By Afe Babalola
“The question however is whether the government can legitimately spend what legally is not its? Put in another way, can government without more proceed to spend the recovered monies merely because they were abandoned properties? Or is something else required to vest proprietary interests of these monies in government before it can proceed to utilise them”? OVER the past months, the Economics and Financial Crimes Commission and other law enforcement agencies have ‘discovered” huge amounts of money in local and foreign currency stashed away by persons who in some cases are yet to be unidentified.
The first notable occurrence was the discovery of about 9 Million dollars belonging to a former Group Managing Director of the NNPC. Weeks later about 250 Million Naira was found hidden in a shop said to belong to a bureau de change operator in Lagos. This was later followed by the mind boggling discovery of about 43 Million Dollars in a flat in Lagos. While the former GMD of NNPC made himself available to investigators and indeed made a claim for the return of the money on the basis that they were gifts received by him, the ownership of the other sums of money remain a subject of controversy. Prior to these discoveries various sums of money and property valued at billions of naira had been reportedly recovered in the government’s fight against corruption. Consequent upon this development, many Nigerians have constantly enquired about the government’s plans with regards to these funds. While some have asked that the funds be pumped directly to the economy via numerous means of investment, some others have been quick to call for caution citing past incidents in which such recovered funds ended up in private pockets. Unfortunately, this debate as to the use to which the funds should be put is not limited to ordinary Nigerians alone, as the Executive and Legislative arms of government appear to be at logger heads as to how to proceed. Speaking on the subject, Alhassan Doguwa, the Chief Whip in the House of Representative reportedly stated as follows: “I do not see any reason why these agencies should continue to keep these loots when there is hunger in Nigeria. This is wrong. There is even no law which supports these agencies to keep the funds. The funds should be used to feed Nigerians. The Big Question The question however is whether the government can legitimately spend what legally is not its? Put in another way, can government without more proceed to spend the recovered monies merely because they were abandoned properties? Or is something else required to vest proprietary interests of these monies in government before it can proceed to utilise them? Without a doubt, a legal framework is required to provide a means by which government can deal with abandoned Dollars/Naira suspected or proven proceeds of crimes. This framework, some aspects of which already exists in existing statutes provide for how law enforcement agents can temporarily seize properties which they suspect to have been used in committing crimes or are themselves the proceeds of crimes. For example, the Sections 21 and 22 of the EFCC Act provide as follows: For the avoidance of doubt and without any further assurance than this Act, all the properties of a person convicted of an offence under this Act and shown to be derived or acquired from such economic or financial crime and already the subject of an interim order shall be forfeited to the Federal Government. 22.-{ 1) Where it is established that any convicted person has assets or properties in a foreign country, acquired as a result of such economic or financial crime, such assets or properties, subject to any treaty or arrangement with such foreign country, shall be forfeited to the Federal Government. (2) The Commission shall, through the office of the Attorney-General of the Federation, ensure that the forfeited assets or properties are effectively transferred and vested in the Federal Government. What is however apparent from the above is that a criminal charge, a trial and a conviction are conditions precedent before such properties can vest in the government. The above cited law would clearly not be helpful in cases where money is found abandoned in a building without any one laying claim to it. It is such particular instances that appear to have brought about the call for the institution of a clear legal framework. It is important to note that the sources of law applicable in Nigeria include English common law applicable before 1900. Thus several common law principles such as bona vacantia, res nullius and treasure trove which relate to lost, abandoned and misplaced properties are still applicable in Nigeria. The principle of bona vacantia which has been given statutory backing by the Companies and Allied Matters Act, is a legal concept associated with property that has no owner. It exists in various jurisdictions such as the United Kingdom, United States of America, New Zealand and Canada. Thus property which no one has turned up to claim vest in the state. There are also principles relating to lost property. Property is generally deemed to have been lost if it is found in a place where the true owner likely did not intend to set it down, and where it is not likely to be found by the true owner. At common law, the finder of a lost item could claim the right to possess the item against any person except the true owner or any previous possessors. First finder of lost property Some exceptions are however applied at common law to the rule that the first finder of lost property has a superior claim of right over any other person except the previous owner. For example, a trespasser’s claim to lost property which he finds while trespassing is generally inferior to the claim of the respective landowner. Therefore a landowner has a superior claim over a find made within the non-public areas of his property. Most applicable to abandoned money in flats and shops is the principle relating to treasure trove. Treasure trove is property that consists of coins or currency hidden by the owner. To be considered treasure trove and not mislaid property, the property must have been deliberately hidden or concealed, and sufficiently long ago that the original owner can be considered dead or not discoverable. In my estimation, the sums of 250 Million Naira, 43 Million Dollars left abandoned in a shop or flat for any measure of time can reasonably be considered a treasure trove. All considered, I support the call for the institution of a statutory framework for asset recovery management. Such legislation will not only provide clear cut operational guidelines for the issue of asset recovery in the overall fight against corruption, it will also guide against abuse. Countries such as Mauritius and Guyana have passed such legislation. Nigeria should not be an exception.
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