The Court of Appeal in Lagos has reinstated an interim forfeiture order previously granted to the Economic and Financial Crimes Commission (EFCC) over 14 properties and N400 million allegedly linked to former Kogi State Governor Yahaya Bello.
In a unanimous judgement delivered virtually on Wednesday by a panel of three justices led by Yargata Nimpar, with Danlami Senchi and Paul Bassi concurring to set aside an earlier ruling of the Federal High Court, which had struck out the forfeiture case on grounds of immunity under Section 308 of the Nigerian Constitution.
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The appellate court held that the immunity granted to serving governors does not extend to assets suspected to be proceeds of crime, thereby restoring the EFCC’s right to pursue final forfeiture proceedings.
Background
The legal battle began in February 2023 when a trial judge Nicholas Oweibo of the Federal High Court, Lagos, granted the EFCC an interim order to seize 14 properties located in Lagos, Abuja, and Dubai, as well as the sum of N400 million recovered from one Aminu Falala.
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The commission alleged that the assets were acquired through unlawful means and sought their forfeiture under the Proceeds of Crime (Recovery and Management) Act, 2022.
The EFCC also complied with a court order to publish the interim forfeiture notice in national newspapers to enable any interested parties to show cause why the properties should not be permanently forfeited.
Bello fights back
In response, Mr Bello filed a notice of intention to oppose the forfeiture and applied to vacate the interim order. Through his lawyer, Abdulwahab Mohammed, who is a Senior Advocate of Nigeria (SAN), the former governor argued that the properties were acquired before he assumed office as governor.
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Mr Bello further noted that section 308 of the Constitution shields him from any civil or criminal proceedings while in office and the Proceeds of Crime Act could not be applied retroactively.
The former governor maintained that the Federal High Court in Lagos lacked jurisdiction, as the properties were located outside its territorial reach.
On 26 April 2023, Mr Oweibo ruled in Mr Bello’s favour, holding that Section 308 conferred immunity on him and thus the court lacked jurisdiction to proceed with the forfeiture suit.
The judge consequently struck out the case, despite noting that Mr Bello had failed to provide adequate evidence of how the properties were acquired.
EFCC appeals, cites precedents
The EFCC, led by Rotimi Oyedepo, also a SAN, immediately appealed the ruling, arguing that the lower court erred by misconstruing the extent of constitutional immunity.
The anti-graft agency relied on previous decisions of the Court of Appeal in EFCC v. Fayose (2018) and the Supreme Court’s judgment in Fawehinmi v. IGP (2002) to support its position that immunity does not bar investigation or asset preservation.
Mr Oyedepo maintained that Mr Bello failed to disclose credible evidence of ownership or source of funds for the properties and did not rebut the EFCC’s claims in its counter-affidavit.
He further argued that the Proceeds of Crime Act outlines a clear process for challenging forfeiture orders, which the governor did not follow.
Among the assets listed for forfeiture is a luxury apartment in the Burj Khalifa, Dubai, identified as “Hotel Apartment Community, Sky View Building No. 1, Property No. 401, Floor 4, Plot 160, Municipality No. 345-7562.”
Appeal court overrules
In its ruling on Wednesday, the Court of Appeal agreed with the EFCC’s position.
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Mr Nimpar emphasised that Section 308 does not shield assets from legal scrutiny, especially when such assets are suspected to have been acquired with illicit funds.
“The trial court erred in striking out the case rather than proceeding to determine whether the properties should be finally forfeited,” the court ruled.
The appellate court dismissed Mr Bello’s preliminary objections, reinstated the interim forfeiture order, and directed the EFCC to proceed with a final forfeiture hearing.
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