Financial Crimes Commission and the Zenith Bank plc to show cause
why an Order Exparte to defreeze Governor Ayodele Fayose's accounts,
filed yesterday to the court by the governor's legal team, should not be
granted. The judge gave Monday July 4 for the anti-graft agency and
Zenith bank Plc to appear in court with the said evidence.
Mr Mike Ozekhome (SAN), had through an exparte order deposed to on the 24th
of June, 2016 by Bimpe Olatemiju sought a mandatory order de-freezing the
accounts belonging and operated by him pending the determination of his
interlocutory application. Joined in the suit are the EFCC (1st defendant) and
Zenith bank (2nd defendant). The order was supported by 18-paragraph
affidavit , a lone Exhibit, which was a letter issued to Governor Fayose by Zenith
bank confirming that the EFCC actually placed a restriction order on the
accounts and a written address .
He also sought the leave of the court for the service of the originating summons
on the defendants in their various addresses outside the jurisdiction of the court
as contained on the order papers, supported by 17-paragraph affidavit.
Ozekhome said the order was brought pursuant to order 26 rule 8(1) of the
Federal High Court Civil Procedure Rule 2009 and Section 44(1) of the 1999
constitution which gives the court the discretionary powers to adjudicate on
such matter.
Citing the case of Abdulaziz Nyako Vs EFCC to buttress his position that the
anti-graft agency has no power to freeze Fayose’s account without valid court
order, Ozekhome added the action was a flagrant negation of the Section 308 of
the constitution, which conferred absolute immunity on the government against
civil and criminal procedure.
He said it was appalling that the EFCC could play ostrich to these valid
constitutional requirements and took cognizance of the African Charters on
Human and People’s Rights before taking the punitive stand against Fayose,
adding that these infractions had rendered the action unconstitutional, wrongful
, null and void .
Delivering his ruling, Justice Taiwo Taiwo, said that he quite understood that
the applicant (Fayose) enjoys immunity and that the court can adjudicate on
this matter as canvassed by the counsel to the plaintiff, but he pointed out that
the relief he basically sought was a mandatory order of the court.
“I quite agree that the applicant has immunity pursuant to provisions of
the constitution, but it is glaring that the application he is requesting for
is a mandatory order to undo what had already been done and the court
can’t abdicate its duty under this circumstance. I am of the opinion that
this mandatory order is better granted with the interlocutory order being
sought through an application pending before the court , because the
applicant has filed all papers to this effect.
“I hereby ordered the 1st and 2nd respondents to appear before this
honourable court on July 4, 2016 and show cause why the order should
be refused. “This is not a refusal of the order, I have not refused it, but I
only put it in abeyance which I said without prejudice to what will be the
position of the respondents . “But a leave is granted for the service of the
defendants with the originating summons in their respective addresses as
contained on the order papers”, the Judge ruled. Describing the presiding
judge as very at home with the law and a highly experience lawyer,
Ozekhome said told newsmen that: "our motion was an exparte for the
de-freezing and removal of restriction placed on citizen Ayodele Fayose
's two accounts with the Zenith Bank Plc.
“The bank claimed through a letter made available to our client that it
acted on the instructions of the EFCC and we are here by way of
originating summons to say that the EFCC has no powers, whether under
the EFCC Act, money laundering Act, under the constitution or any other
known law to freeze the accounts of a sitting governor who enjoys
immunity under section 308 of the Constitution of Federal Republic of
Nigeria, 1999as altered because that section makes it clear that for the
time that person is in that office, the President, Vice-President, Governor
and Deputy-Governor he enjoys absolute immunity from any civil or
criminal procedure and that no court process can issue against such
person. “So, EFCC could not have obtained an order Exparte to freeze his
account, if they did that, it is illegal, null and void. It could also not have
frozen his accounts without having an order Exparte, " he said.
Asked what would be the the legal team's next step should the EFCC fails to
honour the court's order on Monday, July 4, Ozekhome said the government
agency cannot dare a Federal High Court's order. In a related development, the
same court today, vacated an Order of Exparte sought by the factional Ekiti
State chapter of the Peoples' Democratic Party (PDP) allegedly loyal to Senator
Buruji Kashamu restricting the executives of the party in Ekiti, loyal to governor
Fayose, from parading themselves as authentic Excos of the party.
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