By John Chuks Azu
The Court of Appeal in Abuja on Monday November 5, nullified the prosecutorial powers of the anti-graft panel headed by Special Adviser to the President on Anti-Corruption, Okoi Obono Obla.
Since its establishment by the Federal Government through Vice President Yemi Osinbajo in August, 2017, the Special Presidential Investigation Panel for the Recovery of Public Property (SPIP) has attracted many controversies in its anti-corruption activities in furtherance of the policy of the government.
On July 13, Obla announced plans to seize over 200 properties allegedly acquired illegally by Nigerians in highbrow areas of Abuja. He declared: “Let them tell us where they got the money to build these massive properties. If they cannot explain, let them quietly return it to Nigerians.”
The panel has followed up its strong rhetoric with court procedures to seize assets of several prominent individuals and entities. Some of these are: Deputy Senate President, Ike Ekweremadu; Senators Hope Uzodinma, Stella Oduah, Albert Akpan; Heritage Bank PLC and several judges.
The charges filed against the defendants allege that they all failed to declare their assets “in a manner prescribed by the Special Presidential Panel for the Recovery of Public Property contrary and punishable under Section 3(3) (1) of the Recovery of Public Properties Special Provisions Act, 2004.”
The appellate court’s judgment followed an appeal by the Tumsah brothers: Ibrahim and Tijjani challenging the refusal of an FCT High Court to set aside the ex parte order made on December 6, 2017 seizing their properties on the prompting of the SPIP.
Following allegations of corruption against Ibrahim Tumsah, Director of Finance and Accounts in the Federal Ministry of Works and Housing, and his brother, Tijjani Tumsah, the SPIP on that date filed an ex parte application before an FCT High Court forfeiting their assets and properties to the Federal Government on an interim basis.
To carry out its activities, the SPIP claimed it derived its powers from Sections 28 and 29 of the Economic and Financial Crimes Commission (EFCC) Act.
Counsel to the Tumsahs, Kehinde Ogunwumiju, on December 27, 2018 filed an objection to the seizure of the properties and argued that the SPIP could not validly rely on the EFCC Act to obtain the interim freezing order granted it. But the lower court overruled his request for an order setting aside the decision. He then proceeded to the Court of Appeal.
Delivering the judgement at the Court of Appeal, the five-member panel of justices presided by Justice Husseini Mukhtar unanimously held that the SPIP has no power to apply for forfeiture of properties and to prosecute suspects in courts, and therefore set aside the interim order.
The appellate court stated that under Section 4(4) of the Recovery of Properties Special Provisions Act, an investigator with the panel ought to submit report of his findings to the panel, which will submit same to the Head of the Federal Republic, who will in turn submit same for action.
“The courts do not want to be seen as hindering the efforts of the government in its attempt at bringing corrupt officials to book,” the jurists said.
“The learned trial judge was so determined to write the order that it gave no room to the sound argument of the appellant counsel that the Special Presidential Investigation Panel of Inquiry has no powers to approach the courts – the High Court of the Federal Capital Territory – for forfeiture of properties more so when the ex parte application was pursuant to the provisions of the EFCC Act and Money Laundering Special Provisions Act, completely separate legislations, which confer no powers to the Special Presidential Investigation Panel to act the way it did.
“It is very important that due process must be followed in these corruption cases, and indeed in all other matters. The Special Investigation Panel having been set up under the Recovery of Properties Special Provisions Act and thus being a creation of statutes, its powers are indeed circumscribed and limited by the statutes creating it.”
Controversies have dogged the work of the SPIP since inception. In one of such, the Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN) issued a memo referenced: HAGF/SH/2017/VOL/1/60 on November 1, 2017 suspending the chairman of the panel over alleged misconduct.
The attempt by the panel to arraign the Deputy Senate President, Ike Ekweremadu, in May over alleged failure to declare his asset and the application to seize 22 properties which he purportedly acquired under Section 3(3)(1) of the Recovery of Public Properties Special Provisions Act, 2004, was resisted by the lawmaker.
Ekweremadu’s counsel, Adegboyega Awomolo (SAN) filed an application challenging the validity of the charges and the jurisdiction of the Federal High Court to entertain the matter. He tendered the recent judgment of the Court of Appeal in asking that the charges be withdrawn for want of jurisdiction.
At the hearing last week, the presiding judge of the Federal High Court, Justice Binta Nyako agreed that the objection by Ekweremadu was valid and adjourned hearing for February 26, 2019. She then declined an application by a prosecuting counsel with the panel, Celcius Ukpong, to issue a bench warrant for Ekweremadu’s arrest for failing to appear in court.
Where does the appellate court’s verdict leave the SPIP, and the several cases it has already commenced in various courts?
The spokesperson to the SPIP, Lucie-Ann Laha, quoted Obla as saying that the judgment affirmed the panel’s powers to investigate cases of those who have “corruptly enriched themselves, thus contributing to the economic adversity of Nigeria, as well as those who violate the Code of Conduct provisions of the 1999 Constitution.”
“Notwithstanding the judgment, the Executive Order No. 6 of 2018 vests in the panel, as an anti-corruption agency, the powers to seize, in the interim, assets and property of persons under investigation by the panel.
“The Special Presidential Panel for the Recovery of Public Property was established in August 2017 pursuant to the Recovery of Public Property Act of 2004 with a clear mandate to among other things, investigate and recover public assets misappropriated by fraudulent individuals.
He added that the panel draws its personnel from the law enforcement and anti-corruption agencies, including officers and men of the Nigeria Police Force who are statutorily vested with the power to arrest when and where necessary.
But a prosecuting counsel with the EFCC, who pleaded anonymity, described the cases, which emanated from the SPIP but said to be handled under the EFCC Act to be “as good as dead” with the latest Court of Appeal judgment.
Similarly, other lawyers such as Okechukwu Onwukwe and Hamid Ajibola Jimoh argue that the cases initiated in the courts by the panel are no longer valid.
“With the recent ruling of the Court of Appeal, I think the lower courts should become functus officio with respect to continuing with those matters,” Onwukwe said.
For his part, Jimoh opined that, “Those cases should be struck out by the court especially on the ground of lack of proper party as complainant and the defendants should be discharged.”
“For ease of reference, sections 28 and 48 of the EFCC Act only cover the EFCC as the commission and no other person or individual can perform the commission’s functions under the EFCC Act,” Jimoh said.
However, Abel Ozioko Esq. submits that the charges would still stand if they were signed by a competent person, and only the proceedings conducted without a competent authority would be voided.
Also, E.M.D. Umukoro Esq. submits that since the Court of Appeal has declared that the panel lacks prosecutorial powers, “the options available to it is to relinquish the cases to the appropriate agencies or take the files to the Attorney General to prosecute or assign them.”
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