In the case of Fawehinmi v Tinubu, an attempt to cause the police to investigate a sitting governor was resisted up to the Supreme Court. The said governor served his tenure and was never investigated, till date.
In Tinubu v IMB Securities, a suit was filed to enforce the guarantee of a loan. The guarantor appealed to the court of appeal on an interlocutory decision. In the course of the appeal, the guarantor was elected governor. He insisted on pursuing the appeal but an objection was taken that since court processes cannot be served on him as governor, he also could not take advantage of the law to initiate processes against other people. His appeal to the Supreme Court was dismissed. The Supreme Court maintained that a sitting governor cannot be allowed to institute any process in court since none can be instituted against him.
Now to the case of EFCC v Fayose.
Those who froze Fayose’s account know very well that the governor is left without any remedy in law, as he cannot file any case or process in court, while he is still in office as governor of Ekiti State. Where does this lead us? Simple. EFCC cannot file any case in court that involves the person of Fayose and Fayose too cannot file any case in court. The EFCC should go back to the status quo and defreeze Fayose’s account and then pile up its evidence to await his tenure.
Anything short of that will amount to injustice and inequity. Or how else do we say that the law will permit EFCC to seize Fayose’s account and Fayose’s hands are tied from challenging the action of the EFCC?
Legal Arguments in Support of EFCC’s Action
Now I have read all manner of legal arguments, said to have been canvassed for or against the action of the EFCC. First, we cannot develop legal principles around personalities, or pile up legal precedents because of our preference or dislike for the individual. You may not like Fayose today, but surely that cannot be a reason to advocate extreme and absolute legal points, as justification for the arbitrary seizure of a citizen’s property.
Also, we should construe and interprete laws in such a way that it will be to the benefit of the rights of the citizen and not against them. I verily believe that most of the legal arguments canvassed in support of the action of the EFCC against Fayose are based purely on his personality and have no jurispudential basis in law. The conclusion to be drawn from the supreme court decisions in Fawehinmi v IGP and Tinubu v IMB is that no court process can be filed in any court in Nigeria by or against Fayose as a sitting governor, whether ex-parte, on notice, whether criminal or civil. No judge can sign any order or court process in any court in Nigeria, that bears or relate to the personal name of Fayose, while he is still the governor of Ekiti State.
So let the EFCC do the needful and defreeze Fayose’s account otherwise, Fayose will be perfectly entitled to resort to self help, which will not be to the benefit of society.