The Whistle
Chief Wole Olanipekun (SAN) says EFCC is wrong to freeze Fayose’s account

According to Olanipekun, the Supreme Court case of Fawehinmi v IGP (2002), which held that a sitting governor can be investigated while in office, might not be a direct authority to settle the question.

He said: “A case is only authority for what it decides. The present position is dicey and fluid. To my mind, any sitting governor who’s shown to have attracted illicit funds to his personal account can and should be investigated. But the cardinal question is: can his account be frozen without him knowing why it has been frozen by any agent or agency of government?“I rather think otherwise, as freezing of account presupposes that an application has been made to and granted by the court to so do.In addition , an enrolled copy of the order should be served on him , giving and specifying reasons for the freezing , so as to enable him challenge the order if he so wishes. All these conditions precedent have to be complied with as we operate a constitutional democracy rooted in the rule of law.

“On the flip side, it can also be argued that if a sitting governor can only be investigated for the time being as the constitution clothes him with immunity from any civil or criminal proceedings, is freezing of his account on the order of court not another way of subjecting him to criminal prosecution, contrary to the clear imperatives of the constitution?

“This is because there can’t be a freezing action without a prior court order; and for any freezing application to be filed in court, the name of the sitting governor has to stated as the defendant/ accused.”

He cautioned lawyers and commentators against “jumping into conclusion on any issue without weighing the implications of what we say or sell to the public.”

Femi Falana says EFCC is right to freeze Fayose’s account

Mr. Femi Falana, wednesday said the Economic and Financial Crimes Commission (EFCC) could investigate and prosecute him as a sitting governor.

Falana, a Senior Advocate of Nigeria (SAN), consequently cited diverse judicial precedents and legal instruments, which he said justified the decision of the anti-graft commission to investigate and freeze Fayose’s bank accounts.

He faulted Fayose’s reliance on section 308 of the 1999 Constitution to escape criminal investigation in a statement he issued yesterday, noting that immunity clause did not come to play in criminal investigation of a sitting governor or a sitting president.

He explained Fayose’s diverse criminal antecedents ranging from the looting of N1.2 billion from the state’s treasury in 2004 to alleged involvement in the murder of Tunde Omojola and the 2014 Ekiti governorship election rigging.

The human rights lawyer, thus pointed out that the EFCC was currently being investigated in connection “to a coup, which led to the re-election of Fayose” in the Ekiti State governorship held on June 21, 2014.

He explained that in view of the fact that the effect of section 308 of the 1999 Constitution “has been watered down, Fayose cannot invoke the immunity clause to shield himself from investigation.”

Since the offences of fraud, treason and criminal diversion of public funds were allegedly committed in connection with the 2014 governorship election in Ekiti State, the senior advocate argued that Fayose, who was a candidate of the Peoples Democratic Party (PDP) at the material time “is liable to be investigated.

“If he is indicted, Fayose ought to be prosecuted by the EFCC since the immunity of a governor is put in abeyance when the legitimacy of his election is in dispute. In his desperate bid to divert public attention from the ongoing investigation of the criminal diversion of public funds, Fayose has attempted to link me with his indictment by the Nigerian Army and the EFCC.

“Notwithstanding that the allegation is completely baseless, I fully support the investigations. I do not need to instigate the anti-graft agencies to enquire into the activities of a serial treasury looter.

“Having admitted his involvement in the coup which occurred in Ekiti State which culminated in his emergence as the Ekiti State governor, Fayose ought to be prosecuted for treason which arose from the electoral malfeasance.”

In support of his position, Falana observed that the senior lawyers, who had questioned the freezing of Fayose’s account on the grounds that the EFCC did not obtain a court order had not read section 28 of the EFCC Act thoroughly.

The section read: “Where a person is arrested for an offence under this Act, the commission shall immediately trace and attach all the assets and properties of the person acquired as a result of such economic or financial crime and shall thereafter cause to be obtained an interim attachment order from the court.”

Contingent on the section, Falana noted that the law “permits the EFCC to freeze an account or attach a property of a criminal suspect and proceed thereafter to obtain an ex parte order from the appropriate court.”

Aside, Falana cited different judicial precedents that justified the criminal investigation and prosecution of a sitting governor or a sitting president in connection to electoral malpractice, noting that immunity clause did not apply.

He cited the decision of Justice Kayode Eso in Obih vs Mbakwe; the judgment of Justice Oguntade in Turaki vs Dalhaltu, the decision of Muri Okunola JCA in Alliance for Democracy vs Peter Ayodele Fayose and another Supreme Court in Chief Gani Fawehinmi vs Inspector General of Police, among others.

In each of these judicial precedents, the senior advocate pointed out that the courts explained the rationale for suspending the operation of the immunity clause during the hearing of election petitions.

In Fawehinmi vs Inspector General of Police (2002) 23 WRN 1, the Supreme Court held 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…

The evidence may be useful for impeachment purposes if the House of Assembly may have need of it.

“It may no doubt be used for prosecution of the said incumbent Governor after he has left office. But to do nothing under the pretext that a governor cannot be investigated is a disservice to the society.

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If you take a straw poll among our lawyers, 90% would agree with the above. The remaining 10% who'd invariably disagree are the ones living fat under the tyrant.

Falana think say na only am be 'Senior Advocate' with brain to interpret the immunity clause shielding the Executive from prosecution while in office.
.
He only ended up showcasing his crass hypocrisy.

YOU MADE SENSE!!

TippyTop:
If you take a straw poll among our lawyers, 90% would agree with the above. The remaining 10% who'd invariably disagree are the ones living fat under the tyrant.

The Old fool(femi falana) na tinubu stooge na

Falana Falana Falana! !! You see your life ,since he lost to Fayose in 2003 Fayose's name has been a nightmare to Falana and his household

Since the offences of fraud, treason and criminal diversion of public funds were allegedly committed in connection with the 2014 governorship election in Ekiti State, the senior advocate argued that Fayose, who was a candidate of the Peoples Democratic Party (PDP) at the material time “is liable to be investigated.

“If he is indicted, Fayose ought to be prosecuted by the EFCC since the immunity of a governor is put in abeyance when the legitimacy of his election is in dispute.

I think this is the part of Falana's submission Olanipekun missed , hence, his reaction.

Though, olanipekun didn't tell us categorically why Fayose can't be investigated.

APC & Mogamodu Bugary, please continue your visible violation of the rule of law, you have only but limited time.

Please has anybody heard from the other "charge and bail" lawyer, the one that has never won a case for efcc.....what is that his name again sef

The sensible SAN has said the obvious while that ralkaive keep blabbing up and down..

one chilled bottle of origin for you chief wole

What wole uttered here does not make sense at all fayose is a suspect then efcc can investigate him

Good man!

Efcc only acted prudently in protecting the rex

Even a frog knows that English Language is fundamental.......but I wonder what grade efcc got in English waec

No doubt Falana made a mistake but let him learn to drop some reputation damaging jobs.

TrueSenator has Spoken

Pls Falana try n understand why imunity was infuse to those serving,all this palaver can wait till he finish his tenure.efcc should just gather all envidence/information to nail him,if found wanting.bcus all these are distraction.biko!

Immunity1:
What wole uttered here does not make sense at all fayose is a suspect then efcc can investigate him

and you, a Senior Anumpama of Nigeria (SAN) has just made sense?. All these kids on Nairaland sef!

Who still takes the hypocritical, double-standard Femi Falana serious these days？ If corrupt Burutai gives Femi Falana akara money when he is hungry, he will accept it and quickly support and defend Burutai. He would say Burutai can steal even if it is N500 billion so far he has declared it, he is free and innocent.

May God continue to bless late Chief Gani Fawehimi；may his family and generations never lack the good things of life, AMEN. He fought against corruption no matter the party. I will forever miss you Chief Gani Fawehimi

TippyTop:
If you take a straw poll among our lawyers, 90% would agree with the above. The remaining 10% who'd invariably disagree are the ones living fat under the tyrant.

pls, sha dnt cry

Wole Olanipekun SAN, arguably, the best lawyer in Nigeria got it right.

“On the flip side, it can also be argued that if a sitting governor can only be investigated for the time being as the constitution clothes him with immunity from any civil or criminal proceedings, is freezing of his account on the order of court not another way of subjecting him to criminal prosecution, contrary to the clear imperatives of the constitution?

What Olanipekun is saying is simply means you can investigate Fayose but you can't do fayose anything with the outcome of the investigation

tritt:
Please has anybody heard from the other "charge and bail" lawyer, the one that has never won a case for efcc.....what is that his name again sef

Are you referring to Fe... Ke...
Is like im go watch Euro fo France. Oh! I forget before, na Brexit matters im dey handle now. Lol...

orebantu:
Efcc only acted prudently in protecting the rex

My friend, what res? Won't the statement of account suffice?

You guys can only say what you like but you can't fool anyone at anytime at all...

knowledge of law is to yoruba what knowledge of business is to igbo

AlwaysUltraPad:


I think this is the part of Falana's submission Olanipekun missed , hence, his reaction.

Though, olanipekun didn't tell us categorically why Fayose can't be investigated.

Did you actually read and comprehend what Chief Wole Olanipekun actually said？ He didn’t say he can’t be investigated but rather, he can be investigated but action can not be taken on him now since he enjoys immunity as ‘’...we operate a constitutional democracy rooted in the rule of law‘’

Again, the very intelligent and principle Chief Olanipekun further said it is against the law for anyone to have frozen Fayose’s account without a valied court order. Even with court order, it could also be unlawful since he enjoys immunity according to the constitution

This issue is as simple as ABC. It's just that some persons just want to twist it because of their political sentiments. Look as how many lines used to give Falana's position. even when his wrong by trying to make it an election issue. Falana should have known that the election issues hadbeen settled at the supreme court. But will he? when it's all about political sentiments?

perfectwazobia1:
Falana Falana Falana! !! You see your life ,since he lost to Fayose in 2003 Fayose's name has been a nightmare to Falana and his household

So in your thinking it was falana that asked fayose to eat our yam? Cos you just open mouth like a busted pipeline come dey spit trash for here...

id911:


Did you actually read and comprehend what Chief Wole Olanipekun actually said？ He didn’t say he can’t be investigated but rather, he can be investigated but action can not be taken on him now since he enjoys immunity as ‘’...we operate a constitutional democracy rooted in the rule of law‘’

Again, the very intelligent and principle Chief Olanipekun further said it is against the law for anyone to have frozen Fayose’s account without a valied court order. Even with court order, it could also be unlawful since he enjoys immunity according to the constitution

so, what you guys are saying in essence is , even if fayose's gun(maybe account in this case) is used to kill someone, that gun shouldn't be seized because the owner enjoys immunity?