Opinion: A rejoinder to ‘The constitutional validity of freezing Fayose’s bank account’

By Ilemona Onoja

I just read “An Analysis of the Constitutional Validity of Freezing Governor Fayose’s Bank Account” written by Inibehe Effiong. More than half of the time I was reading, my mouth was open in amazement. Not many times have I read judgments of the court or provisions of law being so brazenly twisted to arrive at a predetermined conclusion.

While trying not to be technical I will take a few paragraphs to address the absurdity of the legal assertions contained therein. To be certain, there is only one set of things that Mr. Effiong gets right – the verbatim quotes from the relevant laws and court cases he cited. Thereafter, he went on a frolic of his own.

For the avoidance of doubt, the real legal issues involved in this matter are:

1. Whether the EFCC have the powers under the law to freeze the bank account(s) of ANY PERSON under criminal investigation by the commission?

2. Whether approaching the court for an ex-parte order to freeze the personal account of a governor account constitutes “civil or criminal proceedings” within the contemplation of Section 308 of the Constitution?

3. Whether Fawehinmi v IGP (2002) 7 NWLR (Pt.767) 606 is applicable to the extant scenario.

1. Whether the EFCC have the powers under the law to freeze the bank account(s) of ANY PERSON under criminal investigation by the commission?

This is pretty simple to resolve. S34(1) of the Economic & Financial Crimes Commission Act provides:

“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.”

I doubt this requires any explanation. To freeze the account of Governor Ayodele Fayose or indeed any other person, EFCC has to apply to a court for and obtain a court order permitting the freezing of said account. This application can be made ex-parte- that is, without the attendance of the other party in court. If satisfied, a court can then issue the order empowering EFCC to freeze the account.

2. Whether approaching the court for an ex-parte order to freeze the personal account of a governor account constitutes “civil or criminal proceedings” within the contemplation of Section 308 of the Constitution

This is where the substance of the argument is. What constitutes “proceedings”? Is an application, whether on notice or ex parte, for the issuance of a court order a court proceeding? The answer is yes. How a lawyer like Mr. Effiong will say different beats my imagination.

An ex parte order is defined as legal proceedings before a judge in which only the party making the application is required to be present. Ex parte orders are usually made as a matter of urgency to restrain the other party from doing something to damage the subject matter of litigation.

The EFCC Act does not stipulate the procedure for making the application referred to in Section 34(1). So we will look at the Federal High Court (Civil) Procedure Rules for direction. First, Order 26(2)(1) provides:

“Whereby these Rules an application is authorized to be made to the Court or to a judge in Chambers, such application may be made by motion.”

In other words, all applications made to court are made by way of motion.

Order 28(1)(3) provides:

“The plaintiff may not make such an application BEFORE THE ISSUE OF THE PROCESS BY WHICH THE ACTION IS TO BE BEGUN, except where the case is one of urgency, and in that case the injunction applied for may be granted on terms providing FOR THE ISSUANCE OF THE PROCESS AND SERVICE OF THE PROCESS, together with the ex parte order obtained on the defendant and such other terms, as the court thinks fit.
The provisions of this rule are quite clear. An ex-parte order, or indeed any other interlocutory order, is a part of court processes (or proceedings) via which the rights, obligations and liabilities of parties can be determined. The Rule goes so far as to say that applications cannot be made before the issuance of processes by which an action is originated – in other words, before you make an application for the issuance of an ex-parte order you have to institute legal proceedings.

In cases of urgency, you can issue an ex-parte order but only on terms which provide that the order must be attached to other originating processes and served on the defendant. These processes can either be writs of summons or criminal charges

The simplest way to explain this is that the existence of a civil suit or the filing of criminal charges are the foundations upon with an application for an ex parte order rests. EFCC cannot apply for and obtain a court order without filing a suit – civil or criminal- against Ayodele Fayose.

Therefore, seeing as an application for the issuance of a court order to freeze Fayose’s accounts is a court process and forms part of the proceedings of a court, it falls within the contemplation of “civil or criminal proceedings” provided for by Section 308 of the Constitution from which Fayose’s is immune. The EFCC is restrained by Section 308, which give instituting any sort of proceedings against him with the view to freezing his accounts. I have a feeling the commission knows this which is why no such application for a court order has been filed.

3. Whether Fawehinmi v Inspector General of Police (2002) 7 NWLR (Pt.767) 606 is applicable to the extant scenario.

I read Mr. Effoing’s interpretation of Fawehimni v IGP and I’m bemused by his complete lack of understanding of the judgment given therein as it relates to the Fayose scenario.

The first fundamental difference is that none of the assets and accounts of Chief Bola Tinubu’s, the investigation of whom was the subject matter of the suit, was frozen at the time as is the case with Fayose. It is a fundamental difference. Perhaps the Supreme Court would have given different orders if this was the case.

In all scenarios from the judgment highlighted in his piece, Mr. Effoing fails to realise that at no time did the Supreme Court determine that a person with immunity could be restrained from using any of the chattels or personal property. For the avoidance of doubt, let me reproduce the parts of the judgment he cited.

“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 fun into a nearby bush. Or that he stole public money and kept it in a particular account 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…”

At no point here did the Supreme Court say that a person with immunity can be prevented from using any of the chattels referred to above. It said the prosecuting authority can investigate. It grants no power to the prosecuting authority to restrain the use of such chattels.

To flesh this out, lets pick up the examples. A house – ownership of the house can be investigated by visiting the Lands’ Registry of the locale where the house is situated to conduct as search as to particulars of its ownership. Accounts can be investigated by visiting the bank to inquire as to ownership of said accounts, origin of funds paid into said accounts, particulars of individuals who withdraw from such accounts and so on.

As for the gun used in committing murder, the Supreme Court used an analogy of a gun thrown away into the bush, not one in the possession of the Governor himself. Other parts of this analogy involved autopsy on a dead man, ballistics tests on the gun not in the possession of the person with immunity and so on.

I am saying all that to say this. Contrary to the erroneous interpretation given by Mr. Effiong, and several people on social media, there is no declaration by the Supreme Court in Fawehinmi v IGP that gives the police, EFCC or any prosecution agency the power to restrain a person with immunity from operating a chattel or personal property. Did you notice that the example given by the Supreme Court did not include stopping the Governor to ask that he gets off the vehicle so that it can be take to the laboratory for testing?

For a member of a profession that deals with words and the interpretations thereof, Mr. Effiong pays scant attention to the words in the portion of the judgment he cited.

CONCLUSION
As it currently stands, there is no doubt that the EFCC is acting ultra vires its powers and in complete disregard for the provisions of the Constitution. Section 308 gives Fayose complete immunity from the course of action they are currently taking.

I am surprised we are having this debate instead of the more important debate about what to do with Section 308. I am surprised that many are just realising the extents of immunity granted to those classes of persons covered by Section 308. I am surprised that people are not more interested in concerted action to whittle down the provisions of Section 308.

I am surprised because that is where the solution lies. If you are upset that Fayose, or indeed anybody, has such immunity begin to lobby your National Assembly representatives to abridge such immunity. That is where the solutions lie.

It definitely does not lie in mob actions in support of a clearly unconstitutional act the sort of which EFCC has taken.

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Op–ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija

Ilemona Onoja is a legal practitioner. He is on twitter as @i_am_Amoneli

Comments (2)

  1. With respect, Mr Ilemona’s submission does not represent the correct position of the law. I tend to lean on the fine interpretation provided by Mr. Effiong on this very sensitive and all important constitutional matter.

    Section 34(1) of the EFCC Act does provide that the EFCC may obtain a freezing order by an application ex parte to the court. Accordingly, Mr. Onoja’s reliance on section 28 of the Federal High Court (Civil Procedure) Rules 2009 in arguing that “…before you make an application for the issuance of an ex parte order, you have to institute legal proceedings…” is not tenable in the circumstances of this case. The law is clear on the mode of obtaining a freezing order in the circumstances and provides that same shall survive until revoked – one wonders why same should be subjected to the procedure provided for in the FHC Rules. It is also arguable that the life span of the ex parte order would not elapse or be discharged as provided in Order 26 Rules 11 and 12 of the FHC Rules. This is predicated on the principle that time does not, ordinarily run against police investigation.

    On the famous Fawehinmi v I.G.P case, Kalgo, J.S.C captured the distinction between “proceedings” and “investigation” at page 699, paras. C-F of the judgement when he aptly observed that –

    “…it must be clearly understood that there is a distinction here between “Proceedings” and “Investigation” leading to the proceedings. In the civil proceedings, investigation is hardly necessary, but in criminal proceedings, where allegations of crime are made, there is almost always the need to ensure that there is sufficient evidence to prosecute and these may involve questioning, arrest or even detention where necessary of the person or persons involved. There is no doubt that in all criminal allegations, investigation plays an important part and it will make or mar subsequent criminal proceedings, but that does not make it qualify as being part and parcel of the “proceedings”. It follows therefore that police investigation of a criminal allegation is not and cannot be regarded as criminal proceedings, so as to qualify as such “proceedings” under section 308(1) of the 1999 Constitution.”

    In Asinkpati v The State (1993), 5 NWLR (Pt. 296) 641, the Supreme Court held that criminal proceedings commence when the person suspected is arraigned before the court on a formal charge and his plea taken.

    In view of the foregoing, to the extent that the ex parte order obtained by the EFCC was for the purpose of freezing Fayose’s account in order to carry out proper investigation into the allegation of crime levelled against him, which may or may not result in criminal prosecution, it beats the imagination to find fault on the constitutionality of the process. His immunity under the constitution shields him from criminal proceedings and not from “investigative steps” taken in deciding whether he would be docked after his tenure elapses or not. The intention of Section 34 is merely to get a preservative order on the property suspected to be proceeds of crime so as to prevent the person or persons under investigation from dissipating the assets and thereby create a situation of fait accompli (helplessness) on the law enforcement officers and by extension the court.

    1. Nonso, how do you apply for a freezing order without filing a law suit or charges? How is an application brought before a court? Isn’t that by way of motion (on notice or exparte)? What will be the header of that motion paper? EFCC v Fayose? At that point have you not not instituted proceedings against the governor?

      Can an application for a motion exparte exist on its own? Without filing the substantive suit or charge? Finally is a motion not a court process? Isnt it part of the procedures via which the powers of a court can be invoked?

      Now way you can ask for a freezing order without involving Fayose as a party. Involving Fayose as a party falls short of S308.

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