Freezing of Fayose’s Bank Account: Its illegality and EFCC’s disappointing irrationality -By Sunday O. Oladepo

I have heard and read all sorts of defenses, rejoinders and commentaries from people on the constitutional validity of Governor Ayodele Fayose’s frozen Bank Account. As expected, everybody spoke along the tangent of their sentiments to either express approval or condemnation of the act. This is not wholly bad. Everybody has got at least a right to express their sentiments on every issue. It is fundamental. More than half of the times I was reading different opinions and stances, my mouth was unconsciously opened in amazement. Not many times have I read judgments of the Court or provisions of law being so brazenly distorted to arrive at self-serving conclusions.

Even though not a lawyer, I will try to take a few paragraphs to address some absurdities of the legal assertions being used to twist the case all around. For the avoidance of doubts, the case is embedded with the following real legal issues:

1. According to Barrister Ademola Oyedokun, the Lead Partner at Ademolaw Chambers, and an Abuja-based lawyer — He remarked that the EFCC or any Law Enforcement Agency is truly empowered to investigate a person with immunity, as written in the S308 of the Nigerian Constitution. But, cannot arrest or prosecute such a person until the expiration of his immunity. It is a settled law. Therefore, it is no debate that Governor Fayose can be investigated but cannot be arrested or prosecuted.

2. Barrister Ademola further explained that S26 (EFCC Act) mandates the Commission to trace, attach and obtain Interim Attachment Order from Court before it can have the legal power to freeze the Bank Account (s) of any person under criminal investigation by the Commission. This is where the big problem is. The Commission can only obtain Interim Attachment from Court via a direct prosecution of the defendant. Hence, the EFCC must file a suit and prosecute Governor Fayose to obtain Interim Order.

3. Don’t forget, S308 of the Constitution paraphrases that: No civil or criminal proceedings shall be instituted or continued against the President, or a Governor or their Deputies. This is quite easy to resolve. Since the EFCC had been incapacitated by the law to prosecute a sitting Governor, the Commission cannot therefore obtain Interim Order, which is the only legally tenable approval.

4. I personally made some researches and let’s take a swipe at this. S34 (1) of the Economic and 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.”

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 capital YES. 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. Why some people were making distortions of this open fact beats my imagination.

‎It is self-explanatory!

5. If EFCC thus in its own accord carries out a freezing order, this is tyrannic and an open deviant of the rule of law. It is illegal. Wrong is wrong — no matter the purpose for doing it, who does it, how it was done and the person(s) involved. Fawehinmi vs Inspector General of Police (2002) 7 NWLR (Pt.767) 606 is not apposite to this scenario by every legal standard and anybody putting forward such arguments is only playing to the gallery.

Sunday O. Oladepo (JATTS’) writes from Lekki in Lagos State.

Twitter: @sundayooladepo‎

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