Being a paper delivered by lecturer, Faculty of Law, University of Lagos (UNILAG), Wahab Shittu at the at J.B. Daudu (SAN)Foundation Rule of Law Development Foundation (ROLDF) 3rd Annual Criminal Law Review Conference 2020 in Abuja.
I am honoured to be invited by the Chairman and Board of Trustees of Rule of Law Development Foundation (ROLDF) to make a presentation at this foundation’s 3rd Annual Criminal Law Review Conference designed to encourage robust discussions aimed at deepening our justice delivery process in our country. When the respected J. B. Daudu SAN called on phone to inform me of the invitation to make a presentation in this august gathering, I felt humbled and surprised not only on account of the stellar profile of the caller but significantly because of the eminence of this gathering. I consider J. B. Daudu SAN as perhaps one of the most ingeniously dangerous attorneys this country has ever produced largely because of his huge brain, robust intellect and great advocacy skills.
The topic assigned to me in this discourse to wit: ‘Judicial Updates and Legislative Developments – Economic Crimes And Forfeiture of Proceeds Of Crime’ is timely and relevant for a variety of reasons, particularly in the context of the harsh realities of the environment under which we operate in particular and the challenges being encountered in our justice delivery system generally.
Significantly, forfeiture of proceeds of crime in Nigeria particularly in the context of theft of public assets raises serious ethical, moral, legal as well as developmental problems of the greatest magnitude. This is partly because the exact value of stolen assets from the state is always difficult to determine and the devastating impact of theft of public assets on the economy and developmental process is phenomenal. Secondly, stolen assets are difficult and sometimes impossible to locate if sufficient measures are not in place. Thirdly, when assets are stolen, they are sometimes moved through a network of financial institutions and in many cases across jurisdictions through complex transfers. Fourthly, there is no doubt that such stolen assets could impact on the developmental process and the living standards of the people. Fundamentally, the cost of corruption far exceeds the amount of stolen assets leading to a breakdown in institutions, of systems, of societal traditions, of ethical and moral values, and of personal behaviours resulting in negative impact on the investment climate and the corruption of service delivery quality mechanisms.
The more compelling problem is the extraordinary difficulty of recovery of stolen assets. In the quest of recovery of such assets, the ruling elite in developing countries particularly Nigeria have to contend with legal investigative judicial, financial challenges including the element of political will. These limitations necessarily affect ability to trace and forfeit these stolen assets to the state. Much more compelling are the practical problems in the prosecution of those accused of illicit property. The burdens and standards of proof in possession of unexplained property prosecutions are far from clarity and in many cases may have engendered controversy.
Despite efforts to use the prosecution of illicit enrichment as a critical anti-corruption combating tool, the challenge remains the confusion as to who bears what burden, for which facts the burden will apply and the required standard of proof to sustain convictions in cases of possession of unexplained property prosecutions. The reality
is that until recently there seems to be confusion faced by litigants and practitioners concerning who must prove what, whether these burdens actually shift and to what degree? There is also uncertainty as to whether it is the duty of the prosecution to prove all facts in criminal proceedings including those facts within the peculiar knowledge of the defendant in such proceedings. It is also not clear whether the defendant bears some form of burden at all in such proceedings and whether such burden is evidential, persuasive, shifting or reversal. If any such burden is borne at all by the defendant, under what circumstances does it become operational and if indeed such burden arise, of what consequences to the proceedings? This may have also led to the controversy as to whether prosecution of money laundering cases particularly regarding unexplained property require a new set of rules from other normal criminal proceedings.
Arising from all of these are other issues including the need to ensure that public interest to punish and deter corruption including recovery of stolen assets are not achieved at the expense of endangering the right of the defendant to fair trial especially, the constitutionally guaranteed protection of presumption of innocence, right to remain silent, property rights including the protection of innocent third parties who acquire property bona fide without knowledge of the illicit origin of such transactions. The issue that may have arisen is the need to strike appropriate balance where public interest clashes with the rights of citizens and drawing lessons from other jurisdictions how such conflicts are resolved effectively. Indeed, these concerns are not peculiar to Nigeria.
In Nigeria for example, assets stolen including public funds taken out of government coffers by public office holders and deposited in personal accounts or accounts held by proxies and other associates constitute a heavy toll on public treasury and by extension precipitate negative impact on the state of the economy with wide ranging consequences on the developmental process generally. This is a major cause of concern. Specifically, the amount of funds looted by public officials in recent times is mind boggling. Many of these looted funds were traced to the accounts of the affected public office holders a huge problem raising grave implications – ethical, social, moral, economic, other consequences including legal implications for the economy in particular and the society in general.
In many cases these funds are removed from the system with impunity inspite of existing legal framework in Nigeria including international instruments and notwithstanding safeguards provided against such practices in the system.
The issue is not lack of legal, regulatory and institutional framework to curtail the menace of stolen funds by public office holders because indeed these safeguards exist but effective application of such measures including decisive pronouncements by our courts on the consequences of such measures remain the critical challenges.
These challenges may have accounted for the worsening state of corruption in Nigeria. A major source of concern is that Nigeria is the 148 least corrupt nations out of 175 countries, according to the 2017 Corruption Perceptions Index reported by Transparency International. Corruption Rank in Nigeria averaged 120.45 from 1996 until 2017, reaching an all-time high of 152 in 2005 and a record low of 52 in 1997.
The other concern raised on the rising wave of corruption particularly the phenomenon incidence of stolen wealth lodged by public office holders in various bank accounts relates to the seeming inability of prosecutorial agencies of the state to successfully prosecute these cases and recover the illegitimate earnings into government’s coffers for developmental purposes. It is said that this seeming failure may in some cases be attributed to the herculean task of proving money laundering cases owing to its complex nature and fundamentally because the incidence of burden of proof in such cases, until recently had not been satisfactorily resolved.
It is against this background that I will now proceed to examine judicial updates and legislative developments in the context of economic crimes and forfeiture of proceeds of crimes generally, in the context of my own personal experiences as counsel who has been involved in public prosecutions for close to two decades.
In resolving the question of judicial updates and legislative developments in the context of economic crimes and forfeiture of proceeds of crimes, I have arranged my paper into 8 parts. Immediately following the introduction is Part 1 which deals with Legal Framework on Criminal Forfeiture in Nigeria. Part 2 Analyses Issues on Proceeds of Crime and Criminal Forfeiture. Part 3 deals with Best Practices on criminal forfeiture. Part 4 analyzes recent Cases in Asset Forfeiture in Nigeria. Part 5 examines the jurisprudence of criminalizing possession of unexplained property/assets in excess of legitimate earnings’ prosecutions from the Perspective of Burdens and Standards of Proof with the case of SC: 172/2017: Gabriel Daudu v. FRN as case study. Part 6 examines the Implications of Asset Tracing, Recovery and Management Regulations 2019 on Criminal Forfeiture. Part 7 deals with suggestions/recommendations for reforms including making a case for the establishment of a Proceeds of Crime Recovery and Management Agency including a prompt passage of the Proceeds of Crime Bill currently pending before the Senate. Part 8: concludes the paper with a note on treatment of recovery of proceeds of crime.
Part 1: Legal Framework on Criminal Forfeiture in Nigeria.
Essentially, there are two routes to forfeit assets of criminals to the state. The popular route is the avenue of conviction based forfeiture while the less known route is civil forfeiture where forfeiture is not dependent on the finding of guilt or proof of any offence. It is essentially proceedings against property as distinct from persons. We can identify four forfeiture types as available in Nigeria. The first is interim forfeiture of assets pursuant to a court order, the second is forfeiture of proceeds of crime or assets acquired from proceeds of crime for which the defendant is convicted, the third is forfeiture of assets which is the subject matter of a crime for which the defendant was discharged or acquitted under certain circumstances, the fourth is non-conviction based forfeiture.
There are a number of Nigerian statutes8 prescribing conviction and non-conviction based forfeiture mainly as anti-corruption tools. The constitutional safeguards relating to use of civil forfeiture route in respect of each of the legislation are also considered.
A brief background to the promulgation of these statutes is required and what follows is designed to achieve this objective.
It is important to state that the Nigerian statutes were promulgated against the background that Nigeria is a signatory and member state of the United Nations Convention against Corruption (UNCAC) which came into force in 2005.
Article 54 of UNCAC states:
Each State Party,…, shall, in accordance with its domestic law:…(C) consider taking such measures as may be necessary to allow confiscation of such property without a criminal conviction in cases in which the offender cannot be prosecuted by reason of death, flight, or absence or in other appropriate cases.
We could also make reference to the 2005 Commonwealth Expert Group on Asset Recovery & Repatriation also stated as follows:
Commonwealth countries that have yet to do so should promptly put in place strong and comprehensive legislations and procedures for criminal conviction based asset confiscation. This should include a power to confiscate in circumstances where the accused has absconded or died. Commonwealth countries should also put in place comprehensive legislations and procedures for non-conviction based assets confiscation.
Non-conviction based Forfeiture Provisions
The promulgation of a number of non-conviction based forfeiture provisions, some of which are examined hereunder, is a direct attempt to tackle corruption in furtherance of the objectives and requirements of the United Nations Convention Against Corruption (UNCAC) as stated above. This may have been responsible for the promulgation of many penal legislations including but not limited to: Customs and Excise Management Act,9; the Economic and Financial Crimes Commission Establishment Act 2004; the Independent Corrupt Practices & Other Related Offences Act 2000; The National Agency for the Prohibition of Trafficking in Persons Act; The Money Laundering (Prohibition) Act 2011 as amended by the Money Laundering (Prohibition) (Amendment) Act 2012; and The Advance Fee Fraud and Other Fraud Related Offences Act, 2006.
It may be argued that these legislations may not have provided a comprehensive legal framework for non-conviction based forfeiture. Nonetheless, it can be argued with some measure of authority that under these legislations, the state recognizes forfeiture in rem in circumstances where the owner of the property has not been convicted or has fled from jurisdiction or in extreme circumstances where owners of such illicit property are dead or otherwise unavailable for unverifiable reasons. In such situations, the state could suspend an action in rem in civil proceedings with rights in respect of the property determined in the absence of the owner which determination is conclusive against the whole world. In this context, these legislations represent major anti-corruption tools for assets recovery and confiscation of proceeds of crime even when conviction of defendant has not been achieved.
Against this background, I will now proceed to examine salient provisions in the Nigerian Statutes providing for non-conviction and conviction based forfeiture of proceeds of crime stated hereunder:
- Administration of Criminal Justice Act, 2015
- Corrupt Practices and Other Related Offences Act
- Economic and Financial Crimes Commission Establishment Act 2004
- Conduct Bureau and Tribunal Act, Cap C15, LFN, 2004
- Advance Fee Fraud and other Fraud Related Offences Act, 2006
- National Drug law Enforcement Agency Act, Cap N30, LFN, 2004
- Customs and Excise Management Act, Cap. C45 Laws of the Federation of
- Money Laundering Act
- Failed Banks Recovery of Debts and Financial Malpractices in Banks Act
- Administration of Criminal Justice Law, Lagos State
- Company and Allied Matters Act 2014
- European Convention on Human Rights
- Evidence Act, 2011
- Independent Corrupt Practices & Other Related Offences Act 2000
- Money Laundering (Prohibition) (Amendment) Act 2012
- National Agency for the Prohibition of Trafficking in Persons Act
- United Nations Conventions Against Corruption, 2005
- Proceeds of Crime Bill 2019 yet to be passed by the National Assembly
It is proposed to analyze some of these statutes on the premise that these statutes establish offences that are motivated mainly by financial gains, even if it is correct to state that not all crimes are motivated by financial considerations as the primary motive.10 The scope of financially motivated crimes is defined11to include any form of fraud, narcotic drug trafficking, money laundering, embezzlement, bribery, looting and any form of corrupt malpractices, illegal arms dealing, smuggling, human trafficking and child labour, illegal oil bunkering and illegal mining etc.
In discussing the scope of financially motivated crimes, the object is to provide a background for the kind of criminal activities that could result in proceeds of crime and useful in the sense that earnings arising therefrom could be rightfully regarded as illegitimate earnings in the context of the present analysis. Money laundering legislations are designed to forestall illegitimate earnings arising from criminal activities.
Money laundering is the processing of these criminal proceeds to disguise their illegal origin. This process is of critical importance, as it enables the criminal to enjoy these profits without jeopardizing their source.
The logic for the foregoing is simple. When a criminal activity generates substantial profits, the individual or group involved must find a way to control the funds without attracting attention to the underlying activity or the persons involved. Criminals do this by disguising the sources, changing the form, or moving the funds to a place where they are less likely to attract attention.
The foregoing complexities and intricacies may have exposed the degree of challenges confronting the investigation and prosecution of money laundering crimes
The other challenge is to explore the reasons why criminals launder funds as well as the consequences of money laundering criminality to the economy of states. The first reason can be attributed to the desire to hide illegally accumulated wealth to avoid its seizure by authorities. Other reasons include the criminals’ eagerness to avoid prosecution by distancing themselves from the illegal funds: the tendency to evade taxes from the illegal earnings including the motivation to increase profit by reinvesting the earnings from the funds laundered into legitimate businesses so as to make the exercise appear legitimate. Section 19(2) of the Money Laundering (Prohibition) Act 2004 is particularly useful to our analysis and this will be demonstrated in the course of this presentation.
Money laundering of course, gives rise to far reaching consequences including undermining financial systems, expanding the rate of criminality, reducing revenue and control and generally weakening the economy.
- Administration of Criminal Justice Act, (ACJA)2015
The relevant non-conviction based asset forfeiture provisions are contained in Part 34 of the ACJA.12 Specifically, this can be found in sections 333, 337 – 339, details of which are stated hereunder:
Section 333 provides that the court may:
- Order the seizure of any instrument, material or thing which there is reason to believe is provided or prepared, or being prepared, with a view to the commission of an offence triable by the court; and
- Direct the instrument, material or thing be:
iii. otherwise held,
- or returned to a victim who was dispossessed of the property in the same manner as under section 336 of the Act.
This provision permits the seizure of things used or intended to be used in criminal activities. In taking full advantage of this provision and granting orders for seizure, the court will require details as to the nature and ownership of the instrument, material or thing; the evidence that suggests that the instrument, material or thing was provided, prepared or being prepared with a view to the commission of an offence triable by the court; the nature of the direction sought about disposal, retention or return of the instrument, material or thing, and why that particular direction is sought.
These details would assist the court in reaching a determination that will satisfy the element of justice under this specific provision. My belief is that our courts will take maximum advantage of the provision and develop our jurisprudence in this area. The other provisions to consider are sections 337-339 of the ACJA dealing with property taken during arrest or investigation. The sections provide as follows:
Section 337 provides that the following property must be reported to a court within forty eight hours of its seizure:
- Property taken during an arrest or investigation under the Act; or
- Property alleged or suspected to have been stolen; or
- Property found in circumstances, which create a suspicion of the commission of an offence.
The Court may then an order in respect of the disposal of the property, or its deliver to the person entitled to its possession, or such other orders as it may deem fit in all of the circumstances.
Section 338 sets out how claims to good title in such property should be dealt with.
Section 339 provides guidance as to show a court should proceed when such property is perishable or otherwise of diminishing value.
There are other considerations where there is a person identified who appears to be entitled to possession of the property.
A person who appears to be entitled to possession of the property should establish that the property was lawfully acquired by him. If he cannot, the property should be at the disposal of the court and may be sold in accordance with the court of the court and the proceeds forfeit to the Government of Nigeria.
There are also actions where there is no person identified who appears to be entitled to possession of the property. Where there is no person identified who appears to be entitled to possession of the property, the court:
- may detain the property;
- should issue a public notice specifying the articles of which the property consists, requiring any person who may have a claim to it, to appear before the court and establish his claim within 6 months of the date of the notice.
There are also considerations after the expiry of the 6 month notice period. In such a situation, if no person has raised a claim to the property, the court must be satisfied that the person in whose possession the property was found is unable to show that it was lawfully acquired.
If that person cannot show that it was lawfully acquired by him, the property should be at the disposal of the court and may be sold in accordance with the court of the court and the proceeds forfeit to the Government of Nigeria.
There are also considerations within a six year period of the property coming in the possession of the Police. During a six year period from the date of the property coming into the possession of the police a person may prove their title to the property. If good title is proved, the court may direct that the property or the proceeds of sale of the property be delivered to that person, on payment by that person of any expenses incurred by the court in the matter.
The ACJA also makes provision in relation to perishable goods. Where the goods seized are perishable goods and are subject to speedy decay (or for the benefit of the owner) the court may, at any time, direct it to be sold. The provisions of sections 337 and 338 then apply, as nearly as may be practicable, to the net proceeds of the sale.
In summary, by the provisions of sections 329-346 of the ACJA a court trying any case including a corruption case has a wide discretion to deal with the property attached as alleged proceeds of crime. An order to attach a defendant’s property is an order not in rem but in personam being against the defendant personally and not against the whole world.
In respect of civil forfeiture there are Constitutional Safeguards under Sections 331, 332 and 337 of the ACJA Act 2015
These are far reaching provisions on custody, disposal and restoration of property. Section 331 deals with the power of the court to order disposal of property after trial. Section 332 is the exercise of powers by the court for forfeiture or confiscation of any property wherein the court directs that the property be kept or sold and that the property if sold, the proceeds of the sale be held as it directs until some person establishes to the court’s satisfaction, a right to the property. Section 337 stipulates procedure on seizure of property taken during arrest or investigation etc. permitting the court to make an order in respect of the disposal of the property or its delivery to the person entitled to its possession or such other order orders as the court may deem fit in the circumstances.
- Corrupt Practices and Other Related Offences Act 2000
There are a number of corruption offences created by the Corrupt Practices and Other Related Offences Act (ICPC) 2000.13 The Act also makes provisions subjecting the proceeds of such offences to forfeiture whether or not conviction or prosecution is contemplated. These provisions may be invoked even in the absence of a conviction or prosecution. There a specific provisions granting interim powers of forfeiture under the Act pursuant to sections 37-38. Such interim seizure is within the discretion of the ICPC and not subject to an order of the court. It is hoped that our courts would be guided by these extensive powers given to ICPC because a failure of a property owner to comply with requirements by the ICPC to surrender property, for example, is a criminal offence. We now examine each of these provisions to determine its scope and applicability.
Under section 37 of the ICPC Act, ICPC is empowered to seize property while Section 38 deals with seized property returned upon payment of a security. It can be said with sufficient authority that sections 37- 38 are useful at the point of investigation into assets as opposed to the stage of prosecution, the attraction being that the provision is useful without recourse to the courts.
The assistance of the court may however be required if sections 38(3) – (5) of the ICPC Act are to be invoked.
Sections 38(3)(a) deals with temporary return of property, subject to a security. Sections 38(3)(a) allows an officer of the ICPC to return property that was seized under the Act temporarily, subject to the owner agreeing to terms and conditions being imposed and subject to the provision of a security, to ensure that the property is surrendered on the demand of the officer. If the owner fails to surrender that property on demand, or fails to comply with any term or condition, section 38(4) provides that:
(i) The security shall be forfeited;
(ii) That person shall be guilty of an offence and shall on conviction be liable to a fine of not less than two times the amount of the security furnished by him, and to imprisonment for a term not exceeding two years.
Section 38(3)(b) deals with temporary return of property, subject to a security. Section 38(3)(b allows an officer of the ICPC to return property that was seized under the Act to:
(i) The owner; or
(ii) To the person from whose possession, custody or control it was seized; or
(iii) To such person as may be entitled there to with liberty for the to dispose of the property, subject to provision of a security in an amount not less than an amount which represents the open market value of such property on the date on which it is returned. Section 38(5) provides that where an order of forfeiture is made by the court in respect of property returned under sub-section (3)(b) such forfeiture shall be effected by forfeiting the security furnished by the person to whom the property was returned in lieu of the property.
Significantly, Section 47 deals with forfeiture of property upon prosecution for an offence. Section 47 allows for forfeiture of assets following conviction under the Act. It also permits the court to make an order for forfeiture of property where a defendant has been acquitted of the criminal offence under the Act to which that property relates. In invoking this provision, there are certain underlying assumptions. The defendant must have undergone prosecution for an offence under the Act resulting in acquittal. However, where the defendant has not been prosecuted, section 48 of the ICPC Act may be invoked against the defendant. It is important that our courts remains satisfied that a crime under the Act must have taken place; it is immaterial whether the defendant is involved in the said crime. Secondly, it is important that a particular identified property is the subject matter of the offence or has been used in the commission of the offence. Where a particular property is identified, the court must be satisfied about the ownership of the property by the defendant including satisfaction that there is no other person who is entitled to the property as a purchaser in good faith for valuable consideration and provided such property has not been disposed of or can be traced, it is liable to forfeiture.14 Where the property was returned to a person pursuant to section 38(3)(b), the court shall order that the security provided in exchange for the return of the property be forfeit in lieu of the property. On the other hand, “if the property been disposed of or is to property which cannot be traced, the court is required to impose a penalty upon the accused in lieu of forfeiture. The penalty is in a sum ‘equivalent to the amount of the gratification’ received by the accused. For example, if accused sold or exchanged the property in exchange for cash, the ‘gratification’ would be that valuable consideration. Alternatively, if it was in exchange for non-enforcement of a debt, the ‘gratification’ would be the value of any pecuniary advantage obtained. If the actual value of the gratification is unclear, the court must reach a reasoned opinion about the value of that gratification. That penalty is then enforced as if it was a fine”.15
Section 48 of the ICPC Act deals forfeiture of seized property in the absence of prosecution or conviction. The section allows for forfeiture of property that was seized by the ICPC during an investigation into offending under the Act where there is no prosecution or conviction. The procedural requirements that must be satisfied conditions precedent include:
- Neither a prosecution or nor a conviction is required for forfeiture under section 48.
- The application for forfeiture of the property must have been made by the Chairperson of the ICPC to a High Court judge within twelve months of the seizure. If twelve months passes and no application is made, the property must be released to the person from whom it was seized.
- The judge to whom an application is made must have direct to be published a notice in the Gazette and in at least two newspapers circulating in Nigeria, which shall be in English language, calling upon any person who claims to have an interest in the property to attend before that court on a date specified in the notice, to show cause why the property should not be forfeited to the Government.16
Section 48 is far-reaching with powers of seizure under the Act including the power of seizure by the ICPC of the evidence relating to the commission of the offence or of the subject-matter of an offence, under the Act. The court must also be satisfied that there is no other person who is entitled to the property as a purchaser in good faith for valuable consideration. If the property was returned to a person, pursuant to section 38(3)(b), the court shall order that the security provided in exchange for the return of the property be forfeit in lieu of the property.
In respect of civil forfeiture there are Constitutional safeguards under the Corrupt Practices and other related Offences Act (COPROA) 2004
Section 47 of the Corrupt Practices and Other Related Offences Act 2004 provides that:
“(1) In any prosecution for an offence under this Act, the court shall make an order for the forfeiture of any property which is proved to be the subject matter of the offence or to have been used in the commission of the offence where:
(a) The offence is proved against the accused: or
(b) The offence is not proved against the accused but the court is satisfied;
(i) That the accused is not the true and lawful owner of such property; and
(ii) That no other person is entitled to the property as a purchaser in good faith for valuable consideration.”
Clearly from the above provisions, the court is entitled to invoke civil forfeiture where the property is proved to be the subject matter of the offence or ascertained to have been used in the commission of the offence whether or not the offence is proved against the defendant. The only obligation on the part of the court is to be convinced that the property, the subject matter being considered does not belong to the defendant and that no other person is entitled to the said property as a purchaser in good faith for valuable consideration.
It can be said that civil forfeiture of property in this sense is not prejudicial to the defendant since he/she is unable to establish ownership to the property and no other third party is able to demonstrate ownership of the property in good faith for valuable consideration. The justification being that the state is entitled to forfeit assets whose acquisitions are of questionable or doubtful origin. In such instances of doubtful origin, the court is entitled to presume that the property was acquired with illicit funds or laundered funds – an illegality which the court on behalf of the state is entitled to forestall for the stability and cohesiveness of the society.
- Economic and Financial Crimes Commission (Establishment) Act 2004
Section 34(1) of the EFCC Act provides as follows:
“Notwithstanding anything contained in any other enactment or law, the Chairman of the Commission or any officer authorized by him may, if satisfied that the money in the account of a person is made through the commission of an offence under this Act and or any of the enactments specified under section 7(2) (a)-(f) of this Act, apply to the Court ex-parte for power to issue an order as specified in Form B of the Schedule to this Act, addressed to the manager of the bank or any person in control of the financial institution or designated non-financial institution where the account is or believed by him to be or the head office of the bank, other financial institution or designated non-financial institution to freeze the account.
Section 29 of the EFCC Act provides as follows:
(a) the assets or properties of any person arrested for an offence under this Act has been seized; or
(b) any assets or property has been seized by the Commission under this Act, the Commission shall cause an ex-parte application to be made to the Court for an interim order forfeiting the property concerned to the Federal Government and the Court shall, if satisfied that there is prima facie evidence that the property concerned is liable to forfeiture, make an interim order forfeiting the property to the Federal Government.”
In respect of civil forfeiture there are Constitutional Safeguards under Sections 7(1)(b); 28,29 and 30 of the EFCC Act 2004.
Sections 7(1)(b); 28, 29 and 30 of the EFCC Act provides:
“The Commission has power to-
Cause investigations to be conducted into the properties of any person if it appears to the commission that the person’s lifestyle and extent of the properties are not justified by his source of income…
28) Where a person is arrested for an offence under this Act, the Commission shall immediately trace and attach all the assets and properties of the person acquired as a result of such economic and financial crime and shall thereafter cause to be obtained an interim attachment order from the Court.
(a) the assets or properties of any person arrested for an offence under this Act has been seized; or
(b) any assets or property has seized by the Commission under this Act, the Commission shall cause an application to be made to the Court for an interim order forfeiting the property concerned to the Federal Government and the Court shall, if satisfied that there is prima facie evidence that the property concerned is liable to forfeiture, make an interim order forfeiting the property to the Federal Government.
30) Where a person is convicted of an offence under this Act, the Commission or any authorized officer shall apply to the Court for the order of confiscation and forfeiture of the convicted person’s assets and properties acquired or obtained as a result of the crime already subject to an interim under this Act.”
Constitutional issues arising from the above provisions of Section 7(1)(b) is the extent to which right to acquire and own immovable property anywhere in Nigeria as prescribed under Section 43 of the 1999 Constitution (as amended) is preserved by this provision. It is noteworthy that Section 7 (1)(b) allows the commission to proceed against anyone whose assets are in excess of his/her income or whose lifestyle is not consistent or commensurate with his/her known source of income. Where the commission ascertains that assets of an individual far exceeds his/her known source of income, civil forfeiture of such assets can be invoked in the circumstances.
It would seem that the right of the defendant to acquire property is not thereby infringed in such circumstances as the action can be justified by the proviso to Section 44(2)(k) of the Constitution permitting compulsory acquisition of property ‘relating to the temporary taking of possession of property for the purpose of any examination, investigation or enquiry..’
Section 28 of the EFCC Act 2004 relates to investigation of assets and properties of a person arrested of an offence under this act, meaning that the commission is entitled to proceed against any defendant arrested in connection with the commission of any offence. The power of Interim Civil Forfeiture of Assets under this section is predicated mainly on arrest not on the basis of conviction. The question may be asked, whether such exercise of civil forfeiture derogates for the presumption of innocence of the defendant guaranteed under Section 36(5) of the 1999 Constitution. The Section provides:
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
It is submitted that Section 28 of the EFCC Act 2004 does not conflict with the presumption of innocence guaranteed under Section 36(5) of the Constitution given that Section 36(5) of the Constitution is qualified by a proviso which reads:
“Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”
The defendant is required to establish lawful ownership of the assets or prove that the assets were not acquired by proceeds of crime. More importantly since it is interim forfeiture, it is liable to be set aside by the defendant upon proof of valid grounds against such civil forfeiture.
Sections 29 and 30 of the EFCC Act 2004 are relevant here. The exercise of civil forfeiture by the court under this Section is predicated on prima facie evidence that the property concerned is liable to forfeiture. The same argument in respect of Section 28 is hereby adopted in taking the view that there is no constitutional infraction of the right of the defendant in the circumstances.
Professor Adedeji Adekunle in his work, “Proceeds of Crime in Nigeria: Getting Our Act Right” argued. ‘Similarly, section 37 of the EFFCA provides that the court may make a final forfeiture order of assets despite an acquittal or where a discharge is secured on technical grounds. However, the issue of forfeiture under these provisions only arises after the full course of trial thus detracting from the efficacy of civil forfeiture as a deterrence tool. An effective civil forfeiture regime should be separate from criminal proceedings and should not even be contingent on the fact of an arrest.’
This in my view is eminently correct and I adopt same.
- Code of Conduct Bureau and Tribunal Act, (CCBTA )Cap C15, LFN, 2004
The power of forfeiture under the Act independent of any criminal investigation is contained under section 23(2) of the Act. By virtue of that provision, the Code of Conduct Tribunal has the power to order the seizure and forfeiture to the state of any property acquired in abuse or corruption of office where the defendant is found guilty by the tribunal. Assets declaration could determine property acquired in abuse of office by a public officer particularly failure to declare and over-declaration of assets are clearly in violation of the Act.
A reasonable question in relation to the power to order the seizure and forfeiture to the state of any property acquired through abuse or corruption of office following a finding of guilt would be, how does the tribunal establish that any property had been acquired through abuse or corruption of office without a criminal investigation?17
In determining whether a property or assets are liable to forfeiture under section 23(2) of the CCBTA, the tribunal would be expected to be satisfied that:
- the property allegedly derived from abuse of office or corruption is properly identified;
- that if such property was declared as prescribed under s15, the prosecution has demonstrated that the property was acquired through abuse of office or corruption;
- where such property was not declared, the prosecution has satisfied the requirement that the property was not fairly attributable to incomes, gifts, etc. approved by the Act;
- that the defendant has been unable to rebut the presumption that such property was not fairly attributable to income, etc.”
Section 15(3) of the Act gives room for NCB. It says (3) any property or assets acquired by a public officer after any declaration required by subsection (1) of this section and which is not fairly attributable to income, gifts or loan approved by this Act shall be deemed to have been acquired in breach of this Act unless the contrary is proved.
Paragraph 11(3) of Part 1 of the Code of Conduct for Public Officers in the Fifth Schedule of the 1999 Constitution complements the above provision. It provides:
“Any property or asset acquired by a public officer after any declaration required under this Constitution and which is not fairly attributable to income, gift, loan approved by this Code shall be deemed to have been acquired in breach of this Code unless the contrary is proved.”
The punishment which the Code of Conduct Tribunal may impose includes seizure and forfeiture to the state of any property acquired in abuse or corruption of office.
Civil forfeiture and Constitutional Safeguards under Sections 15(3) and 23(2) Code of Conduct Bureau and Tribunal Act;
Section 15(3) Code of Conduct Bureau and Tribunal Act provides:
Any property or assets acquired by a public officer after any declaration required by subsection (1) of this section and which is not fairly attributable to income, gifts or loan approved by this act, shall be deemed to have been acquired in breach of this Act unless the contrary is proved.
Section 23(2): Power of the tribunal to impose punishment
The punishment which the tribunal may impose shall include any of the following:
- a) Vacation of office or any elective or nominated office, as the case may be;
- b) Disqualification from holding any public office (whether elective or not) for a period not exceeding ten years; and
- c) Seizure and forfeiture to the state of any property acquired in abuse or corruption of office.
These are provisions impacting on asset declaration and the right of the Code of Conduct Tribunal to invoke civil forfeiture mechanism to seize and forfeit any property acquired in abuse or corruption of office. It is submitted that the tribunal in exercising powers conferred on it by statute is not in breach of the rule of law in the circumstances.
- Advance Fee Fraud and other Fraud Related Offences Act, 2006
The Advance Fee Fraud and other Fraud Related Offences Act creates a number of offences connected with fraud. Section 16 dealing with power to control property of the defendant allows the court to control the property of a defendant if there is a prima facie case against that person. The court has powers to prohibit any disposition of such property. The court may also take steps to ensure that such prohibition is effective by requiring a bank manager to freeze the person’s accounts, or by making an order divesting the person if immediate control of the property. There are guidelines. Section 16 requires the following matters to be taken into consideration:
- The person whose property there is in issue must be subject to trial;
- The court must be satisfied that there is a prima facie case against the person;
- A bank must be identified where the person who is subject to trial has, or is believed to have an account. If this is the case, a court may make an order that the bank manager:
- Stop all outward payments, operations or transactions (including any bill or exchange) for the time specified in the order;
- Supply any information and produce books and documents, in respect of the account of the person.
Section 17 dealing with forfeiture of unclaimed property and proceeds of Crime is also relevant. The considerations in determining an Ex Parte Interim Forfeiture Order include a satisfaction by the court that property is unclaimed property or proceeds of unlawful activity under this Act, the Money Laundering Act of 2004, the Economic and Financial Crimes Commission Act of 2004 or any other law enforceable under the Economic and Financial Crimes Commission Act of 2004. The court after the making of the forfeiture order should direct that notice be given or publication made for any person, corporate or financial institution in whose possession the property is found or who may have interest in the property or claim ownership of the property to show cause why the property should not be forfeited to the Federal Government of Nigeria. The Court must also stipulate a reasonable period from the date of giving of the notice or making of the publication, after which an application may be made by a motion on notice for the final forfeiture of the property concerned to the Federal Government of Nigeria. The statute envisages that ordinarily the date will be fourteen days from the date of giving notice or making the publication.
In making final forfeiture order, section 17 requires the following matters to be taken into consideration:
- An ex parte interim forfeiture order must have been granted;
- Notice must have been given or publication made;
- More importantly, the Court is expected to be reasonably satisfied that property is unclaimed property or proceeds of unlawful activity under this Act, the Money Laundering Act of 2004, the Economic and Financial Crimes Commission Act of 2004 or any other law enforceable
In respect of civil forfeiture, there are Constitutional Safeguards under Sections 14, 15, 16 and 17 of the Advance Fee Fraud and other Fraud Related Offences Act, 2006.
Sections 14, 15, 16 and 17 of the Advance Fee Fraud and other Fraud Related Offences Act, 2006 provide:
14 “The Federal High Court or the High Court of the Federal Capital Territory and the High Court of the State shall have jurisdiction to try offences and impose penalties under this Act.
15 In a trial for an offence under this Act, the fact that a person-
- a) is in possession of pecuniary resources or property for which he cannot satisfactorily account and which is disproportionate to his known sources of income; or
- b) that he had at or about the time of the alleged offence obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, may be proved and may be taken into consideration by the High Court as corroborating the testimony of a witness in the trial.
16(1) Where at any stage of a trial, the High Court is satisfied that a prima facie case has been made out against a person, the High Court may by an order and for such time as it may direct or require…
- a) Prohibit any disposition of property, movable or immovable, by or on behalf of that person, whether or not the property is owned or held by that person or by any other person on his behalf, except to such extent and in such manner as may be specified in the order; addressed to the manager of the bank or to the head office of the bank where the person has an account or is believed to have account, direct the manager or the bank
- To stop all outward payments, operations or transactions (including any bill of exchange) for the time being specified in the order;
- To supply any information and produce books and documents, in respect of the account of that person; and
- b) Where necessary or expedient, vest in the High Court or otherwise acquire the custody of, any property, movable or immovable, of the person, for the preservation of the property, pending the determination of the proceedings.
(2) An order under subsection (1) of this section shall have effect as specified therein, but the order may at any time thereafter be varied or annulled by the High Court.
(3) Failure to comply with the requirement of an order under this section shall be an offence punishable on conviction..
(a) in the case of an individual, by imprisonment for a term of not less than 2 years or more than 5 years without the option of a fine;
(b) in the case of any group of persons not being a body corporate, by the like punishment of such persons as is prescribed in paragraph (a) of this subsection;
(c) in the case of a body corporate, by a fine of an amount equal to two times the estimated value of the property affected by the non-compliance or N500,000, whichever is higher.
17(1) Where any property has come into the possession of any officer of the Commission as unclaimed property or any property is found by any officer of the Commission to be in the possession of any other person, body corporate or financial institution or any property in the possession of any person, body corporate or financial institution is reasonably suspected to be proceeds of some unlawful activity under this Act, the Money Laundering (Prohibition) Act of 2004, the Economic and Financial Crimes Commission (Establishment) Act of 2004, the High Court shall upon application made by the Commission, its officers, or any other person authorized by it and upon being reasonably satisfied that property is an unclaimed property or proceeds of unlawful activity under the Acts stated in this subsection make an order that the property or the proceeds from the sale of such property be forfeited to the Federal Government of Nigeria.
(2) Notwithstanding the provision of subsection (1) of this section the High Court shall not make an order of forfeiture of the property or the proceeds from the sale of such property to the Federal Government of Nigeria until such notice or publication as the High Court may direct has been given or made for any person, body corporate or financial institution in whose possession the property is found or who may have interest in the property or claim ownership of the property to show cause why the property should not be forfeited to the Federal Government of Nigeria.
(3) Application under subsection (1) above shall first be made by a motion ex-parte for interim forfeiture order of the property concerned, and the giving of the requisite notice or publication as required in subsection (2) of this section.
(4) At the expiration of 14 days or such other period as the High Court may reasonably stipulate from the date of the giving of the notice or making of the publication stated in subsection (2) and (3) of this section, an application shall be made by a motion on notice for the final forfeiture of the property concerned to the Federal Government of Nigeria.
(5) In this section;
“financial institution” shall have the same meaning as in section 7 of this Act.
“property” includes assets whether movable or immovable, money, monetary instruments, negotiable instruments, securities, shares, insurance policies, and any investments.
(6) An order of forfeiture under this section shall not be based on a conviction for an offence under this Act or any other law.”
These are far reaching provisions vesting jurisdiction in the Federal High Court or the High of the Federal Capital Territory or the High Court of the State to make orders regarding “possession” of pecuniary resources not accounted for, to control property of an accused person and generally make orders of forfeiture without conviction for an offence. The procedure prescribed for the exercise of such powers requiring a motion ex-parte for interim forfeiture order of the property, giving of requisite notice of publication before motion on notice for final forfeiture of the property concerned to the Federal Government recognize adherence to fair hearing principles and the need not to prejudice the rights of the defendant in the trial process.
- National Drug law Enforcement Agency Act (NDLEA), Cap N30, LFN, 2004
The NDLEA Act is designed to enforce infractions bordering on hard drugs18 Part II and III of the Act specifically provide for forfeiture of assets.
Section 33 dealing with seizure of property provides that any property subject to forfeiture under the Act may be seized by the agency in the following circumstances –
- if the seizure is incidental to an arrest or search;
- in the case of property liable to forfeiture upon process issued by the Federal High Court following an application made by the Agency in accordance with the prescribed rules.
There are also provisions on forfeiture of assets of persons arrested for an offence under this Act. Specifically, Section 34 dealing with investigation of Assets and Properties of Persons Arrested for an Offence Under this Act provides that where a person is arrested for an offence under the Act, the agency shall immediately trace and attach all the assets and properties of the person and shall thereafter cause to be obtained an interim attachment order by the Federal High Court.
Section 36 of the Act dealing with interim forfeiture order provides that where the assets or property of any person arrested for an offence under the Act have been seized or (b) any asset or property has been seized by the agency under the Act, the agency shall cause an application to be made to the Federal High Court for an interim order forfeiting the property concerned to the Federal Government and the Federal High Court shall, if satisfied that there is a prima facie evidence that the property concerned is liable to forfeiture, make an interim order forfeiting the property to the Federal Government.
The Act makes further provision for final forfeiture of assets. Section 37 provides that where an arrested person is convicted of an offence under this Act, the agency, or any authorized officer shall apply to the Federal High Court for a final Order of confiscation and forfeiture of the convicted person’s assets and properties already subject to an interim order under this Act.
- Customs and Excise Management Act, Cap. C45 Laws of the Federation of Nigeria, 2004;
Part xii dealing with forfeiture and legal proceedings provide in sections 167, 168 and 169 of the Act as follows:
“167: (1) Any officer or police officer, or any other person authorized in that behalf by the Board, may at any time seize or detain anything liable to forfeiture under the customs and excise laws or which such officer, police officer or other person has reasonably grounds to believe is liable to forfeiture thereunder.
(2) Anything seized or detained under the customs and excise laws shall forthwith be delivered into the care of the Board and, subject to the provisions of the Third Schedule to this Act, shall, pending the determination as to its forfeiture or disposal, be dealt with, and, if condemned or deemed to have been condemned as forfeited, shall be disposed of, in such manner as the Board may direct.
(3) The provisions of the Third Schedule to this Act shall have effect for the purposes of forfeiture, and all proceedings for the condemnation of anything as being forfeited, under the customs and excise laws.
168: Forfeiture of excisable goods
where, by or under any provision of this Act, goods of a kind subject to excise duty become liable to forfeiture by reason of some offence committed by an excise trader, but such goods are not available for forfeiture, the Board may seize from the stock of that trader goods of that kind to such quantity as would attract the same amount of duty as the amount of duty on the goods liable to forfeiture.
169 Forfeiture of ships, etc., used in connection with goods liable to forfeiture
(1) Without prejudice to any other provision of this Act, where anything has become forfeited under the customs and excise laws-
- a) any ship, aircraft, vehicle, animal, container (including any article of passenger’s baggage) or anything whatsoever which has been used for the carriage, handling, deposit or concealment of the thing so forfeited either at a time when it was so liable or for the purpose of the commission of the offence for which it later became so forfeited; and
- b) any other thing mixed, packed or found with the thing so forfeited, shall also be forfeited.
(2) Where any ship, aircraft, vehicle or animal has become forfeited under the customs and excise laws, whether by virtue of subsection (1) of this section or otherwise, all tackle, apparel or furniture thereof shall also be forfeited.”
One safeguard against arbitrariness and misapplication of a scheme of civil forfeiture is the element of notice of seizure. Reference can be made to the Customs and Excise Management Act stipulating that where assets are seized by the Customs and such seizure was not made in the presence of the presumed owner or his agent, a notice of seizure must be served on the owner of such assets. This is to enable the owner of seized assets to be notified of seizure of such assets in line with the principle of fair hearing. The rationale of such notice is to enable the owner of such seized assets to file a notice of claim in respect of the assets on the Customs within one month after the notice of seizure is served on the owner. Failure to serve such notice of claim by the owner within the prescribed one month period after being served with notice of the seized assets will make the assets to be deemed condemned as forfeited to the state. It will seem that this provision on notice as provided under the third schedule to the Customs and Excise Management Act is consistent with the fair hearing principles as guaranteed under Section 36 (1) of the 1999 Constitution which provides as follows:
In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
However, where the owner serves the notice of claim within the stipulated period, the question of whether the assets are liable to forfeiture is determined by summary civil proceedings.
- Money Laundering Act
The money Laundering Act makes no specific provision for forfeiture of laundered funds reasonably suspected to have been the proceeds of criminal activity specified in the Act. It however provides fines for financial service providers and other persons who violated the provisions of the Act. These penalties include possible revocation of banking and other financial service licenses for egregious and willful support for money laundering, and the ‘blocking’ of accounts determined to be instruments of laundering through which suspect funds have been ‘laundered’. It would appear that the Act is mainly concerned with disruption of money laundering activity and discouragement of participation in such activity by institutions and individuals. This may have informed the criminalization of breaches of duty of care and financial transaction reporting rules with wide powers conferred on the EFCC for investigation and surveillance.
Inspite of these concerns however, section 19(2) of the Money Laundering (Prohibition) Act 2004 provides:
“In any trial for an offence under this Act, the fact that an accused person is in possession of pecuniary resources or property for which he cannot satisfactorily account and which is disproportionate to his known sources of income, or that he had at or about the time of the alleged offence obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, may be proved and may be taken into consideration by the Federal High Court as corroborating the testimony of any witness in such trial.”
Similar provisions are contained under section 15(a)(b) of Advance Fee Fraud and other Fraud Related offences Act 2006 and section 18(5) of the Economic and Financial Crimes Commission (Establishment Act) 2004 respectively.
Unfortunately, these legislations do not stipulate the consequences for earnings outside legitimate sources of income. I shall return to the implications of this in the light of recent judgment of the Supreme Court in Gabriel Daudu vs FRN.
- National Agency for the Prohibition of Trafficking in Persons Act;19
A number of forfeiture provisions are contained under sections 34,35 and 36 of National Agency for the Prohibition of Trafficking in Persons Act. Section 34 dealing with forfeiture of passport provides:
“The passport of any person convicted of an offence involving traffic in person under this Act shall be forfeited to the Federal Government and shall not be returned to that person unless or until the President directs otherwise, after the grant of a pardon or on the exercise of the Constitution of the Federal Republic of Nigeria.
Section 35 of the Act also provides for forfeitures after conviction in certain cases. It provides:
“ (1) A person convicted of an offence under this Act shall forfeit to the Victims of Trafficking Trust Fund- (a) all the assets and properties which mayor are the subject of an interim order of the Court after an attachment by the Agency as specified in section 40 of this Act; (b) any assets or properties confiscated, or derived from any proceeds the person obtained, directly or indirectly, as a result of such offence not already disclosed in the Assets Declaration Form specified in Form I of the Second Schedule to this Act or not falling under paragraph (a) of this subsection; (c) any person’s property or instrumentalities used in any manner to commit or facilitate the commission of such offence not already disclosed in the Assets Declarations Form or not falling under paragraph (a) of this subsection. (2) The Court in imposing a sentence on any person under this section, shall order, in addition to any other sentence imposed pursuant to this Act, that the person forfeit to the Victims of Trafficking Fund all properties described in sub-section (1) of this section. (3) In this section “proceeds” means any property derived or obtained, directly or indirectly, through the commission of an offence under this Act.
Section 36 deals with forfeiture of property and it provides:
All properties of a person convicted of an offence under this Act and shows to be derived or acquired from such illegal act which are already the subject of an interim order shall be forfeited to the Victims of Trafficking Trust Fund.
The foregoing statutory provisions adopt mainly the tool of non-conviction based assets recovery mechanism. This mechanism essentially go after the property and not the person and useful in the recovery of looted assets. It can be said that non-conviction based proceedings is a useful tool for recovering proceeds of crime without instituting criminal forfeiture proceedings where the element of delay can be utilized by parties and counsel with all the implications. It can be argued that effective utilization of non-conviction based proceedings can forcefully compel suspects to submit to judicial process.20
- Proceeds of Crimes Bill 2019
A bold move was made in the passage of the proceeds of Crimes Bill in 2019 but this was not granted assent due to some issues that were identified during the review. Happily, President Muhammadu Buhari has sent an executive bill that would among others, ensure the management of the funds an property confiscated from criminals. The bill is titled, ‘Proceeds of Crime Bill’. Undoubtedly, “The Proceeds of Crime Bill is essential and critical in building and enduring and sustainable foundation for the fight against corruption, money laundering and illicit movement of stolen funds through the banking system and across the Nigerian borders.
Amongst others, “the bill will also improve the ability of law enforcement agencies to seize, freeze, and confiscated stolen assets in Nigeria while observing all related constitutional and human rights laws…an important feature of the bill is the creation of the Proceeds of Crime (Recovery and Management) Agency.” It is also stated that “The objective of the agency include the enforcement and administration of the provisions of the Bill and the coordination of the recovery and management of the proceeds and instrumentalities of unlawful activity in Nigeria in all collaboration with anti-corruption and other law enforcement agencies.”
Benefits identified in the proposed bill as stated include:
“Most importantly, the agency will ensure that Nigerians can benefit from proceeds of crime by ensuring that once recovery is made, the properties and assets will be secured and that the final forfeitures granted through a court order can be paid into the Confiscated and Forfeited Account to be domiciled in the Central Bank of Nigeria.”
Consequently, “these funds will be used for development projects approved by the National Assembly under the annual Appropriation Act and also support the work of the law enforcement and anti-corruption agencies.”21
The foregoing legislative framework, if passed and assented to by the President is a much more robust and coherent arrangement than that contemplated under the Asset Tracing, Recovery and Management Regulations 2019 which will certainly give rise to needless controversy.
The proceeds of crime bill 2019 is structured into 12 parts. Part 1: deals with ‘Objective And Application’; Part 2: is concerned with ‘Proceeds Of Crimes Recovery And Management Agency’; Part 3: relates to ‘Civil Forfeiture’; Part 4: treats ‘Additional Investigation Powers Relating To Civil Recovery’; Part 5: deals with ‘Recovery Of Cash Being Imported Or Exported’; Part 6: discusses ‘Criminal Forfeiture And Confiscation’; Pat 7: deals with ‘Investigation, Search And Seizure’: Part 8: covers ‘Administration’: Part 9: deals with ‘Confiscated And Forfeited Properties Account’: Part 10: covers ‘Jurisdiction’: Part 11: is concerned with ‘General Provisions Relating To Legal Proceedings’; while Part 12: deals with ‘Miscellaneous’ matters.
Part 2: Issues on Proceeds of Crime and Criminal Forfeiture.
A Queens Counsel’s observations on misconceptions concerning criminal forfeiture are apt.22
“Common asset forfeiture misconceptions: Property seized for evidence can automatically be forfeited: This common error results in many missed opportunities for forfeiture. Each type of forfeiture set forth below contains strict time limits. Once missed, the Government is prohibited from commencing forfeiture under the time-barred provision. For this reason, it is critical for investigators to consult with their asset forfeiture personnel regarding any item that they do not wish to return to the person from whom it was seized. All property owned by a criminal is subject to forfeiture: On the contrary, asset forfeiture is purely a creature of statute. While there are numerous federal laws providing for forfeiture, there are also some crimes that do not have a corresponding forfeiture statute. Other crimes have only limited forfeiture provisions. Asset forfeiture and restitution are mutually exclusive: Actually, asset forfeiture relates to the amount of proceeds generated by a crime and, in some cases, the actual property used to commit a crime, while restitution relates to the amount of losses caused by a crime. By statute, judges are required to order both where applicable. See FED. R. CRIM. P. 32.2(b)(1)(A) (forfeiture); 18 U.S.C. § 3556 (2013) (restitution). The main benefit to the investigator who achieves asset forfeiture is that there is no time limit for amending an order of forfeiture, so that subsequently acquired property of the defendant found years later can still be forfeited. Furthermore, the discovery provisions for enforcing an order of forfeiture are far easier to utilize than the provisions that are available to enforce an order of restitution, which basically involves filing a separate lawsuit under the Federal Debt Collections Act. 18 U.S.C. § 3664(m)(1)(A) (2013).”
It has been argued that non-conviction based forfeiture proceedings may trample upon third parties interests in forfeited assets with disastrous implications. The question is, how do we take precautionary measures to ensure that third parties interests in property forfeited under interim and final forfeitures are protected? Fola Arthur Worrey23 noted this possibility recently as follows:
“In relation to all these forfeiture proceedings and processes, it is incumbent on the court to as much as possible limit the impact of forfeiture or freezing accounts on innocent third parties such as children or dependents, in relation to their upkeep or school, medical or other costs, or where they reside in a property subject matter of the offence; or on legitimate going concerns in which a portion of funds or property, subject matter of the offence, has inadvertently been absorbed into and tainted the equity, and where a forfeiture or freezing order might cause the business to collapse or diminish its profitability, or where knowledge of the freezing order might hurt the reputation of the business and cause financial ruin to shareholders or lead to the laying off of employees. Similar situations are the impact of a forfeiture order on legitimate creditors or tradesmen. A court should be mindful of such possibilities, and tailor its orders to meet these exigencies. Examples of such orders, where the court is informed of such a situation and is attempting to society celebrates criminals (and gladly accepts their gifts), and lends credence to the notion that crime pays even if you are caught. Should society applaud the pincher of public funds who “re-invests” the loot into some local productive enterprise; or is the overall cost of the theft to collective morale, societal values, institutional ethos, inflationary impact and resource allocation to the state worth pursuing through forfeiture? And how many lawyers, real estate professionals, stock brokers and bankers are gainfully employed in laundering the proceeds of crime”?
The other issue relevant is how to facilitate compensation or restitution of victims of crimes since assets forfeited during forfeiture proceedings are forfeited to the state. In many practical cases, the victims actually suffer and this obviously is a major source of concern.
There are also concerns that forfeiture proceedings may have the potential of impacting on general human rights protection. Reference is made particularly to non-conviction based proceedings which could affect property rights guaranteed in the constitution and when viewed in the context of innocent third parties rights, the phenomenal damage that could result could be incalculable and irreparable. Section 43 of the Nigerian Constitution enshrines the right to acquire and own immovable property anywhere in Nigeria. Section 44 of the same constitution protects interest in both movable and immovable property and prohibits compulsory acquisition of such property except in a manner and for the purposes prescribed by a law.
Given the fact that non-conviction based forfeiture could operate without the trial, prosecution or conviction of the defendant, the argument that the proceedings could infringe on the constitutional rights of presumption of innocence of the defendant is compelling. The other related issue is the bar on compulsory acquisition of property provided for under our constitution subject to the caveat that protection is not absolute since section 44(2) of the Constitution of FRN provides that:
Nothing in section (1) shall be construed as affecting any general law-
(a) for the imposition of penalties or forfeitures for the breach of any law, whether under civil processes or after conviction for an offence;
(e) relating to the execution of judgments of courts or orders of court;
(k) relating to the temporary taking of possession of property for the purpose of any examination, investigation or inquiry (interim seizure).
It can be said that subsection (b) of the above constitutional provision is intriguing in that even if it does not specifically mention non-conviction forfeiture procedure, it would appear to have contemplated such procedure and legitimize same because it is known generally that non-conviction forfeiture proceedings arising even where there is no specific trial of the defendant are also classified as civil proceedings.
There are also issues arising from the interpretation of section 23(2) of the Code of Conduct Bureau Tribunal Act (CCBTA). In determining whether a property or assets are liable to forfeiture under the provision, it is required that the tribunal be satisfied that
- the property allegedly derived from abuse of office or corruption is properly identified;
- that if such property was declared as prescribed under s15, the prosecution has demonstrated that the property was acquired through abuse of office or corruption;
- where such property was not declared, the prosecution has satisfied the requirement that the property was not fairly attributable to incomes, gifts, etc. approved by the Act;
- that the defendant has been unable to rebut the presumption that such property was not fairly attributable to income, etc.
Clearly the above raises two issues of fundamental significance. The first is that mere declaration of assets as prescribed under the Act does not offer license of full immunity to a public officer from seizure of his property nor would that preclude the tribunal from ordering the seizure of such property. Secondly, is the question of shifting the burden of establishing the fair or unfair attribution of income during the proceedings from the prosecution to the public official. This burden requires very specific proof and would apply whether the property were declared or not, although arguably, the burden may be lessened where the defendant had made prior full disclosure by way of assets declaration.
One fundamental concern is how to deal with forfeited assets? As we have noted above, most of the legislation on forfeiture is federal with the implication that all forfeited assets revert to the federal government even with respect to assets stolen from the state. It is difficult to see the fairness and equity the forfeiture of assets belonging to a state to the federal government and the current position is to say the least, unfair and needs to be addressed in future legislation.
Again where forfeiture payments are made by the court, the question is into which accounts are such payments made when there are no designated accounts in the name of consolidated revenue fund? A writer24 raised some other concerns as follows:
“The second observation is the non-inclusion of provisions for the retention of a percentage of forfeited funds by the various agencies as a ready source of resources to fund the very herculean and expensive task of law enforcement, a task involving technical, investigative, forensic and technological expertise (often out-sourced), travel, surveillance, payment of informants and whistleblowers and many collateral activities. This approach, long adopted in America, where the law expressly authorizes the defrayment of a substantial amount of the public expenditure incurred in fighting organized crime by recourse to a proportion of forfeited assets, usually up to 30% and initially condemned, has now gained wide acceptance in Canada, Australia, South Africa and by international financial strike forces.
Retention of a portion of forfeited funds is also important because the budgeting process of the NASS is not analytical and never results in a needs-based budget for these key agencies, hence their constant refrain of ‘under-funding’ over the years. However, one must not discount the potential problems that a policy of agency retention of forfeited funds might give rise to if not properly monitored, which is all of them, there might be a temptation to keep back information that might, when withheld until the most propitious moment, boost its share of the bounty. Or, as has happened sometimes in those jurisdictions that have the policy, agencies sometimes jump the gun, seizing assets worth a fraction of what is still in the pipeline and not yet identified; or before assuring that the money is indeed most likely to be the proceeds of a crime…”
Issues have also been raised about lack of a distinct legal framework for forfeiture contained in one single legislation, the present trend being that forfeiture provisions are scattered through a variety of legislations giving rise in many cases to confusion and uncertainty. The practitioner is thus forced to travel round several statutes to unravel essential principles, practice and procedure on assets forfeiture.
Uniform rules may need to spell out concisely applicable rules during unforeseen circumstances by ordering reasonable payments for the upkeep or education or medical bills of dependents, especially minors; separating the traced funds from the main account of a functioning business so as to enable it continue trading or allowing payment to legitimate creditors or other service providers, but with a caveat for continuous reporting for monitoring purposes; appointment of a receiver to manage the company where it is difficult to distinguish between the criminal funds or property and that of the business, with the receiver’s cost being met by company income and the profits of the company being distributed in a way that meets the amount identified as proceeds of crime; the provision of alternative accommodation for dependents with rent being paid out of the legitimate funds or income from other property of the defendant NOT associated with the crime, or where there are insufficient funds for that purpose, allowing for a period of grace for such occupants to secure alternative accommodation.2525Supra.
Attempts are made to address some of these concerns by the proposed proceeds of crime bill pending before the National Assembly. The proposed proceeds of crime bill26 has the following objectives to wit: to provide for an effective legal and institutional framework for the recovery and management of the proceeds of crime or benefits derived from unlawful activities; to deprive a person of the proceeds of an unlawful activity, instrumentalities of an offence and any other benefit derived from an offence committed within or outside Nigeria; to prevent the re-investment of proceeds of unlawful activity in the furtherance of criminal enterprise; to harmonize and consolidate existing legislative provisions on the recovery of proceeds of crime; to make comprehensive provisions for the restraint, seizure, confiscation and forfeiture of property derived from unlawful activities and any instrumentalities used or intended to be use in the commission of such unlawful activities.
Salient issues raised in the bill include the need to establish proceeds of crime recovery and management agency, the need to provide for an effective legal and institutional framework for the recovery and management of the proceeds of crime or benefits derived from unlawful activities, the need to deprive a person of the proceeds of an unlawful activity, instrumentalities of an offence and any other benefit derived from an offence, the need to establish a confiscated and forfeited properties account specially designated as such with the Central Bank for lodging all recovered proceeds of crime with same to be managed by the Accountant-General of the Federation; and the need to harmonize and consolidate existing legislative provisions amongst others.
Negative concerns on forfeiture must be balanced against the justification for asset recovery particularly in respect of proceeds of crime. Professor Bolaji Owasanoye27summarized the justification for asset forfeiture to include:
Legitimate and illegitimate enterprises require funds to run well; illegitimate and criminal enterprises use proceeds of crime to – compromise corrupt government officials hire professionals to defend criminals in court, cook books of account or facilitate access to financial systems; corrupt the criminal justice process; acquire tools and equipment of crime; contest, sponsor or retain elective or other political office; etc., the more the funds generated, the more available to widen operations, diversify into other activities both legal and illegal and strengthen the organizational structure; therefore, asset recovery and confiscation of proceeds of crime is a crime fighting tool designed to weaken or incapacitate criminals and strengthen the state.
Part 3: Best Practices on Criminal Forfeiture
In other jurisdictions, there are sufficient authorities on forfeiture when no criminal charges are laid or proven against a defendant. A case in point is the case of Gogitidze & Others v Georgia European Court of Human Rights (ECtHR) in paragraph 105 of the judgment had this to say.
“Having regard to international legal mechanisms such as UNCAC and the forty Financial Action Task Force Recommendations (in addition to two Council of Europe Conventions), universal legal standards can be said to exist where:
- a) The confiscation of property linked to serious criminal offences such as corruption, money laundering, drug offences and other offences that generate proceeds of crime without the prior existence of a criminal conviction, is encouraged.
- b) Confiscation measures may be applied to the direct proceeds of crime and also to property, including any incomes and other indirect benefits, obtained by converting or transforming the direct proceeds of crime or intermingling them with other possibly lawful, assets.
- c) Confiscation measures may be applied to persons directly suspected of criminal offences and also to any third parties which hold ownership rights without the requisite bona fide with a view to disguising their wrongful role in amassing the wealth in question…28
The trend established through the cases is that non-conviction based forfeiture proceedings being an action in rem targets the property and not the person. In implementing the non-conviction based proceeding, recourse may have to be made to section 15 of the 1999 Constitution of Federal Republic of Nigeria abolishing corruption and abuse of power including section 43 and 44(1) of the Constitution recognizing rights of citizens to acquire and own immovable property including right not to compulsorily take possession of such property rights except in a manner prescribed by law subject to the caveat provided in section 44(2)(b) providing for the imposition of penalties of forfeiture for breach of any law whether under civil process or after conviction for an offence. This is the grundnorm legitimizing forfeiture proceedings in Nigeria. It has been said however, that non-conviction based forfeiture being proceedings in rem are subject to the following limitations:29
- S135 of the Evidence Act is not applicable, as NCB proceedings are “in rem” (against an asset) not against “a person” and are not intended to determine whether any person has been guilty”.
- This aspect of section 135 of the Evidence Act which provides for proof beyond reasonable doubt of a criminal allegation made in a civil proceedings is not relevant or applicable to such proceedings. This section will always be required to be addressed in the context of NCB proceedings and clearly distinguished as inapplicable.
- Constitutional or diplomatic immunity is not relevant or applicable to such forfeiture proceedings. If any person who enjoys constitutional or diplomatic immunity claims to have interest in the subject-matter of the proceedings he shall satisfy the court of the following requirements;
- Show cause by establishing his connection to the property, and
- Establish how he come about the property legitimately…
Significantly, the case of Gogitidze & Others earlier cited is authority for review that non-conviction based forfeiture proceedings are akin to criminal proceedings because notwithstanding its punitive nature, the action is against the property itself and not the person.
Part 4: Analysis of Recent Cases in Asset Forfeiture in Nigeria
A consideration of recent cases on criminal forfeiture is desirable in deepening our jurisprudence on the subject. I have chosen to identify and espouse the principles on criminal forfeiture highlighted in 18 of such cases particularly by the Court of Appeal and the Supreme Court respectively. This is informed by my conviction that law is best studied and appreciated through the cases.
In practical terms, our courts in exercise of jurisdiction on interim and final forfeitures of assets constituting proceeds of crime, have in recent times forfeited a number of assets to the federal government of Nigeria. A few examples would suffice.
(1) In AG BENDEL STATE v. AGBOFODOH30 the Supreme Court further clarified the definition of forfeiture as follows:
While the word “forfeiture” was not defined in section 7 of the Interpretation Act, the said word is defined in Words and Phrases, Legally Defined, 3rd edition by Saunders, as “something lost by commission of a crime, – something paid for the expatiation of the crime, a fine, a mulet”. In Black’ Law Dictionary, 6th edition, “forfeiture” is defined as “loss of property or money because of breach of a legal obligation” and the word “forfeit” in the same dictionary is defined as “to incur a penalty, to become liable to the payment of a sum of money, as a consequence of a certain act. In the Dictionary of English Law by Earl Jowitt, “forfeiture” is defined as where a person loses some property, right, privilege or benefit in consequence of having done or omitted to do a certain act. (The italics is for emphasis only). I have no doubt therefore that the word “forfeiture” used in section 2(1)(a) of the Decree comes within the above definitions.31
(2) In ABACHA v. FRN32 the Supreme Court in offering further insights on the definition of forfeiture held as follows:
The word “forfeiture” means – “the divestiture of property without compensation. The loss of a right, privilege, or property because of a crime, breach of obligation, or neglect of duty”. It follows that, “title in those assets and properties forfeited is instantaneously transferred to another, such as the government”. See; Black’s Law Dictionary, Ninth Edition Page 722.33
(3) In BASHIR v FRN34, the Court of Appeal interpreting Section 16(b) of the Money Laundering Prohibition Act 2004 on the retention of proceeds of criminal conduct held as follows:
Section 16(b):”Any person-(b) Knowing that any property either in whole or in part directly or indirectly represents another person’s proceeds of a criminal conduct, acquires or uses that property or has possession of it, commits an offence under this Act and is liable on conviction to imprisonment for a term of not less than 5 years or to a fine equivalent to 5 time the value of the proceeds of the criminal conduct or to both such imprisonment and fine.35
(4) In KALU v. F.R.N & ORS36, the Supreme Court in construing section 16 of the Money Laundering Act which criminalises the retention of the proceeds of crime held as follows:
Any person who –
(a) Whether by concealment, removal from jurisdiction, transfer to nominees or otherwise retains the proceeds of a crime or suspecting that other person to be engaged in a criminal conduct or has benefited from a criminal conduct, or conspiracy aiding etc.
(b) knowing that any property either in whole or in part directly or indirectly represents another Person’s proceeds of a criminal conduct, acquires or uses that property or has possession of it, commits an offence under this Act and is liable on conviction to imprisonment for a term of not less than 5 years or to a fine equivalent to 5 times the value of the proceeds of the criminal conduct or to both such imprisonment and fine.37
(5) In DANGABAR v. FRN38 when the court had to determine the constitutionality of a court order dealing with assets suspected to be proceeds of crime pending the final determination of a criminal case against an accused person, the court held:
In this Appeal under consideration, the interim order of attachment made by the lower Court is a restraining order to stop the Appellant from dealing with the properties in issue pending the determination of the criminal case filed against him. The EFCC Act recognizes that any suspect who is detected by the Police and who may potentially face a confiscation or forfeiture order may attempt to dispose of the said properties before the determination of the criminal case pending against him so that the law would not be able to deprive him of the properties. In this respect, the Court has been empowered to make restraining orders such as interim order of attachment, or mareva injunction which have the effect of freezing the property thereby preventing the suspect or accused person as the case may be from dealing with the proceeds of crime held by him or the third parties on his behalf. See Section 20 – 27 of the EFCC Act. The trend all over the world is to prevent the accused person from retaining the proceeds of his crime and to deprive him of whatever benefit he may have derived from his criminal conduct. The pertinent question at this juncture is whether the practice of temporarily depriving the accused person from dealing with the assets suspected to be proceeds of crime pending the final determination of the criminal case against him is unconstitutional? There is no doubt that pursuant to Sections 43 and 44 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) all Citizens of this country have the right to acquire and own property anywhere in Nigeria and their property should not be compulsorily acquired without payment of compensation. However there is a caveat, this right to property is not absolute. Section 44(2)(K) of the said Constitution creates exception and it states as follows:- “Nothing in Sub-section (1) of this Section shall be construed as affecting any general law; (k) relating to the temporary taking of possession of property for the purpose of any examination, investigation or inquiry.” The above stated provision showed the intention of the law maker is to validate any law such as Sections 28 and 29 of the EFCC Act which allows temporary taking over of assets of the accused persons pending the hearing and determination of a criminal case that has been pending against him. See the case of:- – Dr. B. O. Akingbola vs. The Chairman. Economic and Financial Commission (Unreported) Appeal No: CA/L/388/10 delivered on 2/3/2012. In my own view, the intention of Sections 28 and 29 of the EFCC Act is merely to get a preservative order on the property suspected to be proceeds of crime so as to prevent the accused person or suspect from dissipating the assets and thereby create a situation of a fait accompli upon his conviction. The learned Senior Counsel for the Appellant argued that the reference to examination investigation or enquiry referred to in Section 44(2) (K) of the 1999 Constitution could not be extended to criminal trial. It would therefore be necessary to understand the meaning of the words used under the said Section of the Constitution. The word investigate is defined by Black’s Law Dictionary, 6th Edition to mean to examine and inquire into with care and accuracy, to find out by careful inquisition, examination, the taking of evidence, a legal inquiry. Also, Legal and Commercial Dictionary 6th Edition by Tapash Gan Choudhury defines ‘investigation’ at page 479 as:- Careful search, study, closes inquiry, scrutiny, detail examination, collection of facts, inquiry to ascertain facts, inquiry, exhaustive study, and systematic search. The same Black’s Law Dictionary 6th Edition at page 558 defines examination as it relates to crime as follows:- “An investigation by a Magistrate of a person who has been charged with crime and arrested or of the facts and circumstances which alleged to have attended the crime in order to ascertain whether there is sufficient ground to hold him to bail for his trial by the proper Court. The preliminary hearing to determine whether person charged with having committed a crime should be held for trial.” Enquiry as defined by Legal and Commercial Dictionary 6th Edition means:- Investigation of a matter from the various sources in order to find the truth (Dr K. C. Malhotra vs. The Chancellor A. P. University Shimla AIR 1995 HP (156) Enquiry covers the hearing of the case i.e. recording evidence, admitting documents and generally completing the record upon which a finding would be based. It is only after all the material has been placed on record by both sides that the stage of reporting a finding would arise. Dr M. N. Dasanna v. State of A. P. (1973) 2 SCC Page 378: (1973) 1 SCWR Page 932 . After a careful examination of the above definitions, it would be clear that allowing temporary taking of possession of property for the purpose of examination, investigation or enquiry would perforce, extend to the conduct of a criminal case. I am of the view that to do otherwise will give the constitutional provision a very narrow interpretation which will defeat the purpose of the Constitution itself. See – Bronik Motors v. Wema Bank (Supra). There is also no dispute about the fact that the Appellant was investigated before the criminal charge in Charge No: FCT/CR/64/2012 was preferred against him. Sections 26, 27, 28 and 29 and 30 of the EFCC Act envisage that the interim order for the preservation of assets is obtainable immediately after the commencement of the investigation and to last till final determination of the criminal charge that may be initiated against the accused persons. The learned Senior Counsel for the Appellant argued that there was no evidence that the properties are proceeds of crime. It must not be forgotten that the Appellant has failed to apply to the lower Court to discharge the ex-parte order, paragraph 10 of the affidavit in support of the ex-parte originating summons stated that the properties and assets attached by the lower Court were proceeds acquired from the crime alleged against the Appellant. The said paragraph 10 was not denied, it is therefore deemed admitted. The Appellant cannot be heard to deny the existence of that fact. Consequent upon the foregoing it is my view that the order of interim attachment and forfeiture of the assets of the Appellant pending hearing and final determination of the criminal case against him in Charge No: FCT/CR/64/2012 is not inconsistent with the Constitution of the Federal Republic of Nigeria 1999 (as amended). See the case of:- A. G. Ondo State vs. A.G. Federation (Supra).39
(6) In Hon. Justice I. A. UMEZULIKE (Rtd) v. CHAIRMAN, EFCC40 a case handled by this writer for the Economic and financial Crimes Commission, the issue resolved was whether having regard to the clear provisions of sections, 24, 26, 27, 28, 29, 30 and 34(1) of the Economic and Financial Crimes Commission Act 2004, the lower court acted wrongly and breached the Appellant’s right to fair hearing in refusing to set aside its earlier order of interim attachment granted on 23/2/2017 and dismissing the Appellant’s motion on notice dated 10/3/2017 and filed on 13/3/2017.
The Court of Appeal reviewed the arguments in the proceedings as follows:
Prof Agu in the Appellant’s Brief argued that in respect of ground one, the particulars of error disclosed thereof are that the lower court failed and or neglected to consider in totality the submissions of the Appellant with respect to his application to discharge and or vary an Exparte Order obtained against him by the EFCC, being the Respondent herein.
Counsel further opined that the dismissal of the suit without considering or evaluating the further affidavit of the Applicant vis-à-vis the Respondent on record is a denial of fair hearing especially as they were determinative of the application.
Learned Appellant’s counsel further submitted that upon allegation of denial of fair hearing, the right lies in the procedure allowed in the determination of a case and not in the correctness of the decision arrived at in a case. Counsel cited FBN Plc. v. TSA Ind. Ltd (2010) 4-7 SC (Pt. 1) @ 242, Bamgbose v. University of Ilorin (1999) 6 SC (Pt. II) @ 72.
Counsel insisted that a glance at the Appellant’s further affidavit which the lower court found unnecessary to review disclosed that the Respondent conceded that there was a public book presentation by the Appellant in which a N10 Million cheque of Oranto Petroleum Ltd was issued for the purchase of the book in addition to other participants who purchased the same book at the public presentation approved by the former Chief Justice of Nigeria.
Counsel submitted that the Appellant by his further affidavit which His Lordship did not consider at the lower court had by the facts adduced proved the burden required of a party alleging breach of fair hearing by the court which refused to set aside the order.
In reply to the Appellant’s arguments, learned counsel for the Respondent (Mr. Wahab Shittu) argued that section 28 of the EFCC Act provides that where a person is arrested for an offence under the Act, the Commission shall immediately trace and attach all the assets and properties of the person acquired as a result of such economic and financial crime and shall thereafter cause to be obtained, an interim attachment order from the court. In general, once the Police or any other agency has identified the assets of a person being investigated for an offence, they may seize or restrain dealings in the assets where they are subject to forfeiture.
Counsel argued that the basis for freezing the Bank account of the Appellant is that the said account is prima facie tainted with laundered funds or dirty money and that the Bank account itself is exhibit in the pending criminal proceedings against the Appellant. Consequently, the Bank account of the Appellant which is the res or subject matter of the criminal proceedings ought to be preserved until the merits of the pending criminal proceedings is determined.
Learned Respondent’s counsel insisted that the confiscation of property linked to serious criminal offences such as corruption, money laundering, drug offences and the likes, without prior existence of a criminal conviction is an accepted legal tool of crime fighting.
Counsel submitted further that the question of breach of the fair hearing principle in dismissing the Appellant’s motion on notice to set aside the ex-parte order does not arise because there are sufficient materials to determine the merits of the application, independent of the further affidavit and further counter affidavit of the Appellant and Respondent and that these materials raised prima facie evidence for proceeding against the Appellant and include, amongst others, the admission by the Appellant in the grounds for the application that the sum of N51,736,650.32 standing to the credit of the Appellant in the Zenith Bank Plc. Account No. 1001189952 were proceeds from the public presentation of the book, part of which came from donation from litigants, a subject of pending criminal proceedings against the Appellant.
Respondent’s counsel argued that there is no breach of fair hearing when the lower court relied on statutory provisions in refusing to set aside the ex parte order. Counsel insisted that the lower court is entitled to rely on relevant facts in determining the merits of the application, particularly when a consideration of the further affidavit and further counter affidavit would amount to examining the merits of the criminal proceedings pending against the Appellant before the High Court of Enugu State. counsel maintained that it is sufficient if as in this case, there are sufficient facts prima facie to proceed against the Appellant and showing that criminal proceedings on the same subject matter is pending against the Appellant and that the funds attached contain allegedly tainted funds obtained from alleged proceeds of crime, the subject matter of criminal proceedings against the Appellant.
Counsel argued that even though it was contended on behalf of the Appellant that the Court violated his right to fair hearing because the court did not take into consideration its further affidavit, however it must be noted that the power conferred on the court under section 29 and 34 of the EFCC Act is a special jurisdiction and interim order of forfeiture was not meant to be indefinite but only last for number of days till the Appellant is charged to court.
The court after reviewing the arguments including section 34(1) and Section 29 of the EFCC Act made authoritative pronouncements as follows:
There is a world of difference, in my humble view, between a prayer to vary an order and a prayer to vacate, quash or set aside an order of court. The grounds for the prayers were factual to the effect that the funds contained in the account were not proceeds of crime. This was supported by copious affidavit evidence to the effect that the funds were not proceeds of corruption but the proceeds of the intellectual labour of the Appellant. Be that as it may, a one count charge had been filed by the Respondent against the Appellant on 29/3/17 in respect of the funds in the Bank account in controversy. The issue here is what recourse did the Appellant have at that point. I agree with the learned judge of the lower court that the sole issue before the lower court was whether the order ex-parte was properly made. If it was properly made, it cannot be quashed, vacated or set aside by any court of concurrent jurisdiction and it would only automatically be discharged at the end of 60 days according to the terms of the order. If it was improperly made, a court of concurrent jurisdiction can set it aside, quash or vacate it before the expiration of the term set out in the order. As I said earlier, a prayer to vary an order is quite different from a prayer to set aside, quash or vacate an order. A prayer to vary the terms of an order concedes that the order was properly made but for certain reasons, the terms should be varied. An application to set aside, quash or vacate an order is in effect attacking the validity of the order.
It is my humble view that in whatever circumstances, whether it is a matter involving criminal prosecution under the EFCC Act or not, an order of attachment of property can be set aside, quashed or vacated where there is proof that there has been suppression of material facts or misrepresentation of facts or where the court which made the order had no jurisdiction to make the order… I must state categorically that I do not have any reason to quarrel with the rationale and the need to preserve the res where the proceeds of crime are sometimes the main stay of the evidence against an alleged offender. No doubt, the court is justified and even entitled prior to conclusion of investigation and trial to restrain the defendant from dissipating the assets alleged to have been illegitimately acquired…the specific orders sought herein to set aside or quash the ex parte order cannot be granted there being no legal basis to do so. Let me reiterate that we have not been asked to vary the order of the lower court attaching the account…as I said earlier, there is no legal basis to grant the main relief sought. In fact, the lower court had opined as follows on page 125 of the record:
secondly, where a freezing order is made by one court, and a trial is instituted in another court, it is my respectful view that the court which originally granted the freezing order may lose the power to review its earlier order, but the court trying the charge may be entitled in appropriate cases to review the terms of the freezing order…in the circumstances, the ruling of A. M. Liman J. delivered on 2/5/17 in Suit No. FHC/EN/CS/25/2017 is hereby affirmed. The appeal is devoid of merit and is hereby dismissed.
(7) Another interesting case on criminal forfeiture is the case of THE ECONOMIC AND FINANCIAL CRIMES COMMISSION v. MR. AYODELE FAYOSE & ANOR. 41 In this case, the Court of Appeal restated the law on interim preservation order envisaged by Section 34 of the Economic and Financial Crimes and considered whether same conflicts with Section 308 on immunity of public officials and Section 44 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The Court held as follows:
I do not also see any conflict between Section 308 or 44 of the Constitution and Section 34 of the EFCC Act 2004 empowering appellant to apply for an interim order of attachment of suspected stolen public funds as Taiwo J. suggested in his judgment. Particularly on the alleged conflict between Section 308 of the Constitution and Section 34 of EFCC Act, I have already addressed it with reference to the dictum of the apex Court (Uwaifo J.S.C) in Fawehinmi’s case. I can only add, in agreement with Mr. Oyedepo Rotimi of counsel for appellant, that the interim preservation order envisaged by Section 34 of EFCC Act as well as the order made by Idris J. were only interim and did not amount to expropriation of the funds frozen as to conflict with Section 44 of the Constitution. The order was only preservative for appellant to take possession and preserve the allegedly unlawfully acquired funds to be used for possible prosecution later. I note that even civil procedure has provision for similar useful preservative orders in the name of Anton Pillar Orders and so forth which are also usually granted ex-parte (without notice to the person affected) so that the evidence is not lost or destroyed and thereby frustrate its use in Court. In any event, this Court has held, consistently, that the grant of interim attachment of property by ex-parte order under Section 34 of the EFCC Act does not infringe on right to fair hearing: See Esai Dangabar v. F.R.N. (2014) 12 NWLR (PT 1422) 575 @ 607- 608 (Bada, J.C.A.); F.R.N. v. Ikedinwa (2013) LPELR-21120. The fact that forfeiting property in the interim under the EFCC Act is not unconstitutional has also been confirmed in Akingbola v. Chairman, EFCC (2012) 9 NWLR (PT 1306) 475 @ 500 – 502; Felimon Enterprises Ltd. v. The Chairman, EFCC and Anor (2013) 1 BFLR 94 @ 105-106. Not only am I in total agreement with those decisions, I again agree with Mr. Oyedepo Rotimi for appellant that the procedure of interim ex-parte applications, generally, and particularly under Section 34 of the EFCC Act does not envisage or permit service of or joining the party likely to be affected by ex-parte before its grant, a position settled beyond dispute by the apex Court in 7UP Bottling Co Ltd v. Abiola & Sons Ltd (1995) 3 NWLR (PT 383) 257 @ 287.
The Court further held:
The argument about joining 1st respondent, a sitting Governor who enjoys absolute immunity under Section 308 of the Constitution from legal proceedings against him, is in fact a complete non-sequitur. In fact that argument of Taiwo J., unfortunately supported by learned silk representing 1st respondent, seem to me one in circles given the main plank of their other argument that the same 1st respondent as someone covered by immunity under Section 308 cannot even be sued. With that immunity from prosecution enjoyed by 1st respondent, how could he have been joined to the suit before Idris J? In what capacity would appellant have joined 1st respondent without infringing his immunity? As a co-applicant? This contention of Taiwo J. and 1st respondent’s counsel and their reliance on the cases they cited on effect of non-joinder (including some on the peculiar terrain of election petitions), with due respect, confirms the wisdom in the advice of Nnaemeka-Agu J.S.C. in Ojibah v. Ojibah (1991) 5 NWLR (PT 191) 296 for counsel and the Courts to be wary of ‘deciding cases and issues on the established legal jingles and catch-phrases without fully asking one’s self how well they fit into the particular facts of the case.” None of the cases relied on by Taiwo J. in his judgment which 1st respondent’s counsel also cited related to or has any bearing on the purport of EFCC Act 2004 generally or its Section 34, a special legislation enacted by our representatives in parliament to fight our hydra-headed national malaise of corruption. None of those cases also raised the peculiar issue here of whether a person who enjoys absolute immunity under Section 380 of the Constitution should be joined when EFCC has cause to proceed against him pursuant to Section 34 of EFCC Act, 2004. If 1st respondent was aggrieved with the order, it was open to him to exercise his right to challenge it and ask for its discharge before the same Idris J., and not as he did by suing afresh in another Division of the same Federal High Court before Taiwo J. The action of 1st respondent even smacks of abuse of process, which Taiwo J. ought to have struck down rather than grant the application and set aside the orders of Idris J. as he did. Taiwo J. had a duty to protect his process from abuse and strike down that case as the Supreme Court did in Lokpobiri v. Ogola (2016) 3 NWLR (PT 1499) 328 when a not too dissimilar thing happened when litigants approached two different Divisions of the same Federal High Court on the same issue.”42
On the question whether courts of co-ordinate jurisdiction are entitled to make conflicting orders on interim forfeiture regarding the same subject matter, the court further held:
“Instructively, there is the Supreme Court case of Nigeria International Merchant Bank Ltd. v. Union Bank of Nig. Ltd. (2004) 12 NWLR (Pt. 888) 599 at 618-619 per the lead judgment prepared by Pats – Acholonu, J.S.C., which discussed, analyzed and observed on the nature and jurisdictional synergy that should be adhered to by Courts of co-ordinate jurisdiction in these words-
It is believed inelegant and a matter that would go against the grain of our procedural law for Courts of co-ordinate jurisdiction instead of endeavouring to shore up the jurisdiction of each other engage in a form of unsavoury competition. They ought necessarily to avoid a situation where the Court by its being less cautious exposes itself by the nature of the order it makes to ridicule and the majesty and aura of its pronouncements are either compromised or treated with ignominy as a non-issue by the confused parties and I dare say with the common citizenry……
Where a Federal Court is prayed to make an order that is diametrically or in conflict with a subsisting order of a State High Court in the context of the same subject matter and where equally identical or seeming identical prayers are sought, it should, in my view refuse to entertain…… To commence to make orders that strike violently at the heart of the order of the State High Court of well-known co-ordinate jurisdiction is to lend a helping hand in causing confusion in our Courts by purporting unwittingly to appear to sit on appeal on the decision of a State High Court.
Indeed the damning situation does not portend astuteness and exercise of caution on the part of the Federal High Court, which by its stance had made an order that did violence to the order of the Lagos State High Court……. I fail to see the exceptional circumstance that would warrant a Court to naively appear to sit on appeal in a ruling of a Court of the same co-ordinate jurisdiction.” See also Witt & Busch Ltd v. Dale Power Systems Plc (2007) 17 NWLR (Pt.106) 1 at 25, Per Ogbuagu, JSC, thus-
… in the absence of statutory authority or except where the judgment or order is a nullity, one Judge has no power to set aside or vary the order of another Judge of concurrent and co-ordinate jurisdiction …
See further Azuh v. Union Bank Plc (2014) 11 NWLR (Pt.1419) 580 at 609-610.
The Court below should have been slow in granting the order de-freezing the two accounts of the 1st respondent with the 2nd respondent which order had the direct effect of wiping out and has indeed wiped out the earlier order made by the Federal High Court Lagos, a Court of co-ordinate jurisdiction with the Court below (Federal High Court Ado-Ekiti), freezing the said accounts of the 1st respondent with the 2nd respondent. “Per IKYEGH, J.C.A. (Pp. 64-66, Paras. C-E).
(8) KALU v. F.R.N & ORS43 is significant for interpreting the statutory provision contained under section 16 of the Money Laundering (Prohibition) Act 2004 which criminalizes the retention of the proceeds of a crime or an illegal act on behalf of another. It provides as follows:
(9) In the case of FRN v Ikedinwa, the contention was whether having regards to the provisions of the 1999 Constitution and the NDLEA Act, the NDLEA can seize property of a person under investigation and apply to the Federal High Court for an order of forfeiture or attachment without such a person having been arrested, the Court of Appeal considered sections 33 and 36 of the NDLEA Act and sections 28 and 29 of the EFCC Act and held as follows:
“In this appeal, the property sought to be forfeited or attached in the interim was incidental to the search of Ikedinwa’s premises and in the name of Godfrey Ikedinwa or Don Godfrey Ikedinwa who is on the run, it would therefore be clear that the finding of the trial judge that the property be released to the 1st respondent is against public policy. Any person who has committed an offence or acquired property illegally should not be allowed to use his escape from justice to continue to keep such ill-gotten property…
In a number of cases4444
For example, recently, the Federal High Court in Lagos ordered the permanent forfeiture of a total of N1,442,384,857.84 found in the bank accounts of three firms, which allegedly impersonated the consultants engaged by the Nigeria Governors
’ Forum to analyse the Paris/London Club loan refunds due to the states. The Economic and Financial Crimes Commission, which obtained the forfeiture order, claimed that the defendants obtained N3.5bn from the Nigeria Governors
’ Forum by making false claims.
The firms were accused of impersonating a consortium of consulting firms engaged by the governors
’ forum for the “verification, reconciliation and recovery of over deductions on Paris and London Club Loans on the accounts of states and local governments between 19995 and 2002.
recently, our courts ordered criminal forfeiture of assets traced as proceeds of crime. The Federal High Court in Lagos presided over by Hon. Justice Mojisola Olatoregun on April 20, 2018 ordered interim forfeiture of the sum $8.435,788.84 and over N7.35bn found in 15 bank accounts linked to Mrs. Patience Jonathan, wife of former President Goodluck Jonathan. After ordering the temporary forfeiture of the funds, Justice Olatoregun ordered the EFCC to ‘publish in the Bioreports News or any major national newspaper, the orders of this court for the respondents or anyone, who is interested in the properties sought to be forfeited, appear before this honourable court to show cause within 14 days why the final order of forfeiture of the said properties should not be made in favour of the Federal Government of Nigeria.
In the case of Federal Government of Nigeria & others v Central Bank of Nigeria & Anor45 where the EFCC applied under section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act for the forfeiture of unclaimed sum of $15m allegedly given by Chief James Ibori through an agent to EFCC officers to compromise his investigation and prosecution for corruption. The Federal High Court, Abuja presided over by Honourable Justice Gabriel Kolawole, had upon the application of the Applicant made an interim order of forfeiture and also ordered for the necessary publications to be made for any person interested in the money to come and show cause why it should not be finally forfeited to the Federal Government of Nigeria. Consequent upon the publication the Delta State Government laid claim to the money and filed the necessary processes. In his judgment Honourable Justice Gabriel Kolawole stated as follows: “It is an issue that should be proved and established by preponderance of evidence on balance of probabilities as in all civil cases except where a law has specifically created an exception. It is when it is so proved or established, that the court in consonance with orders 3, 4 and 5 made on the “Ex parte Originating Summons” granted on 24/7/12 will be persuaded not to make a final order of forfeiture of the said $15 million in favour of the 1st Applicant. By this, the evidential burden lay on the claimant as there is already a presumption as it were, that the said sum of $15 million is probably a proceed of an illegal or unlawful transaction, perhaps a proceed of an unjust enrichment for which no one is prepared to lay claim to its ownership for obvious reasons.”
From analysis of cases on criminal forfeiture whether in respect of non-conviction based forfeiture or conviction based forfeiture of assets certain clear principles46 have emerged as stated hereunder:
- The confiscation of property linked to serious criminal offences such as corruption, money laundering, drug offences and other offences that generate proceeds of crime without the prior existence of a criminal conviction, is encouraged.
- Confiscation measures may be applied to the direct proceeds of crime and also to property, including any incomes and other indirect benefits, obtained by converting or transforming the direct proceeds of crime or intermingling them with other possibly lawful, assets.
- Confiscation measures may be applied to persons directly suspected of criminal offences and also to any third parties which hold ownership rights without the requisite bona fide with a view to disguising their wrongful role in amassing the wealth in question.
- The aim of civil proceedings in rem was to prevent unjust enrichment through corruption as such, by sending a clear signal to public officials already involved in corruption or considering so doing that their wrongful acts, even if they passed unscaled by the criminal justice system, would nevertheless not procure pecuniary advantage either for them or for their families.
- S.135 of the Evidence Act is not applicable, as NCB proceedings are “in rem” (against an asset) not against “a person” and are not intended to determine whether any person has been “guilty”.
- The aspect of section 135 of the Evidence Act which provides for proof beyond reasonable doubt of a criminal allegation made in a civil proceeding is not relevant or applicable to such proceedings. This section will always be required to be addressed in the context of NCB proceedings and clearly distinguished as inapplicable.
- Constitutional or diplomatic immunity is not relevant or applicable to such forfeiture proceedings. If any person who enjoys constitutional or diplomatic immunity claims to have interest in the subject-matter of the proceedings he shall satisfy the court of the following requirements;
- Show cause by establishing his connection to the property, and
- Establish how he come about the property legitimately.
- Non-conviction based forfeiture proceedings are more akin to civil proceedings than criminal proceedings. Although a forfeiture order may be punitive, its aim is not to punish as it is often the intension of sentencing in criminal proceedings. This action is against the property itself.
- It is also well established from case law that proceedings for confiscation such as the civil proceedings in rem do not stem from a criminal conviction or sentencing proceedings and thus do not qualify as a penalty but rather represent a measure of control of the use of property and consequently cannot amount to “the determination of a criminal charge” within the meaning Section 36(1) and 36(5) of the Nigerian Constitution and Article 6 of the European Convention on Human Rights.
- In non-conviction based forfeiture, the proceedings deals with the proceeds of criminal conduct while its provisions are essentially civil in nature.
- The NCB proceedings utilize civil proceedings to deal with ‘criminal assets’ which is an emerging global trend in the battle against crime.
- Civil forfeiture provides a unique remedy used as a measure to combat organized crime. It proceeds on the premise that the property and not the owner has contravened the law. It does not require a conviction or even a criminal charge against the owner.
- Criminal forfeiture of assets proceedings after an acquittal do not amount to double punishment.
- Section 36(5) of Nigerian Constitution provides that ‘every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty’. In the light of this provision, forfeiture proceedings are not ‘criminal’ and that this presumption does not apply to asset forfeiture cases.
- Presumption of innocence is only relevant in the actual trial for an offence where the prosecution has the burden of displacing other presumption in favour of the defendant by adducing evidence of proof.
- The proceedings are essentially civil proceedings, with a standard of proof on the balance of probabilities.
The following are some the situations that may lead to the commencement of NCB proceedings;
- The defendant/accused has fled jurisdiction and could not be located;
- The defendant/accused, being a public officer or politically exposed person, acquired wealth that could not be explained/justified based on his filed asset declaration form or as legitimate earnings/income. This could be a matter before the Code of Conduct Tribunal or an issue for non-conviction based proceedings before the High Court.
- Criminal conviction against the defendant/accused failed or could not be proved for insufficiency of evidence but the defendant/accused acquired movable and non-movable, assets including cash, which could not be justified as per (18) above;
- The ownership of the identified suspected/illicit assets could not be ascertained after or the asset is abandoned or disowned.
- The defendant/accused has passed away, leaving behind assets associated with crime.
- The defendant/accused is using pseudonym from or intermediary.
- Orders for forfeiture of property must be proportionate47
(10) In the case of MELROSE GENERAL SERVICES LTD v. EFCC & ORS (2019) LPELR-47673 the Court of Appeal while considering the power of court to make an order of interim forfeiture of properties or asset under investigation or prosecution by the Economic and Financial Crimes Commission held as follows:
“I had mentioned above that Section 17 which is a Non Conviction Based forfeiture is not unconstitutional and the procedure adopted or the proof required is not proof beyond reasonable doubt. The law has clearly provided that the law enforcement agency can apply to a Court for an interim forfeiture order where there is a reasonable suspicion that the proceeds are from unlawful activity. The Appellant has argued that only a Court can determine whether a person is guilty of an offence and therefore the provision of Section 17 is unconstitutional. The issue of the constitutionality of Section 17 has been settled and therefore all that argument above cannot hold water as it is within the legal powers of the Court to grant the interim order which can only be set aside if the Appellant could show cause why the money should not be forfeited. That apart, I must say that the opinion that the proceeds are from reasonable suspicion of unlawful activity was not taken by the law enforcement agencies in this instance the 1st Respondent but rather by a judge. It is the same judge or Court that has the power to declare a person guilty of an offence. The law has given the judge the duty to find after reviewing the evidence in the affidavit provided as to whether the proceeds are from unlawful activity. To convince the judge or Court, the Appellant must show by affidavit evidence that the money is not from unlawful activity. There is nothing out of place with the burden of proof required on the Appellant. Indeed the Supreme Court has held that any person who is living above his known means of income owes society some explanation. In Daudu vs. FRN (2018) 10 NWLR (Pt. 1626) 169,183; (2018) LPELR-43637 (SC), the Supreme Court held that the burden lies on the accused to explain properties he acquired which are disproportionate to his known legitimate earnings. The apex Court per Aka’ahs JSC at pages 13-14 in looking at a related provision in the Money laundering Act held: “Proving Money Laundering cases is a herculean task because it requires a prior establishment of the predicate offence before the money laundering aspect can be established. To obviate this problem a remedy was introduced by statutorily inferring money laundering from not only the conduct of the defendant but his lifestyle which is similar to the Proceeds of Crime Act 2002 of the UK. Even though Section 36(5) of the 1999 Constitution provides that every person charged with a criminal offence shall be presumed to be innocent until he is proven guilty, the proviso allows for shifting the burden of proof on the defendant. The Section provides thus:- “36(5) Every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty provided that nothing in this Section shall invalidate any law by reason only that the law imposes upon any person the burden of proving particular facts. By Section 19(3) of the Money Laundering Act, if an accused person is in possession of pecuniary resources or property which is disproportionate to his known source of income, or he obtained an accretion to his pecuniary resources or property, the burden of giving a satisfactory account of how he made the money or obtained the accretion shifts to him. The prosecution is relieved of the burden of having to prove that the money so found in his account or in his possession is proceeds from illicit traffic in narcotic drugs or psychotropic substances or of any illegal act. To explain the point further, where A is a fixed salary earner and suddenly his account is credited with an amount beyond his income or has property which his legitimate income cannot afford, the burden shifts to him to explain how he got the money with which he bought the property or the legitimate transaction he was engaged in for which the account was credited.” Per EBIOWEI, J.C.A. (Pp. 57-61, Paras. E-A)”
(11) In ADELEKE KUDIRAT IYABO v. FEDERAL REPUBLIC OF NIGERIA (2019) LPELR-47194 the Court of Appeal held:
“…It is crystal clear that Sections 28 and 29 of the EFCC Act, 2004 states that upon an arrest the EFCC shall immediately trace and attach all the assets and properties of the person which were acquired as a result of such Economic and Financial Crimes. And shall thereafter cause an exparte application to be made to the Court for an order of interim forfeiture of the said properties. And the Court shall if satisfied that there is a prima facie evidence that the property concerned is liable to forfeiture, grant the order of interim forfeiture…”
In the case of LA WARI FURNITURE & BATHS LTD v. FRN (2019) LPELR-49011 the Supreme Court while considering the question whether an interim order of forfeiture of properties is an infringement on the right to fair hearing held:
“ From what has been stated above, there is no gainsaying that the grant of ex-parte motion by the trial Court and affirmed by the Court below has not caused an infringement on the appellant’s fundamental right to fair hearing as it is now settled that an ex-parte application is brought before the Court as a proceeding between the applicant and the Court and no other and so even if the respondent to an ex-parte application is in Court, he has no right to be heard even if he is seen. The best option open to him is to bring up a process later to agitate his interest and a possible contest to the order made ex-parte. It needs be brought out that in an application ex-parte and the ensuing order if granted the question of fair hearing of the third party or the respondent on record really does not come in to play, as ex-parte simply means “in the absence of the other party.” In the case at hand what is at stake is the preservation of the res and the conviction of the appellant is not in issue at the stage of the ex-parte application and interim order of forfeiture. Stated differently is that Section 17 of the AFF Act, 2006 is an action in rem and the fact that the appellant’s name is stated as respondent in the action does not change the character of the action. SeeAkingbola v Chairman EFCC (2012) 9 NWLR (pt.1306) 475 at 500 – 502, Felimon Ent. Ltd. v The Chairman EFCC (2005) All FWLR (pt.276) 740; 7-Up Bottling Co Ltd. v Abiola & Sons Ltd (supra); A.G. Ondo State v A. G.Federation (2002) 9 NWLR (Pt.772)22 at 308-309. I have no difficulty in resolving this issue against the appellant in holding that in the interim order of forfeiture of the properties in issue the right to fair hearing of the appellant has not been infringed.’’ Per PETER-ODILI, J.S.C. (Pp. 33-44, Paras. F-A)”
(12) In the case of ADELEKE KUDIRAT IYABO v. FEDERAL REPUBLIC OF NIGERIA (2019) LPELR-47194 the Court of Appeal clarified the meaning of attachment and held as follows:
“In my view characterize ???attachment??? in the superlative more than mere identification and/or annexation as a condition precedent to obtaining the order is a total misconception of the word ???attachment???. To me attachment and obtaining an order of Court by way of interim attachment are words to be read together only purposively. An order of interim attachment is therefore impracticable without the attachment first made which simply is identifying the property and linking same with a crime to be investigated or charged…”
On the question whether Section 17 of the Advance Fee Fraud and Other Related Offences Act, 2006 is in conflict with Sections 36 and 44 of the 1999 Constitution as regards an interim order of forfeiture, the Supreme Court in JONATHAN v. FRN (2019) LPELR-46944 held:
“…The law prescribes in Section 17 (3) EFCC should after identifying the abandoned properties or properties reasonably suspected to be proceeds of crime to first of all apply ex-parte to the High Court for an interim order of forfeiture so as to preserve the properties from being dissipated. The section also imposes a duty on the Court granting the interim forfeiture order to also direct the applicant to publish the order and notify anyone who may be affected by the order so that the affected party may come to the Court to show cause why the final order of forfeiture should not be made. It is not as learned counsel for the appellant submitted that the appellant’s funds in her bank account can be forfeited to the Federal Government without a hearing. If at the end of the hearing of the application the trial Court finds that it ought not to grant the interim forfeiture order the order is liable to be discharged. The essence of the interim forfeiture order is not to deprive the holder of the account of his property or asset but to preserve the property from being dissipated. Learned counsel for the respondent submitted and I agree with him that Section 17 of the Act is not unconstitutional…”
On the question whether an order of forfeiture can only be made upon conviction for an offence, the Court of Appeal held in the case of OGUNGBEJE v. EFCC (2018) LPELR-45317:
“…In the circumstance therefore, and in accordance with the procedure laid down in Section 17(1) – (6) of the Advance Fee Fraud and other Related Offences Act, 2006, the Appellant’s primary business as an interested party is to show his interest or ownership claim in the property and then show cause why the money should not be permanently forfeited to the Federal Government of Nigeria. The Appellant has not shown himself to be any person, corporate or financial institution in whose possession the property is found or who may have interest in the property or claim ownership of the property as provided in Subsection (2) of Section 17 of the Act. Also paragraphs 5 – 27 of the Affidavit in support of the Appellant’s Application which contain grounds purported to be relied upon were struck out by the Lower Court – a decision which the Appellant failed to challenge. As it is therefore, the Appellant, in my humble view failed to show any cause why the trial Court should not have granted an Order of Final Forfeiture of the huge sums of money in question to the Government of the Federation.” Per ABUBAKAR, J.C.A. (Pp. 26-45, Paras. E-D)…”
(13) On the position of the law on forfeiture of assets following a seizure and sealing of property under Section 26 of the Economic and Financial Crimes Commission Act, the Court of Appeal in SENATOR PETER NWAOBOSHI & ORS v. FRN (2018) LPELR-45107 held:
“Having identified, seized and sealed the property, the next step was obtaining an interim forfeiture order as stipulated under Section 29 (b) of the EFCC Act. Construing the stipulation of Section 29 of the EFCC Act in UMEZULIKE vs. CHAIRMAN, EFCC (2017) LPELR – (43454), this Court per Ogunwumiju, JCA held: “The only requirement is that the Court to which an application to attach may be brought must be satisfied that there is a prima facie case that the property concerned is liable to forfeiture before such an order was made. Nnamani, JSC, while defining the phrase prima facie in Duru v. Nwosu (1989) 4 NWLR pt. 113 pg. 24 at 41 held as follows: ‘It seems to me that simplest definition is that which says that ‘there is a ground for proceeding’. In other words, that something has been produced to make it worthwhile to continue with the proceedings. On the face of it, it suggests that the evidence produced so far indicates that there is something worth looking at.” The lower Court being satisfied that there existed a prima facie case made the interim forfeiture order. As construed above, it is effulgent that the prescribed procedure for interim forfeiture of property which is justifiable under Section 44 (2) (k) of the Constitution was scrupulously followed by due adherence to the provisions of the EFCC Act dealing with the forfeiture route of identification, seizure sealing and interim forfeiture. Contrary to the contention of the Appellants, the interim forfeiture order made by the lower Court is not final. The contingency on which the order was predicated is clear from the enrolled order at page 99-102 of the Records. The order is made to last pending the conclusion of investigation and consequent prosecution of the offences of stealing, forgery and money laundering. Concomitantly, this issue number two is resolved in favour of the Respondent.” Per OGAKWU, J.C.A. (Pp. 24-30, Paras. A-C)…”
(14) Regarding the Position of the law as regards an order of restitution, the Supreme Court in AJIBOYE v. FRN (2018) LPELR-44468 held:
“In this instance, learned counsel for the appellant raised concerns over the order for restitution of the appellant’s property to Guaranty Trust bank by the learned trial judge. This posture is not sustainable in that by the combined provisions of Section 78 of the Penal Code and Section 365 of the Criminal Procedure Code, jurisdiction indeed resides in the trial High Court to order restitution to the victim of crime and there is no limit set down in the legislations as to the amount the learned trial Judge can so award in the circumstance. I am guided by the decision of this Court in Martins v C.O.P. (2013) 4 NWLR (Pt.1243) 25 at 47 wherein my learned brothers cleared the way forward thus: “What is significant is that under either Section 78 of the Penal Code which provides specifically for compensation arising from conviction for offences under the Penal Code and so applicable to the instant case, or under Section 365 (1) (b) which is general provision in respect of all convictions under any law, no limit has been set as to the amount the Court, on convicting the offender, can award the victim of the offence by way of compensation.”
Ogunbiyi JSC at page 51 of the report also had this to say: “The Sections 78 and 365 of the Penal Code and Criminal Procedure Code respectively ought to be given their clear meaning wherein the award of compensation made by the Chief Magistrate Grade I was within the exercise of the powers conferred on him. The award was made after the appellant was properly convicted of the offence of criminal breach of trust under Section 314 of the Penal Code. It was not, in other words made at large but very well within its proper context of jurisdictional competence.” See also Mafa v State (2013) 3 NWLR (Pt.1342) 607 at 622-623. It is to be noted that the stance of the appellant stems from the learned trial judge relying on Sections 19 and 20 of the EFCC Act 2004 which is not the correct law to be applied. That view in my humble opinion cannot stand since the trial Court is empowered to make such an order and the law under which it could do so exists in the penal code and the criminal Procedure code and so placing the valid order pursuant to the wrong law would not invalidate the order properly made. See Henry Stephens Engineering Co Ltd v Complete Homes Enterprises Nigeria Limited (1987) All NLR 28 at 37; Joseph Falobi v Elizabeth Falobi (1976) NMLR 169 at 177. It follows that whether the forfeiture and restitution ordered by the learned trial judge falls under Section 7 of the EFCC Act, 2004 within which operations of the Commission had acted over the property thus bringing it before the Court for the order to apply the Penal Code as in this case. It has to be said that whether the forfeiture was effected under Section 20 of the EFCC Act or under the penal code since it is the Federal Government of Nigeria who is the prosecuting party, it really does not matter under which of those statutes the forfeiture order is made. I place reliance on Onwudiwe v FRN (2006) 10 NWLR (Pt.988) 382 at 411-420 and 425; Egunjobi v FRN (2002) FWLR (Pt.105) 896-923. In my humble view the learned trial judge in directing the property to be forfeited to the Federal Government of Nigeria was intended to debar the appellant from deriving benefit from the proceeds of crime for which he was convicted and it cannot be treated as double jeopardy as it is geared towards deterring others who are so minded to know that no benefit would properly inure to the person who brazenly acquires what belongs to another or the Government.” Per PETER-ODILI, J.S.C. (Pp. 48-51, Paras. C-C)…”
(15) On the question Whether the Economic and Financial Crimes Commission can trace and attach property of a company owned by a suspect under arrest, the Court of Appeal held in FIMHAB (NIG) LTD v. FRN (2018) LPELR-43882:
“Section 28 of the Economic and Financial Crimes Commission (Establishment) Act clearly gives power to the Commission (E.F.C.C.) to trace and attach any asset and properties of any person arrested for an offence under the Act, where the commission suspects that such asset or property has been acquired from the proceeds of crime. The Court shall then, upon application of the E.F.C.C, cause such asset or property to be, in the interim, forfeited to the Government. See Section 29 of the E.F.C.C. Act (supra). The provisions of Sections 28 and 29 of the E.F.C.C. Act are very clear and need no other tool of statutory construction to interpret same. A literal interpretation will suffice. See Essai Dangabar v. Federal Republic of Nigeria (2012) LPELR – 19732 (CA). In the case of A.G: Ondo State V. A. G: Federation (2002) 9 NWLR (pt.772) 222, the Supreme Court validated the provisions of Sections 28 and 29 of the Act. It is clear that the assets and properties were suspected to have been acquired by Muili Hakeem Aderemi who was being tried for offences under the E.F.C.C Act. The learned trial Chief Judge of Oyo State was therefore right when he refused to set aside the order of interim attachment earlier made on the 16/2/2014.” Per TSAMMANI, J.C.A. (Pp. 13-14, Paras. B-C).”
(16) On the question whether the Court can order a person convicted of an offence to make restitution, the Court of Appeal in the case of IKPE v. FRN & ANOR (2018) LPELR-45567 held:
“By the provisions of Section 270 of the Criminal Procedure Act, where any person is convicted of having stolen or having received stolen property, the Court convicting him may order such property or a part thereof to be restored to the person who appears to it to be the owner thereof. The Criminal Procedure Act made ample provision for restitution, the argument that there is no issue of restitution before the trial Court is stale, barren and spent. Our Criminal Justice system has since taken good care of the ancient obsolete, antique and stone-age belief that there is incentive in committing crime, I think the approach nowadays is to ensure that the proceeds of crime are completely and totally recovered from the criminal so that he will go home high and dry feeling that there is no incentive in committing any illegal act…”
(17) The duration and purport of an interim order for preservation of assets under Sections 27, 28 and 29 of the Economic and Financial Crimes Commission Act was resolved by the Court of Appeal in the case of EFCC v. ZAHARA SHOPPING MALL LTD (2016) LPELR-42210. The Court held:
“Sections 26, 27, 28, 29 and 30 of the E.F.C.C. Act envisaged that the interim order for the preservation of assets is obtainable immediately after the commencement of the investigation and to last till final determination of the criminal charge that may be initiated against the accused persons.” It is thus clear to me from the judgment of this Court in DANGABAR v. F.R.N. (SUPRA) that the Interim Order for preservation of assets envisage under the provisions of Sections 27, 28 and 29 of EFCC Act is to last till final determination of the criminal charge that may be initiated against an accused person. It does not terminate of the mere conclusion of investigation. The whole purport of the order is to preserve the property or asset from possible disposal of same by a suspect before the final determination of the charge against him. Elucidating on the point my lord Bada, JCA states:- “In this appeal under consideration, the interim order of attachment made by the lower Court is a restraining order to stop the appellant from dealing with the properties in issue pending the determination of the criminal case filed against him. The E.F.C.C. Act recognizes that any suspect who is detected by the police and who may potentially face a confiscation or forfeiture order may attempt to dispose of the said property before the determination of the criminal case pending against him so that the law would not be able to deprive him of the properties. In this respect, the Court has been empowered to make restraining orders such as interim order of attachment, or mareva injunction which have the effect of freezing the property thereby preventing the suspect or accused person as the case may be from dealing with the proceeds of crime held by him or the third parties on his behalf. See Section 20-27 of the EFCC Act” It follows therefore that the lower Court cannot lawfully discharge the Interim Order of Forfeiture granted by M. L. Shuibu J. (Now JCA) when charge No: FHC/L/460C/07 is still pending and has not been determined.” Per TUKUR, J.C.A. (Pp. 9-14, Paras. D-B).”
(18) On the Power of the Economic and Financial Crimes Commission to attach or seize any property suspected to have been acquired by committing any offence under its Act, the Court of Appeal in GEONEL INTEGRATED SERVICES LTD v. EFCC (2018) LPELR-44012 held:
“Section 44 (2)k of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) allows for the grant of an order of interim attachment for the purpose of examination, investigation or enquiry; while Sections 28 and 29 of the Act on the other hand provide as follows: 28. “Where a person is arrested for an offence under this Act, the Commission shall immediately trace and attach all the assets and properties of the person acquired as a result of such economic or financial crime and shall thereafter cause to be obtained an interim attachment order from the Court.” 29. “Interim forfeiture order Where – (b) the assets or properties of any person arrested for an offence under this Act has been seized; or (c) any assets or property has been seized by the Commission under this Act, This Commission shall cause an ex parte application to be made to Court for an interim order forfeiting the property concerned to the Federal Government and the Court shall, if satisfied that there is prima facie evidence that the property concerned is liable to forfeiture, make an interim order forfeiting the property to the Federal Government.” Thus the powers of the trial Court to grant an interim forfeiture order is clearly not in doubt; what is in issue is whether the grant of such order freezing the appellant’s accounts is in order.
Sections 28 and 29 of the EFCC Act clearly empower the respondent in this case, upon the arrest of any person suspected of committing economic and financial crimes to administratively trace and attach, all the assets and properties of such a person and, cause an interim order of attachment or forfeiture to be obtained in respect of such assets. These two sections of the Act place the burden squarely on the respondent to establish that there is a prima facie evidence that the property in issue is liable to be forfeited account of its on being proceeds of crime, and that burden is discharged once there is an arrest for an offence under the Act, and the respondent traces the assets and attaches the properties of the accused person acquired as a result of economic and financial crimes; that done, the respondent is entitled to an interim attachment order by the Court; see DANGABAR V. FRN (2012) LPELR – 19732-CA. The Economic & Financial Crimes Establishment Act, 2004, appears to be purposefully proactive with regard to recovery of proceeds of crime, and that clearly is why the objective of the Act is ‘to follow the money’. Learned counsel to the appellant submits that the respondent has to establish, with some degree of certainty, that the property was acquired with proceeds of, or is proceed of financial or economic crime, i.e. the origin of the funds must be shown to be illegal, otherwise the application ought to be dismissed. The Court cannot agree more with learned counsel to the appellant; and that being so, the only way the respondent can reasonably be expected, in the circumstances, to trace and attach properties, as required by the law, is by investigation, which has to be holistic in nature, and which must necessarily include among other things bank accounts. If bank accounts are to be investigated with any degree of success for the purpose of tracing criminality in transactions, how else can that be done without exercising some degree of control over the account in question? ?It stands to logic and common sense that any serious investigation of criminality in a bank account has to first foremost and start with taking control of the bank account itself, or at least putting some restraints on the account; anything short of that will be quixotic, because funds in the account investigated will simply take flight. That is the logic behind Sections 28 and 29 of the Act; see the decision of this Court in APPEAL NO: CA/A/306/2016 between AR SECURITY SOLUTIONS LIMITED V. ECONOMIC & FINANCIAL CRIMES COMMISSION (EFCC). The need for credible evidence, showing the money to be proceeds of crime underscores the necessity for the respondent mandate to ‘immediately trace and attach’ the property. Prima facie proof starts for the purpose of the Act with arrest of the accused person for financial crimes, which now denotes at this stage that the monies in the account are likely proceeds of crime, and therefore liable to forfeiture, thus necessitating the grant of the interim order. It is for these reasons that the monies in the accounts is fair game, because the attachment and proper investigation of such accounts will assist the respondent in prosecuting the accused, successfully, or consequently lead to the discharge of the order, depending on how the investigation goes. Learned counsel to the appellant contends that it is not enough to merely allege that money was paid into an account, but that in addition the origin of the funds must be shown to be illegal. It has to be pointed out that ultimately, it is for the same reason that the order sought and granted in this becomes necessary, as it explains the necessity for the respondent to have not only access but control of the account in question, by having it frozen, anything else might end up being pyrrhic for the respondent. On the whole this Court is satisfied that the trial Court was right in granting the order to temporarily freeze the accounts of the appellant, and refusing an application to set aside that aside, not least because Courts have to be proactive in matters like these, in the interest of justice.” Per MUSTAPHA, J.C.A. (Pp. 6-11, Paras. G-E).”
Part 5: Criminalizing Possession of unexplained property/assets in excess of legitimate earnings’ prosecutions – Perspective of Burdens and Standards of Poof (SC: 172/2017: Gabriel Daudu v. FRN as case study).
The recent case of Gabriel Daudu v. FRN has generated a lot of controversy and the impact of the judgment on the element of burdens and standards of proof is the focus of the discussion in this part of the presentation.
Significantly, the recent Supreme Court decision in (SC: 172/2017: Gabriel Daudu v. FRN impacting on burden of proof in money laundering cases may have made a statement of the law on burdens of proof in criminal cases cogent and compelling. In criminal cases there are two main burdens. The first is the legal burden on the prosecution to prove the offence against the defendant beyond reasonable doubt. The second is the evidential burden on the defendant to introduce sufficient evidence to prove the probability of the defence or to create a reasonable doubt in the case of the prosecution. Esangbedo v The State48 Nnaemeka-Agu JSC explained the meaning of the burden of proof in criminal cases, “For the avoidance of doubt the expression ‘burden of proof’ is often loosely used to include the burden to prove the guilt of a defendant beyond reasonable doubt – a burden which is always in the prosecution and never shifts – and the burden of introducing evidence on an issue in the trial – which may be place by law on either the prosecution or the defence”
The nature of the evidential burden on defendants in criminal cases is not free from controversy49. In Popoola v The State,50 the Supreme Court considered the defence of insanity. Ariwoola JSC said, “The standard of such proof is not as high as that cast on the prosecution. It is not proof beyond reasonable doubt but it is proof of reasonable probability, proof sufficient to create a reasonable doubt in the mind of a fair minded jury as to the sanity of the accused.” Then Ngwuta JSC said, “…..the burden of proof on the accused who relies on a defence of insanity is less than the burden cast on the Prosecution to prove his guilt beyond reasonable doubt. The burden of proof is satisfied on a balance of probability or preponderance of evidence.” The question is whether the views of the learned justices in Popoola (supra) are conflicting and if so, which is the correct view. Is the burden discharged on the balance of probabilities or upon proof of reasonable probability sufficient to create a reasonable doubt in the mind of the Judge?
The burden of proof on defendants in criminal cases requires clarification because there are two kinds of burden on the defendant. The first is the statutory burden of proving the facts required to establish any defence to the charge. Section 139(1) of the Evidence Act 2011 states that, “Where a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence which he is charged is upon such person.” The second is the evidential burden of introducing sufficient evidence of facts which create reasonable doubt in the case of the prosecution. Section 135(3) of the Evidence Act states that, “If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.”
In Partap v State of Uttar Pradesh,51the Supreme Court of India considered the burden of proof on the defendant and held that there is in fact more than one kind of burden on defendants in criminal cases. The first is the statutory burden of proving the existence of circumstances bringing the case within any defence to the offence and the second is the burden of introducing evidence sufficient to create reasonable doubt about the guilt of the defendant. Therefore, if the evidence does not prove the existence of any defence but upon a consideration of the whole evidence reasonable doubt is established then the defendant will be entitled to an acquittal. The Supreme Court, citing the decision in Rishi Kesh Singh, said, “The legal position of a state of reasonable doubt may be viewed and stated from two opposite angles. One may recognize, in a realistic fashion, that although the law prescribes only a higher burden of the prosecution to prove its case beyond reasonable doubt and the defendant lower burden of proving his plea by a preponderance of probability only, yet there is in practice, a still lower burden of creating reasonable doubt about the defendant guilt and that a defendant can obtain an acquittal by satisfying this lower burden too in practice. The objection to stating the law in this fashion is that it looks like introducing a new type of burden of proof, although it may be said, in defence of such statement of the law that it only recognizes what is true.”
There is a burden on the defendant where; (i) where the law imposes upon him the burden of proving particular facts. See the proviso to section 36(5) of the Constitution FRN; or (ii) where the law requires him to prove the existence of any exception or exemption or qualification to the law creating the offence. See section 139 of the Evidence Act; or (iii) where any fact is especially within his knowledge. See section 140 of the Evidence Act. Section 136(1) of the Evidence Act places the burden of proof for any particular fact on the person who asserts the existence of that fact. See also section 139(1) of the Evidence Act. In NAF v Kamaldeen,52a General Court Martial convicted the respondent of stealing money belonging to the Nigerian Air Force. In his defence the respondent stated that the Chief of Air Staff authorised the withdrawal of the money. The Supreme Court held that the burden was on the respondent to prove the alleged authorisation. Musdapher JSC said, “It is settled law that where a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption to the law lay within the accused… In the instant case, huge amounts of money were taken out from the Nigerian Air force and the money was shared amongst the officers who caused and participated in the withdrawal. If they had the authority to do so, the burden is clearly on them to prove the same, more so when the purpose of withdrawing the money was defeated.”
Section 137 of the Evidence Act 2011 states that, “Where in any criminal proceedings the burden of proving the existence of any fact or matter has been placed upon a defendant by virtue of the provisions of any law, the burden shall be discharged on the balance of probabilities.” One must admit that several judicial authorities hold that the burden on the defendant must be discharged on the balance of probabilities. However, this author disagrees with the provisions of section 137 of the Evidence Act and humbly submits that the defendant does not discharge the evidential burden on the balance of probabilities.
The standard of proof on the defendant can be found in section 121(a) of the Evidence Act. That section states that, “A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does exist.” Therefore the burden is discharged if the defendant can satisfy the trial Judge of the reasonable probable existence of the facts. In Oteki v The State,53Oputa JSC said, “Where the facts deposed to by a witness look probable when considered in relation to all the surrounding circumstances of the case, they induce belief. Probability is always a safe guide to the sanctuary where truth resides.”
A defendant does not discharge the evidential burden on the balance of probabilities or on the preponderance of evidence because in criminal cases, unlike in civil cases, there is no imaginary scale and no weight of evidence. In Ozaki v The State,  Obaseki JSC said, “It was therefore not a statement of law by the Supreme Court that the defendant’s duty in relation to the defence of alibi is to establish the defence on the balance of probabilities. Balance of probabilities means preponderance of evidence. In other words, the defendant person adduces evidence which outweighs the evidence of the prosecution on the issue of alibi. That is not the law. As stated above, the only onus on the defendant is the evidential burden. The effect of such evidence is not dependent upon its preponderance. It may be scanty or minimal but yet very effective in raising reasonable doubt in the minds of the tribunal.”
In Olonade v Sowemimo,54 Muhammad JSC explained the meaning of the standard of proof in civil cases, the balance of probabilities, “My Lords, in a civil matter such as this, the court decides the case on the balance of probabilities or preponderance of evidence. The trial court does this by first deciding which evidence it accepts from each of the parties, putting the accepted evidence adduced by the plaintiff on one side of the imaginary scale and that of the defendant on the other side of the scale and weighing them together. The court then decides which side’s evidence is heavier, not by the number of witnesses called by either party or on the basis of the one being oral and the other being documentary, but by the quality or probative value of the evidence be it oral and/or documentary.” This is certainly not the manner in which criminal trials are conducted. In many criminal trials the defendant does not give evidence. There is no imaginary scale to weigh the evidence of both sides and if at the end of the case for the prosecution a prima facie case is not proved, the defendant must be discharged.
It is for this reason that there is nothing wrong with the trial court in criminal cases evaluating the evidence of the prosecution first and making findings before evaluating the evidence of the defence. Unlike in civil cases the evidence of the prosecution and the defence are not placed side by side on an imaginary scale and decided on the preponderance of evidence. In Oteki v The State,55 the trial judge considered the evidence of the prosecution first and found that the charge had been proved before considering and rejecting the evidence of the defendant. The appellant complained that this procedure caused to the trial judge to wrongly evaluate the evidence. The Supreme Court held that there was nothing wrong with the trial judge assessing the prosecution’s case first and making findings of fact before considering and evaluating the appellant’s defence.
One must admit that several judicial authorities hold that the burden on the defendant must be discharged on the balance of probabilities. However, there is also judicial authority that the standard of proof on the defendant seeking to prove the defence of alibi or insanity is not on the balance of probabilities but an evidential burden to establish the reasonable probable existence of the facts. That burden was explained in Ukwunnenyi v The State, where Oputa JSC said, “There is however an onus on the defendant – the onus of introducing evidence tending to show that he might not have been (not that he was not) at the scene and at the time the alleged offence was committed. If any trial court insists that the evidence tendered by the defendant (pleading the alibi) must show that he was not there, that will be casting the onus of proving his innocence on a defendant. That will be wrong. If the evidence tendered by the defendant merely raises a doubt as to whether he was present at the time and place of the offence that is enough to secure him an acquittal.”
From the foregoing, can we say that the burden of proof on defendants in criminal cases is discharged on the balance of probabilities or upon proof sufficient to create a reasonable doubt in the mind of the Judge? Section 137 of the Evidence Act which states that, the standard of proof to discharge the burden on the defendant in criminal cases is on the balance of probabilities represents the current position of the law on this matter.
Based on the foregoing settled principles of law on burdens of proof in criminal cases, it is argued forcefully in this paper that our country’s legal framework particularly court pronouncements ought to carefully examine the manner in which burdens of proof are allocated between the prosecution and defendant in money laundering cases.
In respect of criminal proceedings involving proceeds of crime, the burden of proof and on who lays such burden has been a subject of controversy. The Supreme Court alluded to this fact in the case of GABRIEL DAUDU v. FEDERAL REPULIC OF NIGERIA (supra).
There are a plethora of similar statutory provisions on the subject.56
Section 19(2) of the Money Laundering (Prohibition) Act, 2004 provides:
In any trial for an offence under this Act, the fact that an accused person is in possession of pecuniary resources or property for which he cannot satisfactorily account and which is disproportionate to his known sources of income, or that he had at or about the time of the alleged offence obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, may be proved and may be taken into consideration by the Federal High Court as corroborating the testimony of any witness in such trial.
The effect of the above statutory provision is the thrust of argument in the case of Gabriel Daudu vs FRN decided by the Supreme Court on 26th January, 2018. I will briefly discuss the facts of the case and decisions reached by the Supreme Court and subsequently illustrate how this revolutionary decision has impacted on the element of burden of proof in criminal trial process on Money Laundering particularly on the subject of criminalizing assets in excess of legitimate earnings in Nigeria.
Clearly, what shifted in the Gabriel Daudu vs FRN’s case is not the general burden of proof which always remain with the prosecution, but the evidential burden which by its nature is always shifting. This is my personal view which was upheld by the Supreme Court in the landmark judgment.
I am aware that the decision reached by the Apex Court in this revolutionary judgment has been a subject of intense debate and controversy. Our respected learned silk, J. B. Daudu SAN here present in this gathering argued the case for the Appellant while I represented the Respondent, The Economic and Financial Crimes Commission in the final argument before the Supreme Court. The learned silk, understandably is not in agreement with the final outcome and may wish to take the benefit of the floor to canvass his position. Of course, the floor is open. Notwithstanding, I have great and tremendous respect for the advocacy skills of J. B. Daudu SAN and will be ever willing and ready to learn at his feet.
Part 6: Asset Tracing, Recovery and Management Regulations 2019 on Criminal Forfeiture.
The Asset Tracing, Recovery and Management Regulations 2019 is structured into 4 parts. Part 1 addresses the objective and application of the regulations. Part 2 is concerned with the functions of the Attorney General of the Federation including the duties. Part 3 deals with the procedure for asset recovery and management. Part 4 titled miscellaneous provisions including powers to issue guidelines and directions, non-compliance, revocation, interpretation and citation. The regulations replaced the existing proceeds of crime regulation 2012 with effect from 31st October, 2019.
The regulations set out procedures for all law enforcement and anti-corruption agencies – which are all supervised by the Attorney General’s Office – to ensure the effective coordination of:
the investigation of illegally acquired assets and the proceeds of crime;
the tracing and attachment of assets and the proceeds of crime of persons under investigation;
the seizure and disposal of assets and proceeds of crime that are subject to forfeiture; and
the recovery of stolen assets in and outside Nigeria.
The objectives of the regulations is to “prescribe procedures for all Law Enforcement Agencies (LEAs) and Anti-Corruption Agencies (ACAs) to ensure an effective co-ordination in –
(a) The investigation of illegally acquired assets and proceeds of crime by any person, corporate bodies including Financial Institutions and Designated Non-Financial Institutions;
(b) Tracing and attachment of assets and proceeds of crime of persons and corporate bodies being investigated under an enabling Act;
(c) The seizure and disposal of assets and proceeds of crime where such asset or proceeds of crime have been provided to be subject to forfeiture under an enabling Act; and
(d) The recovery of stolen assets within and outside Nigeria in line with international best practices in order to protect the financial integrity of the country, address the distrust in the handling of recovered illicit assets and provide a transparent means for the disposal of such assets.
The regulations are to apply to ‘illegally acquired assets and proceeds of crime by a person, corporate bodies including Financial Institution and Designated Non-Financial investigated or prosecuted under any relevant Act in Nigeria’.
The duties and functions of Attorney-General of the Federation include-
(a) Co-ordination of inter-Agency investigation in recovery matters within and outside Nigeria;
(b) Co-ordination of inter-Agency tracing of proceeds of crime within and outside Nigeria;
(c) Collation of all data relating to recovered assets within and outside Nigeria from all Law Enforcement Agencies whose laws empowered them to undertake recoveries;
(d) Operating and maintaining a centralized database for the storage of records of all recovered assets within and outside Nigeria;
(e) Maintaining a depository for all forfeiture orders issued by Nigerian Courts and such other courts outside Nigeria;
(f) Overall custody and management of Final Forfeited Assets;
(g) Approval and appointment of asset managers;
(h) Establishment of a disposal system for recovered assets;
(i) Initiating recovery and repatriation of all seized and forfeited assets by foreign countries on behalf of Nigeria;
(j) Management of forfeited assets in foreign jurisdiction;
(k) Collaborating with relevant organization on matters related to assets tracing, recovery, management and disposal; and
(l) Ensuring capacity building for all LEAs and ACAs on asset tracing, recovery and management of seized, confiscated and interim forfeited assets.
Under the regulations, the Attorney General’s Office will conduct all forfeiture proceedings, both conviction and non-conviction based. Ongoing conviction-based forfeiture proceedings must be transferred to the office and it has the power to take over cases relating to seized, confiscated and forfeited assets.
Pursuant to the regulations, the attorney general must establish a structure for the transparent management of forfeited assets, which should include a committee comprising at least 14 separate government agencies and other organizations.
Further, the regulations state that all proceeds from the disposal of final forfeited assets must be paid into the federal government’s asset recovery account with the Central Bank of Nigeria. In addition, the regulations state that funds relating to forfeited assets which belong to other tiers of government (ie, state or local governments, as opposed to the federal government) must be paid into the interim forfeiture recovery account with the Central Bank of Nigeria. Proceeds from perishable assets must also be paid into the interim forfeiture recovery account.
Within 15 days of receiving confirmation of the proceeds from the Central Bank of Nigeria, the attorney general must inform the finance minister. Within 30 days of being informed, the finance minister must arrange for the proceeds to be transferred into the consolidated revenue account for necessary action. Moreover, within 45 days of being informed that funds which belong to another tier of government have been deposited into the interim forfeiture recovery account, the finance minister must arrange for the proceeds to be transferred to the relevant tier of government.
The regulations instruct the Attorney General’s Office and the Ministry of Finance to negotiate no less than 30% of any funds recovered on behalf of other tiers of government as administrative charges of the federal government.
The regulations conclude with a provision instructing all existing bodies which exercise functions relating to the management of forfeited assets to end such management. Handover notes had to be submitted to the Attorney General’s Office by 27 November 2019.
The regulations have been criticized in several quarters.57 It is said that the apparent intentions behind these regulations may appear sound, the ‘regulations are poorly drafted and do not appear to have been properly thought through’. For example, there is lack of clarity in the method by which monies in the consolidated revenue fund or any other government fund maybe lawfully withdrawn.
It has also been stated that “Section 80 of the Constitution states that monies in the consolidated revenue fund may be withdrawn only by an appropriation act or, in the case of other government funds, by an act of the National Assembly. It is uncertain whether these regulations (ie, subsidiary legislation) may properly direct the finance minister to act. Moreover, it does not appear right for the federal government to charge a 30% administrative charge on monies received on behalf of other tiers of government, even assuming that such a charge is lawful”.
The other consideration is whether the regulations offers any potency in view of the Federal High Court Judgment delivered by His Lordship, Hon. Justice R. M. Aikawa on the 16th day of July, 2020 which declared the regulation null and void. In the Federal High Court judgment, the Court held:
“Lastly, the intervener/applicant relied on asset tracing recovery and management regulations 2019 and submits that the EFCC is a distinct office from that of the Attorney General of the Federation. This action is therefore predicated on faulty pedestal…I think the position of the law is settled that regulations or rules or the like cannot override the provisions of the statute. In the case of Olowofela & Anor vs Taiwo & Ors (2019) LPELR-49177(CA), it was pronounced as follows:
“In my view, the provisions of the Guidelines and Manual cannot override the provision of Section 49 of the Electoral Act 2010 (as amended). In the case of INEC vs Peterside (supra), the Supreme Court held amongst other thus: – “Section 153 of the Electoral Act gives INEC the power to issue regulations, guidelines or manuals for the purpose of giving effect to the provisions of the Act and for its administration. That notwithstanding, it is a serious error for anybody to elevate any directive of INEC far above the provision of the Electoral Act. Where a party has complied with the provision of the Electoral Act but is in breach of any directive of INEC, he cannot be said to have breached the provisions of the Electoral Act.”
Similarly, in the case of Auwalu vs FRN (2017) LPELR-43824(SC) it was stated thus:
“The practice direction cannot also be construed as superior to either statute or rule of law.”
The other issue is the standing of the regulations in the context of section 18 of the Economic and Financial Crimes Commission Act which provides as follows:
“(1) The Commission shall ill disposing forfeited assets or proceeds thereof be subject to the supervision of the Attorney-General of the Federation.
(2) The Commission shall before disposing a forfeited asset appoint a valuer recognized by a relevant professional body who shall undertake a valuation of the asset or property.
(3) Upon valuation of any forfeited asset or properly the Commission shall forward a copy of the valuation report duly authenticated by an appointed valuer with its recommendation of the disposal of such property or asset to the Attorney-General of the Federation.
(4) No disposal of any forfeited assets or property shall be carried out without such property being advertised in at least two newspapers with national circulation in Nigeria.
(5) Where an appeal is pending the commission shall not dispose of or release any asset or property ordered to be forfeited, frozen or confiscated pursuant to the Act.”
By regulations 5(1) of the Federal Republic of Nigeria Official Gazette on asset tracing, recovery and management regulations, 2019, ‘All Non-Conviction Based Forfeiture shall be conducted by the Office of the Attorney-General of the Federation.’
This runs contrary to the existing regime which vests responsibility for disposal of those assets on the anti-graft agencies including the Economic and Financial Crimes Commission.
It is my argument that the asset tracing, recovery and management regulation 2019 cannot supplant provisions of existing legislations on the subject matter except an amendment to our laws is effected.
Paragraph 9 of the regulations stipulates that:
“All final forfeited assets recovered by LEAs and ACAs shall be handed over to the office of the Attorney-General of the Federation within 60 days from the commencement of these Regulations for management.”
This may have raised serious issues of capacity in view of other onerous responsibilities of the office of the Attorney-General of the Federation. In my view, what is required is the need to create a proceeds of crime recovery and management agency backed by legislative framework and charged with the sole responsibility for the effective management of recovered assets. This suggestion is however open to debate and I urge the floor to make their interventions.
Part 7: Suggestions and Recommendations
Criminal forfeiture is a significant deterrent tool. In the words of Professor Adedeji Adekunle,58 the significance of forfeiture in modern times, as a substantive penal measure is more noticeable in relation to its deterrent and destabilizing effect on criminals or crime organisations. If in addition to conventional penal measures like imprisonment, punishment is able to strike at the motivating factor of the crime – the financial benefit – it is likely to discourage many persons from committing such crimes. Invariably crimes that are financially motivated involve a deliberate calculation of risks and benefits by the offender. Where the risk of detection includes also the risk of losing the benefit, it is argued that this would sufficiently deter criminals. Some jurisdictions have increased the stakes significantly by extending forfeiture to circumstances where criminal trial does not take place59 and also to any asset which is not necessarily derived from the crime of conviction. The justification for
his obviously is that there is greater deterrence value in expanding the net of assets at risk of forfeiture in the event of detection.
Secondly, beyond deterrence tool, forfeiture is of strategic importance in criminal law enforcement as a substantive weapon for tackling and weakening crime particularly where it occurs in an organized form. The importance of money to organized criminal activities is graphically described thus:
Just as money is the life blood of legitimate business and industry, so too, is it the life blood of all domestic and international organized crime groups regardless of the criminal activity giving rise to the proceeds. It flow through the international banking system is what sustains the illicit operations by providing the criminal with the constant source of new capital needed to pay operating expenses and to buy goods and services.60
A deliberate systematic policy of seizing money and identified assets of criminals deprives organized criminal activity of crucial funds essential to its operations.
A third basis for forfeiture is to facilitate compensation or restitution for victims of crimes…
The title of this presentation is Judicial Updates and Legislative Developments – Economic Crimes and Forfeiture of Proceeds of Crime. It can be asserted with sufficient authority after reviewing the law and the cases including best practices that steps ought to be taken to promulgate into law the proceeds of crime bill currently pending before the Senate. Clearly, forfeiture proceedings are in variety. I. Non-conviction based asset proceedings are civil in nature being action in rem. The penalty therefore in such proceedings is on the property and not the defendant. This proceeding cannot be said to occasion criminal consequences on a defendant except on his/her property. However in a sense forfeiture of the property of the defendant without trial and where the defendant is not available under non-conviction based forfeiture can be argued to amount to criminalizing of the property, the proceeds of crime. Where the forfeiture relates to conviction based forfeiture proceedings, the result is criminalization of not only the defendant but the proceeds of the crime. Proceeds of crime in this sense including but not limited to perishable assets, and assets of diminishing value, petroleum products (PMS, Gasoline, hydrocarbon), vehicles, mechanically and electronically propelled vessels including conveyance by air, sea, road, rail and space, crops, livestock and foodstuffs, cash in hand, cash in a bank account, going concerns, real estates amongst others. Any of these assets constituting proceeds of crime could be subject of either non-conviction based forfeiture or conviction based forfeiture.
Clearly, there are three fundamental steps of compliance with constitutional guarantee on criminal forfeiture:
- The ability to trace assets subject to forfeiture or proceeds of crime in whatever form;
- The ability to restrain by judicial order, dealings on such assets; and
- Statutory authorization of a judicial body to issue a final forfeiture order over assets that have been restrained or which have been traced.
In view of the above, the absence of any of these essential elements may be fatal with the consequence that such scheme of forfeiture may be liable to being challenged as arbitrary and unconstitutional particularly where rights of innocent third parties are involved. Legislation must address these concerns frontally.
Part 8: Conclusion and a note on treatment of recovery of proceeds of crime:
I will like to conclude this address with a footnote on the need to harmonize and consolidate existing legislative provisions on the recovery of proceeds of crime and related matters in Nigeria. This is essential with a view to addressing the problem of lack of transparency and accountability associated with management of recovered funds by anti-graft agencies in the country. There appears to be lack of clarity in addressing this strategic problem in the country currently.
The proceeds of crime bill earlier treated in this presentation may be the solution to this problem but the delay in assenting to the bill is a major setback which ought to be addressed quickly and urgently.
The management and disposal of seized and confiscated assets in any country poses huge challenges. This is confirmed by the commentary below attributed to global sources.61
“The management and disposal of seized and confiscated assets by the State creates multiple policy and practical challenges both at the domestic level as well as in the context of international asset recovery cases. Countries have been tackling these through very diverse approaches and with varying levels of success. In the past 10 years, the international community has seen a number of actual cases of return. With this growing body of experience in returns, some valuable lessons can be drawn to identify effective ways to return assets, and good practices in terms of various modalities for a return consistent with the United Nations Convention against Corruption (UNCAC). At the same time, due to the technical complexities and challenges as well as the diversity of approaches adopted by countries to tackle them, there is both a strong demand for, as well as an increasing body of, good practices and lessons learned. This provides fertile ground for the development of global knowledge and guidance on effective ways to manage and dispose of seized and confiscated assets domestically as well as on the administration, return and disposition of assets where more than one jurisdiction is involved. 3. On the basis of the assumption that a well-functioning domestic system for the management and disposal of seized and confiscated assets could also facilitate the process to reach agreement on the return and disposal of assets in international asset recovery cases, there is a clear opportunity for the G20 to consider: (1) developing knowledge on approaches taken by its members in the management, use and disposal of seized and confiscated assets at domestic level, as well as on special agreements and arrangements on the return and disposal of assets in international cases and setting up transparent and accountable regimes for their management; (2) to explore the demand for, and feasibility of, developing basic principles.”
Based on the foregoing, I want to start the conversation that we should all come on board in designing an effective and efficient legal framework for the management and disposal of seized and confiscated assets in our country.
3 The Acting Chairman of EFCC, Mr. Ibrahim Mustafa Magu had announced N739 billion as the amount recovered in the first two years of his stewardship, while the Minister of Finance, Mrs. Kemi Adeosun said records availab Accountant-General of the Federation, OAGF, had only N91.4 billion as amount recovered since 2015. Available at
. Smith M. Pieth and G. Jorge,
‘The Recovery of Stolen Assets: A Fundamental Principle of the UN Convention Against Corruption
2 CMI U4 Brief, February 2007. P1.
5 Article 54(1)(c) of UNCAC encourages State Parties to use NCB measures that would allow confiscation of the proceeds of corruption without a conviction. The article (C) consider taking such measures as may be necessary to allow confiscation of such property without a criminal conviction in cases in which the offender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases.
6 See section 19(2) of the Money Laundering (Prohibition) Act 2004. See also section 15(a)(b) of Advance Fee Fraud and other Fraud Related offences Act 2006 and section 18(5) of the Economic and Financial Crimes Commission (Establishment Act) 2004.
7 Available at https://tradingeconomics.com › Countries › Nigeria accessed 30
Administration of Criminal Justice Act, 2015; Administration of Criminal Justice Law, Lagos State; Advance Fee Fraud and other Fraud Related Offences Act, 2006; Company and Allied Matters Act 2014; Conduct Bureau and Tribunal Act, Cap C15, LFN, 2004; Constitution of the Seychelles; Customs and Excise Management Act, Cap. C45 Laws of the Federation of Nigeria, 2004; Economic and Financial Crimes Commission Establishment Act 2004; European Convention on Human Rights; Evidence Act, 2011; Failed Banks Recovery
of Debts and Financial Malpractices in Banks Act; Independent Corrupt Practices & Other Related Offences Act 2000; Money Laundering (Prohibition) (Amendment) Act 2012; National Agency for the Prohibition of Trafficking in Persons Act; National Drug law Enforcement Agency Act, Cap N30, LFN, 2004 and United Nations Conventions Against Corruption, 2005.
9 Cap. C45 Laws of the Federation of Nigeria, 2004.
10 Examples of crimes not motivated by financial consideration may include: terrorists related offence such as genocide, hijacking and mass destruction of lives property etc.
11 See Section 46 of the Economic and Financial Crimes Commission (EFCC) Act 2004.
12 Part 34 of the ACJA implements specific provisions on the seizure, forfeiture, confiscation and destruction of instrumentalities of crime. Some of those provisions are not dependent upon a conviction.
13 See Section 9
– 27 of the Corrupt Practices and Other Related Offences Act creates a number of corruption offences, the proceeds and instrumentalities in connection of those offences may be subject to forfeiture in the absence of conviction or absence of prosecution (see sections 47 and 48 of the Act.
14 See Guidance Notes on Non-Conviction and Conviction based forfeiture and Management of the Res in Conviction based forfeiture in Nigeria. The Presidency: Presidential Advisory Committee Against Corruption. PACA 2017
15 Supra note 22 p. 29.
16 Supra note 22 p. 30.
17 Fola Arthur Worrey,
‘Legal Framework and Constitutional Issues on Asset Forfeiture
. Paper delivered at a two-day capacity Building for Justices and Judges on October 25
– 26, 2017 at National Judicial Institute, Jabi Abuja.
18 The Act enforces laws against the cultivation, processing, sale, trafficking and use of hard drugs and to empower the agency to investigate persons suspected to have dealings with drugs, and other related matters.
19 The National Agency for the Prohibition of Trafficking in Persons (NAPTIP) was created on 14th of July 2003 by the Trafficking in Persons (Prohibition) Enforcement and Administration Act 2003. The Agency is the Federal Government of Nigeria’s response to addressing the scourge of trafficking in persons. Available at lawnigeria.com/…/Trafficking-in-persons-%28Prohibition-and-Enforcement%29,-Ad…Accessed of 8/5/18
20 Professor Bolaji Owasanoye, Non-conviction Base Assets Forfeiture, paper delivered at a Two-Day Capacity Building Workshop for Justices and Judges at the National Judicial Institute Jabi, Abuja.
This Day Online Newspaper, 14
22 Sir David Calvert-Smith QC,
‘The Proceeds Of Crime: Past Present And Future In England & Wales
’ Available at forfeiture%20materials/No67_19VE_Smith.pdf. Accessed on 7/5/18.
23Supra Note 25.
26Policy and Legal Advocacy Centre (PLAC),
‘Observations on the Proceeds of Crime Bill,
- Available at
30 (1999) LPELR-616(SC)
31 Per Ogwuegbu, J.S.C (Pp. 39-40, paras. E-B)
32 (2014) LPELR-22014(SC)
33 Per Ariwoola, J.S.C.
34 (2016) LPELR-40252(CA)
35 (2016) LPELR-40252(CA), Per ABBA-AJI, J.C.A. (Pp. 17-18, Paras. E-B)
36 (2016) LPELR-40108(SC)
37See Kalu v. F.R.N & ORS(2016) LPELR-40108(SC) Pp. 19-20, Paras. B-A)
38 (2012) LPELR-19732(CA)
39 Per BADA, J.C.A. (Pp. 33-38, Paras. D-A).
40 (2017) LPELR-43454CA
41 (2018) LPELR-44131(CA)
42 Per Ugo, J.C.A. (Pp. 44-48, Paras. C-D).
43 (2016) LPELR-40108(SC)
The EFCC said the original firms engaged by the governors
’ forum were GSCL Consulting and Bizplus Consulting Services Limited.
Suit no. FHC/ABJ/CS/415/2012
See generally, Guidance Notes on Non-Conviction and Conviction based Forfeiture and Management of the Res in Conviction based forfeiture in Nigeria, PACA 2017.
(1989) NWLR (pt. 113) 57 at 69.
49 (2013) 7 MJSC (pt.2) 191
50 (1976) AIR (vol.63) 966 at 973, Rishi Kesh Singh (1970) AIR 51 at 89.
(2007) NWLR (pt.1032) 164 at 188. See also, Abadom v The State (1997) NWLR (pt.479) 1 at 19,
52 (1986) ANLR 371 at 392. See also, Ali v The State (1988) ANLR 1 at 28, Onuoha v The State (1989) NWLR (pt.101) 23 at 32.
53 (1990) ANLR 94 at 107. See also, Ukwunnenyi v The State (1989) NWLR (pt.114) 131 at 155.
54 (2014) LPELR-22914(SC) at 27,
55 (1986) ANLR 371 at 378, See also, Kim v The State (1992) NWLR (pt.233) 17 at 44, Igago v The State (1999) NWLR (pt.637) 1, Ezeuko v The State (2016) LPELR 40046 (SC)
56 See section 19(2) of the Money Laundering (Prohibition) Act 2004. See further section 15(a)(b) of Advance Fee Fraud and other Fraud Related offences Act 2006 and section 18(5) of the Economic and Financial Crimes Commission (Establishment Act) 2004.
See Sofunde Osakwe and Belgore.
58 Professor Adedeji Adekunle,
‘Proceeds of Crime in Nigeria: Getting Our
’. (Inaugural lecture series Nigerian Institute of Advanced Legal Studies 2001 pp.. 7-9.
59 See e.g. US Civil Asset Forfeiture Reform Act, 2000, Public Law 106-185; and for South Africa see The Prevention of Organized Crime Act No. 121 of 1998.
60 Zelden MF,
‘The U.S. Experience in fighting money Laundering: Legalization and Enforcement
’ Paper presented at the UNDESD Workshop on Fraud in International Banking and Financial Transaction Abuja 14
– 17 September 1992.