Court nullifies Malami’s committee on sale of forfeited assets

A federal high court sitting in Lagos has nullified the Asset Tracing, Recovery and Management Regulations 2019 for being “an invalid statutory instrument”.

The court further nullified all sales and disposals of assets made by Abubakar Malami, attorney-general of the federation (AGF), under the Asset Tracing, Recovery and Management Regulations, 2019.

Ambrose Lewis-Allagoa, the judge, gave the order on Monday in a suit filed by the Human and Environmental Development Agenda (HEDA) against the AGF.

Malami had signed a new policy titled “Asset Tracing, Recovery and Management Regulations, 2019”, which empowers the federal government to determine procedures that anti-corruption agencies must adopt to manage recovered assets.

In November 2020, Malami set up an inter-ministerial committee for the disposal of forfeited assets, following a directive by President Muhammadu Buhari.

But HEDA, through its counsel, Omotayo Olatubosun, 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, 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, the court dismissed the AGF’s preliminary objection argued by Tolu Mokunolu, his counsel, and granted all of HEDA’s reliefs as prayed on the motion paper.

“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,” the judge said.

“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.”

Lewis-Allagoa said the powers of the AGF do not override the provisions of the enabling statutes stabilising the powers of the law enforcement agencies and anti-corruption agencies.

He said the powers referred to in the commencement clause of the regulations merely are to be exercised in accordance with the Acts and not to usurp the mandatory powers vested in the law enforcement agencies and the anti-corruption agencies.

“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 judge added.

“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 hereinbefore 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 include 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 arrogated 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.”