EFCC under fire over sale of assets

• They are targeting opposition party and lack power to dispose properties – Lawyers

By GODWIN DUNIA

Nigerians are apprehensive over the recent disclosure by the Economic and Financial Crimes Commission (EFCC), that its efforts to rid the country of corruption has yielded  feats as the agency claimed it has succeeded in getting over 240 properties located in different parts of the country, forfeited to the federal government.

The properties are forfeited by order of courts during the trials of some former governors, ex-ministers, top military officers and businessmen who are alleged to have mismanaged the commonwealth.

The EFCC made this disclosure of the forfeited properties through a document the Agency made public recently. The document indicates that the EFCC is empowered by the law to place all suspicious assets under interim assets forfeiture – in line with sections 28 and 34 of the EFCC establishment act and section 13(1) of the Federal High court act, 2004.

However, most Nigerians know the effect of corruption on the system and so are not against the fight against corruption, rather what is of utmost concern is that the fight must be in accordance with the rule of law and must not spare anyone. Since the inception of this administration in 2015, the public perception of the EFCC has been an instrument used against opposition.

The misuse of the graft agency has so much been pronounced that the public find it difficult to really appreciate the fight against corruption. And when the EFCC disclosed the outcome of court trials of some notable Nigerians and why they should forfeit over 240 properties worth billions of naira to the federal government, the public reaction

was muted and questions were raised over how they would be auctioned.

Listed among those affected were: Diezani Alison-Madueke, former minister of petroleum, lost a multi-storey building in Banana Island, Foreshore estate in Ikoyi, a real estate comprising six flats in Ikoyi and an estate of 21 mixed housing in Yaba, Lagos, among others.

Two properties owned by Sambo Dasuki, former national security adviser, in Kaduna and Abuja were also forfeited to the federal government. Also, Haruna Momoh, a former managing director of PPMC, a subsidiary of Nigerian National Pertroleum Corporation (NNPC), reportedly lost two mansions in Maitama district, Abuja to the temporary forfeiture order. The anti-graft agency also secured the final seizure of Flat 7B at Osborne Towers in Ikoyi where $43.45 million cash was recovered.

Other owners of the seized properties include Ibrahim Shema, ex-governor of Katsina state, (20); Ayodele Fayose, ex-governor of Ekiti state (three); Babangida Aliyu, ex-governor of Niger state, (two); Bello Mohammed former national chairman of the Peoples Democratic Party (one); Iyorchia Ayu, former senator (one); Isa Yuguda, former governor of Bauchi state, (one) and Abba Moro, ex-minister of interior (one) and Micheal Obasuyi, ex-managing director of Platinum Multi-purpose Cooperative Society Limited, who bought 134 buses, 20 houses with N11.4 billion slush cash.

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According to Ibrahim Magu, EFCC chairman, about 407 mansions were seized by the agency from 2015 to 2018.

Magu said the forfeited assets have been handed over to the federal government for use by ministries, departments and agencies. He said, “Hundreds of properties such as filling stations, petroleum products, land, jewelry, automobiles, real estate, vessels, hospitals, company shares and heavy machinery and broadcast equipment, have been seized from corrupt elements between 2015 and 2018,” he said.

“From 2015 to 2018, 407 mansions were seized, 126 have been forfeited finally and 281 are under interim forfeiture. “Nine filling stations were seized and placed under interim

forfeiture. Lands seized sums up to 98, of which 56 are under interim forfeiture while 42 have been forfeited finally to the federal government.”

Efforts by BusinessHallmark to get the spokesman of EFCC, Tony Orilade, to clarify on this proved abortive as he is yet to reply questions puts across to him.

In a telephone chat with BusinessHallmark, a Senior Advocate of Nigeria, SAN, Norrison Quakers, who was initially reluctant to speak on issue concerning EFCC, said the Agency in fairness to them has tried, but that it still has lots to do. He speaks rhetorically and raised some salient issues on the power conferred on the EFCC and its limit as an agency of the executive.

He said: “As a SAN, who is appearing for defendants and the Agency itself, if I speak against, it might appear as if am speaking for the defendant and if I speak for, the defendant might also questioned where I stand. So, head or tail, I hoped it would not be quoted out of context.

However, with the numbers of politically exposed persons and the power conferred on the EFCC, the point is that how far have they gone in terms of prosecution? For instance in United Kingdom, there is an Act that says, assets that you have and cannot explain the source should be forfeited to the State.

“Now that the EFCC are empowered to also go for interim forfeiture of assets of some persons, how far have they gone in fulfilling this task the way it should be done? Without mentioning names, we have a number of politically exposed persons who are entrepreneurs and how did they get their wealth? Because by law, you need to ask question.

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“There are civil servants who own properties beyond their income and you think nobody should care? How far has the EFCC gone in the whistle blowing policy of the federal government? These are salient issues that have brought us to the level we are today as a country and something must be done”.

Quakers also said if the power conferred on EFCC has been used in a manner devoid of all form of abuses, we may not be at this point as a country.

“Without doubt, EFCC has been saddled with enormous power and there is the possibility that the power is politicized and abused. But if properly viewed from the legal angle and that the power is well executed without any forms of political undertone or ethnic, religion sentiments and other forms of inducement we may not be in this position as a country.

“Be that as it may, the EFCC has done well and it still has lots to do in this dispensation and if the rule of law is allowed to take it full course, that is when things can get better”

The senior advocate also disclosed to BusinessHallmark that the challenge that has been a setback for the agency are primordial sentiment and considerations which also has limited it from exercising its power rightly. He also suggested the need to make our institution stronger than personality.

To him, a strong institution would be able to fight corruption better than an individual because people are beginning to compare past leaders of the EFCC with the current one and the people don’t really take seriously some of the feats recorded by the agency.

Another Lagos-based lawyer, Ike Imo, told BusinessHallmark that he did not perceived the EFCC as doing a great job, and premised his argument on some of the shortcomings raised by the Quakers, and dismissed the agency as a mere instrument of vendetta to successive governments and concluded that it is difficult to think the EFCC is doing well and for whatever they have come up with, as forfeited properties to the federal government through its fight against corruption is of no consequences.

“I have my reservations about the EFCC. It was set up by Obasanjo administration and the agency is an ‘Extra Legal Police Force’ because there is nothing they do that the Police cannot do ordinarily. The point is that perceived enemies of the government are subjected to witch-hunt by the agency because the public impression is that, whoever is opposed of the government becomes the target of the EFCC and the habit has been in practice since inception of the agency.

“Today, it has became more obvious, accentuated and illustrations abound. Those in ruling party are suddenly immune to EFCC operation. What we know is that, there is difference between prosecution and persecution. Prosecution is when a man is prosecuted for a crime committed while persecution is personal, when there is bias against a person. So with these, whatever they do is playing to the gallery and superficial, no substance”.

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However, in his response to question on, at what point can a property of a culpable person be auctioned? Imo said, “You would need a court order before disposing off the property of such person. EFCC as an administrative organ of the executive cannot unilaterally auctioned property of another person or corporate organization without the

efficacy of the court of law”.

Also, responding to a situation where such culpable individual felt aggrieved about the judgment of forfeiture of property and appealed against it, would such gets back the property if he or she wins the appeal? Imo said, “In situation of cases of property forfeiture, the EFCC has to wait for the conclusion of the entire processes before it proceeded to auction of the property.

This is a situation where the rule of law of law must be applicable. It is not the rule of the jungle where might is right, the rule of law by interpretation means, parties are accessible to justice and justice is expected to be fair.

“So, the individuals that their property is under order of forfeiture can appeal and explain why their property must not be auctioned. If the person in question loses in the court of first instance, he is entitled to pursue his appeal to the end. Otherwise, it would look as

if you are just transferring wealth from one section of the economy to another. And this has been most impression in the public about the President Buhari administration”.

Also, Imo told BusinessHallmark, that the cost of the forfeited property must be  judiciously valued against the amount alleged to have been mismanaged.

“Assuming a man is liable to N100 million after prosecution and it was realized he cannot pay, the law says, you can take his or her property or assets until you are able to recover the money. But, if the asset he has for instance cost N300million, and you executed the court order of forfeiture and sold the property for N300million, you

must refund back to balance or excess N200million to the owner of the property after deducting your N100million. That is the position of the law”.

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Also, Lagos-based lawyer, Adedayo Oshodi, said that matters of auctioning has to follow procedure and the rule of law and in most instances, there are always room for negotiation.

“Except when they are doing what is referred to ‘compounding of offences’ and the person engaged the EFCC in negotiation. That is when allegation of financial crimes can be held against a person. Compounding of Offence happens before trial, plea bargain happens during trial in court of law. It is like plea bargain when the matter has reached the court.

For instance, if a person culpable to have mismanaged N500million, but he opted to negotiate with his property worth that amount instead of facing prosecution. Section 14 of the EFCC Act permits such negotiation. What this implies is that the person may not be charge to court again and trial will not be necessary.”

Oshodi also said for any property to have been assumed to have been forfeited, it must have the backing of the law court.

“The EFCC must procure an order of forfeiture against such properties otherwise they don’t have the right to auction them. This is the position of the law. And like the position of other lawyers, he said, “auctioning of property must go through the regular process after it has been established by the law court and a bargain is established. The order of forfeiture can also be procure in the court at any time.