The Asset Tracing, Recovery, and Management Regulations, 2019 have been declared illegal by a Federal High Court in Lagos for being a “invalid legislative instrument.”
The court further voided all sales and disposals of assets by Attorney-General of the Federation (AGF) Abubakar Malami, SAN, pursuant to the Asset Tracing, Recovery, and Management Regulations, 2019.
It was determined that the Asset Tracing, Recovery, and Management Regulations of 2019 exceeded the AGF’s authority.
In the case FHC/L/CS/40/2021 filed by Incorporated Trustees of HEDA Resource Centre against the AGF as the lone respondent, Justice Ambrose Lewis-Allagoa issued the order.
The AGF inaugurated the Inter-Ministerial Committee on the Disposal of Government-Recovered Assets on November 9, 2020.
According to the minister, this was in compliance with an October 2018 presidential decree based on the recommendations of the Presidential Audit Committee on Recovery and Administration of Stolen Assets and the necessity for efficient management of the assets.
But HEDA, through its attorney Omotayo Olatubosun, contested the AGF’s authority to establish the committee.
It argued that the Regulations were in conflict with the Economic and Financial Crimes Commission (EFCC) Act, the Trafficking in Persons (Prohibition) Enforcement and Administrative Act of 2015, the National Drug Law Enforcement Agency (NDLEA) Act of 2004 and the Independent Corrupt Practices Commission (ICPC) Act of 2000, among others, regarding the disposal of final forfeited assets.
The complainant sought nine remedies, including the invalidation of all asset sales by the AGF’s Committee.
In its conclusion, the court rejected the preliminary objection raised by the AGF’s attorney, Tolu Mokunolu, and granted all of HEDA’s motion-paper-requested reliefs.
Justice Lewis-Allagoa ruled, “I fully concur with the plaintiff’s counsel that the Asset Tracing, Recovery, and Management Regulations, 2019 are in conflict with the provisions of the Economic and Financial Crimes Commission Act, the Trafficking in Persons Cohabitation Enforcement and Administration Act, the NDLEA Act, and the Immigration Act.
“A thorough examination of the preceding statutory provisions will reveal the provisions for the Attorney-General of the Federation to issue regulations for the agencies for the disposal of assets pursuant to the various statutes described above.
“The following statutes are therefore the source of authority for the Attorney General of the Federation’s regulations. Therefore, the administrative powers to be exercised by the Honorable Attorney-General of the Federation must derive from the enabling statutes.
“It is pertinent to note that the powers of the Attorney-General of the Federation do not supersede the provisions of the enabling statutes stabilising the powers of law enforcement agencies and anti-corruption agencies. Consequently, the powers referred to in the commencement clause of the regulations are to be exercised in accordance with the Acts so as not to usurp the mandatory powers vested in law enforcement agencies and anti-corruption agencies.
“Therefore, I concur with counsel for the plaintiff that executive orders or other kinds of definition may be issued pursuant to Article 315 of the Constitution; but, they are confined to enactments predating the 1999 Constitution.
“The Acts at Issue in this Action were passed after the 1999 Constitution and do not fall within the scope of Section 315 of the 1999 Constitution.
“Overall, and for the reasons already stated in this judgement, the questions posed in the originating summons are resolved in favour of the plaintiff, and all reliefs requested are granted as requested. This is the court’s decision as read in open court”
The judge granted the Plaintiff the following reliefs: a declaration that the Asset Tracing, Recovery, and Management Regulations, 2019 are invalid under the ICPC Act because the ICPC Act confers no power on the Defendant that he has arrogated to himself in the Asset Tracing, Recovery, and Management Regulations, 2019; and an order nullifying the Asset Tracing, Recovery, and Management Regulations, 2019 as being in excess of the provisions of the Independent Corrupt Practices and other