● Judicial updates, legislative developments: economic crimes and forfeiture of proceeds of crime

● Judicial updates, legislative developments:  economic crimes and forfeiture of proceeds of crime

Being a lecture delivered by lecturer, Faculty of Law, University of Lagos (UNILAG), Wahab Shittu at the J.B. Daudu (SAN) Rule of Law Development Foundation (ROLDF) third Annual Criminal Law Review Conference in Abuja.

 

 

The defendant is required to ascertain lawful possession of the property or show that the property were not acquired by proceeds of crime.  More importantly since it is interim forfeiture, it is liable to be put aside by the defendant upon proof of legitimate grounds towards such civil forfeiture.

Sections 29 and 30 of the EFCC Act 2004 are related right here. The train of civil forfeiture by the courtroom below this Section relies on prima facie evidence that the property involved is liable to forfeiture.  The identical argument in respect of Section 28 is hereby adopted in taking the view that there is no such thing as a constitutional infraction of the proper 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 opinion is eminently appropriate and I undertake identical.

Code of Conduct Bureau and Tribunal Act, (CCBTA )Cap C15, LFN, 2004

The energy of forfeiture below the Act unbiased of any prison investigation is contained below part 23(2) of the Act.  By advantage of that provision, the Code of Conduct Tribunal has the energy to order the seizure and forfeiture to the state of any property acquired in abuse or corruption of workplace the place the defendant is discovered responsible by the tribunal. Assets declaration might decide property acquired in abuse of workplace by a public officer significantly failure to declare and over-declaration of property are clearly in violation of the Act.

An inexpensive query in relation to the energy to order the seizure and forfeiture to the state of any property acquired by abuse or corruption of workplace following a discovering of guilt would be, how does the tribunal set up that any property had been acquired by abuse or corruption of workplace with no prison investigation?1

In figuring out whether or not a property or property are liable to forfeiture below part 23(2) of the CCBTA, the tribunal would be anticipated to be happy that:

the property allegedly derived from abuse of workplace or corruption is correctly recognized;
that if such property was declared as prescribed below s15, the prosecution has demonstrated that the property was acquired by abuse of workplace or corruption;
the place such property was not declared, the prosecution has happy the requirement that the property was not pretty attributable to incomes, items, and so on. accepted by the Act;
that the defendant has been unable to rebut the presumption that such property was not pretty attributable to revenue, and so on.”

Section 15(3) of the Act provides room for NCB. It says (3) any property or property acquired by a public officer after any declaration required by subsection (1) of this part and which is not pretty attributable to revenue, items or mortgage accepted by this Act shall be deemed to have been acquired in breach of this Act until the opposite is proved.

Paragraph 11(3) of Part 1 of the Code of Conduct for Public Officers in the Fifth Schedule of the 1999 Constitution enhances the above provision.  It supplies:

“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 might impose contains seizure and forfeiture to the state of any property acquired in abuse or corruption of workplace.

Civil forfeiture and Constitutional Safeguards below Sections 15(3) and 23(2) Code of Conduct Bureau and Tribunal Act;

Section 15(3) Code of Conduct Bureau and Tribunal Act supplies:

Any property or property acquired by a public officer after any declaration required by subsection (1) of this part and which is not pretty attributable to revenue, items or mortgage accepted by this act, shall be deemed to have been acquired in breach of this Act until the opposite is proved.

Section 23(2): Power of the tribunal to impose punishment

The punishment which the tribunal might impose shall embrace any of the following:

a) Vacation of workplace or any elective or nominated workplace, as the case might be;
b) Disqualification from holding any public workplace (whether or not elective or not) for a interval not exceeding ten years; and
c) Seizure and forfeiture to the state of any property acquired in abuse or corruption of workplace.

 

These are provisions impacting on asset declaration and the proper of the Code of Conduct Tribunal to invoke civil forfeiture mechanism to grab and forfeit any property acquired in abuse or corruption of workplace.  It is submitted that the tribunal in exercising powers conferred on it by statute is not in breach of the rule of regulation in the circumstances.

Advance Fee Fraud and different Fraud Related Offences Act, 2006

The Advance Fee Fraud and different Fraud Related Offences Act creates a number of offences linked with fraud. Section 16 dealing with energy to manage property of the defendant permits the courtroom to manage the property of a defendant if there’s a prima facie case towards that particular person. The courtroom has powers to ban any disposition of such property.  The courtroom may additionally take steps to make sure that such prohibition is efficient by requiring a financial institution supervisor to freeze the particular person’s accounts, or by making an order divesting the particular person if speedy management of the property. There are pointers. Section 16 requires the following issues to be taken into consideration:

The particular person whose property there’s in situation should be topic to trial;
The courtroom should be happy that there’s a prima facie case towards the particular person;
A financial institution should be recognized the place the one that is topic to trial has, or is believed to have an account. If that is the case, a courtroom might make an order that the financial institution supervisor:
Stop all outward funds, operations or transactions (together with any invoice or alternate) for the time laid out in the order;
Supply any data and produce books and paperwork, in respect of the account of the particular person.

 

Section 17 dealing with forfeiture of unclaimed property and proceeds of Crime can be related. The concerns in figuring out an Ex Parte Interim Forfeiture Order embrace a satisfaction by the courtroom that property is unclaimed property or proceeds of illegal exercise below this Act, the Money Laundering Act of 2004, the Economic and Financial Crimes Commission Act of 2004 or every other regulation enforceable below the Economic and Financial Crimes Commission Act of 2004. The courtroom after the making of the forfeiture order ought to direct that discover be given or publication made for any particular person, company or monetary establishment in whose possession the property is discovered or who might have curiosity in the property or declare possession of the property to indicate trigger why the property ought to not be forfeited to the Federal Government of Nigeria. The Court should additionally stipulate an inexpensive interval from the date of giving of the discover or making of the publication, after which an utility might be made by a movement on discover for the closing forfeiture of the property involved to the Federal Government of Nigeria.  The statute envisages that ordinarily the date will be fourteen days from the date of giving discover or making the publication.

In making closing forfeiture order, part 17 requires the following issues to be taken into consideration:

An ex parte interim forfeiture order should have been granted;
Notice should have been given or publication made;
More importantly, the Court is predicted to be fairly happy that property is unclaimed property or proceeds of illegal exercise below this Act, the Money Laundering Act of 2004, the Economic and Financial Crimes Commission Act of 2004 or every other regulation enforceable.

In respect of civil forfeiture, there are Constitutional Safeguards below Sections 14, 15, 16 and 17 of the Advance Fee Fraud and different Fraud Related Offences Act, 2006.

Sections 14, 15, 16 and 17 of the Advance Fee Fraud and different Fraud Related Offences Act, 2006 present:

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 strive offences and impose penalties below this Act.

15 In a trial for an offence below this Act, the reality {that a} person-

a) is in possession of pecuniary sources or property for which he can not satisfactorily account and which is disproportionate to his recognized sources of revenue; or
b) that he had at or about the time of the alleged offence obtained an accretion to his pecuniary sources or property for which he can not satisfactorily account, might be proved and might 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 happy {that a} prima facie case has been made out towards an individual, the High Court might by an order and for such time as it might direct or require…

a) Prohibit any disposition of property, movable or immovable, by or on behalf of that particular person, whether or not or not the property is owned or held by that particular person or by every other particular person on his behalf, besides to such extent and in such method as might be laid out in the order; addressed to the supervisor of the financial institution or to the head workplace of the financial institution the place the particular person has an account or is believed to have account, direct the supervisor or the financial institution
To cease all outward funds, operations or transactions (together with any invoice of alternate) for the time being laid out in the order;
To provide any data and produce books and paperwork, in respect of the account of that particular person; and
b) Where obligatory or expedient, vest in the High Court or in any other case purchase the custody of, any property, movable or immovable, of the particular person, for the preservation of the property, pending the dedication of the proceedings.

(2)        An order below subsection (1) of this part shall have impact as specified therein, however the order might at any time thereafter be diversified or annulled by the High Court.

(3)        Failure to conform with the requirement of an order below this part shall be an offence punishable on conviction..

(a)        in the case of a person, by imprisonment for a time period of not lower than 2 years or greater than 5 years with out the possibility of a nice;

(b)        in the case of any group of individuals not being a physique company, by the like punishment of such individuals as is prescribed in paragraph (a) of this subsection;

(c)        in the case of a physique company, by a nice of an quantity equal to 2 occasions the estimated worth of the property affected by the non-compliance or N500,000, whichever is increased.

17(1) Where any property has come into the possession of any officer of the Commission as unclaimed property or any property is discovered by any officer of the Commission to be in the possession of every other particular person, physique company or monetary establishment  or any property in the possession of any particular person, physique company or monetary establishment within reason suspected to be proceeds of some illegal exercise below this Act, the Money Laundering (Prohibition) Act of 2004, the Economic and Financial Crimes Commission (Establishment) Act of 2004, the High Court shall upon utility made by the Commission, its officers, or every other particular person licensed by it and upon being fairly happy that property is an unclaimed property or proceeds of illegal exercise below the Acts said on 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 part 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  till such discover or publication as the High Court might direct has been given or made for any particular person, physique company or monetary establishment in whose possession the property is discovered or who might have curiosity in the property or declare possession of the property to indicate trigger why the property ought to not be forfeited to the Federal Government of Nigeria.

(3) Application below subsection (1) above shall first be made by a movement ex-parte for interim forfeiture order of the property involved, and the giving of the requisite discover or publication as required in subsection (2) of this part.

(4) At the expiration of 14 days or such different interval as the High Court might fairly stipulate from the date of the giving of the discover or making of the publication said in subsection (2) and (3) of this part, an utility shall be made by a movement on discover for the closing forfeiture of the property involved to the Federal Government of Nigeria.

(5) In this part;

“financial institution” shall have the identical that means as in part 7 of this Act.

“property” contains property whether or not movable or immovable, cash, financial devices, negotiable devices, securities, shares, insurance coverage policies, and any investments.

(6) An order of forfeiture below this part shall not be based mostly on a conviction for an offence below this Act or every other regulation.”

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 concerning “possession” of pecuniary sources not accounted for, to manage property of an accused particular person and usually make orders of forfeiture with out conviction for an offence.  The process prescribed for the train of such powers requiring a movement ex-parte for interim forfeiture order of the property, giving of requisite discover of publication earlier than movement on discover for closing forfeiture of the property involved to the Federal Government acknowledge adherence to truthful listening to rules and the want not to prejudice the rights of the defendant in the trial course of.

National Drug regulation Enforcement Agency Act (NDLEA), Cap N30, LFN, 2004

The NDLEA Act is designed to implement infractions bordering on onerous drugs2  Part II and III of the Act particularly present for forfeiture of property.

Section 33 dealing with seizure of property supplies that any property topic to forfeiture below the Act might be seized by the company in the following circumstances –

if the seizure is incidental to an arrest or search;
in the case of property liable to forfeiture upon course of issued by the Federal High Court following an utility made by the Agency in accordance with the prescribed guidelines.

There are additionally provisions on forfeiture of property of individuals arrested for an offence below this Act. Specifically, Section 34 dealing with investigation of Assets and Properties of Persons Arrested for an Offence Under this Act supplies that the place an individual is arrested for an offence below the Act, the company shall instantly hint and connect all the property and properties of the particular person and shall thereafter trigger to be obtained an interim attachment order by the Federal High Court.

Section 36  of the Act dealing with interim forfeiture order supplies that the place the property or property of any particular person arrested for an offence below the Act have been seized or (b) any asset or property has been seized by the company below the Act, the company shall trigger an utility to be made to the Federal High Court for an interim order forfeiting the property involved to the Federal Government and the Federal High Court shall, if happy that there’s a prima facie evidence that the property involved is liable to forfeiture, make an interim order forfeiting the property to the Federal Government.

The Act makes additional provision for closing forfeiture of property. Section 37 supplies that the place an arrested particular person is convicted of an offence below this Act, the company, or any licensed officer shall apply to the Federal High Court for a closing Order of confiscation and forfeiture of the convicted particular person’s property and properties already topic to an interim order below this Act.

 

Customs and Excise Management Act, Cap. C45 Laws of the Federation of Nigeria, 2004;

Part xii dealing with forfeiture and authorized proceedings present in sections 167, 168 and 169 of the Act as follows:

“167: (1) Any officer or police officer, or every other particular person licensed in that behalf by the Board, might at any time seize or detain something liable to forfeiture below the customs and excise legal guidelines or which such officer, police officer or different particular person has fairly grounds to believe is liable to forfeiture thereunder.

(2) Anything seized or detained below the customs and excise legal guidelines shall forthwith be delivered into the care of the Board and, topic to the provisions of the Third Schedule to this Act, shall, pending the dedication 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 method as the Board might direct.

(3)  The provisions of the Third Schedule to this Act shall have impact for the functions of forfeiture, and all proceedings for the condemnation of something as being forfeited, below the customs and excise legal guidelines.

168: Forfeiture of excisable items

the place, by or below any provision of this Act, items of a form topic to excise responsibility turn out to be liable to forfeiture by motive of some offence dedicated by an excise dealer, however such items are not out there for forfeiture, the Board might seize from the inventory of that dealer items of that sort to such amount as would appeal to the identical quantity of responsibility as the quantity of responsibility on the items liable to forfeiture.

169 Forfeiture of ships, and so on., utilized in connection with items liable to forfeiture

(1)        Without prejudice to every other provision of this Act, the place something has turn out to be forfeited below the customs and excise laws-

a) any ship, plane, automobile, animal, container (together with any article of passenger’s baggage) or something in anyway which has been used for the carriage, dealing with, deposit or concealment of the factor so forfeited both at a time when it was so liable or for the objective of the fee of the offence for which it later grew to become so forfeited; and
b) every other factor blended, packed or discovered with the factor so forfeited, shall additionally be forfeited.

(2)        Where any ship, plane, automobile or animal has turn out to be forfeited below the customs and excise legal guidelines, whether or not by advantage of subsection (1) of this part or in any other case, all deal with, attire or furnishings thereof shall additionally be forfeited.”

One safeguard towards arbitrariness and misapplication of a scheme of civil forfeiture is the aspect of discover of seizure.  Reference can be made to the Customs and Excise Management Act stipulating that the place property are seized by the Customs and such seizure was not made in the presence of the presumed proprietor or his agent, a discover of seizure should be served on the proprietor of such property.  This is to allow the proprietor of seized property to be notified of seizure of such property in line with the precept of truthful listening to.  The rationale of such discover is to allow the proprietor of such seized property to file a discover of declare in respect of the property on the Customs inside one month after the discover of seizure is served on the proprietor.  Failure to serve such discover of declare by the proprietor inside the prescribed one month interval after being served with discover of the seized property will make the property to be deemed condemned as forfeited to the state. It will appear that this provision on discover as supplied below the third schedule to the Customs and Excise Management Act is constant with the truthful listening to rules as assured below Section 36 (1) of the 1999 Constitution which supplies as follows:

In the dedication of his civil rights and obligations, together with any query or dedication by or towards any authorities or authority, an individual shall be entitled to a good listening to inside an inexpensive time by a courtroom or different tribunal established by regulation and constituted in such method as to safe its independence and impartiality.

However, the place the proprietor serves the discover of declare inside the stipulated interval, the query of whether or not the property are liable to forfeiture is set by abstract civil proceedings.

 

Money Laundering Act

The cash Laundering Act makes no particular provision for forfeiture of laundered funds fairly suspected to have been the proceeds of prison exercise laid out in the Act.  It nevertheless supplies fines for monetary service suppliers and different individuals who violated the provisions of the Act.  These penalties  embrace  doable revocation of banking and different monetary service licenses for egregious and willful assist for cash laundering, and the ‘blocking’ of accounts decided to be devices of laundering by which suspect funds have been ‘laundered’. It would seem that the Act is principally involved with disruption of cash laundering exercise and discouragement of participation in such exercise by establishments and people.  This might have knowledgeable the criminalization of breaches of responsibility of care and monetary transaction reporting guidelines with extensive powers conferred on the EFCC for investigation and surveillance.

Inspite of these issues nevertheless, part 19(2) of the Money Laundering (Prohibition) Act 2004 supplies:

“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 below part 15(a)(b) of Advance Fee Fraud and different Fraud Related offences Act 2006 and part 18(5) of the Economic and Financial Crimes Commission (Establishment Act) 2004 respectively.

Unfortunately, these legislations do not stipulate the penalties for earnings outdoors respectable sources of revenue. I shall return to the implications of this in the mild of latest judgment of the Supreme Court in Gabriel Daudu vs FRN.

 

 

National Agency for the Prohibition of Trafficking in Persons Act;3

A number of forfeiture provisions are contained below sections 34,35 and 36 of National Agency for the Prohibition of Trafficking in Persons Act.  Section 34 dealing with forfeiture of passport supplies:

“The passport of any particular person convicted of an offence involving visitors in particular person below  this Act shall be forfeited to the Federal Government and shall not be returned to that  particular person until or till the President directs in any other case, after the grant of a pardon or on the  train of the Constitution of the Federal Republic of Nigeria.

Section 35 of the Act additionally supplies for forfeitures after conviction in sure circumstances. It supplies:

“ (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, instantly or not directly, by the fee of an offence below this Act.

Section 36 offers with forfeiture of property and it supplies:

All properties of an individual convicted of an offence below this Act and exhibits to be derived  or acquired from such unlawful act that are already the topic of an interim order  shall be forfeited to the Victims of Trafficking Trust Fund.

The foregoing statutory provisions undertake primarily the instrument of non-conviction based mostly property restoration mechanism.  This mechanism basically go after the property and not the particular person and helpful in the restoration of looted property.  It can be stated that non-conviction based mostly proceedings is a useful gizmo for recovering proceeds of crime with out instituting prison forfeiture proceedings the place the aspect of delay can be utilized by events and counsel with all the implications.  It can be argued that efficient utilization of non-conviction based mostly proceedings can forcefully compel suspects to undergo judicial course of.4

 

Proceeds of Crimes Bill 2019

A daring transfer was made in the passage of the proceeds of Crimes Bill in 2019 however this was not granted assent on account of some points that were recognized throughout the overview.  Happily, President Muhammadu Buhari has despatched an government invoice that might amongst others, guarantee the administration of the funds an property confiscated from criminals. The invoice is titled, ‘Proceeds of Crime Bill’. Undoubtedly, “The Proceeds of Crime Bill is crucial and crucial in constructing and enduring and sustainable basis for the combat towards corruption, cash laundering and illicit movement of stolen funds by the banking system and throughout 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 can be said 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 recognized in the proposed invoice as said embrace:

“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.”5

The foregoing legislative framework, if passed and assented to by the President is a way more sturdy and coherent association than that contemplated below the Asset Tracing, Recovery and Management Regulations 2019 which will definitely give rise to useless controversy.

The proceeds of crime invoice 2019 is structured into 12 components. Part 1: offers with ‘Objective And Application’; Part 2: is worried with ‘Proceeds Of Crimes Recovery And Management Agency’; Part 3: pertains to ‘Civil Forfeiture’; Part 4: treats ‘Additional Investigation Powers Relating To Civil Recovery’; Part 5: offers with ‘Recovery Of Cash Being Imported Or Exported’; Part 6: discusses ‘Criminal Forfeiture And Confiscation’; Pat 7: offers with ‘Investigation, Search And Seizure’: Part 8: covers ‘Administration’: Part 9: offers with ‘Confiscated And Forfeited Properties Account’: Part 10: covers ‘Jurisdiction’: Part 11: is worried with ‘General Provisions Relating To Legal Proceedings’; whereas Part 12: offers with ‘Miscellaneous’ issues.

 

Part 2:  Issues on Proceeds of Crime and Criminal Forfeiture.

A Queens Counsel’s observations on misconceptions regarding prison forfeiture are apt.6

“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 mostly forfeiture proceedings might trample upon third events pursuits in forfeited property with disastrous implications. The query is, how can we take precautionary measures to make sure that third events pursuits in property forfeited below interim and closing forfeitures are protected?  Fola Arthur Worrey7 famous this chance just lately 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 native productive enterprise; or is the total price of the theft to collective morale, societal values, institutional ethos, inflationary impression and useful resource allocation to the state price pursuing by forfeiture?  And what number of legal professionals, actual property professionals, inventory brokers and bankers are gainfully employed in laundering the proceeds of crime”?

The different situation related is tips on how to facilitate compensation or restitution of victims of crimes since property forfeited throughout forfeiture proceedings are forfeited to the state.  In many sensible circumstances, the victims really undergo and this clearly is a serious supply of concern.

There are additionally issues that forfeiture proceedings might have the potential of impacting on normal human rights safety.  Reference is made specifically to non-conviction based mostly proceedings which might have an effect on property rights assured in the structure and when considered in the context of harmless third events rights, the phenomenal harm that would consequence might be incalculable and irreparable. Section 43 of the Nigerian Constitution enshrines the proper to accumulate and personal immovable property wherever in Nigeria.  Section 44 of the identical structure protects curiosity in each movable and immovable property and prohibits obligatory acquisition of such property besides in a fashion and for the functions prescribed by a regulation.

Given the incontrovertible fact that non-conviction based mostly forfeiture might function with out the trial, prosecution or conviction of the defendant, the argument that the proceedings might infringe on the constitutional rights of presumption of innocence of the defendant is compelling.  The   different associated situation is the bar on obligatory acquisition of property supplied for below our structure topic to the caveat that safety is not absolute since part 44(2) of the Constitution of FRN supplies that:

Nothing in part (1) shall be construed as affecting any normal law-

(a)        for the imposition of penalties or forfeitures for the breach of any regulation, whether or not below civil processes or after conviction for an offence;

(e)        regarding the execution of judgments of courts or orders of courtroom;

(okay)        regarding the short-term taking of possession of property for the objective of any examination, investigation or inquiry (interim seizure).

It can be stated that subsection (b) of the above constitutional provision is intriguing in that even when it does not particularly point out non-conviction forfeiture process, it would seem to have contemplated such process and legitimize identical as a result of it is thought usually that non-conviction forfeiture proceedings arising even the place there is no such thing as a particular trial of the defendant are additionally categorised as civil proceedings.

There are additionally points arising from the interpretation of part 23(2) of the Code of Conduct Bureau Tribunal Act (CCBTA).  In figuring out whether or not a property or property are liable to forfeiture below the provision, it is required that the tribunal be happy that

the property allegedly derived from abuse of workplace or corruption is correctly recognized;
that if such property was declared as prescribed below s15, the prosecution has demonstrated that the property was acquired by abuse of workplace or corruption;
the place such property was not declared, the prosecution has happy the requirement that the property was not pretty attributable to incomes, items, and so on. accepted by the Act;
that the defendant has been unable to rebut the presumption that such property was not pretty attributable to revenue, and so on.

Clearly the above raises two points of elementary significance.  The first is that mere declaration of property as prescribed below the Act does not supply 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 query of shifting the burden of establishing the truthful or unfair attribution of revenue throughout the proceedings from the prosecution to the public official.  This burden requires very particular proof and would apply whether or not the property were declared or not, though arguably, the burden might be lessened the place the defendant had made prior full disclosure by approach of property declaration.

One elementary concern is tips on how to deal with forfeited property? As now we have famous above, most of the laws on forfeiture is federal with the implication that each one forfeited property revert to the federal authorities even with respect to property stolen from the state.  It is tough to see the equity and fairness the forfeiture of property belonging to a state to the federal authorities and the present place is to say the least, unfair and must be addressed in future laws.

Again the place forfeiture funds are made by the courtroom, the query is into which accounts are such funds made when there aren’t any designated accounts in the title of consolidated income fund?  A writer8 raised some different issues as follows:

“The second remark is the non-inclusion of provisions for the retention of a share of forfeited funds by the varied businesses as a prepared supply of sources to fund the very herculean and costly job of regulation enforcement, a job involving technical, investigative, forensic and technological experience (typically out-sourced), journey, surveillance, cost of informants and whistleblowers and many collateral actions.  This strategy, lengthy adopted in America, the place the regulation expressly authorizes the defrayment of a considerable quantity of the public expenditure incurred in preventing organized crime by recourse to a proportion of forfeited property, normally as much as 30% and initially condemned, has now gained extensive acceptance in Canada, Australia, South Africa and by worldwide monetary strike forces.

Retention of a portion of forfeited funds can be necessary as a result of the budgeting course of of the NASS is not analytical and by no means ends in a needs-based funds for these key businesses, therefore their fixed chorus of ‘under-funding’ over the years.  However, one should not low cost the potential issues {that a} coverage of company retention of forfeited funds may give rise to if not correctly monitored, which is all of them, there may be a temptation to maintain again data that may, when withheld till the most propitious second, increase its share of the bounty.  Or, as has occurred typically in those jurisdictions which have the coverage, businesses typically leap the gun, seizing property price a fraction of what continues to be in the pipeline and not but recognized; or earlier than assuring that the cash is certainly most certainly to be the proceeds of a crime…”

Issues have additionally been raised about lack of a definite authorized framework for forfeiture contained in a single single laws, the current pattern being that forfeiture provisions are scattered by a spread of legislations giving rise in lots of circumstances to confusion and uncertainty.  The practitioner is thus pressured to journey spherical a number of statutes to unravel important rules, apply and process on property forfeiture.

Uniform guidelines might have to spell out concisely relevant guidelines throughout unexpected circumstances by ordering cheap funds for the maintenance or schooling or medical payments of dependents, particularly minors; separating the traced funds from the foremost account of a functioning enterprise in order to allow it proceed buying and selling or permitting cost to respectable collectors or different service suppliers, however with a caveat for steady reporting for monitoring functions; appointment of a receiver to handle the firm the place it is tough to tell apart between the prison funds or property and that of the enterprise, with the receiver’s price being met by firm revenue and the earnings of the firm being distributed in a approach that meets the quantity recognized as proceeds of crime; the provision of various lodging for dependents with lease being paid out of the respectable funds or revenue from different property of the defendant NOT related with the crime, or the place there are inadequate funds for that objective, permitting for a interval of grace for such occupants to safe various lodging.9

Attempts are made to handle some of these issues by the proposed proceeds of crime invoice pending earlier than the National Assembly. The proposed proceeds of crime bill10 has the following goals to wit: to supply for an efficient authorized and institutional framework for the restoration and administration of the proceeds of crime or advantages derived from illegal actions; to deprive an individual of the proceeds of an illegal exercise, instrumentalities of an offence and every other profit derived from an offence dedicated inside or outdoors Nigeria; to forestall the re-investment of proceeds of illegal exercise in the furtherance of prison enterprise; to harmonize and consolidate present legislative provisions on the restoration of proceeds of crime; to make complete provisions for the restraint, seizure, confiscation and forfeiture of property derived from illegal actions and any instrumentalities used or supposed to be use in the fee of such illegal actions.

Salient points raised in the invoice embrace the want to ascertain proceeds of crime restoration and administration company, the want to supply for an efficient authorized and institutional framework for the restoration and administration of the proceeds of crime or advantages derived from illegal actions, the have to deprive an individual of the proceeds of an illegal exercise, instrumentalities of an offence and every other profit derived from an offence, the want to ascertain a confiscated and forfeited properties account specifically designated as such with the Central Bank for lodging all recovered proceeds of crime with identical to be managed by the Accountant-General of the Federation; and the have to harmonize and consolidate present legislative provisions amongst others.

Negative issues on forfeiture should be balanced towards the justification for asset restoration significantly in respect of proceeds of crime. Professor Bolaji Owasanoye11summarized the justification for asset forfeiture to incorporate:

Legitimate and illegitimate enterprises require funds to run properly; illegitimate and prison enterprises use proceeds of crime to – compromise corrupt authorities officers  rent professionals to defend criminals in courtroom, cook dinner books of account or facilitate entry to monetary techniques; corrupt the prison justice course of; purchase instruments and tools of crime; contest, sponsor or retain elective or different political workplace; and so on., the extra the funds generated, the extra out there to widen operations, diversify into different actions each authorized and unlawful and strengthen the organizational construction; due to this fact, asset restoration and confiscation of proceeds of crime is a crime preventing instrument designed to weaken or incapacitate criminals and strengthen the state.

 

Part 3: Best Practices on Criminal Forfeiture

In different jurisdictions, there are adequate authorities on forfeiture when no prison fees are laid or confirmed towards a defendant.  A working example 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 worldwide authorized mechanisms akin to UNCAC and the forty Financial Action Task Force Recommendations (along with two Council of Europe Conventions), common authorized requirements can be stated to exist the place:

a) The confiscation of property linked to severe prison offences akin to corruption, cash laundering, drug offences and different offences that generate proceeds of crime with out the prior existence of a prison conviction, is inspired.
b) Confiscation measures might be utilized to the direct proceeds of crime and additionally to property, together with any incomes and different oblique advantages, obtained by changing or remodeling the direct proceeds of crime or intermingling them with different presumably lawful, property.
c) Confiscation measures might be utilized to individuals instantly suspected of prison offences and additionally to any third events which maintain possession rights with out the requisite bona fide with a view to disguising their wrongful function in amassing the wealth in query…12

The pattern established by the circumstances is that non-conviction based mostly forfeiture proceedings being an motion in rem targets the property and not the particular person.  In implementing the non-conviction based mostly continuing, recourse might should be made to part 15 of the 1999 Constitution of Federal Republic of Nigeria abolishing corruption and abuse of energy together with part 43 and 44(1) of the Constitution recognizing rights of residents to accumulate and personal immovable property together with proper not to compulsorily take possession of such property rights besides in a fashion prescribed by regulation topic to the caveat supplied in part 44(2)(b) offering for the imposition of penalties of forfeiture for breach of any regulation whether or not below civil course of or after conviction for an offence.  This is the grundnorm legitimizing forfeiture proceedings in Nigeria.  It has been stated nevertheless, that non-conviction based mostly forfeiture being proceedings in rem are topic to the following limitations:13

S135 of the Evidence Act is not relevant, as NCB proceedings are “in rem” (towards an asset) not towards “a person” and are not supposed to find out whether or not any particular person has been responsible”.
This side of part 135 of the Evidence Act which supplies for proof past cheap doubt of a prison allegation made in a civil proceedings is not related or relevant to such proceedings. This part will always be required to be addressed in the context of NCB proceedings and clearly distinguished as inapplicable.
Constitutional or diplomatic immunity is not related or relevant to such forfeiture proceedings. If any one that enjoys constitutional or diplomatic immunity claims to have curiosity in the subject-matter of the proceedings he shall fulfill the courtroom of the following necessities;
Show trigger 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 overview that non-conviction based mostly forfeiture proceedings are akin to prison proceedings as a result of however its punitive nature, the motion is towards the property itself and not the particular person.

 

Part 4: Analysis of Recent Cases in Asset Forfeiture in Nigeria

A consideration of latest circumstances on prison forfeiture is fascinating in deepening our jurisprudence on the topic. I’ve chosen to establish and espouse the rules on prison forfeiture highlighted in 18 of such circumstances significantly by the Court of Appeal and the Supreme Court respectively. This is knowledgeable by my conviction that regulation is greatest studied and appreciated by the circumstances.

In sensible phrases, our courts in train of jurisdiction on interim and closing forfeitures of property constituting proceeds of crime, have in latest occasions forfeited a number of property to the federal authorities of Nigeria.  A couple of examples would suffice.

 

(1)        In AG BENDEL STATE v. AGBOFODOH14 the Supreme Court additional clarified the definition of forfeiture as follows:

While the phrase “forfeiture” was not outlined in part 7 of the Interpretation Act, the stated phrase is outlined in Words and Phrases, Legally Defined, third version 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, sixth version, “forfeiture” is outlined as “loss of property or money because of breach of a legal obligation” and the phrase “forfeit” in the identical dictionary is outlined 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 outlined as the place an individual loses some property, proper, privilege or profit in consequence of having carried out or omitted to do a sure act. (The italics is for emphasis solely). I’ve little question due to this fact that the phrase “forfeiture” utilized in part 2(1)(a) of the Decree comes inside the above definitions.15

 

(2)        In ABACHA v. FRN16 the Supreme Court in providing additional insights on the definition of forfeiture held as follows:

The phrase “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 722.1717 Per Ariwoola, J.S.C.

 

 

 

(3)        In BASHIR v FRN18, the Court of Appeal deciphering Section 16(b) of the Money Laundering Prohibition Act 2004 on the retention of proceeds of prison conduct held as follows:

Section 16(b):”Any person-(b) Knowing that any property both in complete or partially instantly or not directly represents one other particular person’s proceeds of a prison conduct, acquires or makes use of that property or has possession of it, commits an offence below this Act and is liable on conviction to imprisonment for a time period of not lower than 5 years or to a nice equal to five time the worth of the proceeds of the prison conduct or to each such imprisonment and nice.19

 

(4)        In KALU v. F.R.N & ORS20, the Supreme Court in construing part 16 of the Money Laundering Act which criminalises the retention of the proceeds of crime held as follows:

Any one that –

(a) Whether by concealment, elimination from jurisdiction, switch to nominees or in any other case retains the proceeds of a crime or suspecting that different particular person to be engaged in a prison conduct or has benefited from a prison conduct, or conspiracy aiding and so on.

(b) understanding that any property both in complete or partially instantly or not directly represents one other Person’s proceeds of a prison conduct, acquires or makes use of that property or has possession of it, commits an offence below this Act and is liable on conviction to imprisonment for a time period of not lower than 5 years or to a nice equal to five occasions the worth of the proceeds of the prison conduct or to each such imprisonment and nice.21

 

(5)        In DANGABAR v. FRN22 when the courtroom needed to decide the constitutionality of a courtroom order dealing with property suspected to be proceeds of crime pending the closing dedication of a prison case towards an accused particular person, the courtroom held:

In this Appeal into consideration, the interim order of attachment made by the decrease Court is a restraining order to cease the Appellant from dealing with the properties in situation pending the dedication of the prison case filed towards him. The EFCC Act acknowledges that any suspect who’s detected by the Police and who might probably face a confiscation or forfeiture order might try and dispose of the stated properties earlier than the dedication of the prison case pending towards him in order that the regulation would not be in a position to deprive him of the properties. In this respect, the Court has been empowered to make restraining orders akin to interim order of attachment, or mareva injunction which have the impact of freezing the property thereby stopping the suspect or accused particular person as the case might be from dealing with the proceeds of crime held by him or the third events on his behalf. See Section 20 – 27 of the EFCC Act. The pattern throughout the world is to forestall the accused particular person from retaining the proceeds of his crime and to deprive him of no matter profit he might have derived from his prison conduct. The pertinent query at this juncture is whether or not the apply of quickly depriving the accused particular person from dealing with the property suspected to be proceeds of crime pending the closing dedication of the prison case towards him is unconstitutional? There is little question that pursuant to Sections 43 and 44 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) all Citizens of this nation have the proper to accumulate and personal property wherever in Nigeria and their property ought to not be compulsorily acquired with out cost of compensation. However there’s a caveat, this proper to property is not absolute. Section 44(2)(Ok) of the stated 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 said provision confirmed the intention of the regulation maker is to validate any regulation akin to Sections 28 and 29 of the EFCC Act which permits short-term taking up of property of the accused individuals pending the listening to and dedication of a prison case that has been pending towards 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 very 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 in order to forestall the accused particular person or suspect from dissipating the property and thereby create a scenario of a fait accompli upon his conviction. The realized Senior Counsel for the Appellant argued that the reference to examination investigation or enquiry referred to in Section 44(2) (Ok) of the 1999 Constitution might not be prolonged to prison trial. It would due to this fact be obligatory to grasp the that means of the phrases used below the stated Section of the Constitution. The phrase examine is outlined by Black’s Law Dictionary, sixth Edition to imply to look at and inquire into with care and accuracy, to search out out by cautious inquisition, examination, the taking of evidence, a authorized inquiry. Also, Legal and Commercial Dictionary sixth Edition by Tapash Gan Choudhury defines ‘investigation’ at web page 479 as:- Careful search, research, closes inquiry, scrutiny, element examination, assortment of details, inquiry to determine details, inquiry, exhaustive research, and systematic search. The identical Black’s Law Dictionary sixth Edition at web page 558 defines examination as it pertains 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 outlined by Legal and Commercial Dictionary sixth Edition means:- Investigation of a matter from the varied sources with a purpose to discover the fact (Dr Ok. C. Malhotra vs. The Chancellor A. P. University Shimla AIR 1995 HP (156) Enquiry covers the listening to of the case i.e. recording evidence, admitting paperwork and usually finishing the document upon which a discovering would be based mostly. It is simply in spite of everything the materials has been positioned on document by each side that the stage of reporting a discovering would come up. Dr M. N. Dasanna v. State of A. P. (1973) 2 SCC Page 378: (1973) 1 SCWR Page 932 . After a cautious examination of the above definitions, it would be clear that permitting short-term taking of possession of property for the objective of examination, investigation or enquiry would perforce, prolong to the conduct of a prison case. I’m of the view that to do in any other case will give the constitutional provision a really slender interpretation which will defeat the objective of the Constitution itself. See – Bronik Motors v. Wema Bank (Supra). There can be no dispute about the incontrovertible fact that the Appellant was investigated earlier than the prison cost in Charge No: FCT/CR/64/2012 was most well-liked towards him. Sections 26, 27, 28 and 29 and 30 of the EFCC Act envisage that the interim order for the preservation of property is obtainable instantly after the graduation of the investigation and to final until closing dedication of the prison cost which will be initiated towards the accused individuals. The realized Senior Counsel for the Appellant argued that there was no evidence that the properties are proceeds of crime. It should not be forgotten that the Appellant has failed to use to the decrease Court to discharge the ex-parte order, paragraph 10 of the affidavit in assist of the ex-parte originating summons said that the properties and property hooked up by the decrease Court were proceeds acquired from the crime alleged towards the Appellant. The stated paragraph 10 was not denied, it is due to this fact deemed admitted. The Appellant can not be heard to disclaim the existence of that reality. Consequent upon the foregoing it is my view that the order of interim attachment and forfeiture of the property of the Appellant pending listening to and closing dedication of the prison case towards 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).23

 

(6)        In Hon. Justice I. A. UMEZULIKE (Rtd)  v. CHAIRMAN, EFCC24 a case dealt with by this author for the Economic and monetary Crimes Commission, the situation resolved was whether or not 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 decrease courtroom acted wrongly and breached the Appellant’s proper to truthful listening to in refusing to put aside its earlier order of interim attachment granted on 23/2/2017 and dismissing the Appellant’s movement on discover 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 floor one, the particulars of error disclosed thereof are that the decrease courtroom failed and or uncared for to think about in totality the submissions of the Appellant with respect to his utility to discharge and or range an Exparte Order obtained towards him by the EFCC, being the Respondent herein.

Counsel additional opined that the dismissal of the go well with with out contemplating or evaluating the additional affidavit of the Applicant vis-à-vis the Respondent on document is a denial of truthful listening to particularly as they were determinative of the utility.

Learned Appellant’s counsel additional submitted that upon allegation of denial of truthful listening to, the proper lies in the process allowed in the dedication of a case and not in the correctness of the determination 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} look at the Appellant’s additional affidavit which the decrease courtroom discovered pointless to overview disclosed that the Respondent conceded that there was a public e book presentation by the Appellant wherein a N10 Million cheque of Oranto Petroleum Ltd was issued for the buy of the e book along with different individuals who bought the identical e book at the public presentation accepted by the former Chief Justice of Nigeria.

Counsel submitted that the Appellant by his additional affidavit which His Lordship did not contemplate at the decrease courtroom had by the details adduced proved the burden required of a celebration alleging breach of truthful listening to by the courtroom which refused to put aside the order.

In reply to the Appellant’s arguments, realized counsel for the Respondent (Mr. Wahab Shittu) argued that part 28 of the EFCC Act supplies that the place an individual is arrested for an offence below the Act, the Commission shall instantly hint and connect all the property and properties of the particular person acquired consequently of such economic and monetary crime and shall thereafter trigger to be obtained, an interim attachment order from the courtroom.  In normal, as soon as the Police or every other company has recognized the property of an individual being investigated for an offence, they could seize or restrain dealings in the property the place they’re topic to forfeiture.

Counsel argued that the foundation for freezing the Bank account of the Appellant is that the stated account is prima facie tainted with laundered funds or soiled cash and that the Bank account itself is exhibit in the pending prison proceedings towards the Appellant.  Consequently, the Bank account of the Appellant which is the res or material of the prison proceedings must be preserved till the deserves of the pending prison proceedings is set.

Learned Respondent’s counsel insisted that the confiscation of property linked to severe prison offences akin to corruption, cash laundering, drug offences and the likes, with out prior existence of a prison conviction is an accepted authorized instrument of crime preventing.

Counsel submitted additional that the query of breach of the truthful listening to precept in dismissing the Appellant’s movement on discover to put aside the ex-parte order does not come up as a result of there are adequate supplies to find out the deserves of the utility, unbiased of the additional  affidavit and additional counter affidavit of the Appellant and Respondent and that these supplies raised prima facie evidence for continuing towards the Appellant and embrace, amongst  others, the admission by the Appellant in the grounds for the utility that the sum of N51,736,650.32 standing to the credit score of the Appellant in the Zenith Bank Plc. Account No. 1001189952 were proceeds from the public presentation of the e book, half of which got here from donation from litigants, a topic of pending prison proceedings towards the Appellant.

Respondent’s counsel argued that there is no such thing as a breach of truthful listening to when the decrease courtroom relied on statutory provisions in refusing to put aside the ex parte order.  Counsel insisted that the decrease courtroom is entitled to depend on related details in figuring out the deserves of the utility, significantly when a consideration of the additional affidavit and additional counter affidavit would quantity to inspecting the deserves of the prison proceedings pending towards the Appellant earlier than the High Court of Enugu State.  counsel maintained that it is adequate if as on this case, there are adequate details prima facie to proceed towards the Appellant and displaying that prison proceedings on the identical material is pending towards the Appellant and that the funds hooked up comprise allegedly tainted funds obtained from alleged proceeds of crime, the material of prison proceedings towards the Appellant.

Counsel argued that despite the fact that it was contended on behalf of the Appellant that the Court violated his proper to truthful listening to as a result of the courtroom did not consider its additional affidavit, nevertheless it should be famous that the energy conferred on the courtroom below part 29 and 34 of the EFCC Act is a particular jurisdiction and interim order of forfeiture was not meant to be indefinite however solely final for number of days until the Appellant is charged to courtroom.

The courtroom after reviewing the arguments together with part 34(1) and Section 29 of the EFCC Act made authoritative pronouncements as follows:

There is a world of distinction, in my humble view, between a prayer to range an order and a prayer to vacate, quash or put aside an order of courtroom. The grounds for the prayers were factual to the impact that the funds contained in the account were not proceeds of crime.  This was supported by copious affidavit evidence to the impact that the funds were not proceeds of corruption however the proceeds of the mental labour of the Appellant.  Be that as it might, a one depend cost had been filed by the Respondent towards the Appellant on 29/3/17 in respect of the funds in the Bank account in controversy.  The situation here’s what recourse did the Appellant have at that time.  I agree with the realized decide of the decrease courtroom that the sole situation earlier than the decrease courtroom was whether or not the order ex-parte was correctly made.  If it was correctly made, it can not be quashed, vacated or put aside by any courtroom of concurrent jurisdiction and it would solely routinely be discharged at the finish of 60 days in accordance with the phrases of the order.  If it was improperly made, a courtroom of concurrent jurisdiction can set it apart, quash or vacate it earlier than the expiration of the time period set out in the order.  As I stated earlier, a prayer to range an order is sort of totally different from a prayer to put aside, quash or vacate an order.  A prayer to range the phrases of an order concedes that the order was correctly made however for sure causes, the phrases ought to be diversified.  An utility to put aside, quash or vacate an order is in impact attacking the validity of the order.

It is my humble view that in no matter circumstances, whether or not it is a matter involving prison prosecution below the EFCC Act or not, an order of attachment of property can be put aside, quashed or vacated the place there’s proof that there was suppression of materials details or misrepresentation of details or the place the courtroom which made the order had no jurisdiction to make the order… I have to state categorically that I do not have any motive to quarrel with the rationale and the have to protect the res the place the proceeds of crime are typically the foremost keep of the evidence towards an alleged offender.  No doubt, the courtroom is justified and even entitled previous to conclusion of investigation and trial to restrain the defendant from dissipating the property alleged to have been illegitimately acquired…the particular orders sought herein to put aside or quash the ex parte order can not be granted there being no authorized foundation to take action.  Let me reiterate that now we have not been requested to range the order of the decrease courtroom attaching the account…as I stated earlier, there is no such thing as a authorized foundation to grant the foremost aid sought.  In reality, the decrease courtroom had opined as follows on web page 125 of the document:

secondly, the place a freezing order is made by one courtroom, and a trial is instituted in one other courtroom, it is my respectful view that the courtroom which initially granted the freezing order might lose the energy to overview its earlier order, however the courtroom attempting the cost might be entitled in acceptable circumstances to overview the phrases 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 enchantment is devoid of advantage and is hereby dismissed.

(7)        Another attention-grabbing case on prison forfeiture is the case of THE ECONOMIC AND FINANCIAL CRIMES COMMISSION v. MR. AYODELE FAYOSE & ANOR. 25 In this case, the Court of Appeal restated the regulation on interim preservation order envisaged by Section 34 of the Economic and Financial Crimes  and thought-about whether or not identical conflicts with Section 308 on immunity  of public officers  and Section 44 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).  The Court held as follows:

I do not additionally see any battle between Section 308 or 44 of the Constitution and Section 34 of the EFCC Act 2004 empowering appellant to use for an interim order of attachment of suspected stolen public funds as Taiwo J. urged in his judgment. Particularly on the alleged battle between Section 308 of the Constitution and Section 34 of EFCC Act, I’ve already addressed it with reference to the dictum of the apex Court (Uwaifo J.S.C) in Fawehinmi’s case. I can solely add, in settlement with Mr. Oyedepo Rotimi of counsel for appellant, that the interim preservation order envisaged by Section 34 of EFCC Act in addition to the order made by Idris J. were solely interim and did not quantity to expropriation of the funds frozen as to battle with Section 44 of the Constitution. The order was solely preservative for appellant to take possession and protect the allegedly unlawfully acquired funds to be used for doable prosecution later. I note that even civil process has provision for comparable helpful preservative orders in the title of Anton Pillar Orders and so forth that are additionally normally granted ex-parte (with out discover to the particular person affected) in order that the evidence is not misplaced or destroyed and thereby frustrate its use in Court. In any occasion, this Court has held, persistently, that the grant of interim attachment of property by ex-parte order below Section 34 of the EFCC Act does not infringe on proper to truthful listening to: 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 incontrovertible fact that forfeiting property in the interim below the EFCC Act is not unconstitutional has additionally 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 solely am I in whole settlement with those choices, I once more agree with Mr. Oyedepo Rotimi for appellant that the process of interim ex-parte purposes, usually, and significantly below Section 34 of the EFCC Act does not envisage or allow service of or becoming a member of the {party} prone to be affected by ex-parte earlier than its grant, a place settled past dispute by the apex Court in 7UP Bottling Co Ltd v. Abiola & Sons Ltd (1995) 3 NWLR (PT 383) 257 @ 287.

The Court additional held:

The argument about becoming a member of 1st respondent, a sitting Governor who enjoys absolute immunity below Section 308 of the Constitution from authorized proceedings towards him, is in truth an entire non-sequitur. In incontrovertible fact that argument of Taiwo J., sadly supported by realized silk representing 1st respondent, appear to me one in circles given the foremost plank of their different argument that the identical 1st respondent as somebody lined by immunity below Section 308 can not even be sued. With that immunity from prosecution loved by 1st respondent, how might he have been joined to the go well with earlier than Idris J? In what capability would appellant have joined 1st respondent with out infringing his immunity? As a co-applicant? This rivalry of Taiwo J. and 1st respondent’s counsel and their reliance on the circumstances they cited on impact of non-joinder (together with some on the peculiar terrain of election petitions), with due respect, confirms the knowledge in the recommendation of Nnaemeka-Agu J.S.C. in Ojibah v. Ojibah (1991) 5 NWLR (PT 191) 296 for counsel and the Courts to be cautious of ‘deciding cases and issues on the established legal jingles and catch-phrases without fully asking one’s self how properly they match into the specific details of the case.” None of the circumstances relied on by Taiwo J. in his judgment which 1st respondent’s counsel additionally cited associated to or has any bearing on the purport of EFCC Act 2004 usually or its Section 34, a particular laws enacted by our representatives in parliament to combat our hydra-headed nationwide malaise of corruption. None of those circumstances additionally raised the peculiar situation right here of whether or not an individual who enjoys absolute immunity below Section 380 of the Constitution ought to be joined when EFCC has trigger to proceed towards him pursuant to Section 34 of EFCC Act, 2004. If 1st respondent was aggrieved with the order, it was open to him to train his proper to problem it and ask for its discharge earlier than the identical Idris J., and not as he did by suing afresh in one other Division of the identical Federal High Court earlier than Taiwo J. The motion of 1st respondent even smacks of abuse of course of, which Taiwo J. must have struck down quite than grant the utility and put aside the orders of Idris J. as he did. Taiwo J. had an obligation to guard his course of 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 factor occurred when litigants approached two totally different Divisions of the identical Federal High Court on the identical situation.”26

On the query whether or not courts of co-ordinate jurisdiction are entitled to make conflicting orders on interim forfeiture concerning the identical material, the courtroom additional held:

“Instructively, there’s 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 ready by Pats – Acholonu, J.S.C., which mentioned, analyzed and noticed on the nature and jurisdictional synergy that ought to be adhered to by Courts of co-ordinate jurisdiction in these words-

It is believed inelegant and a matter that might go towards the grain of our procedural regulation for Courts of co-ordinate jurisdiction as a substitute of endeavouring to shore up the jurisdiction of one another have interaction in a kind of unsavoury competitors. They ought essentially to keep away from a scenario the place the Court by its being much less cautious exposes itself by the nature of the order it makes to ridicule and the majesty and aura of its pronouncements are both compromised or handled with ignominy as a non-issue by the confused events and I dare say with the frequent citizenry……

Where a Federal Court is prayed to make an order that’s diametrically or in battle with a subsisting order of a State High Court in the context of the identical material and the place equally equivalent or seeming equivalent prayers are sought, it ought to, in my opinion refuse to entertain…… To begin to make orders that strike violently at the coronary heart of the order of the State High Court of well-known co-ordinate jurisdiction is to lend a serving to hand in inflicting confusion in our Courts by purporting unwittingly to look to take a seat on enchantment on the determination of a State High Court.

Indeed the damning scenario does not portend astuteness and train of warning on the half 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 overlook the distinctive circumstance that might warrant a Court to naively seem to take a seat on enchantment in a ruling of a Court of the identical co-ordinate jurisdiction.” See additionally 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 besides the place the judgment or order is a nullity, one Judge has no energy to put aside or range the order of one other Judge of concurrent and co-ordinate jurisdiction …

See additional Azuh v. Union Bank Plc (2014) 11 NWLR (Pt.1419) 580 at 609-610.

The Court under ought to have been gradual in granting the order de-freezing the two accounts of the 1st respondent with the 2nd respondent which order had the direct impact of wiping out and has certainly worn out the earlier order made by the Federal High Court Lagos, a Court of co-ordinate jurisdiction with the Court under (Federal High Court Ado-Ekiti), freezing the stated 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 & ORS27 is important for deciphering the statutory provision contained below part 16 of the Money Laundering (Prohibition) Act 2004 which criminalizes the retention of the proceeds of a crime or an unlawful act on behalf of one other. It supplies as follows:

 

(9)        In the case of FRN v Ikedinwa, the rivalry was whether or not having regards to the provisions of the 1999 Constitution and the NDLEA Act, the NDLEA can seize property of an individual below investigation and apply to the Federal High Court for an order of forfeiture or attachment with out such an individual having been arrested, the Court of Appeal thought-about sections 33 and 36 of the NDLEA Act and sections 28 and 29 of the EFCC Act and held as follows:

“In this enchantment, the property sought to be forfeited or hooked up in the interim was incidental to the search of Ikedinwa’s premises and in the title of Godfrey Ikedinwa or Don Godfrey Ikedinwa who’s on the run, it would due to this fact be clear that the discovering of the trial decide that the property be launched to the 1st respondent is towards public coverage.  Any one that has dedicated an offence or acquired property illegally ought to not be allowed to make use of his escape from justice to proceed to maintain such ill-gotten property…

In a number of cases28 just lately, our courts ordered prison forfeiture of property 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 present in 15 financial institution accounts linked to Mrs. Patience Jonathan, spouse of  former President Goodluck Jonathan.  After ordering the short-term forfeiture of the funds, Justice Olatoregun ordered the EFCC to ‘publish in the Punch or any main nationwide newspaper, the orders of this courtroom for the respondents or anybody, who’s occupied with the properties sought to be forfeited, seem earlier than this honourable courtroom to indicate trigger inside 14 days why the closing order of forfeiture of the stated properties ought to 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 & Anor29 the place the EFCC utilized below part 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 by 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 utility of the Applicant made an interim order of forfeiture and additionally ordered for the obligatory publications to be made for any particular person occupied with the cash to come back and present trigger why it ought to not be lastly forfeited to the Federal Government of Nigeria.  Consequent upon the publication the Delta State Government laid declare to the cash and filed the obligatory processes.  In his judgment Honourable Justice Gabriel Kolawole said 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 closing order of forfeiture of the stated $15 million in favour of the 1st Applicant.  By this, the evidential burden  lay on the claimant as there’s already  a presumption as it were, that the stated sum of $15 million might be a proceed of an unlawful or illegal transaction, maybe a proceed of an unjust enrichment for which nobody is ready to put declare to its possession for apparent causes.”

From evaluation of circumstances on prison forfeiture whether or not in respect of non-conviction based mostly forfeiture or conviction based mostly forfeiture of property sure clear principles30 have emerged as said hereunder:

The confiscation of property linked to severe prison offences akin to corruption, cash laundering, drug offences and different offences that generate proceeds of crime with out the prior existence of a prison conviction, is inspired.
Confiscation measures might be utilized to the direct proceeds of crime and additionally to property, together with any incomes and different oblique advantages, obtained by changing or remodeling the direct proceeds of crime or intermingling them with different presumably lawful, property.
Confiscation measures might be utilized to individuals instantly suspected of prison offences and additionally to any third events which maintain possession rights with out the requisite bona fide with a view to disguising their wrongful function in amassing the wealth in query.
The purpose of civil proceedings in rem was to forestall unjust enrichment by corruption as such, by sending a transparent sign to public officers already concerned in corruption or contemplating so doing that their wrongful acts, even when they passed unscaled by the prison justice system, would however not procure pecuniary benefit both for them or for his or her households.
S.135 of the Evidence Act is not relevant, as NCB proceedings are “in rem” (towards an asset) not towards “a person” and are not supposed to find out whether or not any particular person has been “guilty”.
The side of part 135 of the Evidence Act which supplies for proof past cheap doubt of a prison allegation made in a civil continuing is not related or relevant to such proceedings. This part will always be required to be addressed in the context of NCB proceedings and clearly distinguished as inapplicable.
Constitutional or diplomatic immunity is not related or relevant to such forfeiture proceedings. If any one that enjoys constitutional or diplomatic immunity claims to have curiosity in the subject-matter of the proceedings he shall fulfill the courtroom of the following necessities;

 

Show trigger by establishing his connection to the property, and
Establish how he come about the property legitimately.

 

Non-conviction based mostly forfeiture proceedings are extra akin to civil proceedings than prison proceedings. Although a forfeiture order might be punitive, its purpose is not to punish as it is usually the intension of sentencing in prison proceedings. This motion is towards the property itself.
It can be properly established from case regulation that proceedings for confiscation akin to the civil proceedings in rem do not stem from a prison conviction or sentencing proceedings and thus do not qualify as a penalty however quite signify a measure of management of the use of property and consequently can not quantity to “the determination of a criminal charge” inside the that means Section 36(1) and 36(5) of the Nigerian Constitution and Article 6 of the European Convention on Human Rights.
In non-conviction based mostly forfeiture, the proceedings offers with the proceeds of prison conduct whereas its provisions are basically civil in nature.
The NCB proceedings make the most of civil proceedings to deal with ‘criminal assets’ which is an rising world pattern in the battle towards crime.
Civil forfeiture supplies a novel remedy used as a measure to fight organized crime. It proceeds on the premise that the property and not the proprietor has contravened the regulation. It does not require a conviction or perhaps a prison cost towards the proprietor.
Criminal forfeiture of property proceedings after an acquittal do not quantity to double punishment.
Section 36(5) of Nigerian Constitution supplies that ‘every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty’. In the mild of this provision, forfeiture proceedings are not ‘criminal’ and that this presumption does not apply to asset forfeiture circumstances.
Presumption of innocence is simply related in the precise trial for an offence the place the prosecution has the burden of displacing different presumption in favour of the defendant by adducing evidence of proof.
The proceedings are basically civil proceedings, with a normal of proof on the stability of possibilities.

 

The following are some the conditions which will result in the graduation of NCB proceedings;

The defendant/accused has fled jurisdiction and might not be situated;
The defendant/accused, being a public officer or politically uncovered particular person, acquired wealth that would not be defined/justified based mostly on his filed asset declaration kind or as respectable earnings/revenue. This might be a matter earlier than the Code of Conduct Tribunal or a problem for non-conviction based mostly proceedings earlier than the High Court.
Criminal conviction towards the defendant/accused failed or might not be proved for insufficiency of evidence however the defendant/accused acquired movable and non-movable, property together with money, which might not be justified as per (18) above;
The possession of the recognized suspected/illicit property might not be ascertained after or the asset is deserted or disowned.
The defendant/accused has passed away, abandoning property related with crime.
The defendant/accused is utilizing pseudonym from or middleman.
Orders for forfeiture of property should be proportionate31

 

(10)      In the case of MELROSE GENERAL SERVICES LTD v. EFCC & ORS (2019) LPELR-47673 the Court of Appeal whereas contemplating the energy of courtroom to make an order of interim forfeiture of properties or asset below 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 whereas contemplating the query whether or not an interim order of forfeiture of properties is an infringement on the proper to truthful listening to 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’s at stake is the preservation of the res and the conviction of the appellant is not in situation at the stage of the ex-parte utility and interim order of forfeiture. Stated in a different way is that Section 17 of the AFF Act, 2006 is an motion in rem and the incontrovertible fact that the appellant’s title is said as respondent in the motion does not change the character of the motion. 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’ve no problem in resolving this situation towards the appellant in holding that in the interim order of forfeiture of the properties in situation the proper to truthful listening to 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 that means 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 query whether or not Section 17 of the Advance Fee Fraud and Other Related Offences Act, 2006 is in battle 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 query whether or not an order of forfeiture can solely 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 place of the regulation on forfeiture of property following a seizure and sealing of property below 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 decrease Court being happy that there existed a prima facie case made the interim forfeiture order. As construed above, it is effulgent that the prescribed process for interim forfeiture of property which is justifiable below Section 44 (2) (okay) of the Constitution was scrupulously adopted 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 rivalry of the Appellants, the interim forfeiture order made by the decrease Court is not closing. The contingency on which the order was predicated is obvious from the enrolled order at web page 99-102 of the Records. The order is made to final pending the conclusion of investigation and consequent prosecution of the offences of stealing, forgery and cash laundering. Concomitantly, this situation 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 regulation 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 web page 51 of the report additionally 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 additionally Mafa v State (2013) 3 NWLR (Pt.1342) 607 at 622-623. It is to be famous that the stance of the appellant stems from the realized trial decide counting on Sections 19 and 20 of the EFCC Act 2004 which is not the appropriate regulation to be utilized. That view in my humble opinion can not stand since the trial Court is empowered to make such an order and the regulation below which it might accomplish that exists in the penal code and the prison Procedure code and so inserting the legitimate order pursuant to the fallacious regulation would not invalidate the order correctly 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 or not the forfeiture and restitution ordered by the realized trial decide falls below Section 7 of the EFCC Act, 2004 inside which operations of the Commission had acted over the property thus bringing it earlier than the Court for the order to use the Penal Code as on this case. It has to be stated that whether or not the forfeiture was effected below Section 20 of the EFCC Act or below the penal code since it is the Federal Government of Nigeria who’s the prosecuting {party}, it actually does not matter below 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 realized trial decide in directing the property to be forfeited to the Federal Government of Nigeria was supposed to debar the appellant from deriving profit from the proceeds of crime for which he was convicted and it can not be handled as double jeopardy as it is geared in the direction of deterring others who’re so minded to know that no profit would correctly inure to the one that overtly acquires what belongs to a different or the Government.” Per PETER-ODILI, J.S.C. (Pp. 48-51, Paras. C-C)…”

 

(15)      On the query Whether the Economic and Financial Crimes Commission can hint and connect property of an organization owned by a suspect below 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 query whether or not the Court can order an individual 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 length and purport of an interim order for preservation of property below 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 property envisage below the provisions of Sections 27, 28 and 29 of EFCC Act is to final until closing dedication of the prison cost which will be initiated towards an accused particular person. It does not terminate of the mere conclusion of investigation. The complete purport of the order is to protect the property or asset from doable disposal of identical by a suspect earlier than the closing dedication of the cost towards him. Elucidating on the level 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 due to this fact that the decrease Court can not lawfully discharge the Interim Order of Forfeiture granted by M. L. Shuibu J. (Now JCA) when cost No: FHC/L/460C/07 continues to be pending and has not been decided.” Per TUKUR, J.C.A. (Pp. 9-14, Paras. D-B).”

(18)      On the Power of the Economic and Financial Crimes Commission to connect or seize any property suspected to have been acquired by committing any offence below 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 doubtful; what’s in situation is whether or not the grant of such order freezing the appellant’s accounts is so as.

Sections 28 and 29 of the EFCC Act clearly empower the respondent on this case, upon the arrest of any particular person suspected of committing economic and monetary crimes to administratively hint and connect, all the property and properties of such an individual and, trigger an interim order of attachment or forfeiture to be obtained in respect of such property. These two sections of the Act place the burden squarely on the respondent to ascertain that there’s a prima facie evidence that the property in situation is liable to be forfeited account of its on being proceeds of crime, and that burden is discharged as soon as there’s an arrest for an offence below the Act, and the respondent traces the property and attaches the properties of the accused particular person acquired consequently of economic and monetary crimes; that carried out, 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, seems to be purposefully proactive with regard to restoration of proceeds of crime, and that clearly is why the goal of the Act is ‘to follow the money’. Learned counsel to the appellant submits that the respondent has to ascertain, with some diploma of certainty, that the property was acquired with proceeds of, or is proceed of monetary or economic crime, i.e. the origin of the funds should be proven to be unlawful, in any other case the utility must be dismissed. The Court can not agree extra with realized counsel to the appellant; and that being so, the solely approach the respondent can fairly be anticipated, in the circumstances, to hint and connect properties, as required by the regulation, is by investigation, which has to be holistic in nature, and which should essentially embrace amongst different issues financial institution accounts. If financial institution accounts are to be investigated with any diploma of success for the objective of tracing criminality in transactions, how else can that be carried out with out exercising some diploma of management over the account in query? ?It stands to logic and frequent sense that any severe investigation of criminality in a checking account has to first foremost and begin with taking management of the checking account itself, or no less than placing some restraints on the account; something quick of that will be quixotic, as a result of funds in the account investigated will merely take flight. That is the logic behind Sections 28 and 29 of the Act; see the determination of this Court in APPEAL NO: CA/A/306/2016 between AR SECURITY SOLUTIONS LIMITED V. ECONOMIC & FINANCIAL CRIMES COMMISSION (EFCC). The want for credible evidence, displaying the cash to be proceeds of crime underscores the necessity for the respondent mandate to ‘immediately trace and attach’ the property. Prima facie proof begins for the objective of the Act with arrest of the accused particular person for monetary crimes, which now denotes at this stage that the monies in the account are probably proceeds of crime, and due to this fact liable to forfeiture, thus necessitating the grant of the interim order. It is for these causes that the monies in the accounts is truthful sport, as a result of the attachment and correct investigation of such accounts will help the respondent in prosecuting the accused, efficiently, or consequently result in the discharge of the order, relying on how the investigation goes. Learned counsel to the appellant contends that it is not sufficient to merely allege that cash was paid into an account, however that as well as the origin of the funds should be proven to be unlawful. It has to be identified that finally, it is for the identical motive that the order sought and granted on this turns into obligatory, as it explains the necessity for the respondent to have not solely entry however management of the account in query, by having it frozen, the rest may find yourself being pyrrhic for the respondent. On the complete this Court is happy that the trial Court was proper in granting the order to quickly freeze the accounts of the appellant, and refusing an utility to put aside that apart, not least as a result of Courts should be proactive in issues like these, in the curiosity of justice.” Per MUSTAPHA, J.C.A. (Pp. 6-11, Paras. G-E).”

 

Part 5: Criminalizing Possession of unexplained property/property in extra of respectable earnings’ prosecutions – Perspective of Burdens and Standards of Poof (SC: 172/2017: Gabriel Daudu v. FRN as case research).

The latest case of Gabriel Daudu v. FRN has generated so much of controversy and the impression of the judgment on the aspect of burdens and requirements of proof is the focus of the dialogue on this half of the presentation.

Significantly, the latest Supreme Court determination in (SC: 172/2017: Gabriel Daudu v. FRN impacting on burden of proof in cash laundering circumstances might have made an announcement of the regulation on burdens of proof in prison circumstances cogent and compelling. In prison circumstances there are two foremost burdens. The first is the authorized burden on the prosecution to show the offence towards the defendant past cheap doubt. The second is the evidential burden on the defendant to introduce adequate evidence to show the chance of the defence or to create an inexpensive doubt in the case of the prosecution. Esangbedo v The State32 Nnaemeka-Agu JSC defined the that means of the burden of proof in prison circumstances, “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 prison circumstances is not free from controversy33. In Popoola v The State,34 the Supreme Court thought-about the defence of madness. Ariwoola JSC stated, “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 stated, “…..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 query is whether or not the views of the realized justices in Popoola (supra) are conflicting and if that’s the case, which is the appropriate view. Is the burden discharged on the stability of possibilities or upon proof of cheap chance adequate to create an inexpensive doubt in the thoughts of the Judge?

The burden of proof on defendants in prison circumstances requires clarification as a result of there are two sorts of burden on the defendant. The first is the statutory burden of proving the details required to ascertain any defence to the cost. 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 adequate evidence of details which create cheap 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,35the Supreme Court of India thought-about the burden of proof on the defendant and held that there’s in truth a couple of variety of burden on defendants in prison circumstances. The first is the statutory burden of proving the existence of circumstances bringing the case inside any defence to the offence and the second is the burden of introducing evidence adequate to create cheap doubt about the guilt of the defendant. Therefore, if the evidence does not show the existence of any defence however upon a consideration of the complete evidence cheap doubt is established then the defendant will be entitled to an acquittal. The Supreme Court, citing the determination in Rishi Kesh Singh, stated, “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 the place; (i) the place the regulation imposes upon him the burden of proving specific details. See the proviso to part 36(5) of the Constitution FRN; or (ii) the place the regulation requires him to show the existence of any exception or exemption or qualification to the regulation creating the offence. See part 139 of the Evidence Act; or (iii) the place any reality is particularly inside his information. See part 140 of the Evidence Act. Section 136(1) of the Evidence Act locations the burden of proof for any specific reality on the one that asserts the existence of that reality. See additionally part 139(1) of the Evidence Act. In NAF v Kamaldeen,36a General Court Martial convicted the respondent of stealing cash belonging to the Nigerian Air Force. In his defence the respondent said that the Chief of Air Staff authorised the withdrawal of the cash. The Supreme Court held that the burden was on the respondent to show the alleged authorisation. Musdapher JSC stated, “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 should admit that a number of judicial authorities maintain that the burden on the defendant should be discharged on the stability of possibilities. However, this creator disagrees with the provisions of part 137 of the Evidence Act and humbly submits that the defendant does not discharge the evidential burden on the stability of possibilities.

The normal of proof on the defendant can be present in part 121(a) of the Evidence Act. That part 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 fulfill the trial Judge of the cheap possible existence of the details. In Oteki v The State,37Oputa JSC stated, “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 stability of possibilities or on the preponderance of evidence as a result of in prison circumstances, in contrast to in civil circumstances, there is no such thing as a imaginary scale and no weight of evidence. In Ozaki v The State, [6] Obaseki JSC stated,   “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,38 Muhammad JSC defined the that means of the normal of proof in civil circumstances, the stability of possibilities, “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 definitely not the method wherein prison trials are carried out. In many prison trials the defendant does not give evidence. There isn’t any imaginary scale to weigh the evidence of each side and if at the finish of the case for the prosecution a prima facie case is not proved, the defendant should be discharged.

It is because of this that there’s nothing fallacious with the trial courtroom in prison circumstances evaluating the evidence of the prosecution first and making findings earlier than evaluating the evidence of the defence. Unlike in civil circumstances the evidence of the prosecution and the defence are not positioned aspect by aspect on an imaginary scale and selected the preponderance of evidence. In Oteki v The State,39 the trial decide thought-about the evidence of the prosecution first and discovered that the cost had been proved earlier than contemplating and rejecting the evidence of the defendant. The appellant complained that this process brought about to the trial decide to wrongly consider the evidence. The Supreme Court held that there was nothing fallacious with the trial decide assessing the prosecution’s case first and making findings of reality earlier than contemplating and evaluating the appellant’s defence.

One should admit that a number of judicial authorities maintain that the burden on the defendant should be discharged on the stability of possibilities. However, there’s additionally judicial authority that the normal of proof on the defendant looking for to show the defence of alibi or madness is not on the stability of possibilities however an evidential burden to ascertain the cheap possible existence of the details. That burden was defined in Ukwunnenyi v The State,[9] the place Oputa JSC stated,  “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 are saying that the burden of proof on defendants in prison circumstances is discharged on the stability of possibilities or upon proof adequate to create an inexpensive doubt in the thoughts of the Judge? Section 137 of the Evidence Act which states that, the normal of proof to discharge the burden on the defendant in prison circumstances is on the stability of possibilities represents the present place of the regulation on this matter.

Based on the foregoing settled rules of regulation on burdens of proof in prison circumstances, it is argued forcefully on this paper that our nation’s authorized framework significantly courtroom pronouncements must fastidiously study the method wherein burdens of proof are allotted between the prosecution and defendant in cash laundering circumstances.

In respect of prison proceedings involving proceeds of crime, the burden of proof and on who lays such burden has been a topic of controversy.  The Supreme Court alluded to this reality in the case of GABRIEL DAUDU v. FEDERAL REPULIC OF NIGERIA (supra).

There are a plethora of comparable statutory provisions on the topic.40

 

Section 19(2) of the Money Laundering (Prohibition) Act, 2004 supplies:

In any trial for an offence below this Act, the incontrovertible fact that an accused particular person is in possession of pecuniary sources or property for which he can not satisfactorily account  and which is disproportionate to his recognized sources of revenue, or that he had at or about the time of the alleged offence obtained an accretion to his pecuniary sources or property for which he can not satisfactorily account, might be proved and might be taken into consideration by the Federal High Court as corroborating the testimony of any witness in such trial.

The impact of the above statutory provision is the thrust of argument in the case of Gabriel Daudu vs FRN determined by the Supreme Court on twenty sixth January, 2018.  I will briefly focus on the details of the case and choices reached by the Supreme Court and subsequently illustrate how this revolutionary determination has impacted on the aspect of burden of proof in prison trial course of on Money Laundering significantly on the topic of criminalizing property in extra of respectable earnings in Nigeria.

Clearly, what shifted in the Gabriel Daudu vs FRN’s case is not the normal burden of proof which always stay with the prosecution, however the evidential burden which by its nature is usually shifting. This is my private view which was upheld by the Supreme Court in the landmark judgment.

I’m conscious that the determination reached by the Apex Court on this revolutionary judgment has been a topic of intense debate and controversy. Our revered realized silk, J. B. Daudu SAN right here current on this gathering argued the case for the Appellant whereas I represented the Respondent, The Economic and Financial Crimes Commission in the closing argument earlier than the Supreme Court. The realized silk, understandably is not in settlement with the closing final result and might want to take the profit of the ground to canvass his place. Of course, the ground is open. Notwithstanding, I’ve nice and great respect for the advocacy expertise of J. B. Daudu SAN and will be ever prepared and able to be taught at his toes.

 

Part 6: Asset Tracing, Recovery and Management Regulations 2019 on Criminal Forfeiture.

The Asset Tracing, Recovery and Management Regulations 2019 is structured into 4 components. Part 1 addresses the goal and utility of the rules. Part 2 is worried with the capabilities of the Attorney General of the Federation together with the duties. Part 3 offers with the process for asset restoration and administration. Part 4 titled miscellaneous provisions together with powers to situation pointers and instructions, non-compliance, revocation, interpretation and quotation. The rules changed the present proceeds of crime regulation 2012 with impact from thirty first October, 2019.

The rules set out procedures for all regulation enforcement and anti-corruption businesses – that are all supervised by the Attorney General’s Office – to make sure the efficient coordination of:

the investigation of illegally acquired property and the proceeds of crime;

the tracing and attachment of property and the proceeds of crime of individuals below investigation;

the seizure and disposal of property and proceeds of crime which are topic to forfeiture; and

the restoration of stolen property in and outdoors Nigeria.

 

The goals of the rules is to “prescribe procedures for all Law Enforcement Agencies (LEAs) and Anti-Corruption Agencies (ACAs) to make sure an efficient co-ordination in –

(a)        The investigation of illegally acquired property and proceeds of crime by any particular person, company our bodies together with Financial Institutions and Designated Non-Financial Institutions;

(b)        Tracing and attachment of property and proceeds of crime of individuals and company our bodies being investigated below an enabling Act;

(c)        The seizure and disposal of property and proceeds of crime the place such asset or proceeds of crime have been supplied to be topic to forfeiture below an enabling Act; and

(d)       The restoration of stolen property inside and outdoors Nigeria in line with worldwide greatest practices with a purpose to defend  the monetary integrity of the nation, tackle the mistrust in the dealing with of recovered illicit property and present a clear means for the disposal of such property.

The rules are to use 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 capabilities of Attorney-General of the Federation include-

(a)        Co-ordination of inter-Agency investigation in restoration issues inside and outdoors Nigeria;

(b)        Co-ordination of inter-Agency tracing of proceeds of crime inside and outdoors Nigeria;

(c)        Collation of all information regarding recovered property inside and outdoors Nigeria from all Law Enforcement Agencies whose legal guidelines empowered them to undertake recoveries;

(d)       Operating and sustaining a centralized database for the storage of data of all recovered property inside and outdoors Nigeria;

(e)        Maintaining a depository for all forfeiture orders issued by Nigerian Courts and such different courts outdoors Nigeria;

(f)        Overall custody and administration of Final Forfeited Assets;

(g)        Approval and appointment of asset managers;

(h)       Establishment of a disposal system for recovered property;

(i)         Initiating restoration and repatriation of all seized and forfeited property by international nations on behalf of Nigeria;

(j)         Management of forfeited property in international jurisdiction;

(okay)        Collaborating with related group on issues associated to property tracing, restoration, administration and disposal; and

(l)         Ensuring capability constructing for all LEAs and ACAs on asset tracing, restoration and administration of seized, confiscated and interim forfeited property.

 

Under the rules, the Attorney General’s Office will conduct all forfeiture proceedings, each conviction and non-conviction based mostly. Ongoing conviction-based forfeiture proceedings should be transferred to the workplace and it has the energy to take over circumstances regarding seized, confiscated and forfeited property.

Pursuant to the rules, the lawyer normal should set up a construction for the clear administration of forfeited property, which ought to embrace a committee comprising no less than 14 separate authorities businesses and different organizations.

Further, the rules state that each one proceeds from the disposal of closing forfeited property should be paid into the federal authorities’s asset restoration account with the Central Bank of Nigeria. In addition, the rules state that funds regarding forfeited property which belong to different tiers of authorities (ie, state or native governments, versus the federal authorities) should be paid into the interim forfeiture restoration account with the Central Bank of Nigeria. Proceeds from perishable property should additionally be paid into the interim forfeiture restoration account.

Within 15 days of receiving affirmation of the proceeds from the Central Bank of Nigeria, the lawyer normal should inform the finance minister. Within 30 days of being knowledgeable, the finance minister should organize for the proceeds to be transferred into the consolidated income account for obligatory motion. Moreover, inside 45 days of being knowledgeable that funds which belong to a different tier of authorities have been deposited into the interim forfeiture restoration account, the finance minister should organize for the proceeds to be transferred to the related tier of authorities.

The rules instruct the Attorney General’s Office and the Ministry of Finance to barter a minimum of 30% of any funds recovered on behalf of different tiers of authorities as administrative fees of the federal authorities.

The rules conclude with a provision instructing all present our bodies which train capabilities regarding the administration of forfeited property to finish such administration. Handover notes needed to be submitted to the Attorney General’s Office by 27 November 2019.

The rules have been criticized in a number of quarters.41  It is claimed that the obvious intentions behind these rules might seem sound, the ‘regulations are poorly drafted and do not appear to have been properly thought through’. For instance, there’s lack of readability in the methodology by which monies in the consolidated income fund or every other authorities fund possibly lawfully withdrawn.

It has additionally been said 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 different consideration is whether or not the rules affords any efficiency in view of the Federal High Court Judgment delivered by His Lordship, Hon. Justice R. M. Aikawa on the sixteenth 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 restoration and administration rules 2019 and submits that the EFCC is a definite workplace from that of the Attorney General of the Federation. This motion is due to this fact predicated on defective pedestal…I feel the place of the regulation is settled that rules or guidelines or the like can not 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 said thus:

“The practice direction cannot also be construed as superior to either statute or rule of law.”

The different situation is the standing of the rules in the context of part 18 of the Economic and Financial Crimes Commission Act which supplies as follows:

“(1) The Commission shall in poor health disposing forfeited property or proceeds thereof be topic to the supervision of the Attorney-General of the Federation.

(2) The Commission shall earlier than disposing a forfeited asset appoint a valuer acknowledged by a related skilled physique who shall undertake a valuation of the asset or property.

(3) Upon valuation of any forfeited asset or correctly the Commission shall ahead a replica of the valuation report duly authenticated by an appointed valuer with its advice of the disposal of such property or asset to the Attorney-General of the Federation.

(4) No disposal of any forfeited property or property shall be carried out with out such property being marketed in no less than two newspapers with nationwide circulation in Nigeria.

(5) Where an enchantment is pending the fee shall not dispose of or launch any asset or property ordered to be forfeited, frozen or confiscated pursuant to the Act.”

By rules 5(1) of the Federal Republic of Nigeria Official Gazette on asset tracing, restoration and administration rules, 2019, ‘All Non-Conviction Based Forfeiture shall be conducted by the Office of the Attorney-General of the Federation.’

This runs opposite to the present regime which vests accountability for disposal of those property on the anti-graft businesses together with the Economic and Financial Crimes Commission.

It is my argument that the asset tracing, restoration and administration regulation 2019 can not supplant provisions of present legislations on the material besides an modification to our legal guidelines is effected.

Paragraph 9 of the rules 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 might have raised severe points of capability in view of different onerous obligations of the workplace of the Attorney-General of the Federation. In my view, what’s required is the have to create a proceeds of crime restoration and administration company backed by legislative framework and charged with the sole accountability for the efficient administration of recovered property. This suggestion is nevertheless open to debate and I urge the ground to make their interventions.

 

Part 7: Suggestions and Recommendations

Criminal forfeiture is a big deterrent instrument. In the phrases of Professor Adedeji Adekunle,42 the significance of forfeiture in trendy occasions, as a substantive penal measure is extra noticeable in relation to its deterrent and destabilizing impact on criminals or crime organisations.  If along with typical penal measures like imprisonment, punishment is ready to strike at the motivating issue of the crime – the monetary profit – it is prone to discourage many individuals from committing such crimes.  Invariably crimes which are financially motivated contain a deliberate calculation of dangers and advantages by the offender.  Where the threat of detection contains additionally the threat of shedding the profit, it is argued that this would sufficiently deter criminals.  Some jurisdictions have elevated the stakes considerably by extending forfeiture to circumstances the place prison trial does not take place43 and additionally to any asset which is not essentially derived from the crime of conviction.  The justification for

his clearly is that there’s better deterrence worth in increasing the web of property in danger of forfeiture in the occasion of detection.

Secondly, past deterrence instrument, forfeiture is of strategic significance in prison regulation enforcement as a substantive weapon for tackling and weakening crime significantly the place it happens in an organized kind.  The significance of cash to organized prison actions is graphically described thus:

Just as cash is the life blood of respectable enterprise and business, so too, is it the life blood of all home and worldwide organized crime teams regardless of the prison exercise giving rise to the proceeds.  It movement by the worldwide banking system is what sustains the illicit operations by offering the prison with the fixed supply of new capital wanted to pay working bills and to purchase items and companies.44

A deliberate systematic coverage of seizing cash and recognized property of criminals deprives organized prison exercise of essential funds important to its operations.

A 3rd foundation 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 adequate authority after reviewing the regulation and the circumstances together with greatest practices that steps must be taken to promulgate into regulation the proceeds of crime invoice presently pending earlier than the Senate. Clearly, forfeiture proceedings are in selection.  I. Non-conviction based mostly asset proceedings are civil in nature being motion in rem.  The penalty due to this fact in such proceedings is on the property and not the defendant.  This continuing can not be stated to event prison penalties on a defendant besides on his/her property.  However in a way forfeiture of the property of the defendant with out trial and the place the defendant is not out there below non-conviction based mostly forfeiture can be argued to quantity to criminalizing of the property, the proceeds of crime.  Where the forfeiture pertains to conviction based mostly forfeiture proceedings, the result’s criminalization of not solely the defendant however the proceeds of the crime. Proceeds of crime on this sense together with however not restricted to perishable property, and property of diminishing worth, petroleum merchandise (PMS, Gasoline, hydrocarbon), automobiles, mechanically and electronically propelled vessels together with conveyance by air, sea, highway, rail and house, crops, livestock and foodstuffs, money in hand, money in a checking account, going issues, actual estates amongst others. Any of these property constituting proceeds of crime might be topic of both non-conviction based mostly forfeiture or conviction based mostly forfeiture.

Clearly, there are three elementary steps of compliance with constitutional assure on prison forfeiture:

The skill to hint property topic to forfeiture or proceeds of crime in no matter kind;
The skill to restrain by judicial order, dealings on such property; and
Statutory authorization of a judicial physique to situation a closing forfeiture order over property which have been restrained or which have been traced.

In view of the above, the absence of any of these important parts might be deadly with the consequence that such scheme of forfeiture might be liable to being challenged as arbitrary and unconstitutional significantly the place rights of harmless third events are concerned. Legislation should tackle these issues frontally.

 

Part 8: Conclusion and a note on remedy of restoration of proceeds of crime:

I will wish to conclude this tackle with a footnote on the have to harmonize and consolidate present legislative provisions on the restoration of proceeds of crime and associated issues in Nigeria. This is crucial with a view to addressing the drawback of lack of transparency and accountability related with administration of recovered funds by anti-graft businesses in the nation. There seems to be lack of readability in addressing this strategic drawback in the nation presently.

The proceeds of crime invoice earlier handled on this presentation might be the answer to this drawback however the delay in assenting to the invoice is a serious setback which must be addressed shortly and urgently.

The administration and disposal of seized and confiscated property in any nation poses large challenges. This is confirmed by the commentary under attributed to world sources.45

“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 wish to begin the dialog that we must always all come on board in designing an efficient and environment friendly authorized framework for the administration and disposal of seized and confiscated property in our nation.

This takes me to the just lately inaugurated 22-man inter-ministerial committee to dispose of property forfeited to the federal authorities by anti-graft businesses, particularly the Economic and Financial Crimes Commission (EFCC) by the Attorney General of the Federation and whether or not the motion is constant with constitutional and statutory provisions.

 

Significantly, whereas inaugurating the committee, Malami, SAN, stated he relied on the order of President Muhammadu Buhari, to dispose of the property, basically obtained by the former homeowners as proceeds of crimes, having been so established by the EFCC.

Clearly, it’s the statutory accountability of the EFCC below the EFCC (Establishment) Act 2004, a creation of the National Assembly, to hold out the precise disposal of all forfeited property secured by legitimate closing orders of courtroom.

 

For the avoidance of doubt, Section 31: (1) and subsections (2), (3), (4) and (5) on Final Disposal of Forfeited Property of the EFCC (Establishment), Act 2004, are very clear and unambiguous on how forfeited properties can be offered.

 

Section 31(1) states as follows: “A replica of each closing order forfeiting the property and property of an individual convicted below this act shall be forwarded to the Commission.

 

(2)        Upon receipt of the closing order pursuant to this part, the Secretary to the Commission SHALL (emphasis mine) take steps to dispose of the property involved by sale or in any other case and the place the property is offered, the proceeds thereof shall be paid into the Consolidated  Revenue Fund of the Federation.

 

(1)        Where any half of the property included in a closing order is cash in a checking account or in the possession of any particular person, the Commission shall trigger of a replica of the order to be produced and served on the supervisor or any particular person in management of the head workplace or department of the financial institution involved and that Manager or particular person shall forthwith pay over the cash to the Commission with none additional assurance than this Act and the Commission shall pay the cash obtained  into the Consolidated Fund of the Federation.

(2)        The Attorney General of the Federation MAY (emphasis mine) make guidelines or rules for the disposal or sale of any property or property forfeited pursuant to this Act.

(3)        Any one that, with out due authorization by the Commission, offers with, sells or in any other case disposes of any property or property which is the topic of an attachment, interim order or closing order commits an offence and is liable on conviction to imprisonment for a time period of 5 years with out possibility of a nice.”

 

Based on the foregoing statutory provisions, it is obvious that no every other committee counting on no matter extra-judicial order can perform the precise disposal of such property with out an modification of the EFCC Act. This implies that the just lately inaugurated Dayo Apata-led Committee is an train in gross illegality. It can be appropriate to say that the committee lawfully can not dispose off any forfeited asset and nobody also can take profit of any of the forfeited property with out infringing the legal guidelines of the land.

 

Admittedly, the workplace of the Attorney General of the Federation can solely regulate the actions of the anti-graft company with out undue interference in the precise disposal of the property.

 

It can be elementary regulation {that a} presidential directive can not supplant or override an extant provision of the regulation as this will be opposite to constitutionalism and the rule of regulation.

 

In rounding up this presentation, let me disclose my curiosity in the material. I think it is now not information that I’m the retained counsel to the suspended Chairman of the Economic and Financial Crimes Commission earlier than the Hon. Justice Ayo Salami-led judicial fee of inquiry probing the actions of the embattled Acting Chairman and EFCC below his watch and due to this fact, the temptation for the undiscerning to conclude that am attempting to settle scores might be tempting. However, that is not the case and one strategy to resolve the situation is to have recourse to part 315 (3) of the 1999 Constitution of FRN (as amended) which supplies as follows:

“Nothing on this Constitution shall be construed as affecting the energy of a courtroom of regulation or any tribunal established by regulation to declare invalid any provision of an present regulation on the floor  of inconsistency with the provision of every other regulation, that’s to say-

 

(a)        every other present regulation;

(b)        a regulation of a House of Assembly;

(c)        an Act of the National Assembly; or

(d)       any provision of this Constitution.”

 

The above might have settled the matter past any shadow of doubt, what’s left is to humbly request the HAGF to both suggest an government invoice to amend the EFCC Act 2004 earlier than inaugurating the committee and immediately disband the Day Apata SAN-led committee for being in contravention of the regulation.

 

Interestingly, one of the causes my consumer, Ibrahim Magu is being probed by the Justice Salami-led Judicial Commission of Inquiry is for alleged failure  to comply with the regulation in the disposal of forfeited property. This allegation is an element of a number of different allegations towards Magu which collapsed throughout the proceedings.

 

I say no extra!

 

Thank you for listening.

Good afternoon.

 

 

Wahab Shittu

Abuja

nineteenth November, 2020.

 

 

(Footnotes)

1 Fola Arthur Worrey,

‘Legal Framework and Constitutional Issues on Asset Forfeiture

. Paper delivered at a two-day capability Building for Justices and Judges on October 25

– 26, 2017 at National Judicial Institute, Jabi Abuja.

2 The Act enforces legal guidelines towards the cultivation, processing, sale, trafficking and use of onerous medication and to empower the company to research individuals suspected to have dealings with medication, and different associated issues.

3 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 individuals. Available at lawnigeria.com/…/Trafficking-in-persons-%28Prohibition-and-Enforcement%29,-Ad…Accessed of 8/5/18

4 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.

5

This Day Online Newspaper, 14

th

October, 2020.

6 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.

 

7Supra Note 25.

 

8  Supra.

 

9Supra.

 

10Policy and Legal Advocacy Centre (PLAC),

‘Observations on the Proceeds of Crime Bill,

Available at

http://placng.org/wp/wp-content/uploads/2017/06/Observations-on-the-proceeds-of-crime-bill-1.pdf.Accessed

on 7/5/18.

11Supra.

 

12 Supra.

13 Supra.

 

14  (1999) LPELR-616(SC)

15 Per Ogwuegbu, J.S.C (Pp. 39-40, paras. E-B)

16  (2014) LPELR-22014(SC)

18 (2016) LPELR-40252(CA)

19 (2016) LPELR-40252(CA), Per ABBA-AJI, J.C.A. (Pp. 17-18, Paras. E-B)

20 (2016)   LPELR-40108(SC)

21See Kalu v. F.R.N & ORS(2016) LPELR-40108(SC) Pp. 19-20, Paras. B-A)

22 (2012) LPELR-19732(CA)

23 Per BADA, J.C.A. (Pp. 33-38, Paras. D-A).

24  (2017) LPELR-43454CA

25 (2018) LPELR-44131(CA)

26 Per Ugo, J.C.A. (Pp. 44-48, Paras. C-D).

27  (2016) LPELR-40108(SC)

28

For instance, just lately, the Federal High Court in Lagos ordered the everlasting forfeiture of a complete of N1,442,384,857.84 present in the financial institution accounts of three corporations, which allegedly impersonated the consultants engaged by the Nigeria Governors

’ Forum to analyse the Paris/London Club mortgage refunds on account of 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 corporations were accused of impersonating a consortium of consulting corporations engaged by the governors

’ discussion board for the “verification, reconciliation and restoration of over deductions on Paris and London Club Loans on the accounts of states and native governments between 19995 and 2002.

 

The EFCC stated the unique corporations engaged by the governors

’ discussion board were GSCL Consulting and Bizplus Consulting Services Limited.

29

Suit no. FHC/ABJ/CS/415/2012

30

Supra

31

See usually, Guidance Notes on Non-Conviction and Conviction based mostly Forfeiture and Management of the Res in Conviction based mostly forfeiture in Nigeria, PACA 2017.

 

32

(1989) NWLR (pt. 113) 57 at 69.

33 (2013) 7 MJSC (pt.2) 191

34 (1976) AIR (vol.63) 966 at 973, Rishi Kesh Singh (1970) AIR 51 at 89.

35

(2007) NWLR (pt.1032) 164 at 188. See additionally, Abadom v The State (1997) NWLR (pt.479) 1 at 19,

36 (1986) ANLR 371 at 392. See additionally, Ali v The State (1988) ANLR 1 at 28, Onuoha v The State (1989) NWLR (pt.101) 23 at 32.

37 (1990) ANLR 94 at 107. See additionally, Ukwunnenyi v The State (1989) NWLR (pt.114) 131 at 155.

38 (2014) LPELR-22914(SC) at 27,

39 (1986) ANLR 371 at 378, See additionally, 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)

40 See part 19(2) of the Money Laundering (Prohibition) Act 2004. See additional part 15(a)(b) of Advance Fee Fraud and different Fraud Related offences Act 2006 and part 18(5) of the Economic and Financial Crimes Commission (Establishment Act) 2004.

41

See  Sofunde Osakwe and Belgore.

42 Professor Adedeji Adekunle,

‘Proceeds of Crime in Nigeria: Getting Our

‘Act

’ Right

’. (Inaugural lecture collection Nigerian Institute of Advanced Legal Studies 2001 pp.. 7-9.

43 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.

44 Zelden MF,

‘The U.S. Experience in preventing cash Laundering: Legalization and Enforcement

’ Paper introduced at the UNDESD Workshop on Fraud in International Banking and Financial Transaction Abuja 14

– 17 September 1992.

45

UNODC and the StAR Secretariat – An earlier model of this note was shared with the G20 Anti-Corruption Working Group at its assembly in June 2015.

 

 

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