The Federal High Court in Lagos has described as “an invalid statutory instrument,” the Asset Tracing, Recovery and Management Regulations.
The court, therefore, nullified it as well as all sales and disposals of assets made by the Attorney-General of the Federation (AGF) and Minister of Justice, Abubakar Malami, under the Asset Tracing, Recovery and Management Regulations, 2019.
Malami had in 2019 signed the regulations which empowered the Federal Government to determine procedures that anti-corruption agencies must adopt to manage recovered assets.
In November 2020, he inaugurated the Inter-Ministerial Committee on the disposal of assets forfeited to the Federal Government. He had then said that the move 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 ruling in a suit filed by the HEDA Resource Centre against the AGF, Justice Ambrose Lewis-Allagoa, said the Regulations were beyond the AGF’s powers.
HEDA had through its counsel, Omotayo Olatubosun, challenged the AGF’s power to set up the committee, arguing 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.
Among other reliefs, the plaintiff sought the nullification of all disposals of assets by the AGF’s Committee.
Ruling on the matter, the trial judge 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 said, “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.”
According to the judge, the powers of the AGF do not override the provisions of the enabling statutes stabilising the powers of the law enforcement and anti-corruption agencies.
The judge held that the powers referred to in the commencement clause of the Regulations are to be exercised in accordance with the Acts, not to usurp the mandatory powers vested in the law enforcement and anti-corruption agencies.
He said, “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”