Dilemma as agencies take over sale of FG’s recovered assets

Sale of assets forfeited to the federal government valued at N4 trillion is once again marred in suspense and controversy as recovery agency who… Sale of assets forfeited to the federal government valued at N4 trillion is once again marred in suspense and controversy as recovery agency who have been empowered to take charge of the process, by a court judgement, are yet to get around to begin the process.

The court order nullifying the powers of the Attorney General of the Federation (AGF) to set up a committee for the sale of recovered assets has cast a dilemma on the move by the federal government to dispose of forfeited assets.   

With the Federal High Court judgment delivered in Lagos on May 10, the disposal of the recovered assets has reverted to the recovering agencies.  

The court’s nullification followed a suit by the Human and Environment Development Agenda (HEDA), through its counsel, Omotayo Olatobuson, challenging the powers of the AGF.

Justice Ambrose Lewis-Allagoa upheld the argument of the HEDA that nullified the Asset Tracing, Recovery, and Management Regulations, 2019, saying it is an invalid statutory instrument, the former having conferred no power arrogated by the defendant (AGF) to himself in the latter regulations.

The court further made an “order nullifying the Asset Tracing, Recovery, and Management Regulations, 2019 as an invalid statutory instrument, same being over the provisions of the Independent Corrupt Practices Commission Act, 2000: “An order nullifying all sales and disposals of assets made by the defendant under the said Asset Tracing, Recovery and Management Regulations, 2019 same being ultra vires the office and powers of the defendant.”

“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 under the act, not to usurp the mandatory powers vested in the law enforcement agencies and the anti-corruption agencies.”

However, there are concerns that the agencies are yet to begin any process towards the disposal of the assets as contained under the enabling law, the Proceeds of Crime (Recovery and Management) Act, 2022. 

Some of the affected agencies include the Economic and Financial Crimes Commission (EFCC); the Independent Corrupt Practices Commission (ICPC); the Nigeria Police Force, the Nigerian Customs Service, the Nigerian Navy, and the Assets Management Corporation of Nigeria (AMCON).

When contacted to find out the involvement of the ICPC in the management or disposal of recovered and forfeited assets under the law, the spokesperson of the commission, Mrs Azuka Ogugua, explained that there is a designated department for that in the commission.

“We have a Proceeds of Crime (Recovery and Management) Department, so when we recover or seize assets under the ICPC Act, we go to court to get interim and final forfeiture. There is a Proceeds of Crime Act that also guides all our operations in this,” she said. 

The ICPC official, however, was silent when Daily Trust on Sunday inquired about a judgement of a Federal High Court in Lagos, which directed a panel set up by the AGF office to hand off the sale of the recovered or forfeited assets.

In the same vein, the spokesman of the Economic and Financial Crimes Commission (EFCC), Wilson Uwujaren, said the commission would not be interested in speaking about the issue of asset recovery.

He, however, promised to get back to our reporter after he must have checked Federal High Court’s judgement.

Speaking, the executive director of the Centre for Social Justice (CSJ), Eze Onyekpere, charged the agencies empowered by the newly passed Proceeds of Crime Act to take charge and build transparency in the process of assets disposal.

“There is a coordinating mechanism under the law that should dispose of those assets. The fact that you recovered an asset does not make it mandatory that you must manage it. You can make an inventory of the recoveries and hand them over to people who can better value them and auction them,” he said. 

The executive director of the African Network for Environment and Economic Justice (ANEEJ), David Ugolor, said the recovering agencies are now empowered to dispose of forfeited assets.

He, however, pleaded with the federal government not to dispense entirely with the work already done by the Inter-Ministerial Committee on the Disposal of Federal Government of Nigeria’s Forfeited Assets earlier set up by the federal government so that it does not become a waste. 

“We need to ask what now happens to the work already done by the panel because members of the committee have contributed to knowledge,” he said. 

Before the court order, the federal government had embarked on the processes for the disposal of the recovered, forfeited assets, which some had predicted would rake in N4 trillion for the country and prevent further borrowing.

President Muhammadu Buhari had in November 2020 given the newly composed a mandate of six months within which to dispose of all forfeited assets.

The panel, which was inaugurated by the AGF and Minister of Justice, Abubakar Malami, a Senior Advocate of Nigeria (SAN), was made of 22 members, chaired by the then permanent secretary, Dayo Apata (SAN).

Malami said the committee derived its enabling powers from the overriding powers of the AGF under sections 150(1) and 174(1) of the Nigerian constitution, 1999.

He charged the members to conduct an investigation, tracing, seizure, and disposal of stolen or illegally acquired assets and proceeds of crime under the Asset Tracing, Recovery, and Management Regulations, 2019, issued by his office. 

He said the panel was set up under President Buhari’s directive in October 2018 following the recommendations of the Presidential Audit Committee on Recovery and Management of Stolen Assets because of the need for effective and efficient management of recovered assets as an interim measure pending the passage of the Proceeds of Crime Bill.

Malami listed the responsibilities of the committee to include implementation of the provisions of the Asset Tracing Recovery and Management Regulations; ensuring the transparency of the disposal of the Federal Government Final Forfeited Assets; ensuring the synergy and collaboration between the AGF and law enforcement and anti-corruption agencies other relevant ministries,

departments and agencies and non-governmental organisations in the collation of records of all assets.

Others are to put in place information flow on assets; respond to ongoing Asset Management Audit and asset performance reports; consistently implement enablers and controls that support decision making and efficiency of service delivery which govern the disposal of assets, and development of targets for the committee to measure performance. 

He said, “I must, however, warn that the task before the Inter-Ministerial Committee is an enormous one and must be conducted with utmost dignity, having the interest of Nigeria at heart.”

In his reaction, the chairman of the committee and then permanent secretary in the Federal Ministry of Justice, Dayo Apata (SAN), described the event as “another milestone in the new frontiers being charted by the AGF beyond the conventional responsibilities of prosecution, defending or representing by the federal government and its MDAs in litigations and proffering legal opinion.”

The committee also invited 398 estate surveyors and valuing companies that applied for the valuation of the assets forfeited to the federal government to enable auctioneers to commence the sales.

The National President of the Nigerian Association of Auction (NAA), Alhaji Aliyu Kiliya advised the relevant recovering agencies to ensure that the disposal of the assets must be subjected to professional auctioneers for transparency and accountability according to the Public Procurement Act and abide by the rules and regulations governing the disposal of public assets to avoid legal encumbrances.

The Head of the Asset Recovery and Management Unit of the Federal Ministry of Justice, Ms Ladidi Bara’atu Mohammed did not respond to messages sent to her on the status of the forfeited assets.

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