the Commission or any officer authorized 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.
(2) The Chairman of the Commission, or any officer authorized by him may by an order issued under subsection (1) of this section, direct the bank, other financial institution or designated non-financial institution to supply any information and produce books and documents relating to the account and to stop all outward payments, operations or transactions (including any bill of exchange) in respect of the account of the person.
(3) The manager or any other person in control of the financial institution shall take necessary steps to comply with the requirements of the order made pursuant to subsection (2) of this section.
It is lucid from the above section that the Commission is required to apply to the court by an ex-parte application for power to issue an order directing the manager of a bank or any person in control of such financial institutions to freeze such account. It is only when such an ex-parte order is granted that the Chairman of the Commission or any officer authorized by him may direct the bank to stop all outward payments, operations or transactions (including bill of exchange) and to supply any information or produce books relating to the account.
It may be argued that the use of the word “May” in Section 34 (1) of the EFCC Act makes the requirement of obtaining a prior ex parte order discretionary. I agree that the word “May” when used in a statute connotes discretional or optional and not a mandatory action but “May” is not always “May”. It is sometimes equivalent with “Shall”. Whether or not the word “May” will be construed to be mandatory depends on the context it is used. Considering the context in which the word is used in Section 34 of the EFCC Act, the word “May” should be interpreted to be mandatory in view of the provisions of Section 34(2). The practical and legal effect of the provision of Section 34 (2) is that, the power of the Chairman of the commission or any authorized officer to direct the bank to freeze such account is derived from a prior ex parte order obtained from Court. In other words, the exercise of the Chairman’s discretion in directing the bank to freeze the account is dependent on a prior court order.
Furthermore, some scholars and lawyers have also argued that the EFCC does not require a court order to freeze an account, by placing reliance on Sections 28 and 29 of the EFCC Act 2004. For the avoidance of doubt and for clarity, the sections are aptly reproduced below.
“28. Where a person is arrested for an offence under this Act, the Commission shall immediately trace and attach all the assets and properties of the person acquired as a result of such economic or financial crime and shall thereafter cause to be obtained an interim attachment order from the Court.
29 Where-
(a) the assets or properties of any person arrested for an offence under this Act has been seized ; or
(b) any assets or property has been seized by the Commission under this Act, the Commission shall cause an ex-parte application to be made to the Court for an interim order forfeiting the property concerned to the Federal Government and the Court shall, if satisfied that there is prima facie evidence that the property concerned is liable to forfeiture, make an interim order forfeiting the property to the Federal Government”
A careful reading of the above sections would reveal that while Section 28 relates to investigation and attachment of assets or properties of a person arrested by the EFCC, Section 29 relates to forfeiture of assets and properties seized by the EFCC to the Federal Government. It is my contention therefore that it is misleading to apply sections 28 and 29 (a) of the Act to the instant case. This is because Mr. Fayose has not been arrested. On the other hand, Section 29 (b) which appears to be applicable to a person not arrested also requires a court order to freeze or attach such property.
Moreso, one may argue that the phrase in Section 29 (b) “where any assets or property has been seized by the Commission” suggests that the Commission may have seized the property first before obtaining an interim order forfeiting the property. I agree with this view but the question is: since a bank account qualifies as an asset under Section 28 and 29 of the EFCC Act, when does the EFCC take steps to freeze money in a bank account pending when an interim order forfeiting same is obtained? I contend that the answer to this question is found in Section 34 of the Act which is the applicable section to the instant case. It specifically provides for freezing orders on banks and other financial institutions. It is submitted that even though the EFCC had acted under Section 29 (b) of the EFCC Act to freeze Mr. Fayose’s account, the Commission ought to have obtained an interim order freezing the said account.
Having carefully considered applicable provisions of the EFCC Act and judicial authorities, it is therefore deduced that the EFCC has the power to investigate a sitting Governor and immunity does not shield a governor from investigation. However, the fundamental question in determining the legality or otherwise of the step taken by the EFCC to freeze Mr. Fayose’s account is whether the EFCC had obtained a prior court order as required by the Act. Undoubtedly, it appears the EFCC never obtained any prior court order empowering the chairman to direct the bank to freeze Mr. Fayose’s bank account as required under section 34 of the Act. Where this is the cas, it is submitted that the EFCC acted illegally in freezing Mr. Fayose’s bank account.
I will conclude by stating that although the EFCC deserves commendations rather than vilifications in its fight against corruption, the Commission is enjoined to always comply with the law and to desist from any act that tends to suggest that the Commission is bigoted in discharging its function.
God bless the Federal Republic of Nigeria!
AYI-EKPENYONG IMAH, ESQ.
Is a Legal Practitioner writing from Lagos
Barr. Ayi, many thanks for this. this piece is didactic.
I agree with your submissions.