An application filed by Yahaya Bello, the Kogi state Governor, in quest of vacating an interim forfeiture order in respect of 14 properties and the sum of N400m has been admonished for dismissal by the Economic and Financial Crimes Commission (EFCC) before Justice Nicholas Oweibo of the Federal High Court in Abuja earlier in the week.
In line with Sections 9 and 10 of the Proceeds of Crimes (Recovery and Management) Act, 2022, the court on February 22, 2022, gave a preservation order of the properties associated with Yahaya Bello, practically alleged to have been derived from illegitimate activities.
The properties which were suspected to be acquired through illegal activities are; “Hotel Apartment Community, Burj Khalifa lying, being and situate at, Plot 160 Municipality NO 345-7562, Sky View Building No 1, Property No 401, Floor 4, Dubai U.A.E.”.
Rotimi Oyedepo, SAN the EFCC counsel at the resumed hearing averred that in sequence with the court’s order to advertise the same in one of the national dailies, such had been done via a publication in the Punch Newspaper.
“We were directed to make a publication of the said Order and we have complied with the order of the court.
“There is an affidavit to the Order dated 22nd February 2023, which was complied with on the 24th February 2023.
“Sequel to that, we have received a notice of intention to oppose the making of the preservation order and we have equally responded,” Oyedepo said.
Abdulwahab Mohammed SAN responded on behalf Yahaya Bello while seeking to vacate the court order said “We have an application subject to your lordship’s convenience. We are ready to move the application. It was filed on March 9, 2023. The application is seeking your indulgence to vacate the order of the court made on the 22nd of February, 2023.”
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He disputed that Before Bello became the governor of the state, most of the properties sought to be forfeited were acquired, pointing out that Yahaya Bello enjoys immunity under the constitution, hence, the EFCC lacked the power to proceed against the governor.
“By virtue of the position of the applicant (Kogi State Governor), you cannot proceed against him under any law, according to Section 308 of the Nigerian Constitution.
“If you want to prosecute or forfeit his properties, you have to wait till he no longer enjoys those benefits of a Governor,” he maintained and urged the court to grant his client’s prayers and vacate the order.
The EFCC counsel Oyedepo, while contradicting the application was dependent on statements in the 12-paragraph counter-affidavit and a documented address dated 28 March 2023, asserting that the applicant did not respond to the counter-affidavit made by the prosecution.
“In Usman against Garke, it was reported in 2003, LPLR 3431, Supreme Court, and our submission is that failure to reply to the counter-affidavit has a single legal consequence that the respondents are agreeing to the application. We urge your lordship to hold that the failure to respond is deemed admitted.
“We have cited authorities to this effect, one of which is Patience Jonathan and the FGN, in paragraph 1.08 of our submission. The Proceeds of Crime (Recovery and Management) Act, 2022 prescribes the mode of challenging the preservation order of the court and the steps to be taken by the party challenging the making of the preservation order.”
Oyedepo acquiesced that the applicant must show his interest in the property concerned, as one of the requirements that the application must contain.
“Apart from Paragraph 4H and I of the affidavit in support of the notice of intention, there is nothing before this Honourable court showing, by way of credible evidence, how the properties were acquired.
“In our counter-affidavit, we have established how the properties were acquired and there is nothing challenging how the properties were acquired.
“What was deposed is that most of the properties were obtained before he became Governor of Kogi State and the properties were not acquired through illegal means.
“Without establishing the interest of the applicant, the application is bound to fail.”
Oyedepo stressed that the Provision of S308 cannot be construed to a ridiculous extent as preventing the state from investigating the beneficiary of the section while responding to the immunity clause as contained in Section 308 of the 1999 constitution.
“As far back as 2002, in the case of Fawehinmi and IGP, the court mentioned that a person protected under S308 can be investigated; and the fact that someone is under immunity does not prevent the state from investigating.
“Where a state governor is reasonably suspected to have committed a financial crime, the state can investigate for evidence that will be used in prosecution when he no longer enjoys the immunity,” Oyedepo stated.
He reiterated that only one asset out of Bello’s entire assets which the EFCC eels to preserve was declared in the applicant’s declaration of assets form and nothing had been said in the affidavit to contest the reasonability of the allegation.
Consequently, he pleaded with the court to order the applicant to tell the court how the properties were acquired as well as dismiss his prayers.
The case was adjourned till April 20, 2023, for a ruling.
