Editor’s note: The Economic and Financial Crimes Commission in what might be considered an unprecedented move froze the personal account of Governor Ayodele Fayose of Ekiti state and this had left many to wonder if this bold action by the anti-graft agency is a testament of its fight against corruption or an affront step to crush opposition.
In this opinion article, Chief Joshua Alobo. who is also a barrister has shared his thoughts on his issue.
It is settled law that persons listed in section 308, Constitution of the Federal Republic of Nigeria, 1999 (as amended) (hereinafter referred to as 1999 Constitution (as amended) to wit: The President, Vice President, Governor and Deputy Governor are immune from criminal and civil actions while in occupation of the aforesaid offices. However, on the Supreme Court’s verdict in Fawehinmi v IGP (2002) 7 NWLR (Pt.767) 606 such holders of aforementioned offices can be investigated. There is crystal distinction between investigation and prosecution, thus persons with immunity can be validly investigated.
The germane issue is whether in carrying out the investigation, EFCC can exercise the powers pursuant to section 34, of the EFCC (Establishment) Act, 2004 on persons conferred with irrevocable immunity.
It is seminal to reproduce the provisions of sections 34, of the EFCC Act for proper appreciation. It reads thus:
“Notwithstanding anything contained in any other enactment or law, the Chairman of the Commission or any officer authorised by him may, if satisfied that the money in the account of a person is made through the commission of an offence under this Act and or any of the enactments specified under section 7 (2) (a)-(f) of this Act, apply to the Court ex-parte for power to issue an order as specified in Form B of the Schedule to this Act, addressed to the manager of the bank or any person in control of the financial institution or designated non-financial institution where the account is or believed by him to be or the head office of the bank, other financial institution or designated non-financial institution to freeze the account.”
It should be rightly stated that section 34 of the EFCC Act “Notwithstanding anything contained in any other enactment or law,”can only override provisions of legislations and not the constitution, the ground norm and fountain upon which every legislation derive validity. It is respectfully submitted that section 308, 1999 Constitution (as amended) is superior to section 34 EFCC Act.
It is imperative to assert that the order of freezing an account is not an administrative but judicial exercise, hence an exparte application is required to initiate the process of freezing account as contemplated by section 34 EFCC which explicitly stated as follows: “apply to the Court ex-parte for power to issue an order as specified in Form B of the Schedule to this Act.”
It is apparent that order of freezing an account is beyond mere investigation, it is the beginning of preliminary action. The freezing of account is beyond preservation of record of investigation as evinced by Supreme Court in Fawehinmi v IGP (supra) in the immortal words of Justice Uwaifo, JSC, wherein he posited thus: “That a person protected under section 308 of the 1999 Constitution, going by its provisions, can be investigated by the police for an alleged crime or offence is, in my view, beyond dispute.
To hold otherwise is to create a monstrous situation whose manifestation may not be fully appreciated until illustrated. I shall give three possible instances. Suppose it is alleged that a Governor, in the course of driving his personal car, recklessly ran over a man, killing him; he sends the car to a workshop for the repairs of the dented or damaged part or parts. Or that he used a pistol to shoot a man dead and threw the gun into a nearby bush. Or that he stole public money and kept it in a particular bank or used it to acquire property.
Now, if the police became aware, could it be suggested in an open and democratic society like ours that they would be precluded by section 308 from investigating to know the identity of the man killed, the cause of death from autopsy report, the owner of the car taken to the workshop and if there is any evidence from the inspection of the car that it hit an object recently, more particularly a human being; or to take steps to recover the gun and test for ballistic evidence; and generally to take statements from eye witnesses of either incident of killing. Or to find out (If possible) about the money lodged in the bank or for acquiring property, and to get particulars of the account and the source of the money; or of the property acquired?
The police clearly have a duty under section 4 of the Police Act to do all they can to investigate and preserve whatever evidence is available. The evidence or some aspect of it may be the type which might be lost forever if not preserved while it is available…”
It is abundantly apparent that EFCC has the requisite vires to conduct intelligent and forensic investigation on persons conferred with irrevocable immunity. It was alleged as reported by various media outfits that “the Economic and Financial Crimes Commission (EFCC) have revealed that a personal account held with the Zenith Bank of Nigeria of Ekiti State Governor, Ayodele Fayose, was frozen in connection with over N1.2billion he took in 2014 from the disgraced National Security Adviser (NSA), Sambo Dasuki, to prosecute his re-election as governor.”
The above allegations can be forensically investigated without dramatisation by freezing the account of an incumbent Governor. It should be observe that freezing of account is a preemptive step to full scale trial. An account cannot be frozen infinitum! By freezing a suspect’s account, the EFCC prevents the suspect from accessing, operating and drawing money from the account which may ultimately be forfeited to the government if the suspect is found guilty by court of competent jurisdiction.
The sanctity of constitutional immunity cannot be jettisoned on the altar of fighting corruption as the fabric of our democratic ethos must be respected. A calm perusal of section 308 resolves the issue in favour of Ayo Fayose and expose unconstitutional and illegality of EFCC action as threat to constitutional democracy where rule of law is supreme above whims and caprices of strong individuals in the society.
308. (1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section –
(a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;
(b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and
(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued: Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.
(2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.
(3) This section applies to a person holding the office of President or Vice President, Governor or Deputy Governor; and the reference in this section to “period of office” is a reference to the period during which the person holding such office is required to perform the functions of the office.
It is further submitted that time does not run against the State in prosecuting persons that enjoy immunity. At the expiration of Ayo Fayose’s tenure in 2018, EFCC is at liberty to prosecute him. It is also doubtful if the alleged money from NSA to prosecute his re-election is still in the account. We must avoid creating constitutional crisis in turbulent time.
It is pertinent to state that constitutional immunity from legal proceedings under section 308 of the 1999 Constitution is absolute and subsists through the tenure of the offices specified. In Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 at 597, paras, F-H, 624, paras, C-E the Supreme was explicit when it held thus: Section 308 of the 1999 Constitution confers absolute immunity on the President, Vice President, Governor and Deputy Governor in respect of civil or criminal matters during their tenure of office. The provision clearly suspends the right of action or the right to judicial relief of an aggrieved party during the tenure of office of the officials mentioned therein.
In other words, the right of action is put in limbo until the expiration of the tenure of office of the affected government official. The expiration of the tenure kick starts the accrual of the cause of action or revives same.
The provisions of section 308 of the 1999 Constitution provide for an absolute bar to civil and criminal proceedings against all Governors while in office.(Ejura v. Idris (2006) 4 NWLR (Pt. 971) 538; Inspector-General of Police v. Fayose (2007) 9 NWLR (Pt. 1039) 263 referred to).
The kernel of our submission is that the freezing of Ayo Fayose’s account constitutes commencement of legal proceedings in contravention of section 308 of the 1999 Constitution (as amended). There is no way his name will not be listed in the motion (court process) and the order obtained by EFCC authorising the freezing which adverse affects him, thus this is beyond investigation as envisaged by Supreme Court in Fawehinmi v IGP (supra).
The freezing of an incumbent Governor’s account is a violent violation of section 308. Freezing Order cannot remains in the realm of investigation when the person cannot be charged to court promptly. The central essence of section 308 is designed to protect beneficiaries such as President. Vice President, Governor and Deputy Governor from distraction via litigations and to dignify the offices mentioned therein.
The rationale for constitutional immunity from legal proceedings under section 308 of the 1999 Constitution is to enable President, Vice-President, Governor or Deputy Governor have ample time to concentrate in the act of governance which is a rigorous task that demands dogged commitment and devotion to ensure delivery of dividends democracy. It is quite laudable as succinctly captured by Supreme Court in Hassan v. Aliyu, (2010) 17 NWLR (Pt. 1223) 547 at 625-626, paras, G-A it was held:
The essence of section 308 of the 1999 Constitution is not to deny the citizen his right to access to the court; rather it is a provision put in place to enable a governor, while in office, to conduct the affairs of governance free from hindrance, embarrassment and difficulty which may arise if he is being constantly pursued and harassed with court process of a civil or criminal nature while in office.
Also in a recent case, in Mohammed Abacha v FRN held per ONNOGHEN, JSC, the purpose of the immunity is to allow the incumbent President or Head of State, or Vice President, Governor or Deputy Governor, a completely free hand and mind to perform his or her duties and responsibilities while in office; to protect the incumbent from harassment. The immunity, however, does not extend or cover the period immediately after leaving office neither does it extend to include his family members during and after the period of his incumbency.
It is beyond disputation on the authority of Fawehinmi v IGP (supra) that an incumbent Governor can be validly investigated but it did not say or intend that proceedings can be initiated against a governor. I need not travel to Britain to know that motion ex-parte is a proceeding as several Rules of Court provide that a motion ex-parte must be accompanied with Motion on Notice. Once an Order is made ex-parte, the adverse party is given a chance to be heard. This is to align with cherished principle of fair hearing. Thus motion ex-parte ultimately starts a proceeding.
However the spirit and intendment of section 308, 1999 Constitution (as amended) is clear without any obscurity – no Court process can lie against a governor personally except in nominal capacity. It is futile to even apply for any court process whatsoever against a governor. The power of EFCC to investigate cannot be used to occasion unconstitutional results or defeat the evident purpose and principle behind section 308, 1999 Constitution (as amended).
The provisions of section 34 of the EFFC Act cannot be used as engine of fraud or tool for raping sacred constitutional provisions that guaranteed our constitutional democracy. The Supreme Court in A-G of Bendel State v. A-G of the Federation & Ors (1981) 9 S.C 1 at 78 – 79 formulated eternal principles guiding the construction and interpretation of Constitution to wit:
a. A legal power cannot be exercised in a way that will attain unconstitutional results.
(b) The constitution is an organic scheme of government to be dealt with in its entirety not piecemeal.
(c) The constitution should not be interpreted to defeat its purpose and principles.
(d) Constitution should not be construed with stultifying narrowness.
It is pertinent to posit that the absoluteness of immunity does not extend to electoral disputes. The constitutional immunity from legal proceedings as enshrined in section 308 of the 1999 Constitution (as amended) does not prevent a President or Governor, from legal action in connection with his election or in a matter connected therewith even after he has been sworn in as President or Governor.
By virtue of section 308 (1) of the 1999 Constitution (as amended) notwithstanding anything to the contrary in the Constitution, no civil or criminal proceedings shall be instituted or continued against the President or Vice President, State Governor or Deputy Governor during the period of office; nor shall they be arrested or imprisoned or any process of any court requiring or compelling their appearance be applied for or issued during their period of office. However, the immunity does not apply to actions instituted against them in their official capacities or where they are only nominal parties.
The Supreme Court has restated the extent and scope of the immunity clause on electoral matters in the landmark case of Amaechi v. INEC. (2008) 2CCLR 1 per OGUNTADE, JSC at 77-78 paras. 25-5: Section 308 cannot be relied upon where the nature of the suit is such that the Res in dispute will be destroyed permanently with the effluxion of time. To hold that section 308 can be invoked in a matter relating to the eligibility for a political office where the tenure of such office has been set out in the Constitution will translate into denying to a plaintiff his right of access to the court. It is only in a case where a deferment of plaintiff’s right of the action is not likely to destroy the Res in the suit that section 308 can be invoked. In this case, to ask Amaechi to wait till the end of Omehia’s tenure of office as Governor before pursuing his suit is to destroy forever his right of action.’
Per KATSINA- ALU, JSC at 98-99 paras. 30-10: The claim of the respondents that section 308 inures to the benefit of the 2nd respondent has no merit whatsoever. This is so because the wrong upon which the appellant based his claim had been in existence before the election. His case was clearly a pre-election matter. It is also pertinent to observe at this stage that at the time the 2nd respondent contested the election, his substitution for the appellant had been voided by the Federal High Court. That decision was valid and subsisting until it was set aside on appeal. At the time the election was held, that was not set aside and therefore subsisting. It goes without any argument that the 2nd respondent participation in the election was clearly an illegal act. In my judgment the 2nd respondent cannot be heard to contend that he wants to enjoy the benefit of his illegality.
Per MUSDAPHER, JSC at 107-108 paras. 25-5: This action is an election related matter and even though it is not election petition matter, yet it is a matter directly dealing with the process of becoming a governor. It is clearly a pre-election matter which arose before the election and clearly part of the processes of electing a governor. It is very clear to me that section 308 of the Constitution does not protect a governor from legal proceedings in a matter of his election per se or in a matter connected with the election even when he as a contestant has been declared duly elected or returned as governor. Election petitions and election related proceedings are special proceedings divorced and separated from civil or criminal proceedings within the intendment and context of section 308 of the constitution. The processes leading to the election are not only justifiable at the instance of any party aggrieved in the process but the immunity under section 308 of the constitution cannot avail a governor since the immunity is not within the contemplation of such proceedings.
Per MOHAMMED, JSC at 131paras. 25-5: On the provision of section 308 of the 1999 Constitution, I entirely agree with the decision of the court below. This matter having started since 26th January, 2007 at the Federal High Court long before election of 14th April, 2007, the assumption of office by the 2nd respondent as the governor of Rivers State would not have the effect of destroying the acquired rights by the appellant who was already in court in search of justice.
Per ONNOGHEN, JSC at 161-162 paras. 30-15; I hold the view that in an election matter or election related matter before the courts, the right of the Governor to remain in office is very much in dispute. In the instant case, I agree with the lower court that the matter is an election related matter or dispute as it involves the issue as to who was the nominated candidate of the 3rd respondent for the Rivers State Governorship election held on 14/4/07, While appellant claims to be the candidate, the 2nd and 3rd respondents claim that appellant was duly substituted with the 2nd respondent and that it was therefore the 2nd respondent that was the candidate of the party at the election.
If one says that such a matter is not an election related, I wonder what else could be better so related. I hold the further view that if the 2nd respondent, or any state Governor for that matter in similar situation, is considered to be immune from court proceedings it would send wrong signals to the polity as it would encourage sitting Governors to flout the electoral laws/processes and regulations to the disadvantage of their opponents and get away with it under the guise of constitutional immunity. I hold the view that section 308 of the 1999 Constitution was not crafted or designed to encourage injustice or deprive an aggrieve party the exercise of his right to remedy the law.
Per ADEREMI, JSC at 208 paras. 10-25: The provisions of Section 308 of the 1999 Constitution did not inure to his benefit. Let me say, in haste, that the issue under consideration in this matter is not a post-election matter. Rather, it is one challenging the process by which the alleged beneficiary of how the 2nd respondent came to be sworn in as the Governor of Rivers State that is in issue. It will be against the concept of true justice to hold or to permit such a candidate in the person of the 2nd respondent to take a cover under the provisions of Section 308 and thereby ward off the right of an aggrieved and genuine person to examine, in the open, the process by which he became the Governor.
That will be injustice at a very high level. It will be tantamount to shielding a person away from seeking a redress from the seat of justice. The complaint here is not a post-election grievance; it is one in which the appellant is saying that the 2nd respondent ought not, in law, to have been allowed to participate in the gubernatorial race. In other words, he is questioning the right of the 2nd respondent to stand for the gubernatorial election in Rivers State. The provisions of Section 308 of the Constitution are not there to be used as an engine of fraud. Such a compliant or grievance pre-dates our election.
It is an inalienable right of the appellant as a person lawfully interested in the position of the governorship of Rivers State. Used as an engine of fraud. Such a complaint or grievance pre-dates our election. It is an inalienable right of the appellant as a person lawfully interested in the position of the governorships of Rivers State to initiate process to examine how his opponent, the 2nd respondent, came to occupy that position at his (appellant) own expense. And as I have said, such complaint is a pre-election matter. It is the regular court as opposed to the election tribunal that has jurisdiction to entertain such a suit. By taking the action in the regular court, the 2nd respondent is not in any way prejudiced and he cannot take a cover under the provisions of Section 308 of the Constitution. Let it be said that exercise of one
The rationale for suspending the operation of the immunity clause during the hearing of election petition was expatiated by the oracular jurist, late Justice Kayode Eso in Obih v. Mbakwe (1984) All NLR 134 at 148 when he wittily observed as follows: “With respect, to extend the immunity to cover the governors from being legally challenged when seeking a second term will spell injustice. I am conscious of the fact that in my interpretation of section 267 of the Constitution, I am giving that provision a narrow interpretation. This is deliberate for in my view, in the interpretation of the Constitution, care should be taken not to diminish from the justice of the matter, this is not a case of a judge engaging in legislative process.”
Similarly, in Turaki v. Dalhaltu (2003) 38 WRN 54 at 168 the Court of Appeal (per Oguntade JCA (as he then was) noted thus: “There is no doubt that a Governor by the force of section 308 of the 1999 Constitution is immuned from civil and criminal proceedings for his personal acts but in proceedings in an election petition or seeking to enforce rights appertaining to or arising from national elections, no Governor in my view enjoys or can claim immunity. In an election matter, as in this case, the right of the Governor to remain, such Governor, is in issue. If a Governor were to be considered immune from court proceedings, that would create the position where a sitting Governor would be able to flout election laws and regulations to the detriment of other person contesting with him. This will make a nonsense of the election process and be against the spirit of our national Constitution which in its tenor provides for a free and fair election.”
The Court of Appeal in a plethora of cases has upheld the non applicability of the immunity clause to election petition. In Enyadike v. Omehia,(2010) 11 NWLR (Pt.1204) 92 at 121, paras. D-F it was held: The constitutional immunity from suit enjoyed by a governor does not prevent the hearing and determination of a petition against a person who has been sworn in as Governor because the petition is challenging his right to be in that office. In the instant case, the subject matter of the appellants’ election petition challenged the foundation of the appointment of the 1st respondent as Governor and not his action as Governor. Therefore, there could not logically be a substitution of the position of Governor of Rivers State for the 1st respondent who was not brought to court as Governor of Rivers State. (Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 referred to).
Also, in Alliance for Democracy v. Peter Ayodele Fayose (No 1) (2004) 26 WRN 34 the Respondent had challenged the issuance of a subpoena on him on the ground that Section 308 has conferred immunity on him as a governor. While dismissing the objection the Court of Appeal (per Muri Okunola JCA) held as follows: “…The provisions of section 308 of the 1999 Constitution of the Federal Republic of Nigeria are not applicable to confer immunity on a State Governor in an election petition involving his election to preclude the issuance of subpoena on him. Or put in another way: the immunity provided by the provisions of section 308 of the Constitution of the Federal Republic of Nigeria 1999 on a State Governor is put in abeyance when his election is being disputed before an Election Tribunal as to make him amenable to being compelled by a subpoena to tender document(s) or give evidence before the Election Tribunal.”
In Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 at 598, paras, A-C The constitutional immunity from legal proceedings under section 308 of the 1999 Constitution does not protect a President or Governor, from legal proceedings in a matter of his election per se or in a matter connected therewith even when he has been, as a contestant, declared duly elected and sworn in as such. The reason for that is that election petitions and election related proceedings are really special proceedings distinct from civil or criminal proceedings which fall within the province of the said section 308 of the 1999 Constitution. (Onitiri v. Benson (1960) SCNLR 314; Oyekan v. Akinjide (1965) NMLR 381; Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 referred to). However, a person cannot under the guise of election proceedings file an originating summons at a State or Federal High Court. The reliefs sought by a person will determine whether the immunity clause will be invoked to foreclose such relief. The Court of Appeal in Hassan v. Aliyu, (2010) 17 NWLR (Pt. 1223) 547 at 625-626, paras. G-A held: By virtue of section 308 of the 1999 Constitution, there is an absolute prohibition on the courts from entertaining civil and criminal proceedings in respect of any claim or relief against the President, Vice President, Governor and Deputy Governor. Proceedings are held in abeyance until the person concerned vacates office.
Thereafter, proceedings can be commenced. However, where the election of a Governor is questioned in an election tribunal, the provision of section 308 of the Constitution will not apply. What will apply is section 32(5) of Electoral Act. In the instant case, since the appellant sought to remove the 1st respondent as the Governor by an originating summons filed before the Federal High Court, the provision of section 308 would protect the 1st respondent. The trial court was therefore right to decline jurisdiction in the light of the clear provision of section 308 of the 1999 Constitution. (Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 referred to.)
We finally submit that the act of EFCC freezing Ayo Fayose’s account cannot be accommodated within the ambit of electoral matters notwithstanding the alleged money was spent to prosecute his re-election. It is an entirely criminal matter within the contemplation of section 308 (supra). The Order sought and obtained by EFCC necessitating the freezing of his personal account is within the ambit of judicial proceeding. It is immaterial whether it is preliminary to major trial. We are fortified with the excellent definition proffered by The Black’s Law Dictionary 8th Edition defines PROCEEDING thus at page 1241:
“The business conducted by a court or other official body; a hearing…..Proceeding is a word much used to express the business done in courts. A proceeding in court is an act done by the authority or direction of the court, express or implied…” It defines ex parte proceeding as follows- “A PROCEEDING in which not all parties are present or given the opportunity to be heard…”
The sacrosanct of section 308 of 1999 Constitution must respected by EFCC. The witty observation of Supreme Court in Mohammed Abacha v FRN should guide anti-corruption agencies particularly EFCC. Per ARIWOOLA, JSC in Mohammed Abacha v FRN (supra) “It is true that the Constitution confers absolute immunity on the President, Vice President, Governor and Deputy Governor in respect of civil or criminal matters during their tenure in office.
See; Section 308 of the 1999 Constitution. Indeed, the provision clearly suspends the right of action or the right to judicial relief of an aggrieved party during the tenure of office of the officials mentioned therein. The immunity does not extend beyond the tenure in office, after which the official shall be liable to face trial.”
In this opinion article, Chief Joshua Alobo. who is also a barrister has shared his thoughts on his issue.
The germane issue is whether in carrying out the investigation, EFCC can exercise the powers pursuant to section 34, of the EFCC (Establishment) Act, 2004 on persons conferred with irrevocable immunity.
It is seminal to reproduce the provisions of sections 34, of the EFCC Act for proper appreciation. It reads thus:
“Notwithstanding anything contained in any other enactment or law, the Chairman of the Commission or any officer authorised by him may, if satisfied that the money in the account of a person is made through the commission of an offence under this Act and or any of the enactments specified under section 7 (2) (a)-(f) of this Act, apply to the Court ex-parte for power to issue an order as specified in Form B of the Schedule to this Act, addressed to the manager of the bank or any person in control of the financial institution or designated non-financial institution where the account is or believed by him to be or the head office of the bank, other financial institution or designated non-financial institution to freeze the account.”
It should be rightly stated that section 34 of the EFCC Act “Notwithstanding anything contained in any other enactment or law,”can only override provisions of legislations and not the constitution, the ground norm and fountain upon which every legislation derive validity. It is respectfully submitted that section 308, 1999 Constitution (as amended) is superior to section 34 EFCC Act.
It is imperative to assert that the order of freezing an account is not an administrative but judicial exercise, hence an exparte application is required to initiate the process of freezing account as contemplated by section 34 EFCC which explicitly stated as follows: “apply to the Court ex-parte for power to issue an order as specified in Form B of the Schedule to this Act.”
It is apparent that order of freezing an account is beyond mere investigation, it is the beginning of preliminary action. The freezing of account is beyond preservation of record of investigation as evinced by Supreme Court in Fawehinmi v IGP (supra) in the immortal words of Justice Uwaifo, JSC, wherein he posited thus: “That a person protected under section 308 of the 1999 Constitution, going by its provisions, can be investigated by the police for an alleged crime or offence is, in my view, beyond dispute.
To hold otherwise is to create a monstrous situation whose manifestation may not be fully appreciated until illustrated. I shall give three possible instances. Suppose it is alleged that a Governor, in the course of driving his personal car, recklessly ran over a man, killing him; he sends the car to a workshop for the repairs of the dented or damaged part or parts. Or that he used a pistol to shoot a man dead and threw the gun into a nearby bush. Or that he stole public money and kept it in a particular bank or used it to acquire property.
Now, if the police became aware, could it be suggested in an open and democratic society like ours that they would be precluded by section 308 from investigating to know the identity of the man killed, the cause of death from autopsy report, the owner of the car taken to the workshop and if there is any evidence from the inspection of the car that it hit an object recently, more particularly a human being; or to take steps to recover the gun and test for ballistic evidence; and generally to take statements from eye witnesses of either incident of killing. Or to find out (If possible) about the money lodged in the bank or for acquiring property, and to get particulars of the account and the source of the money; or of the property acquired?
The police clearly have a duty under section 4 of the Police Act to do all they can to investigate and preserve whatever evidence is available. The evidence or some aspect of it may be the type which might be lost forever if not preserved while it is available…”
It is abundantly apparent that EFCC has the requisite vires to conduct intelligent and forensic investigation on persons conferred with irrevocable immunity. It was alleged as reported by various media outfits that “the Economic and Financial Crimes Commission (EFCC) have revealed that a personal account held with the Zenith Bank of Nigeria of Ekiti State Governor, Ayodele Fayose, was frozen in connection with over N1.2billion he took in 2014 from the disgraced National Security Adviser (NSA), Sambo Dasuki, to prosecute his re-election as governor.”
The above allegations can be forensically investigated without dramatisation by freezing the account of an incumbent Governor. It should be observe that freezing of account is a preemptive step to full scale trial. An account cannot be frozen infinitum! By freezing a suspect’s account, the EFCC prevents the suspect from accessing, operating and drawing money from the account which may ultimately be forfeited to the government if the suspect is found guilty by court of competent jurisdiction.
The sanctity of constitutional immunity cannot be jettisoned on the altar of fighting corruption as the fabric of our democratic ethos must be respected. A calm perusal of section 308 resolves the issue in favour of Ayo Fayose and expose unconstitutional and illegality of EFCC action as threat to constitutional democracy where rule of law is supreme above whims and caprices of strong individuals in the society.
308. (1) Notwithstanding anything to the contrary in this Constitution, but subject to subsection (2) of this section –
(a) no civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during his period of office;
(b) a person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and
(c) no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued: Provided that in ascertaining whether any period of limitation has expired for the purposes of any proceedings against a person to whom this section applies, no account shall be taken of his period of office.
(2) The provisions of subsection (1) of this section shall not apply to civil proceedings against a person to whom this section applies in his official capacity or to civil or criminal proceedings in which such a person is only a nominal party.
(3) This section applies to a person holding the office of President or Vice President, Governor or Deputy Governor; and the reference in this section to “period of office” is a reference to the period during which the person holding such office is required to perform the functions of the office.
It is further submitted that time does not run against the State in prosecuting persons that enjoy immunity. At the expiration of Ayo Fayose’s tenure in 2018, EFCC is at liberty to prosecute him. It is also doubtful if the alleged money from NSA to prosecute his re-election is still in the account. We must avoid creating constitutional crisis in turbulent time.
It is pertinent to state that constitutional immunity from legal proceedings under section 308 of the 1999 Constitution is absolute and subsists through the tenure of the offices specified. In Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 at 597, paras, F-H, 624, paras, C-E the Supreme was explicit when it held thus: Section 308 of the 1999 Constitution confers absolute immunity on the President, Vice President, Governor and Deputy Governor in respect of civil or criminal matters during their tenure of office. The provision clearly suspends the right of action or the right to judicial relief of an aggrieved party during the tenure of office of the officials mentioned therein.
In other words, the right of action is put in limbo until the expiration of the tenure of office of the affected government official. The expiration of the tenure kick starts the accrual of the cause of action or revives same.
The provisions of section 308 of the 1999 Constitution provide for an absolute bar to civil and criminal proceedings against all Governors while in office.(Ejura v. Idris (2006) 4 NWLR (Pt. 971) 538; Inspector-General of Police v. Fayose (2007) 9 NWLR (Pt. 1039) 263 referred to).
The kernel of our submission is that the freezing of Ayo Fayose’s account constitutes commencement of legal proceedings in contravention of section 308 of the 1999 Constitution (as amended). There is no way his name will not be listed in the motion (court process) and the order obtained by EFCC authorising the freezing which adverse affects him, thus this is beyond investigation as envisaged by Supreme Court in Fawehinmi v IGP (supra).
The freezing of an incumbent Governor’s account is a violent violation of section 308. Freezing Order cannot remains in the realm of investigation when the person cannot be charged to court promptly. The central essence of section 308 is designed to protect beneficiaries such as President. Vice President, Governor and Deputy Governor from distraction via litigations and to dignify the offices mentioned therein.
The rationale for constitutional immunity from legal proceedings under section 308 of the 1999 Constitution is to enable President, Vice-President, Governor or Deputy Governor have ample time to concentrate in the act of governance which is a rigorous task that demands dogged commitment and devotion to ensure delivery of dividends democracy. It is quite laudable as succinctly captured by Supreme Court in Hassan v. Aliyu, (2010) 17 NWLR (Pt. 1223) 547 at 625-626, paras, G-A it was held:
The essence of section 308 of the 1999 Constitution is not to deny the citizen his right to access to the court; rather it is a provision put in place to enable a governor, while in office, to conduct the affairs of governance free from hindrance, embarrassment and difficulty which may arise if he is being constantly pursued and harassed with court process of a civil or criminal nature while in office.
Also in a recent case, in Mohammed Abacha v FRN held per ONNOGHEN, JSC, the purpose of the immunity is to allow the incumbent President or Head of State, or Vice President, Governor or Deputy Governor, a completely free hand and mind to perform his or her duties and responsibilities while in office; to protect the incumbent from harassment. The immunity, however, does not extend or cover the period immediately after leaving office neither does it extend to include his family members during and after the period of his incumbency.
It is beyond disputation on the authority of Fawehinmi v IGP (supra) that an incumbent Governor can be validly investigated but it did not say or intend that proceedings can be initiated against a governor. I need not travel to Britain to know that motion ex-parte is a proceeding as several Rules of Court provide that a motion ex-parte must be accompanied with Motion on Notice. Once an Order is made ex-parte, the adverse party is given a chance to be heard. This is to align with cherished principle of fair hearing. Thus motion ex-parte ultimately starts a proceeding.
However the spirit and intendment of section 308, 1999 Constitution (as amended) is clear without any obscurity – no Court process can lie against a governor personally except in nominal capacity. It is futile to even apply for any court process whatsoever against a governor. The power of EFCC to investigate cannot be used to occasion unconstitutional results or defeat the evident purpose and principle behind section 308, 1999 Constitution (as amended).
The provisions of section 34 of the EFFC Act cannot be used as engine of fraud or tool for raping sacred constitutional provisions that guaranteed our constitutional democracy. The Supreme Court in A-G of Bendel State v. A-G of the Federation & Ors (1981) 9 S.C 1 at 78 – 79 formulated eternal principles guiding the construction and interpretation of Constitution to wit:
a. A legal power cannot be exercised in a way that will attain unconstitutional results.
(b) The constitution is an organic scheme of government to be dealt with in its entirety not piecemeal.
(c) The constitution should not be interpreted to defeat its purpose and principles.
(d) Constitution should not be construed with stultifying narrowness.
It is pertinent to posit that the absoluteness of immunity does not extend to electoral disputes. The constitutional immunity from legal proceedings as enshrined in section 308 of the 1999 Constitution (as amended) does not prevent a President or Governor, from legal action in connection with his election or in a matter connected therewith even after he has been sworn in as President or Governor.
By virtue of section 308 (1) of the 1999 Constitution (as amended) notwithstanding anything to the contrary in the Constitution, no civil or criminal proceedings shall be instituted or continued against the President or Vice President, State Governor or Deputy Governor during the period of office; nor shall they be arrested or imprisoned or any process of any court requiring or compelling their appearance be applied for or issued during their period of office. However, the immunity does not apply to actions instituted against them in their official capacities or where they are only nominal parties.
The Supreme Court has restated the extent and scope of the immunity clause on electoral matters in the landmark case of Amaechi v. INEC. (2008) 2CCLR 1 per OGUNTADE, JSC at 77-78 paras. 25-5: Section 308 cannot be relied upon where the nature of the suit is such that the Res in dispute will be destroyed permanently with the effluxion of time. To hold that section 308 can be invoked in a matter relating to the eligibility for a political office where the tenure of such office has been set out in the Constitution will translate into denying to a plaintiff his right of access to the court. It is only in a case where a deferment of plaintiff’s right of the action is not likely to destroy the Res in the suit that section 308 can be invoked. In this case, to ask Amaechi to wait till the end of Omehia’s tenure of office as Governor before pursuing his suit is to destroy forever his right of action.’
Per KATSINA- ALU, JSC at 98-99 paras. 30-10: The claim of the respondents that section 308 inures to the benefit of the 2nd respondent has no merit whatsoever. This is so because the wrong upon which the appellant based his claim had been in existence before the election. His case was clearly a pre-election matter. It is also pertinent to observe at this stage that at the time the 2nd respondent contested the election, his substitution for the appellant had been voided by the Federal High Court. That decision was valid and subsisting until it was set aside on appeal. At the time the election was held, that was not set aside and therefore subsisting. It goes without any argument that the 2nd respondent participation in the election was clearly an illegal act. In my judgment the 2nd respondent cannot be heard to contend that he wants to enjoy the benefit of his illegality.
Per MUSDAPHER, JSC at 107-108 paras. 25-5: This action is an election related matter and even though it is not election petition matter, yet it is a matter directly dealing with the process of becoming a governor. It is clearly a pre-election matter which arose before the election and clearly part of the processes of electing a governor. It is very clear to me that section 308 of the Constitution does not protect a governor from legal proceedings in a matter of his election per se or in a matter connected with the election even when he as a contestant has been declared duly elected or returned as governor. Election petitions and election related proceedings are special proceedings divorced and separated from civil or criminal proceedings within the intendment and context of section 308 of the constitution. The processes leading to the election are not only justifiable at the instance of any party aggrieved in the process but the immunity under section 308 of the constitution cannot avail a governor since the immunity is not within the contemplation of such proceedings.
Per MOHAMMED, JSC at 131paras. 25-5: On the provision of section 308 of the 1999 Constitution, I entirely agree with the decision of the court below. This matter having started since 26th January, 2007 at the Federal High Court long before election of 14th April, 2007, the assumption of office by the 2nd respondent as the governor of Rivers State would not have the effect of destroying the acquired rights by the appellant who was already in court in search of justice.
Per ONNOGHEN, JSC at 161-162 paras. 30-15; I hold the view that in an election matter or election related matter before the courts, the right of the Governor to remain in office is very much in dispute. In the instant case, I agree with the lower court that the matter is an election related matter or dispute as it involves the issue as to who was the nominated candidate of the 3rd respondent for the Rivers State Governorship election held on 14/4/07, While appellant claims to be the candidate, the 2nd and 3rd respondents claim that appellant was duly substituted with the 2nd respondent and that it was therefore the 2nd respondent that was the candidate of the party at the election.
If one says that such a matter is not an election related, I wonder what else could be better so related. I hold the further view that if the 2nd respondent, or any state Governor for that matter in similar situation, is considered to be immune from court proceedings it would send wrong signals to the polity as it would encourage sitting Governors to flout the electoral laws/processes and regulations to the disadvantage of their opponents and get away with it under the guise of constitutional immunity. I hold the view that section 308 of the 1999 Constitution was not crafted or designed to encourage injustice or deprive an aggrieve party the exercise of his right to remedy the law.
Per ADEREMI, JSC at 208 paras. 10-25: The provisions of Section 308 of the 1999 Constitution did not inure to his benefit. Let me say, in haste, that the issue under consideration in this matter is not a post-election matter. Rather, it is one challenging the process by which the alleged beneficiary of how the 2nd respondent came to be sworn in as the Governor of Rivers State that is in issue. It will be against the concept of true justice to hold or to permit such a candidate in the person of the 2nd respondent to take a cover under the provisions of Section 308 and thereby ward off the right of an aggrieved and genuine person to examine, in the open, the process by which he became the Governor.
That will be injustice at a very high level. It will be tantamount to shielding a person away from seeking a redress from the seat of justice. The complaint here is not a post-election grievance; it is one in which the appellant is saying that the 2nd respondent ought not, in law, to have been allowed to participate in the gubernatorial race. In other words, he is questioning the right of the 2nd respondent to stand for the gubernatorial election in Rivers State. The provisions of Section 308 of the Constitution are not there to be used as an engine of fraud. Such a compliant or grievance pre-dates our election.
It is an inalienable right of the appellant as a person lawfully interested in the position of the governorship of Rivers State. Used as an engine of fraud. Such a complaint or grievance pre-dates our election. It is an inalienable right of the appellant as a person lawfully interested in the position of the governorships of Rivers State to initiate process to examine how his opponent, the 2nd respondent, came to occupy that position at his (appellant) own expense. And as I have said, such complaint is a pre-election matter. It is the regular court as opposed to the election tribunal that has jurisdiction to entertain such a suit. By taking the action in the regular court, the 2nd respondent is not in any way prejudiced and he cannot take a cover under the provisions of Section 308 of the Constitution. Let it be said that exercise of one
The rationale for suspending the operation of the immunity clause during the hearing of election petition was expatiated by the oracular jurist, late Justice Kayode Eso in Obih v. Mbakwe (1984) All NLR 134 at 148 when he wittily observed as follows: “With respect, to extend the immunity to cover the governors from being legally challenged when seeking a second term will spell injustice. I am conscious of the fact that in my interpretation of section 267 of the Constitution, I am giving that provision a narrow interpretation. This is deliberate for in my view, in the interpretation of the Constitution, care should be taken not to diminish from the justice of the matter, this is not a case of a judge engaging in legislative process.”
Similarly, in Turaki v. Dalhaltu (2003) 38 WRN 54 at 168 the Court of Appeal (per Oguntade JCA (as he then was) noted thus: “There is no doubt that a Governor by the force of section 308 of the 1999 Constitution is immuned from civil and criminal proceedings for his personal acts but in proceedings in an election petition or seeking to enforce rights appertaining to or arising from national elections, no Governor in my view enjoys or can claim immunity. In an election matter, as in this case, the right of the Governor to remain, such Governor, is in issue. If a Governor were to be considered immune from court proceedings, that would create the position where a sitting Governor would be able to flout election laws and regulations to the detriment of other person contesting with him. This will make a nonsense of the election process and be against the spirit of our national Constitution which in its tenor provides for a free and fair election.”
The Court of Appeal in a plethora of cases has upheld the non applicability of the immunity clause to election petition. In Enyadike v. Omehia,(2010) 11 NWLR (Pt.1204) 92 at 121, paras. D-F it was held: The constitutional immunity from suit enjoyed by a governor does not prevent the hearing and determination of a petition against a person who has been sworn in as Governor because the petition is challenging his right to be in that office. In the instant case, the subject matter of the appellants’ election petition challenged the foundation of the appointment of the 1st respondent as Governor and not his action as Governor. Therefore, there could not logically be a substitution of the position of Governor of Rivers State for the 1st respondent who was not brought to court as Governor of Rivers State. (Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 referred to).
Also, in Alliance for Democracy v. Peter Ayodele Fayose (No 1) (2004) 26 WRN 34 the Respondent had challenged the issuance of a subpoena on him on the ground that Section 308 has conferred immunity on him as a governor. While dismissing the objection the Court of Appeal (per Muri Okunola JCA) held as follows: “…The provisions of section 308 of the 1999 Constitution of the Federal Republic of Nigeria are not applicable to confer immunity on a State Governor in an election petition involving his election to preclude the issuance of subpoena on him. Or put in another way: the immunity provided by the provisions of section 308 of the Constitution of the Federal Republic of Nigeria 1999 on a State Governor is put in abeyance when his election is being disputed before an Election Tribunal as to make him amenable to being compelled by a subpoena to tender document(s) or give evidence before the Election Tribunal.”
In Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 547 at 598, paras, A-C The constitutional immunity from legal proceedings under section 308 of the 1999 Constitution does not protect a President or Governor, from legal proceedings in a matter of his election per se or in a matter connected therewith even when he has been, as a contestant, declared duly elected and sworn in as such. The reason for that is that election petitions and election related proceedings are really special proceedings distinct from civil or criminal proceedings which fall within the province of the said section 308 of the 1999 Constitution. (Onitiri v. Benson (1960) SCNLR 314; Oyekan v. Akinjide (1965) NMLR 381; Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 referred to). However, a person cannot under the guise of election proceedings file an originating summons at a State or Federal High Court. The reliefs sought by a person will determine whether the immunity clause will be invoked to foreclose such relief. The Court of Appeal in Hassan v. Aliyu, (2010) 17 NWLR (Pt. 1223) 547 at 625-626, paras. G-A held: By virtue of section 308 of the 1999 Constitution, there is an absolute prohibition on the courts from entertaining civil and criminal proceedings in respect of any claim or relief against the President, Vice President, Governor and Deputy Governor. Proceedings are held in abeyance until the person concerned vacates office.
Thereafter, proceedings can be commenced. However, where the election of a Governor is questioned in an election tribunal, the provision of section 308 of the Constitution will not apply. What will apply is section 32(5) of Electoral Act. In the instant case, since the appellant sought to remove the 1st respondent as the Governor by an originating summons filed before the Federal High Court, the provision of section 308 would protect the 1st respondent. The trial court was therefore right to decline jurisdiction in the light of the clear provision of section 308 of the 1999 Constitution. (Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 referred to.)
We finally submit that the act of EFCC freezing Ayo Fayose’s account cannot be accommodated within the ambit of electoral matters notwithstanding the alleged money was spent to prosecute his re-election. It is an entirely criminal matter within the contemplation of section 308 (supra). The Order sought and obtained by EFCC necessitating the freezing of his personal account is within the ambit of judicial proceeding. It is immaterial whether it is preliminary to major trial. We are fortified with the excellent definition proffered by The Black’s Law Dictionary 8th Edition defines PROCEEDING thus at page 1241:
“The business conducted by a court or other official body; a hearing…..Proceeding is a word much used to express the business done in courts. A proceeding in court is an act done by the authority or direction of the court, express or implied…” It defines ex parte proceeding as follows- “A PROCEEDING in which not all parties are present or given the opportunity to be heard…”
The sacrosanct of section 308 of 1999 Constitution must respected by EFCC. The witty observation of Supreme Court in Mohammed Abacha v FRN should guide anti-corruption agencies particularly EFCC. Per ARIWOOLA, JSC in Mohammed Abacha v FRN (supra) “It is true that the Constitution confers absolute immunity on the President, Vice President, Governor and Deputy Governor in respect of civil or criminal matters during their tenure in office.
See; Section 308 of the 1999 Constitution. Indeed, the provision clearly suspends the right of action or the right to judicial relief of an aggrieved party during the tenure of office of the officials mentioned therein. The immunity does not extend beyond the tenure in office, after which the official shall be liable to face trial.”
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