The Court of Appeal sitting in Lagos, yesterday, set aside a Federal High Court ruling that struck out an interim forfeiture order obtained by the Economic and Financial Crimes Commission, EFCC, to seize 14 properties allegedly linked to former governor Yahaya Bello of Kogi State.
In a unanimous judgment delivered virtually, Justice Yargata Nimpar, with Justices Danlami Senchi and Paul Bassi concurring, held that the lower court erred in law by relying on Section 308 of the 1999 Constitution to strike out the case, instead of determining whether the properties should be permanently forfeited.
Justice Nimpar restored the preservation order and directed the EFCC to proceed to a final forfeiture hearing.
The appeal originated at the Federal High Court in Lagos, where Justice Nicholas Oweibo had granted an interim forfeiture order in favour of the EFCC.
Obtained via an ex-parte application, the order allowed the anti-graft agency to temporarily seize 14 properties located in Lagos, Abuja, and Dubai, United Arab Emirates, UAE, suspected to be proceeds of unlawful activity.
The court also directed the EFCC to publish the order in two national newspapers, inviting interested parties to show cause why the properties should not be permanently forfeited to the Federal Government.
Following the publication, Bello filed a notice of intention to oppose the forfeiture and applied to vacate the interim order.
Bello argued that the properties were acquired before his election as governor and therefore, could not have been purchased with Kogi State funds.
He invoked Section 308 of the Constitution, which grants immunity to sitting governors from civil and criminal proceedings, contending that the EFCC lacked the authority to institute any action against him while in office.
His legal team further argued that the Proceeds of Crime Act, 2022 could not be applied retrospectively, as the properties were allegedly acquired before the law came into effect.
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They further argued that EFCC’s action violated an order of a Kogi State High Court restraining the agency from investigating state accounts.
In response, the EFCC urged the court to uphold the interim forfeiture order, arguing that no Nigerian court had barred the commission from carrying out its constitutional duties.
It maintained that the properties, including a luxury apartment at the Burj Khalifa in Dubai, were reasonably suspected to have been acquired with proceeds of unlawful activity.
It also sought the forfeiture of an additional N400 million linked to the same investigation.
Justice Oweibo, however, ruled in Bello’s favour, holding that Section 308 of the Constitution shielded a sitting governor from any form of civil or criminal proceedings.
Dissatisfied with the decision, the EFCC appealed, asking the Court of Appeal to restore the interim forfeiture order.
In its judgment, delivered virtually, the appellate court agreed with the EFCC.
Justice Nimpar held that immunity does not extend to properties suspected to be proceeds of unlawful activity, and such assets can be investigated and preserved pending the outcome of a forfeiture application.
“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 Court of Appeal dismissed Bello’s preliminary objection as lacking merit, reinstated the interim forfeiture order, and directed the EFCC to proceed with the final forfeiture hearing.
