The Economic and Financial Crimes Commission, EFCC, said it has filed an appeal to overturn a judgement of the Lagos Division of the Federal High Court some seized assets of Kogi State governor Yahaya Bello.

Justice Nicholas Oweibo had, on April 26, 2023, struck out a suit by the EFCC seeking the final forfeiture of the properties traced to Mr Bello because the Nigerian Constitution confers immunity on the state governor.

The judge ruled that Section 308 of the Constitution which provides immunity to a sitting governor, precludes them from any civil/ criminal prosecution. He therefore said the court lacks jurisdiction to entertain the matter.

But the anti-graft body in its appeal stated that properties that could be reasonably suspected of being linked to criminal activity were not covered by the immunity granted to the respondent (Mr Bello).

“In the notice of appeal, the Commission averred that Justice Oweibo erred in law when he struck out the suit as the immunity conferred on the Respondent against any civil or criminal proceedings during his incumbency as a governor of Kogi State does not extend to properties reasonably suspected to be proceeds of crime traced to him,” the EFCC said in a statement issued by its spokesperson, Wilson Uwujaren, on Monday.

The EFCC stated further that the “Court erred and occasioned a miscarriage of justice when it refused to bind itself with the decision of the Court of Appeal in EFCC V Fayose (2018) LPELR 44131 CA and the decision of the Supreme Court in Fawehinmi V IGP (2002)7 NWLR (PT767) 606, on the proper interpretation of Section 308 of the 1999 Constitution; and that the learned trial court erred in law when it struck out a preservation order of properties reasonably suspected to have been derived from proceeds of unlawful activities notwithstanding its findings that the Respondent failed to show the genuine origin of funds used to acquire the properties under the preservation order.”

During the court proceedings, counsel for the EFCC, Rotimi Oyedepo, a Senior Advocate of Nigeria, informed the court of an application dated April 27, 2023 seeking a stay of execution of the ruling pending the outcome of the appeal on the case.

Responding, counsel to the respondent, Akoh Ocheni, filed an application seeking to strike out the application for stay of execution by the EFCC for “lack of complying with the rules of court by not filing a written address and attaching the same to the application.”

Mr Oyedepo told the court that a written address was filed on the same day as the application.

He showed the court a copy in his records, saying “the proceedings are no longer before the Court, but in transmission to the Court of Appeal.”

Justice Oweibo adjourned the matter sine die.

Mr Oweibo had, on Wednesday, February 22, 2023, granted an interim forfeiture of the 14 properties in Lagos, Abuja and the United Arab Emirates and also ordered the preservation of the sum of N400 million recovered from Aminu Falala, which “is reasonably suspected to have been derived from unlawful activity and intended to be used for the acquisition of Plot No. 1224 Bishop Oluwole Street, Victoria Island Lagos.”

During the proceedings on March 28, 2023, Mr Oyedepo informed the court that the Commission received a notice of intention to oppose the making of the preservation order, which it had equally responded to.

Responding, Mr Bello, in an application through his counsel, Abdulwahab Mohammed, SAN, had sought to vacate the order of the court on the grounds that most of the properties sought to be forfeited were acquired by Mr Bello before he became the governor of the state.

However, Mr Oyedepo had argued that “Where a state’s 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.”

Mr Oyedepo had also argued that the steps the prosecution was taking “is a step for preservation and it cannot be stopped.”

But Mr Oweibo held that “Given Section 308 of the Constitution, which provides immunity to a sitting governor from any civil/ criminal prosecution, the court lacks jurisdiction to entertain the matter.”

The judge had, therefore, struck out the suit “for lack of jurisdiction.”

Consequently, the EFCC filed an appeal, challenging the April 26 ruling of Justice Oweibo that struck out its suit