...The reason given by the Attorney General for ordering the sale is not only untenable but highly improbable that no reasonable Nigerian can believe it as true and I want to think that the AGF himself does not belief it but had to just say something in the heat of the raging storm. More so that to believe him will mean that anybody can act to foist a fait a compli on the court by disposing the subject matter of litigation because the only disturbing question to ask the AGF is; what happens if the suspects or accused are later found guilty?
In the last few weeks, the media, both conventional and new, had been awashed with reports, allegations and counter allegations about the sudden manifestation of corruption or corrupt practice that has reared its ugly head in the nations most dreaded anti-corruption agency the Economic and Financial Crimes Commission (EFCC) and scuttled the entire wall or edifice of the Buhari led administration which was built on quicksand’s of corruption fighting. To make matters worse, the protagonist and the villain in the unsavoury saga, are no other persons than the Commission’s (EFCC) arrow head and, later, the nation’s number one Law Officer.
For the records, there is no gain saying the fact that corruption is a demon to any society and any society living with this hydra headed monster of corruption, can never attain economic and political independence.
Before going further in this, may I make allusion to George Herberts 1651 invocation that “whose house is of glass , must not throw stones at another” as very apposite here. It is apposite not because Ibrahim Magu as the EFCC Chairman was accused by the Attorney General of the Federation, Mr. Abubakar Malami SAN, and the former in reaction, indicted the later of complicity or similar allegations; but rather it is apposite in a general sense that whoever is in a position to fight and suppress corruption or illegality, must, like Ceasar’s wife, be above board. He must not be a man of mere straw that is in no way better than those he wages war against. This is because where this is so, as it seems in the case of the Ibrahim Magu and Abubakar Malami, then the fight against corruption is far from being won.
Although, one of the allegations against Ibrahim Magu is an alleged discrepancies in the figures he rendered to government on recovered assets and funds, some wishful thinkers and Magu’s well-wishers have argued that he has no case to answer because what he submitted or handed over are in excess of what he declared and not a short fall. I submit most humbly that, there is no distinction to be drawn in the circumstance of declaring in excess or in lower figure. Both are bad and put a question mark on the transparency or accountability of the agency. It also smacks of unprofessionalism and fardiness. This is because, in accounting or economic affairs, figures rule and control the index of activities or events, and where figures are toyed with or can be manipulated, whether minimally or maximally, such practice becomes alien and non-congenial with best accounting practice or policy. Therefore, in the instant case, the agency’s Chair, Mr. Magu, has a lot of things to explain to Nigerians, and if found wanting, he needs to be brought to book anon, without further delay.
On the flipside of the coin, Mr. Magu in his defence has raised some dusts which has not only implicated the Attorney General of the Federation (AGF) but also, smeared his garment of integrity and put paid to his bogus loquaciousness. Mr Magu alleged that Mr Malami ordered the sale of certain properties which are subject of investigation and or litigation. Surprisingly, before anyone could come to the defence of the Attorney General of the Federation if he has any, he fired a deadly salvo and admitted doing so.
However, like every drowning man clings to any object, even straw, to save himself from perdition, Mr. Malami said he did so legally, citing law and other untenable excuses like the bogus thesis of “presumption of innocence” for the suspects and accused person. I submit that this contention steps the law on its forehead and makes mockery of the entire fight against corruption. Before we go further, I submit most humbly, that Mr. Malani is not and can never be correct for a lot of genuine reasons; which shall be demonstrated pronto.
It is posited that the law had, for ages, left the province of speculation that statutory powers can be perpetually elastic. Therefore, every power, however wide, has its limitations, and most of the time, the limitations are situated within the ambit of the enabling Act, (Law) pursuant to which an erring officer purportedly act. See Zango v. Governor of Kano State (1986) 2 NWLR (Pt. 22) 409 at 411, where the Court quoted with approval, the opinion of H.W.R. Wade, in his book “Administrative law, 5th Edition, at page 37, and stated the position of the law thus:
“It is a cardinal axiom, accordingly, that every power has legal limits, however wide the language of the empowering Act. If the court finds that the power has been exercised oppressively or unreasonably, or if there has been some procedural failing… .Although, lawyers appearing for government departments often argue that some act confers unfettered discretion, they are guilty of CONSTITUTIONAL BLASPHENMY. Unfettered discretion cannot exist where the rule of law reigns. The notion of unlimited power can have no place in the system. The same truth can be expressed by saying that all power is capable of abuse, and that the power to prevent abuse is the acid test of effective judicial control.” (Emphasis Supplied)
This position of the law was further expounded and expanded in a more recent case of Amasike v. Registrar General; CAC (2006) 3 NWLR (Pt. 968) 462 at 500, where the court declared in the following captivating manner.
“where a person, body or authority claims to have acted pursuant to power granted by a statute, such person, body or authority must justify the act, if challenged, by showing that the statute applied in the circumstances and that he or it was empowered to act under it.”
Riding on the horse of the above authorities, we submit that Mr. Malami has acted malafide in the order he made for the disposition of the properties in question, which are subject of investigation and or litigation; and no argument, however elastic, can excuse his legal faux pax a furtiori, the sellers are suspects and or potential accused persons. He has the burden of proving that he has the power, based on the above authorities.
In defence of his decision to appoint a criminal suspect to sell certain properties confiscated on the orders of the Court, the Attorney General of the Federation, Mr. Abubakar Malami SAN has said that he acted legally in approving the sale of the content of some seized oil vessels last year, which were confiscated on the orders of the Federal High Court.
To further expose the anomalies and administrative recklessness of Malami, may 1 invite him on a short excursion into section 31 (2) and (4) of the Economic Financial Crimes Commission (Establishment) Act, Laws of the Federation of Nigeria, 2004, which is the enabling Act, under which he purportedly acted. It is submitted that the AGF does not have such power either under section 174 of the Constitution of the Federal Republic of Nigeria or under the Economic and Financial Crimes Commission (Establishment) Act, Laws of the Federation of Nigeria 2004. For the purpose of elucidation and contrary to the highly misguided position of the AGF, section 31 (2) of the EFCC Act states that "Upon receipt of a final order pursuant to this section, the Secretary to the Commission shall take steps to dispose of the property concerned by sale or otherwise and where the property is sold, the proceeds thereof shall be paid into the Consolidated Revenue Fund of the Federation".
In order to ensure that the power of sale of confiscated properties is not abused by the EFCC the AGF is authorized by section 31 (4) of the EFCC Act to “make rules or regulations for the disposal or sale of any property or assets forfeited pursuant to this Act." But instead of making the "rules or regulations" to guide the EFCC in the sale of confiscated properties the AGF decided to appoint contractors including a criminal suspect to dispose of confiscated properties.
Since the AGF admitted that he personally authorised the sale of confiscated properties without the authorisation of the EFCC, I submit that the AGF has committed an offence under section 32 (1) of the EFCC Act which stipulates that " Any person who, without due authorization by the Commission, deals with, sells or otherwise disposes of any property or assets which is the subject of an attachment, interim order or final order commits an offence and is liable on conviction to imprisonment for a term of five years without the option of a fine." In view of his own admission of involvement in criminal activities President Buhari should order the Inspector- General of Police to file charges against the AGF for appointing contractors to sell confiscated properties of the Federal Government without the authorisation of the EFCC in contravention of section 31 of the EFCC Act, and to do otherwise will make the president’s claim of fighting against corruption a mere ruse.
Having said that and taking pleasure on the shoulders of the law, that he possesses no such power, it is submitted that since Malami himself has admitted that he ordered the sale of the assets in question, cadit questio-the question drops and admits of no further argument whether he is justified because the strongest evidence against a man is self-admission. See Seismograph v. Eyuafe (1976) 9-10 SC 135. Our submission in this regard is buoyed by the judicial authorities cited and a fortori, section, 31 of the EFCC Act, 2004, which from all indications have not granted him the power to exercise the discretion he employed in ordering the sale in question.
At this juncture, the reasons given by Malami for the sale ought to be microscopically x-rayed against the position of the law. He claimed that he granted permission to sell the properties because the suspects are presumed innocent under the law. I submit with profound respect to the Attorney General that this is an unwarranted aberration or if permitted, a deliberate self-indulgence in deceit and misrepresentation. This is because to state here that any property which is a subject of investigation and or litigation cannot be disposed of until the enquiry is closed is too pedestrian and mundane. That apart, in criminal proceedings, “presumption of innocence” and guilt or conviction are two parallel lines that do not meet at any point. They are enemies speaking different languages and trying to devour each other perpetually. While the state which the AGF represents believes in the guilt of the suspect or accused, the suspect or accused tries to prove own innocence. To now act as the mouth piece of the suspect by singing the mantra of presumption of innocence for an accused whom the AGF ought to try and devour by presenting compelling evidence to convict him amounts to switching of goal post which makes the AGF appear to be shielding criminals. This is not only preposterous to commonsensical reasoning but highly inimical to nation building and it works at cross purposes with the purported sing song of the PMB administration as a government that hates corruption.
Before I rest auchor on this sore subject, may I ask the AGF in complete deferrence to his office, if in truth, he can beat his chest to have acted in the best interest of the nation? I respectfully submit that I doubt. And even if I believe the AGF, can majority of Nigerians believe him that he is telling the truth? Again, I doubt, because “the best test of truth is the power of the thought to get itself accepted in the competition of the market”-apology to Justice Holmes in his dissenting opinion in the case of Abrams v. United States, 250 U.S. 616, 630 (1919). Also, in Ogbeta v. Nzeribe (1999) 4 NWLR (Pt.599) 348 at 357, the court observed thus:
“now what is truth is eternal. Truth is not a common vegetation on this planet. What we, as mortals, do is, however, to approximate it by degree of probability. So that when a story looks improbable, reasonable men and women tend to disbelieve it as untrue. If the story looks probable, they accept it as true and, believe it. Improbability is, therefore, an index of falsehood. And as Aristotle said many years ago, ‘probability has never been caught bearing a false testimony’ ”.
I submit, and taking a cue from the statement of fact in the above case, that the reason given by the Attorney General for ordering the sale is not only untenable but highly improbable that no reasonable Nigerian can believe it as true and I want to think that the AGF himself does not belief it but had to just say something in the heat of the raging storm. More so that to believe him will mean that anybody can act to foist a fait a compli on the court by disposing the subject matter of litigation because the only disturbing question to ask the AGF is; what happens if the suspects or accused are later found guilty? Can the AGF or his cronies or accomplices bring back the sold and used crude oil vessel? Let the AGF answer and be judged by his conscience!
Kabir Akingbolu, Esq.
A Human Rights Activist Writes From Lagos.