Constitutional validity of EFCC freezing Governor Ayodele Fayose’s bank account

It is trite to establish that the issue involved is procedural law which entails that there must be strict compliance with established law and rules. Section 34 (1) of the EFCC Act empowers it to freeze accounts. Note the phrase “apply to the Court ex-parte”, the phrases in Section 308 (1)- (3) “no civil or […]

It is trite to establish that the issue involved is procedural law which entails that there must be strict compliance with established law and rules. Section 34 (1) of the EFCC Act empowers it to freeze accounts. Note the phrase “apply to the Court ex-parte”, the phrases in Section 308 (1)- (3) “no civil or criminal proceeding” “arrested or imprisoned” “process of any court” and compelling the appearance. People have argued that criminal proceedings begin when information is filed at the court.
I beg to defer. Because the question is, the order freezing the account does it form part of a “court process” under Section 308 (b) & (c), and secondly what happens when the person comes to court to contest his case? Assuming, it is ruled not to be a court process, and such process has the effect of dragging the governor to court either to exercise his fundamental right to fair hearing or to defend himself, will it not have offended Section 308 CFRN 1999 as amended?
Instructively, the case of GANI FAWEHINMI V IGP (2002) 5 SC (PT 1) P 63, was about the duty of the police to investigate based on a letter written by Gani and not about whether or not an account ought to be frozen or better still there was no court machinery in motion seeking to assist an investigation.
The court interpreted “investigation” to imply inquiries into commission of a crime at a preliminary stage. The court did not approach investigation in a holistic sense but investigation based on the peculiarity of the case, the investigation contemplated by my learned lords is investigation with regards to general ascertainment of facts, inquisition of people, interview of persons, and not the scenario presented by the case under controversy.
The questions this case raises are; Does investigation mean freezing account according to the case under reference or was it contemplated by the court? Can the freezing of the account of governor be part of an investigation? Where the machinery of the court is invoked does it not overreach investigation and amount to proceedings as contemplated? Who will be named as a party/respondent in the ex-parte application as the governor cannot appear as a nominal party being that the action is within the realms of private law? The exhibits attached to the affidavit in support of the ex-parte application and the facts deposed therein which raises criminality does it not amount to sufficient criminal proceeding or infer a prima facie charge as an initiation of a criminal proceedings?
I have read the article by Femi Falana, SAN in Thisday Newspaper and Sahara Reporters. With due respect to the learned silk, the cases cited by him in support of his argument are too remote to the issue in controversy neither are they in any manner representing the facts he intends his readers to believe. Some of the cases he referred to were with regards to election petition against governors. From the judgments of the court it could easily be ascertained that the reasoning of the court were based on the fact that an elected governor whose election is being challenged cannot plead immunity. The said election upon which the governor derives his immunity and claims to be entitled is being contested; such, according to the court, cannot prevent an action against the governor. A valid election upheld by the court can only confer the needed immunity to prevent criminal or civil proceeding as envisaged by Section 308 of the 1999 Constitution as amended.
To buttress my assertion, the court in Obih V. Mbakwe (1984) ALL NLR 134 at 139 tagged it a “special proceedings” divorced and separated from civil proceedings within the context of section 267 of CFRN 1979 (Section 308 CFRN 1999), in Alliance for Democracy V. Ayodele Fayose (No.1) (2004) 26 WRN 34, the court said allowing immunity will prevent an aggrieved party from questioning the election of a governor. The case of Dalhatu V Turaki (2003) 7 SC at 2 had nothing to do with immunity. Fawehinmi V. IGP cited by him has been discussed above.
Even where a case was instituted against an individual before he becomes a governor, such action abates once he becomes any of the officials listed in Section 308 (3) CFRN 1999, and such occupant of the said office cannot institute an action in his personal capacity neither can he waive his  right  of immunity provided for him by the constitution to initiate actions in court to enforce his rights. In Bola Tinubu V. I.M.B Securities (2001) 9-10 SC at 49 and Colonel Oluwole Rotimi & Ors V Mrs. Macgregor (1974) 11 SC. 133.
The principle of law in Awolowo v. Shagari, that a statute should always be looked at as a whole, could also be extended to mean that where an issue of law arises, the relevant statutes with procedural vestiges with respect to the law in question have to be adequately evaluated and complied with.
It is an established principle of property law that money belonging to a client in an account held by a bank is the client’s property. This brings the above within the ambit of Section 44 (1) and (2) (K), CFRN 1999, note the phrases “No moveable property, “taken possession of compulsorily “, “except in the manner and for the purpose prescribed by law”, “temporary taking of possession of property” and “investigation”.
For EFCC to contend they have the right to hold a person’s property temporarily under Section 44 (2)(k) they must comply with Section 44(1) which has a caveat “except in the manner and for the purpose prescribed by law”,  words of a statute are to be read as a whole to get the general import, the case of Awolowo v. Shagari above emphasizes thus.
One can see that the action of EFCC touches on fundamental human rights and as such compliance “with the prescribed law” (ex-parte application).
Section 44 of CFRN raises this question: Was the action of EFCC in the manner and purpose prescribed by law? Bearing in mind that freezing an individual’s account touched on the inalienable right of a Nigerian citizen to own property provided under Section 44 of which for time immemorial has been jealously guarded by the courts against executive breach. It raises the question which “Prescribed Law” ought to guide the actions of EFCC? This is answered by looking at the EFCC Act Section 34 which provides for bringing an ex-parte application.
Ifediora is a legal practitioner at Dayo Akinlaja (SAN) & Co. [email protected] (for complete article)