Malami: Court nullifies AGF’s c’ttee on sales, disposals of recovered assets

A Federal High Court sitting in Lagos has nullified the Asset Tracing, Recovery and Management Regulations, 2019, created by the Attorney-General of the Federation, AGF, Abubakar Malami, SAN, for being an invalid statutory instrument.

The court also nullified all sales and disposals of assets made by the AGF under the Asset Tracing, Recovery and Management Regulations, 2019.

It held that the provisions of the Asset Tracing, Recovery and Management Regulations, 2019, were “ultra vires the office and powers” of the AGF.

The AGF had on November 9, 2020, inaugurated the Inter-Ministerial Committee on the Disposal of Assets forfeited to the Federal Government, allegedly 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 Human and Environmental Development Agenda, HEDA through its counsel, Omotayo Olatubosun, challenged the AGF’s power to set up the committee.

Trial judge, Justice Ambrose Lewis-Allagoa made the order in a suit by Incorporated Trustees of HEDA Resource Centre, against the AGF as the sole defendant. 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.

In its judgment, the court dismissed the AGF’s preliminary objection argued by its counsel, Tolu Mokunolu, and granted all of HEDA’s reliefs as prayed. Justice Lewis-Allagoa held: “I am entirely in agreement with the submission of counsel to the plaintiff that the Asset Tracing, Recovery and Management Regulations, 2019 are contrary to the statutory provisions of the 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 AGF 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 AGF to the regulations.

“Consequently, the administrative powers to be exercised by the AGF must flow from the enabling statutes.”

“It is pertinent to state that 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 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.

“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 hereinbefore given in this judgment, 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.

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