•••Rules That Constitutional Immunity Does Not Shield Suspected Proceeds of Crime
The Court of Appeal, Lagos Division, has overturned a ruling by the Federal High Court that struck out an interim forfeiture order obtained by the Economic and Financial Crimes Commission (EFCC) to seize 14 properties allegedly linked to the Governor of Kogi State, Yahaya Bello.
In a unanimous virtual judgment delivered on Wednesday, the three-man panel led by Justice Yargata Nimpar, with Justices Danlami Senchi and Paul Bassi concurring, held that the lower court erred in law when it relied on Section 308 of the 1999 Constitution to strike out the case instead of deciding whether the properties should be permanently forfeited.
The appellate court ruled that the immunity granted to serving governors under the Constitution does not extend to properties suspected to be proceeds of unlawful activity. Justice Nimpar emphasized that while a governor may enjoy protection from prosecution, assets linked to alleged criminal conduct can be preserved pending the outcome of a final forfeiture hearing.
The Court therefore restored the interim preservation order and directed the EFCC to proceed with the hearing on the final forfeiture of the properties.
The EFCC’s legal team was led by Senior Advocate of Nigeria (SAN), Rotimi Oyedepo, alongside Bilkisu Buhari-Bala and Hanatu Kofanaisa.
The case began at the Federal High Court in Lagos where Justice Nicholas Oweibo had, on the request of the EFCC, granted an interim forfeiture order permitting the anti-graft agency to seize 14 high-value properties located in Lagos, Abuja, and Dubai, United Arab Emirates, suspected to have been acquired with proceeds of unlawful activity. The court also directed that the order be published in two national dailies to invite objections from interested parties.
Governor Yahaya Bello, in response, filed a motion challenging the interim order and sought to vacate it. He argued that the properties in question were purchased before his assumption of office and therefore could not have been funded with public resources. He further invoked Section 308 of the Constitution, asserting that as a sitting governor, he was immune from both civil and criminal proceedings.
His legal team also claimed that the Proceeds of Crime (Recovery and Management) Act, 2022 could not be applied retroactively and that the EFCC’s action contravened an existing order by a Kogi State High Court that restrained the agency from investigating the state’s finances.
Justice Oweibo ruled in Bello’s favour, holding that the EFCC’s actions contravened Section 308 and that the court lacked jurisdiction to entertain the matter.
The EFCC, dissatisfied with the decision, appealed the ruling, urging the Court of Appeal to reinstate the forfeiture order and allow the case to proceed.
In its judgment, the Court of Appeal dismissed Bello’s objections, declaring that the lower court should have focused on determining whether the properties in question were acquired illegally, rather than being swayed by the issue of immunity.
“The trial court erred in striking out the case. The proper course would have been to determine the merit of the forfeiture application,” Justice Nimpar held.
With the appellate court’s ruling, the EFCC is now cleared to proceed with the final forfeiture hearing of the properties, including a luxury apartment at the Burj Khalifa in Dubai and other assets linked to the governor.
The case marks a significant legal stance on the limits of constitutional immunity and strengthens the EFCC’s power to preserve and recover suspected illicit assets even when linked to serving political officeholders.
