Ade Adesomoju, Abuja
The Federal High Court in Abuja on Thursday validated the Presidential Executive Order 6 of 2018 which provides for the interim seizure of assets linked to ongoing criminal trials and investigations.
President Muhammadu Buhari had on July 5, 2018, issued the Presidential Executive Order, but two lawyers, Ikenga Ugochinyere and Mr Keneth Udeze, instituted a suit before the court to challenge its constitutionality.
Delivering judgment on Thursday, Justice Ijeoma Ojukwu dismissed the lawyers’ suit for lacking in merit and affirmed that the President had the constitutional powers to issue the PEO as long as it did not encroach into the principles of separation of powers.
She ruled that the PEO was issued as a policy directive for the implementation of provisions of existing laws, adding that it also recognised the right of every citizen to approach the court for redress if aggrieved by the enforcement of the PEO.
The plaintiffs had on July 13, 2018, filed the suit marked, FHC/ABJ/CS/740/2018, arguing that the PEO contravened constitutional provisions.
They argued that by virtue of the combined effect of sections 5, 36 and 43 of the 1999 Constitution of the Federal Republic of Nigeria, the President lacked the power to issue the PEO.
They maintained that the President’s act or conduct in issuing the PEO interfered with or encroached into the ownership of assets or properties of any person who had not been found guilty by a court of competent jurisdiction.
The plaintiffs had through their lawyer, Mr Obed Agu, joined President Muhammadu Buhari and the Attorney General of the Federation and Minister of Justice, Mr Abubakar Malami, as the defendants.
But dismissing the suit on Thursday, Justice Ojukwu agreed with the defendants’ lawyer, Mr Tijani Gazali, that the PEO could only be enforced in line with the provisions of the law and did not amount to an infringement of the rights of the affected person, who also had the right to approach the court to seek redress.
She ruled that contrary to the plaintiffs’ contention, the Executive Order 6 did not violate the rights of citizens to fair hearing and to own property under sections 35 and 43 of the 1999 Constitution, but was informed by the President’s willingness to preserve suspected property from being dissipated while an investigation or criminal trial linked to it was ongoing.
“What the President has demonstrated by the Executive Order in question is his willingness to ensure the prevention of the dissipation of assets and funds connected with the commission of the offence of corruption and other related offences, until the determination of any corruption-related matter against the person or firm,” the judge held.
However, the judge made a little modification to the PEO which she noted seemed to give the AGF the discretion on when to seek the court’s permission to seize any property suspiciously linked to corruption or other criminal activities.
The judge, in modifying the order, directed that the AGF, who is assigned the coordinating role by the PEO, must, at all times, obtain a court order before seizing any asset.
While reiterating that the PEO must be implemented in accordance to the principles of the rule of law, she added that the coordinating role imposed on the AGF by the PEO was subject to Section 174 of the 1999 Constitution and must be predicated on the existence of facts.
The judge ruled, “It is pertinent that the honourable Attorney General of the Federation, as the overseer of the activities of all the law enforcement authorities listed in the 2nd Schedule to the Executive Order, should ensure due process and uniformity of purpose.
“It is the further opinion of this court that the honourable Attorney General of the Federation first obtains an order of the court in all circumstances before blocking or freezing or confiscating such funds or assets pending the conclusion of an investigation or legal action.
“An application may be made ex parte and if the court is satisfied with the averment and information contained in the application, the order may be granted.
“It is, however, recommended that an order of the court in that regard include a period of investigation or subsequent date. Where the court is of the opinion that the party to be affected by the order should be put on notice, the court should make that determination.”
Affirming the constitutionality of the PEO and the need to implement it in line with the rule of law, the judge ruled, “In the final analysis, what this court has to say is as follows:
“The President of the Federal Republic of Nigeria has powers under sections 5 and 315 of the 1999 Constitution of the Federal Republic of Nigeria to issue Executive Orders on routine administrative matters, to state’s policies, especially for the internal operations of state’s agencies insofar as it does not step on the toes of legislative and judicial powers under the constitution.” (Punch)