INTRODUCTION
On the 5th of July 2018, President Muhammadu Buhari
signed the Presidential Executive Order No. 6 of 2018 on
Preservation of Assets Connected with Corruption and Order Related
Offences. The Order, which in the wake of its passage has been
subject to severe criticisms by Legal commentators and Activists,
recently came before the Federal High Court sitting in Abuja for
determination in Suit No: FHC/ABJ/CS/740/2018-BARR. IKENGA IMO &
ANOR V. PRESIDENT OF FRN & ANOR. This write up gives a summary of
the decision of the court delivered by Hon. Justice Ijeoma Ojukwu
on the 11th of October 2018 on the constitutionality of
the Executive Order.
FACTS IN THE SUIT
Upon the passage of Order No. 6 of 2018 on the 5th of
July 2018, the Plaintiffs approached the Court vide an Originating
Summons dated and filed the 13th day of July 2018,
seeking determination of the following:
- Whether by the combined effect of Sections 5, 36 and 43 of the
Constitution the President lacked the constitutional powers to
issue Order No.6 since the order did not concern matters relating
to “execution and maintenance of the Constitution, all laws made by
the National Assembly and to all matters with respect to which the
National Assembly has, for the time being, power to make
laws”. - Whether the act of the President in issuing the order is
contrary to the provisions of Sections 36 and 43 of the
Constitution and therefore unconstitutional, null and void. - Whether the President can deliberately undermine, limit and/or
inhibit the entrenched constitutional rights of any citizen of
Nigeria to fair hearing vide the issuance of the Order and thereof
issue or promulgate any penal sanction or penalty against any
citizen of Nigeria, without such person being accorded fair hearing
or been found guilty by a court of competent jurisdiction.
The Plaintiffs prayed the court amongst others to, upon
determination of the suit declare Order No.6 unconstitutional, null
and void.
In the supporting affidavit to the Summons, the Plaintiff
averred that none of the persons listed in the Schedule to the
Order had been found guilty by any court in their respective
trials. The Plaintiff averred that the Constitution accords the
right to presumption of innocence until the contrary is proved and
fair hearing to every citizen before he can be convicted of any
offence or made to suffer any legal disability. The Plaintiff’s
affidavit also noted that the said Executive Order is in form of a
penal sanction as it empowers the government through its various
agencies to interfere with and exercise powers inconsistent with
the lawful ownership of assets and properties of Nigerians, and
also limits, inhibits and encroaches on the right to own properties
by citizens.
It was further averred that there was no guarantee that affected
Nigerian citizens would be found guilty at the conclusion of their
criminal trial and they would therefore be unjustly victimized. The
affidavit contented that agencies of the Federal Government are
already imbued with statutory framework under their enabling laws
for the interim preservation of assets and properties, pending the
conclusion of trial and the Executive Order is a needless
interference into the rights of citizens and portends great danger
to democracy. The Plaintiff therefore urged the Court to
intervene.
ARGUMENT OF PLAINTIFF
Learned Counsel for the Plaintiff canvassed a sole issue in
argument:
“Whether it is in the interest of justice to allow the Reliefs
sought, having regard to the entire facts and circumstances of this
case”
Plaintiff argued that the Rules of Court and the Constitution
empowered the Court to hear, determine and grant the Plaintiffs
reliefs in the instant case. The Plaintiff noted that they had
disclosed sufficient facts and materials to establish their
standing to institute this suit since, as was stated in their
affidavit, they are citizens and have vires to question or
challenge any act of government including the Executive order.
Counsel relied on BEWAJI V OBASANJO (2008) 9 NWLR (PT.1093) 540,
581-582 and BADEJO V FEDERAL MINISTER OF EDUCATION & 2 ORS (1990) 4
NWLR (PT. 143) 254, 263.
Plaintiffs further argued that
Section 5 of the Constitution of the Federal Republic of Nigeria
1999 does not confer upon the President with blanket powers to
promulgate an Executive Order but it must extend only to the
“execution and maintenance of the Constitution, all laws made by
the National Assembly and to all matters with respect to which the
National Assembly has, for the time being, power to make laws”. The
Plaintiff noted further that this is particularly so as relevant
government agencies already have statutory framework under their
enabling laws for the interim forfeiture and preservation of assets
where the need arises.
The Plaintiff also argued that Nigerian citizens whose names
were listed in the schedule to the Order as being affected are
presently facing various criminal charges and none of them has been
found guilty of the offence charged. Counsel for the Plaintiffs
called in aid the provisions of Sections 36 and 43 of the
Constitution and noted that an Executive Order cannot deny any
citizen of Nigeria a right to the enjoyment of his assets and
properties except under extreme circumstances as provided under the
constitution and urged the Court to pronounce that the Executive
Order is inconsistent with the provisions of Sections 36 and 43 of
the Constitution and declare it null and void to the extent of its
inconsistency.
DEFENDANTS ARGUMENT
In reacting to the Originating Summons, the Defendants filed a
Preliminary objection dated 7th day of August 2018 and a Counter
affidavit to the Originating Summons dated 13th day of
September 2018 challenging the Plaintiffs locus standi to institute
this action.
The Learned counsel to the Defendant submitted that since the
names of the Plaintiffs were not included in the First Schedule to
the Executive Order, they are in no way affected and cannot
exercise any standing to sue the Defendants in this suit. He
argue that there is no nexus between the Plaintiffs and the
disclosed cause of action concerning their rights or obligations
which have been breached or threatened to be violated.
Furthermore, Counsel opined that granting the reliefs sought by
the Plaintiffs would open a floodgate of litigation whether or not
the persons instituting the action have a right to protect.
In the written address of the Defendant, the Defendants amongst
others, raised issues as to:
- Whether the affidavit in support of the plaintiffs’ Originating
Summons is not incompetent. - Whether considering the facts and the circumstances of this
case, this honourable court can grant to the Plaintiffs, the
reliefs being sought.
On the first issue, the Defendants argued that the affidavit of
the Plaintiffs in support of the originating summons offends
section 115 (1) to (4) of the Evidence Act for the reason that the
averments contain extraneous matters and are either law, or legal
arguments and conclusions and also that the Deponent failed to
state the source of his information and belief, reasonable
particulars of the name of informant, time and place, and
circumstances of the information.
The Defendant also argued that Section 43 referred to by the
Plaintiff, which guarantees the right to own properties should be
read together with Section 44 (2) (k) of same Constitution which
permits the taking over of the property in criminal investigation
and argued that the temporary taking over of any property does not
bias or affect the trial of that case, since the prosecution
still has the burden to establish the offence beyond reasonable
doubt and therefore the Executive Order does not abrogate the right
to seek redress before Court under Section 46 of the
Constitution.
The Defendants urged the Court to dismiss the suit with
substantial cost.
JUDGEMENT
On whether the Plaintiff had established locus standi to
bring the suit the Court held:
“From the above provisions of the Executive Order, the
application of the Order is not restricted to only persons whose
names appear in the First Schedule to the Executive Order. The use
of the words “any person” depicts that every Nigerian who is
adjudged to be in “violation” of the terms of the Executive Order
under Section 1 (a) automatically subjects himself to the
application of the Executive Order and will have his assets under
guard by the terms of the Executive Order. That being the case, it
thus follows that the plaintiffs are subjected to the terms and
application of the Executive Order…It is my humble opinion that the
Plaintiffs have shown by their averments and the law that they have
the standing to institute this case. Therefore i. resolve this
issue in favor of the Plaintiffs. The preliminary objection of the
Defendants on this issue is hereby overruled.”
On whether the Plaintiff Affidavit offended evidential
rules and should be struck out the Court held:
“Let me also state at this stage that the affidavit in support
of the Originating Summons does not offend section 115 of the
Evidence Act which provides for the contents of an affidavit…the
law accommodates the use of personal information and information
derived from other sources. It was a combination of the two sources
of information that was represented in the affidavit in support. In
respect of extraneous matters and legal conclusions, the court is
not bound to rely on them if in fact they exist, for the reason
that they do not assist the case of the deponent. Any such
representations are hereby disregarded.”
On the meaning and nature of Executive Orders, the Court
noted:
“…An Executive Order in effect may be seen as a Presidential
policy directive, issued to effectuate or implement an Act of the
National Assembly or an existing law. Within the setting of courts,
it is akin to “a Practice Direction” issued by Heads of Court by
the powers conferred on them under the Constitution to make such
“rules” for the effective administration of the law and justice…In
Nigeria however, the power of the President to issue the Executive
Order in question was stated to flow from section 5 of the
Constitution”
On whether Executive Order No.6 is Constitutional the
Court held:
“The President can issue an Executive Order under section 5 of
the Constitution in so far as the Order relate to routine
administrative matters and internal operations of Federal Agencies,
policies and programs, and so long as it does not encroach into the
powers of the Legislature or the Judiciary as delineated under the
Constitution of the Federal Republic of Nigeria 1999…I have
carefully perused the provisions of the Executive Order in
contestation, I find that, the powers exercised by the President in
that regard per se is not unconstitutional, but some latent aspects
of the letters of the Order appear to give the Attorney General a
discretion to choose when to seek appropriate Order(s) of Court in
carrying out his functions under the Order…For Example, the proviso
to Section 1 (c) (iii) of the Executive Order corroborated by
Section 1 (c) (iv) of the Order…The use of the word “may” depicts a
discretion also. This should be exercised with caution. It is the
opinion of this Court that the Honourable Attorney General of the
Federation should first obtain an order of Court in all
circumstances before blocking or freezing or confiscating such
funds or assets pending the conclusion of an investigation or legal
action. The application may be made Ex-parte and if the Court is
satisfied by the averments or information contained in the
application, the order may be granted. It is however recommended
that an order of court in that regard include an order for Report
of investigation on subsequent dates. Where the court is of the
opinion that the party to be affected by the order be put on
Notice, the Court will make that determination. This will
circumvent allegation of breach of fair hearing.”
On whether the Executive Order violates the right to
Property the Court held:
“This court is of the view that the citizens’ right under
Section 43 of the Constitution, to acquire and own immovable
property anywhere in Nigeria is not violated. This is especially
because…right is not absolute…What the President has demonstrated
by the Executive Order in question is his willingness to protect
the dissipation of assets and funds connected with Corruption or
Other Relevant Offences until the final determination of any
corruption related matter against a person concerned. The taking of
possession in this instance must be temporary until a final
determination is made. This temporary measure has in no way
abrogated the right of any aggrieved party to seek redress before a
court of law. Section 3 of the Order, empowers any person who
alleges that his right has been, is being or likely to be
contravened by any of the provisions of the Executive Order in
question may apply to court for redress… The Presidential Executive
Order No.6 of 2018 on the Preservation of Suspicious Assets
Connected with Corruption and Other Relevant Offences is not
unconstitutional”
On the remedies available to persons affected by the
Order the Court noted that:
“An aggrieved person may approach the court under Section 3 of
the Order or under the general provisions of the law to seek a
de-listing of his property or to assert his right to his property
which may be under a legal disability by virtue the Executive
Order… The Rule of law and safe guards for protection of
fundamental Human Rights should be given paramount importance in
the execution of this Order
IN CONCLUSION
On the Authority of the Barr Ikenga Imo v. President, it is
conclusive to say, until otherwise decided, that Executive Order
No. 6 of 2018 is Constitutional and effective for operation and
implementation in Nigeria. Whether the obiter of the Learned Judge
that the Attorney General requires a prior judicial nod from a
competent court before proceeding to exercise the powers will be
interpreted into the Order will be a matter to be tested in the
days to come.
Oliver Omoredia writes For
TheNigerialawyer
References
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the Judgement in PDF format
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