A senior lawyer based in Ado Ekiti, Kolade Ilesanmi, has said the freezing of the personal bank account of Governor Ayo Fayose by the Economic and Financial Crimes Commission (EFCC) is in order and in line with the Act establishing the agency.
Ilesanmi, who spoke with The Nation newspaper, contended that Section 28 of the EFCC Act 2002, empowers the commission to freeze the account of any suspect and obtain a court order thereafter.
He argued that Section 28 of the EFCC Act gives the commission the power to go ahead and investigate Fayose, but cannot arraign him as he enjoys immunity from civil and criminal prosecution.
Ilesanmi said the governor, his supporters and some lawyers sympathetic to his cause who are quoting Section 34 of the same Act were ignorant of the fact that it is not mandatory for the agency.
The legal practitioner noted that while the provision in Section 28 carries the word “shall”, that of Section 34 carries the word “may”.
He noted that the latter is not binding on the EFCC while the former is.
Section 28 of the EFCC Act 2002 reads: “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.”
He stressed that if Fayose’s account was not frozen, the ‘res’ of the matter would be destroyed, arguing further that the ‘res’ must be protected.
Ilesanmi said: “The word ‘shall’ is used there and under this present situation, the governor enjoys immunity under Section 308 (of the 1999 Constitution), he can’t be arrested or arraigned. He is immune from civil and criminal prosecution.
“Where the world ‘shall’ is used, it is compulsory. Section 34 some lawyers rely on says ‘may’ and when the word ‘may’ is used, it does not impose compulsion and it means it is not mandatory for the commission to seek the order to attach the account or freeze the account.
“The word ‘may’ in legal parlance is not mandatory; but under Section 28, the word ‘shall’ is used.”
Ilesanmi added: “Where state funds have been stolen, are they saying the authorities empowered by law cannot recover the cash? The account frozen is the ‘res’ and where the ‘res’ is destroyed, where is the basis in the action.
“You cannot use immunity as an engine of fraud, immunity is not absolute; it is there to protect the occupant of the office from distraction but they are misusing it in Nigeria.
“If a governor had looted state funds and keeps it in a secret account, should they allow him to have access to it? What of if he wires the money out of the account or he dies, what happens to the money? We begin another round of legal bottleneck to repatriate the money.
“The EFCC cannot wait and allow the ‘res’ to be destroyed; the action of the EFCC is in order and I quite agree with it.”
The Nation newspaper
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Good observation well stated...
ReplyDeleteI think Falana(SAN) is correct then.God bless Nigeria.
I'm waiting for aregbesola account to b frozen, amechi, and amosun and useless ajumobi , if this government is fighting corruption
Deletefayose is the cause of his problem.he want to insult and flex muscles with president. now he is in a ditch. Buhari is now holding his scrotum. Note that if a rat is not disturbing your house,you may not need to get a cat. big lesson for fayose.
ReplyDelete