Court Declares Malami’s Committee on Sales, Disposals of Recovered Assets Invalid

•Says AGF lacks powers to usurp ICPC, EFCC’s constitutional duty

Wale Igbintade

The Federal High Court sitting in Lagos has declared the Asset Tracing, Recovery and Management Regulations, 2019 set up by the Attorney General of the Federation (AGF), Mr. Abubakar Malami, as invalid and unconstitutional.

Consequently, Justice Ambrose Lewis-Allagoa nullified all sales and disposals of assets made by the AGF under the Asset Tracing, Recovery and Management Regulations, 2019.

The judge held that the regulations were, “ultra vires the office and powers,” and beyond the powers of the AGF.

Justice Lewis-Allagoa made pronouncement in suit number, FHC/L/CS/40/2021 filed by the plaintiff, Incorporated Trustees of HEDA Resource Centre, against the AGF as the sole defendant.

The AGF had on November 9, 2020, inaugurated the Inter-Ministerial Committee on the disposal of assets forfeited to the federal government.

This, according to the minister, was in accordance with the president’s directive in October 2018, following recommendations of the Presidential Audit Committee on Recovery and Management of Stolen Assets and a need for efficient management of the assets.

But HEDA, through its counsel, Omotayo Olatubosun, had challenged the AGF’s power to set up the committee.

It argued that the regulations conflicted with the Economic and Financial Crimes Commission (EFCC) Act, the Trafficking in Persons (Prohibition) Enforcement and Administrative Act, 2015, National Drug Law Enforcement Agency (NDLEA) Act, 2004 and Independent Corrupt Practices Commission Act (ICPC), 2000, among others, on the matter of disposal of final forfeited assets.

The plaintiff sought nine reliefs, including the nullification of all disposals of assets by the AGF’s Committee.

In its judgment, Lewis-Allagoa dismissed the AGF’s preliminary objection argued by its counsel, Tolu Mokunolu, and granted all of HEDA’s reliefs as prayed on the motion paper.

Justice Lewis-Allagoa held: “I am entirely in agreement with the submission of counsels to the plaintiff that the Asset Tracing, Recovery and Management Regulations, 2019 are contrary to the statutory provisions of the Economic and Financial Crimes Commission EFCC Act, Trafficking in Persons Cohabitation Enforcement and Administration Act, NDLEA Act and Immigration Act.

“A careful perusal of the above statutory provisions will show the provisions for the Attorney-General of the Federation to make regulations for the agencies for disposal of assets under the various enactments listed above.

“The above statutory enactments are therefore the enabling source of the Attorney-General of the Federation to the regulations.

“Consequently, the administrative powers to be exercised by the Honourable Attorney-General of the Federation must flow from the enabling statutes.

“It is pertinent to state that the powers of the Attorney-General of the Federation do not override the provisions of the enabling statutes establishing the powers of the law enforcement agencies and anti-corruption agencies and consequently the powers referred to in the commencement clause of the regulations merely are to be exercised in accordance with the Acts not to usurp the mandatory powers vested in the law enforcement agencies and the anti-corruption agencies.”

Furthermore, the ruling added: “I am therefore in agreement with counsel for the plaintiff that the executive orders or any other forms of definition can be issued pursuant to session 315 of the Constitution; however, they are limited to enactments predating the 1999 Constitution.

“The Acts under consideration in this instant suit were enacted after the 1999 Constitution and do not fall within the ambit of session 315 of the 1999 Constitution.

“In all and for the reasons herein before given in this judgement, the questions put for determination in the originating summons are answered in favour of the plaintiff and all the reliefs sought are granted as prayed. This is the judgment of the court read in the open court.”

The plaintiff’s reliefs granted by the judge included a declaration that by the ICPC Act, the Asset Tracing, Recovery and Management Regulations, 2019, “is an invalid statutory instrument the former having conferred no power abrogated by the Defendant to himself in the latter Regulations; an order nullifying the Asset Tracing, Recovery and Management Regulations, 2019 as an invalid statutory instrument same being in excess of the provisions of the Independent Corrupt Practices Commission Act, 2000.

“An order nullifying all sales and disposals of assets made by the Defendant pursuant to the said Asset Tracing, Recovery and Management Regulations, 2019 same being ultra vires the office and powers of the Defendant.”