Is Freezing Governor Fayose’s Account Legal? by... Somadina Ibe-Ojiludu

The Supreme Court of Nigeria affirmed in Gani Fawehinmi vs. Inspector General of Police (2002) 23 WRN 1 that immunity from prosecution granted to public officers named in section 308 of the Constitution of the Federal Republic of Nigeria 1999 does not preclude their investigation for criminal offences. With the surfacing of a Federal High Court order authorising the freezing of Governor Fayose’s bank accounts, the question now is whether the order falls within the scheme of investigation as understood in law.

In Glasbrook Brothers Limited v Glamorgan County Council [1925] AC 270, the then British House of Lords reasoned thus: “No doubt there is an absolute and unconditional obligation binding the police authorities to take all steps which appear to them to be necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury” (emphasis mine).

By freezing the bank accounts of Governor Fayose, the Economic and Financial Crimes Commission (EFCC) is protecting a suspected property of the Federal Government from criminal injury. The Commission had traced money belonging to the Federal Government to the governor’s bank accounts and it alleged that the money was corruptly sourced from the office of the National Security Adviser. Thus by the freeze, the EFCC is living up to its investigatory obligation.

However, there is a caveat to the rule highlighted in the above case. In R v Lughinton [1894] 1 QB 420, Wright J affirms:

“It is undoubted law that it is within the power of, and is the duty of, constables to retain for use in court things which may be evidences of crime and which have come into the possession of constables without wrong on their part” (emphasis mine).

Thus for R v Lughinton, an investigating authority must, in taking all necessary steps that protect property from criminal injury, act without wrong on its part. In other words, the authority must act within the law. Section 34 (1) of the Economic and Financial Crimes Commission Act 2004 provides that the EFCC can legally direct that a bank account be frozen only if there is an authorising court order. As reported by Premium Times, the court order authorising the freeze of Governor Fayose’s bank accounts was granted on June 24, although Fayose’s bank accounts had already been frozen by June 21 before securing the court order. A joint reading of R v Lughinton and section 34 (1) of the EFCC Act shows, therefore, that the freezing of Governor Fayose’s bank accounts before June 24 was illegal. However, the EFCC can be said to have acted wisely by obtaining a Federal High Court order on June 24. The order saved and accommodated the freezing of Fayose’s bank accounts within the ambit of a valid investigation process.

Another important issue here is whether Section 308 of the Constitution has been violated by the mere fact that the EFCC approached a Federal High Court for an order authorising it to freeze Governor Fayose’s bank accounts. Section 308 (1) (a) of the Constitution provides that “no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office” (emphasis mine). And this aspects of the body of legislation, according to Section 308 (3) of the Constitution, applies to “a person holding the office of President or Vice-President, Governor or Deputy Governor”. It may be argued that the Federal High Court order violates section 308 of the Constitution as shown in the title of the lawsuit which conveyed the order: Federal Republic of Nigeria v Zenith Bank PLC Account Numbers 1003126654, 9013074033, 1010170969 and 1013835889. The title of the lawsuit itself shows that a proceeding has been instituted by the Federal Government against Mr. Fayose, a sitting governor, by targeting his personal bank accounts. Thus, by granting the sought ex parte order, it could be said that the Federal High Court was authorising what section 308 clearly forbids – criminal proceeding against an incumbent governor.

However, it is my submission that the above reasoning holds no water. Why?

Section 34 (1) of the EFCC Act shows that a bank account can only be frozen pursuant to a court order. If one argues that the Federal High Court order authorising the freezing of Governor Fayose’s bank accounts violates section 308 of the Constitution, one is in essence positing that no financial crime investigation involving a bank account can be undertaken against a person holding the office of the President, Vice-President, Governor or Deputy Governor. This is because, as seen in the above-cited section of the EFCC Act, it is only through a legal action in a court that a bank account can be frozen in the course of a financial crime investigation. Arguing that the Federal High Court order violates section 302 of the Constitution, thus, renders as merely academic – in relation to financial crime investigation involving a bank account – the decision of the Supreme Court in Gani Fawehinmi vs. Inspector General of Police that the immunity clause for certain public officers does not preclude their investigation. And just a few months ago, Justice Ibrahim Muhammad reiterated in Saraki v Federal Republic of Nigeria (2016) LPELR-40013 (SC) a perennial position of the Supreme Court when he said: “This Court is always loathe in pursuing academic issues and as a Court does not make orders in vein”.

From the above, it is clear that the Federal High Court order authorising the freeze of Governor Fayose’s bank accounts is constitutionally valid. The order falls within the scheme of investigation as understood in law.