- Why we are at Supreme Court, by governors
- •Malami: recoveries not governed by local laws
Governors under the aegis of the Nigeria Governors’ Forum (NGF) have instituted a suit against the Federal Government at the Supreme Court over the recovered loot.
They are asking the apex court to, among others, compel the Federal Government to account for about N2.28trillion (both in cash and assets) so far recovered from looters and suspects since 2015.
They claimed that between 2015 and now, the Federal Government had recovered about N1.8 trillion in cash and about N450 billion worth of non-cash assets, alleging that it diverted same into the Consolidated Revenue Accounts (CRA) and other accounts not recognised by the constitution, as against the Federation Account (FA), as required.
The plaintiffs, in the suit marked: SCN/CV/393/2021 filed by a legal team, which include Femi Falana (SAN), want the court to compel the Federal Government to give detailed account of the recovered assets and remit same into the FA. They also want the Revenue Mobilisation and Fiscal Commission (RMFAC) to design modalities for distributing the recovered loot among the federating units.
Listed as the sole defendant in the suit filed on June 16, is the Attorney-General of the Federation (AGF).
But, in a veiled reaction to the suit, the AGF, in a statement on yesterday, argued that the states were on a wild goose chase, contending that the recovered loot, both domestic and international, are not governed by local laws.
The affidavit supporting the suit by the states was deposed to by the Director-General of the Nigeria Governors’ Forum (NGF), Asishana Okauru. In it, the plaintiffs accused President Muhammadu Buhari and the AGF of engaging in constitutional breaches with regard to the Asset Tracing, Recovery and Management Regulation, 2019.
They contended that contrary to constitutional provisions, the Asset Tracing, Recovery and Management Regulation, 2019, created the Federal Government of Nigeria Asset Recovery Account domiciled in the Central Bank of Nigeria and prescribed that all proceeds from the Final Forfeited Assets should be paid into the said account.
The plaintiffs noted that the Asset Tracing, Recovery and Management Regulation, 2019 also created the Interim Forfeiture Recovery Account, into which all funds belonging to other tiers or forfeited to other tiers shall be paid.
They contended that by establishing the Asset Recovery Account and Interim Forfeiture Recovery Account, into which revenue from recovered assets is to be paid, “the Asset Recovery Regulation contradicts the provisions of the constitution. The Honorable Attorney-General of the Federation has also acted beyond his constitutional powers.”
They stated that numerous illegally acquired assets have been recovered by the FG since 2015 through agencies like the Economic and Financial Crimes Commission (EFCC), Independent Corrupt Practices and Other Related Offences Commission (ICPC), the Nigerian Police Force (NPF) and the Office of the Attorney General of the Federation (OAGF).
The plaintiffs alleged that the President, his ministers, law enforcement agencies and others “have failed to remit the receipts, proceeds or income derived from the recovered assets to the Federation Account as constitutionally required.
“The Federal Government has consistently diverted these funds to other purposes, including payment into its Consolidated Revenue Account for its sole benefit,” they added’
The plaintiffs claimed that, rather than pay the recovered cash into the Federation Account (FA), the Federal Government illegally diverted it into the Consolidated Revenue Accounts (CRA) and other accounts not recognised by the constitution.
They said: “A common pool of all revenues of the federation of Nigeria”, the Federation Account houses the funds that are meant to be shared among the federating units based on agreed revenue sharing formula, the plaintiffs explained in an affidavit filed in support of the suit.
“On the other hand, the CRA, according to the plaintiffs, is the account into which the federal government’s share from the Federation Account, other federal earnings, and funds belonging to specific state governments are paid.
“Other federal earnings payable to the CRAs include receipts from Federal Government licenses and land revenue, administrative fees, earnings and sales, rent of government property, interests from Federal Government investments, repayments from state governments, Personal Income Tax of Armed Forces, and others.
“Funds in the CRAs strictly belonging to the federal government and specific states, are not distributable among the federating units.
“When funds are allocated from the Federation Account to the Federal or State Governments as the case may be, they are transferred to the respective Consolidated Revenue Accounts from which appropriation for government expenditure is made by an Appropriation Act or a Supplementary Appropriation Act, whichever the case.”
Sections 162(1), 162 (10) and 80 of the Constitution and Section 2 of the Finance (Control and Management) Act, 1958 argued that recovered funds qualified as revenue payable to the Federation Account, instead of the Consolidated Revenue Account of the Federal Government.
According to the plaintiffs, it amounted to a violation of the constitution for the Federal Government “to remit or divert revenue payable into the Federation Account to the Consolidated Revenue Account of the Federal Government or any other account whatsoever, or to apply the said revenue to any other purpose.
They added: “Where revenues payable into the Federation Account have been illegally diverted into the Consolidated Revenue Fund, or applied to any other contrary purpose by the Federal Government, the illegally diverted revenue must be repaid, and the repayment is charged on the CRA of the Federal Government or its share of allocation from the Federation Account.”
The plaintiffs, who are praying the court for 13 reliefs, want, an order directing the President, the Minister of Finance, the AGF office, the Accountant-General of the Federation, and all other relevant authorities and/or agencies of the federation to give an account of the receipts, income, returns or proceeds derived from all assets recovered, seized, confiscated and/or forfeited to the Federal Republic of Nigeria.
Also, they want the court to direct the President, the Minister of Finance, the AGF, the Accountant General of the Federation and all other relevant officials and agencies “to remit” the N1, 836, 906, 543, 658.73 (cash) and N450, 000, 000, 000.00 (non-cash) into the Federation Account immediately, in line with the provision of Section 162 of the Constitution.
The plaintiffs also want an order directing the President, relevant officials and agencies, including the Revenue Mobilisation and Fiscal Commission (RMFAC) “to determine forthwith, the modalities for distributing the receipts from seized, forfeited and recovered assets among the Federal, State and Local Government from the Federation Account.”
They want a declaration that the failure and/or refusal of the President, the Minister of Finance, the AGF office and the Accountant General of the Federation, and all other relevant authorities and/or agencies of the federation to remit the receipts, income, returns or proceeds derived from all assets recovered, seized, confiscated and forfeited into the Federation Account to be distributed in accordance with the provisions of Section 162 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended)among the Federal, State and Local Governments is unconstitutional.
The plaintiffs also want the court to declare that “by the provisions of Section 162(1) and Section 162(10) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended), all income, returns, proceeds or receipts howsoever described derived from confiscated, forfeited and/or recovered assets constitute revenue of the Federal Republic of Nigeria which must be remitted to Federation Account for the collective benefit of the Federal, State and Local Governments.”
As at Tuesday, the AGF was yet to file a response, and the Surpeme Court, currently on its annual long vacation, is yet to fix a date for the hearing of the case.
But, in a statement by his media aide, Dr. Umar Gwandu, Malami argued that international recoveries are governed by “conflict of laws” principles and not local legislation, in view of multiple sovereignties involved.
The statement reads: “International Recoveries are more or less governed by international conventions, negotiations and agreement of parties. It is never a straightjacket application of local legislation.
“Revenue Mobilization and Fisical Commission Act has nothing specific on funds recovered from indicted public officers. It merely mentions accruals and disbursement of revenue from the Federation Account. So questions of recovery of stolen funds from indicted public officers are appropriately dealt with by other relevant laws.
“It is, therefore, misleading to give the impression that such recoveries and usage of stolen funds and stashed abroad are provided for by the Revenue Mobilization, Allocation and Fiscal Commission Act. One cannot situate rights and entitlements on looted funds and recovered assets with myopic and narrow understating of concepts of the application of local legislations.
“For the avoidance of doubt and the purpose of setting the record straight, the application of the looted funds can only factored within the context of mutual understanding and negotiations of international and multifaceted jurisdictional and territorial legislative issues.
“The recovery of stolen assets and the subsequent uses to which these funds may be employed are subject to international agreements between Nigeria and the affected countries, thereby bringing conflict of laws into contemplation.
“Importantly also, these repatriated funds are based on cooperation and mutual assistance agreements, especially the United Nation Convention against Corruption and Implementation of the Global Forum on Asset Recovery (GFAR) Principles on the Repatriation of Stolen Assets. The African Union and the ECOWAS Protocols on recovery of illicit funds are equally relevant when it comes to the role of the Nigeria in relation to its other partners.
“As a member of the committee of nations and a respectable international partner, Nigeria must always strive to fulfill its international commitments in the repatriation and use of stolen funds and assets.
“By way of example, the Federal Government of Nigeria has entered into numerous agreements such as the one with the United States and the Island of Jersey in 2020, and including with other countries around the world. Where the agreements assume an international character, the specifics of the agreement often dictate the trajectory of recovery, sharing, transfer and implementation.
“Some element misunderstood the issue of international recoveries and locally generated funds in relation to monies belonging to the Federal Government that are locally generated. It is not to be confused with stolen funds and assets domiciled in foreign jurisdictions whose recovery and subsequent repatriation are based on international legal arrangements between the Federal Republic of Nigeria and the foreign custodians of these funds.
“It needs to be further noted that even recoveries of local assets are in most cases regulated by the applicable legislations and judicial pronouncements associated with these legislations and not Revenue Mobilization and Fiscal Commission Act exclusively. One can cite for the purpose of clarity recoveries done by the NDLEA, EFCC, ICPC among others.”
