Dame Patience Ibifaka Jonathan V. Federal Republic Of Nigeria (2019)
LAWGLOBAL HUB Lead Judgment Report
KUMAI BAYANG AKA’AHS, J.S.C.
On 26 April, 2017 the respondent filed an ex-parte application before the Federal High Court, Lagos in Suit No. FHC/L/CS/640/17 seeking an order of interim forfeiture of the sum of $5,842,316.66 (Five Million, Eight Hundred and Forty- Two Thousand, Three Hundred and Sixteen United States Dollars and Sixty Cents) in account No. 2110001712 domiciled with Skye Bank Plc in the name of Dame Patience Jonathan and the total of N2,421,953,522.78 (Two Billion, Four Hundred and Twenty-One Million, Nine Hundred and Fifty-Three Thousand, Five Hundred and Twenty-Two Naira, Seventy-Eight Kobo) in account No. 2022000760 domiciled with Ecobank Nigeria Ltd in the name of La Wari Furniture and Baths Ltd. The respondent also sought for an Order of the Court directing the publication in any national newspaper of the order under reliefs 1 and 2 above for the respondents or anyone who is interested in the property sought to be forfeited to appear before the Court to show cause within 14 days why the final order of forfeiture of the monetary properties mentioned in
reliefs 1 and 2 should not be made in favour of the Federal Government of Nigeria.
The grounds upon which the application was brought were:-
(a) That this Honourable Court has statutory powers under the provisions of Section 17 of the Advance Fee Fraud and Other Related Offences Act, 2006 to grant the reliefs sought.
(b) That the monetary properties sought to be attached are reasonably suspected to be proceeds of unlawful activities.
The application was said to be an action in rem. The Federal High Court granted the application. Dissatisfied with the Order of the Federal High Court, the appellants filed a Notice of Appeal on 3 May, 2017 which was later amended on 18 September, 2017. The name of the 2nd appellant was struck out from the Notice of Appeal. The appellant was granted leave to appeal on mixed law and facts. After hearing arguments on 6 November, 2017 the Court of Appeal adjourned for judgement.
The judgement was delivered on 12 January, 2018 dismissing the appeal. The appellant, being dissatisfied with the decision of the Court of Appeal, filed a further appeal to the Supreme Court. The Notice of appeal containing 8 grounds of appeal was filed on 15 January,
2018 (See pages 835-842 Vol. 2 of the Records).
Learned Senior Counsel, Chief I. A. Adedipe SAN formulated three issues for determination in the appeal. The issues are:-
- Whether Section 17 of the Advance Fee Fraud and Other Related Offences Act Cap 14 of 2006 is not in conflict with the provision of Sections 36 and 44 of the 1999 Constitution as held by the Court of Appeal (Grounds 1, 2, 3, 4 and 6 of the Grounds of Appeal).
- Whether the proceedings commenced under Section 17 of the said Act for an Order of Forfeiture is an action in rem and an application for civil forfeiture as held by the Court of Appeal (Grounds 5 and 7 of the Grounds of Appeal).
- Whether having regard to the onus placed on the applicant under Section 17 of the Advance Fee Fraud Act and General Civil proceeding at the Federal High Court, there were sufficient materials before the Federal High Court to validate the Orders made, as held by the Court of Appeal (Ground 8 of the Grounds of Appeal).
The respondent’s brief was settled by Oyedepo Iseoluwa Rotimi Esq. and it was filed on 19/4/2018 but deemed filed on 12/12/2018, the date the appeal was argued. In the
said brief he raised the following two issues:-
- Whether mere granting ex-parte Order of interim forfeiture by the lower Court as prescribed by Section 17 of the Advance Fee Fraud and Other Related Offences Act, 2006 violates the appellant’s right to fair hearing, so as to render the provision of the said Section 17 unconstitutional and the judgement of the Court of Appeal perverse.
- Whether having regard to the facts and circumstances of this case it can be said that the lower Court did not exercise its discretion rightly in granting the respondent’s prayer as prayed.
On receipt of the respondent’s brief, learned Senior Counsel to the appellant filed an appellant’s reply on 30/4/2018. It was deemed filed on 12/12/2018. Learned counsel stated that the reply brief was a rejoinder to the respondent’s brief on issues of law.
The contention of learned Senior Counsel for the appellant is that Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act Cap 14 of 2006 (hereinafter referred to as the Act) is in conflict with the provision of Sections 36 and 44 of the 1999 Constitution. The argument is anchored
on the fact that by its tenor, purport and intendment, it is a penal legislation that purports to give the High Court unfettered powers, not only to make an order of interim forfeiture against a citizen’s properties ex- parte, but to also make an order forfeiting the said properties finally to the Federal Government of Nigeria, without investigation, trial and conviction. Learned Senior Counsel submitted that by the provisions of Section 36 (1) of the 1999 Constitution, the civil rights and obligation of any citizen of Nigeria cannot be determined by any government or authority, including the Court without affording the said citizen a hearing. He asserted that the provision just like other provisions in the Constitution, are not only inviolate, they are sacrosanct. He argued that by the tenor and letter of Section 36 (2) (a) any person whose rights and obligations may be affected by the decision of any administering authority, including the Court, is entitled by right to make representation to the said authority before the decision affecting such a person is made and should not be condemned unheard. This is summed up in the Latin maxim audi alteram partem. Reference was
made to the following cases to buttress the submission:-
Oyeyemi v. Commissioner for Local Government (1992) 2 NWLR (Pt. 226) 661 at 768; Ika Local Government Area v. Mba (2007) 12 NWLR (Pt. 1049) 676 at 704; Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419 Adigun v. A. G. Oyo State (1987) 1 NWLR (Pt. 53) 678. Learned Senior counsel submitted that Section 17 of the Act which empowered the trial Court to grant an order of interim forfeiture against the appellant’s money ex-parte founded on a mere suspicion by the Economic and Financial Crimes Commission, violates Section 36(1) of the Constitution as the owner no longer has access to the money effective from the date the forfeiture order is made. This is tantamount to punishing the appellant without a hearing. Consequently the said Section 17 of the Act is null and void for its inconsistency with Section 36 (1) and (5) of the Constitution. If the right to own property as enshrined in Section 44 is considered along with Section 36(5) of the Constitution which deems a defendant innocent until proven guilty, it should not be possible for the state to seize a citizen’s
property without first trying him and thereafter mete out the punishment of forfeiture if found guilty. Learned Senior counsel contended that the order of interim forfeiture made against the appellant’s funds in her bank is one that has denied her right to operate her account, prevented her from having access to the money notwithstanding the fact that she has never been invited over any allegation. Learned Senior counsel pointed out that the Court of Appeal’s endorsement that proceedings under Section 17 of the Act was made in civil and not criminal proceedings and the issue of presumption of innocence does not arise. He argued that if that was the case, the respondent ought to have given an undertaking in its affidavit, as required by law before its application for interim order against the property of the appellant can be validly granted by the Court. He cited the case of Kotoye v. CBN (1989) NWLR (Pt. 98) 419 in support of this contention. He submitted that this failure by the respondent to give an undertaking to pay damages in the event the order ex parte turns out to be frivolous is fatal to both the application and the order of the trial Court. He
further submitted that the forfeiture provided for in Section 17 of the Act is not civil forfeiture as canvassed by the respondent and the Court of Appeal was wrong to endorse the argument advanced by the respondent.
Learned Senior Counsel argued that Section 17 (6) of the Act removed any doubt that the forfeiture is on the basis of any criminal conduct. He submitted that the Act has embarked on an expropriation of the assets, be they real or monetary, of any citizen, whom the agency can pick upon. He said that the position of the law is that penal legislations must be construed against the law maker in order to protect the right of the citizen as decided in Peenok Investment Ltd v. Hotel Presidential Ltd (1982) 1 SC; Ararume v. INEC (2007) 9 NWLR (Pt. 1038) 127. He maintained that the unconstitutionality of Section 17 of the Act is made manifest by the express provision of Section 44(1) and (2) (b) of the 1999 Constitution which provides that
“44-(1)No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of
Nigeria except in the manner and for the purposes prescribed by a law that among other things
(2) Nothing in Subsection (1) of this section shall be construed as affecting any general law
(b) for the imposition of penalties or forfeiture for the breach of any law, whether under civil process or after conviction for an offence.”
He submitted that the only time a citizens property can be forfeited under the constitution is after conviction for an offence. He argued that Section 17(6) of the Act conflicts with Section 1(3) of the 1999 Constitution and so that section of the Act is invalid, null and void; consequently any order, whether ex parte or not made pursuant to it is equally null and void.
It is further argued that Section 17 of the Act is a legislative judgment by which the right of a citizen over property, whether tangible or intangible, is eviscerated. To validate the section will be to render ineffectual the right of the Courts, established by the Constitution, to determine disputes between citizen qua citizen, and citizens and the government. He referred to the locus classicus of Lakanmi v. A-G Federation (1970) NSCC 143 at 160 where
the Supreme Court held as unconstitutional any legislative judgment by which the judicial process is not respected. He added that forfeiture of assets, whether temporary or permanent, cannot be anything but punishment.
Learned Senior Counsel turned to Section 44 (1) and (2)(k) of the Constitution and submitted that the said provisions are clear and unambiguous and do not relate to or validate Section 17 of the Act. He referred to the case of A-G Ondo State v. A-G Ekiti State (2001) 17 NWLR (Pt. 743) 706 at 756 and submitted that there is a difference between a situation where the assets of a citizen are acquired by the government temporarily without the payment of compensation, for the purpose of examination, investigation or inquiry as stated in Section 44 (2) (k) and a situation, where upon mere suspicion, the EFCC could apply to a High Court ex-parte, for the seizure of a citizen’s property in the interim, which said seizure may culminate into the final forfeiture to the Federal Government of Nigeria, of the assets seized or forfeited, without trial and conviction of the person concerned. He submitted that the respondent’s application
ex-parte made under Section 17 of the Act was not made for the purpose of any examination, investigation or enquiry, so as to bring it within the contemplation of Section 44 (2)(k) of the 1999 Constitution. He submitted that by dint of respondent’s deposition in the affidavit, whereby he deposed that upon the receipt of an intelligence report, investigation was carried out and it revealed that the money in the appellant’s account is proceeds of unlawful activities, the purpose of the interim forfeiture sought is to move the Court to issue an order forfeiting the appellant’s money to the Federal Government based on the investigation already carried out.
In reply to respondent counsel’s argument that an interim order granted pursuant to Section 17 of the Act without hearing her did not violate her constitutional right to fair hearing in which the learned counsel cited the following cases:-
Dangabar v. FRN (2014) 12 NWLR (Pt. 1422) 575; Akingbola v. Chairman EFCC (2012) 9 NWLR (Pt. 1306) 475, learned counsel for the appellant argued that the cases cited by the respondent are applicable to a situation where a person has been accused of an unlawful activity/offence or
the person affected by the forfeiture order is undergoing trial for an unlawful activity or offence.
The submissions of learned Senior Counsel on the second issue for determination namely whether the application for forfeiture under Section 17 of the Act is civil forfeiture and whether the action is in rem dovetail into the arguments on issue 1 and it will be a mere repetition if the arguments were reproduced. Suffice it to state that learned Senior counsel submitted that at the moment there is no provision in our statutes for civil forfeiture and that the copious reference to the practice of civil forfeiture in other jurisdictions is not helpful. He referred to Nafiu Rabiu v. The State (1980) 8-11 SC 85 where the Supreme Court had warned against the practice of placing reliance on foreign decisions to decide cases based on our own written Constitution and laws. Learned Senior Counsel maintained that the argument advanced by the respondent to the effect that the proceedings are civil because the objective is to forfeit proceeds of crime is not only wrong but a dangerous invitation to the Court to sanction a constitutional infraction
by the government. He delved into the origins of civil and criminal forfeiture which was later extended to admiralty law whereby a vessel could be found guilty and seized because of the inability to secure in personam jurisdiction over the owner of the ship who was living outside the jurisdiction where the infraction occurred. He contended that even in the United States where the concept of remedial purposes of civil forfeiture that distinguished it from criminal punishment has evolved, the property to be forfeited must be connected to a specific crime e.g. if money was obtained under false pretence or in breach of trust, or from human, or drug trafficking or money received for sponsorship of terrorism such money can be subject to civil forfeiture, using the In rem application and relied on the case of Bennis v. Michigan (94- 8729) 517 US 1163 (1996). He submitted that, notwithstanding the fact that the respondent dubbed the application as In rem meaning that the funds sought to be forfeited were products of a crime, there is no proof in the supporting affidavit of the said crime.
Turning to the third issue, learned counsel argued that even if
Section 17 of the Act is constitutional, the materials which were placed before the Federal High Court were insufficient to justify the making of the order. He contended that whenever a statute gives the Court a discretion to do anything, that discretion must be exercised judicially and judiciously and cited the following cases in support:-
Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569; Ceekay Traders Ltd v. General Motors Co. Ltd (1992) 2 NWLR (Pt. 222) 132; R v. Anwoir (2008) 4 All ER 582.
In the last case he said the Court of Appeal (Criminal Division) in England, while dealing with the appeal on the issue of property constituting or representing benefit of criminal conduct held as follows:-
.there are two ways in which the Crown can prove the property derives from crime,
(a) by showing it derives from conduct of a specific kind or kinds and that conduct of that kind or those kinds is unlawful, or
(b) by evidence of circumstances in which the property is handled which are such as to give rise to the irresistible inference that it can only be derived from Crime.”
He submitted that the onus is on the respondent to establish the unlawful activity alleged against the appellant by giving particulars of such unlawful activity and tie the said activity to the funds sought to be forfeited. He urged this Court to allow the appeal by declaring that the provision of Section 17 of the Act is in conflict with Sections 36 and 44 of the 1999 Constitution and set aside the decisions of the lower Courts.
Learned counsel for the respondent in his response to issue 1 while conceding that the principle of fair hearing is fundamental to all Courts’ procedure and proceedings dealing with jurisdiction, the absence of which invalidates the proceedings no matter how well conducted submitted that there was no such denial of fair hearing in the face of Section 17 of the Act. He referred to Section 36 (1) of the Constitution and submitted that the hearing envisaged by the Constitution is a hearing which is conducted in line with practice, procedure and the rules formulated by statute and the Court rules in order to ensure justice. He relied on Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270 at 284 where fair hearing was defined. See: also Uguru v. State
(2002) 2 NWLR (Pt.771) 90 at 105 and Audu v. FRN (2013) 5 NWLR (Pt. 1347) 360. He submitted that Section 17 of the Act has inbuilt mechanism for the hearing of parties and thus has sufficiently complied with Section 36 (1) of the 1999 Constitution. He maintained that contrary to the argument of the appellant’s counsel, the grant of the ex-parte motion does not violate the appellant’s fundamental right to fair hearing. He drew a distinction between an order of interim forfeiture and a final order of confiscation and forfeiture.
Regarding the non conviction based forfeiture as contained in Section 17 of the Act, learned counsel for the respondent traced the origin of forfeiture laws as it obtained in the common law as well as the civil law jurisdictions. He posited that the modern explosion of civil forfeiture laws as a method of crime control is due to organised crime. He said that non conviction based forfeiture legislations have received judicial approval in many foreign jurisdictions. He submitted that a non-conviction based forfeiture is an action in rem which is targeted against the property and not against the appellant in whose name the property is known.
Since the proceedings under Section 17 of the Act, is an action targeted at the properties sought to be forfeited and not the appellant, the issue of presumption of innocence only inures in a person charged with a criminal offence and not in properties suspected to be proceeds of unlawful acts.
On the exercise of discretion, learned counsel argued that this Court has consistently held that decided cases on the issue only serve as a guide to the Court in the exercise of its discretion and do not constitute binding authorities or precedent.
Learned counsel argued that in view of the materials placed before the Court it cannot be said that the learned trial Court did not exercise its discretion judiciously and judicially and referred to paragraphs 4-6 of the affidavit in support of the ex-parte application. He emphasised that paragraph 6 of the respondent’s affidavit sufficiently demonstrated why the funds sought to be forfeited were reasonably suspected to be proceeds of unlawful activities.
RESOLUTION OF ISSUES
In order to resolve the issues which have been thrown up in this appeal, it is only appropriate to reproduce Section 17 of
the Act, Sections 36 (1) and 44 (1) and (2) (k) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Section 17 of the Act provides for power to make an order of forfeiture without conviction for an offence. It states as follows:-
“17(1) Where any property has come into possession of any officer of the Commission as unclaimed property or any property is found by any officer of the Commission to be in the possession of any other person, body corporate or financial institution or any property in the possession of any person, body corporate or financial institution is reasonably suspected to be proceeds of some unlawful activity under this Act, the Money Laundering Act 2004, the Economic and Financial Crimes Commission Act, 2004, or any other law enforceable under the Economic and Financial Crimes Commission Act, 2004, the High Court shall upon application made by the Commission, its officers or any other person authorised by it and upon being reasonably satisfied that such property is an unclaimed property or proceeds of unlawful activity under the Acts stated in this subsection make an order that the property or the proceeds from the sale
of such property be forfeited to the Federal Government of Nigeria.
(2) Notwithstanding the provision of Subsection (1) of this section the High Court shall not make an order of forfeiture of the property or the proceeds from the sale of such property to the Federal Government of Nigeria until such notice or publication as the High Court may direct has been given or made for any person, body corporate or financial institution in whose possession the property is found or who may have interest in the property or claim ownership of the property to show cause why the property should not be forfeited to the Federal Government of Nigeria.
(3) Application under Subsection (1) above shall first be made by motion ex-parte for interim forfeiture order of the property concerned and the giving of the requisite notice or publication as required in Subsection (2) of this section.
(4) At the expiration of fourteen days or such other period as the High Court may reasonably stipulate from the date of the giving of the notice or making of the publication stated in Subsections (2) and (3) of this section, an application shall be made by a motion on
notice for the final forfeiture of the property concerned to the Federal Government of Nigeria.
(5) In this section
“financial institution” shall have the same meaning as in Section 7 of this Act; “property” includes assets whether movable or immovable, money, monetary instruments, negotiable instruments, securities, shares, insurance policies, and any investments.
(6) An order of forfeiture under this section shall not be based on the conviction for an offence under this Act or any other law”.
Sections 36 (1) and 44(1) and (2) (k) of the 1999 Constitution (as amended) stipulate:-
“36- (1) In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
44- (1) No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such
property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things
(2) Nothing in Subsection (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;”
Learned Senior Counsel for the appellant had argued to the effect that the interim order which the trial Court granted pursuant to Section 17 of the Act without hearing her violated her constitutional right to fair hearing thereby rendering the said Section 17 unconstitutional.
The issue of fair hearing or fair trial has always engaged the attention of the appellate Courts. Although the term has not been defined in the Constitution, various judicial pronouncements have set the parameters within which a fair trial or fair hearing can be gauged since the two phrases are synonymous and mean the same thing. InMohammed v. Kano N. A. (1968) All NLR 411 where the issue of fair hearing was raised under Section 22 (2) of the 1963 Constitution (which is in pari materia with Section 33(4) of
the 1979 Constitution and Section 36 (4) of the 1999 Constitution) Ademola CJN at page 413 in agreeing with the view of the counsel said:-
“We think a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether, from his observation, justice has been done in the case.”
The definition of a fair hearing in civil cases as entrenched in Section 33 (1) of the 1979 Constitution (now Section 36 (1) of 1999 Constitution) was given by Obaseki JSC inAriori & Ors v. Elemo & Ors (1983) 1 SC 13 at pages 23-24 in these words:-
“Fair hearing, therefore, must mean a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties.”
This definition was adopted by Karibi-Whyte JSC in Ntukidem v. Oko (1986) 5 NWLR (Pt.45) 909 at 933 and applied to the case of Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270 in the leading judgement of Uwaifo JSC at page
It is in Uguru v. State (2002) 9 NWLR (Pt. 771) 90 that this Court per Kalgo JSC stated at page 105:-
“According to the case of Mohammed v. Kano N. A. (1968) All NLR 424 cited by learned counsel for the appellant in his brief, the term “fair trial” and “fair hearing” are synonymous and mean the same thing, and according to the provisions of Section 33(1) of the 1979 Constitution which applies to this case the term “fair hearing” in relation to a case in my view, means that the trial of the case or the conduct of the proceedings therefore, is in accordance with the relevant law and rules in order to ensure justice and fairness. See: Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23; Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458.”
Mahmoud Mohammed JSC (as he then was) considered the meaning and scope of fair hearing in the con of Section 36 (1) of the 1999 Constitution when he held in Audu v. Federal Republic of Nigeria (2013) 5 NWLR (Pt. 1348) 397 at 410-411 thus:-
“The law is indeed well settled that fair hearing within the meaning of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, means a trial or hearing conducted according to all
the legal rules formulated to ensure that justice is done to the parties. It requires the observation or observance of the twin pillars of the rules of natural justice, namely, audi alteram partem and nemo judex in causa sua. These rules the obligation to hear the other side of a dispute or the right of a party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground. See: Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 22. The effect of denial of fair hearing is trite in law. In other words once there is a breach of the right of fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at by the Court, becomes a nullity. See: Akinfe v. The State (1988) 3 NWLR (Pt. 85) 729 at 753 and Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 at 333.”
It can safely be concluded that the right to fair hearing in civil matters or criminal prosecutions as contained in Section 36 (1) and 36 (4) respectively in the 1999 Constitution is the same and once the twin pillars of audi alteram partem and
nemo judex in causa sua are not observed, the whole proceedings including any decision arrived at will be declared a nullity. Any law enacted that impinges on the right to fair hearing will therefore be in conflict with the said Section 36 (1) or 36 (4) of the Constitution and to the extent of the inconsistency be declared null and void. The question is: Is Section 17 of the Act in conflict with Sections 36 and 44 of the 1999 Constitution
Learned Senior Counsel is interpreting the decision of the Court of Appeal as permitting the forfeiture of the appellant’s funds without trial and since Section 17 of the Act is a penal legislation, it purports to give the High Court unfettered powers, not only to make an order of interim forfeiture but also to order the forfeiture of the properties finally to the Federal Government of Nigeria without investigation, trial and conviction.
Section 17 of the Act has inbuilt mechanism for the hearing of parties. 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. Although Sections 43 and 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) give every Nigerian citizen the right to
acquire and own property anywhere in Nigeria and such property should not be compulsorily acquired without payment of compensation, the practice of temporarily depriving a person from dealing with the assets suspected to be proceeds of crime pending the determination of the case against him is not unconstitutional because the right is not absolute. See: Section 44 (2) (k) of the Constitution. In7Up Bottling Co. Ltd v. Abiola & Sons Ltd (1995) 3 NWLR (Pt. 383) 257 this Court explained the difference between an order of interim injunction and interlocutory injunction where Adio JSC pointed out the difference between the two in these words at page 276:-
“An interlocutory injunction cannot generally be granted without giving prior notice of the application to the respondent and the order cannot be made behind the respondent in view of the fact that the Court has to decide many things before it can properly come to a conclusion on the question of whether to grant or refuse it. Further, and this is very important, a grant of an application for an interlocutory injunction without notice to the respondent or behind the respondent is
void by virtue of the provision of Section 33(1) of the Constitution. An order of interim injunction is one granted to preserve the status quo and to last until a named date or definite date or until further order or pending the hearing and determination of a motion on notice. It is for a situation of real emergency to preserve and protect the rights of the parties, before the Court from destruction by either of the parties”.
In his contribution Uwais JSC (as he then was) dealing with the appellants’ argument that Order 8 Rule 9 of the High Court of Kwara State (Civil Procedure) Rules which provides that when a party is making an ex-parte application, no party to the proceedings, even if present in Court, is entitled to be heard, is consistent with Section 33 (1) of the 1979 Constitution, explained at page 280 thus:-
“There is no doubt that the right to fair hearing under the constitution is synonymous with the common law rules of natural justice – See: Mohammed v. Kano N. A. (1968) 1 All NLR 424 at page 426 and Deduwa v. Okorodudu (1976) 1 NMLR 237 at page 246. In both criminal and civil proceedings, there are certain steps to be taken which are incidental or preliminary
to the substantive case. Such steps include motions for direction, interim or interlocutory injunction. The time available for taking the steps may be too short or an emergency situation may have arisen. It therefore, becomes necessary to take quick action in order to seek remedy for or arrest the situation. It is in respect of such cases that provisions are made in Court rules to enable the party affected or likely to be affected to make ex-parte applications: The orders to be made by the Court, unlike decisions, are temporary in nature, so that they do not determine the “civil rights and obligations” of the parties in the proceedings as envisaged by the constitution.”
He explained further by placing reliance on Order 8 Rule 11 which provides that
“Where an order is made on a motion ex-parte, any party affected by it may, within seven days after service of it, or within such further time as the Court shall allow, apply to the Court by motion to vary or discharge it, and the Court, on notice to the party obtaining the order, either may refuse to vary or discharge it with or without imposing terms as to costs or security or otherwise, as seems just.”
The argument of learned Senior counsel for the appellant tilted more towards the grant of interlocutory injunction rather than interim injunction.
I do concede that often times when a Court grants an interim injunction it takes into consideration the fact that the applicant must have given an undertaking to pay costs but this is not an absolute precondition attaching to the Court’s discretion in granting the interim injunction as shown in Order 8 Rule 11 of the Kwara State High Court (Civil Procedure) Rules. So the grant of the interim forfeiture which the trial Court made without the EFCC giving an undertaking did not render the interim forfeiture order a nullity as learned Senior Counsel seems to suggest.
In Environmental Development Construction and Anor v. Umara Associates Nigeria (2000) 4 NWLR (Pt. 652) 293, the term “interim decision” was defined to mean that a final decision is forthcoming. Applying this definition to this appeal, the interim forfeiture order made by the trial Court on 26 April, 2017 cannot be interpreted by any stretch of imagination to mean a final forfeiture order. The interim
forfeiture order can become final if the appellant who is the party interested in the property sought to be forfeited fails to appear before the Court to show cause within 14 days why the final order of forfeiture of the monetary properties should not be made in favour of the Federal Government of Nigeria. All interim forfeitures or freezing of accounts made pursuant to the Independent Corrupt Practices and Other Related Commission (ICPC). National Drug Law Enforcement Agency (NDLEA); Economic and Financial Crimes Commission (EFCC); Advance Fee Fraud and other Fraud Related Offences Act are not in conflict with Sections 36 and 44 of the 1999 Constitution. See: Nwude v. Chairman, EFCC (2005) All FWLR (Pt. 276) 740; Akingbola v. Chairman EFCC (2012) 9 NWLR (Pt. 1306) 475; Felimon Ent. Nigeria Ltd v. The Chairman, EFCC & Anor (2013) 1 BFLR 94; Federal Republic of Nigeria v. Ikedinwa (2013) LPELR 21120 (CA); Dangabar v. Federal Republic of Nigeria (2014) 12 NWLR (Pt. 1422) 575.
I agree with the lower Court when it stated in Dangabar v. FRN supra at page 601 that the intention of Sections 28 and 29 of the EFCC Act is merely to get a preservative order on
the property suspected to be proceeds of crime so as to prevent the accused person or suspect from dissipating the assets so that the final judgement of the Court will not be rendered nugatory in the event of a conviction or where the interested person fails to show cause. I therefore disagree with the decision in Federal Republic of Nigeria v. Nwaigwe (2009) 16 NWLR (Pt. 116) 169 where Section 29 of the EFCC Act was struck down as unconstitutional. If it was a final forfeiture order that was made on mere suspicion without proof, I would endorse the view that Section 29 of the EFCC Act is unconstitutional. The Commission can confiscate a person’s property only when he is found guilty of an offence and the property is linked to the offence committed e.g. the laundering of money from the proceeds of drugs.
Civil forfeiture which is an action in rem as opposed to the confiscation of assets which have been frozen is embarked upon when the interest of the State is merely to recover the proceeds of unlawful activity. The perspective behind non conviction based forfeiture as contained in Section 17 of the Act has historical antecedents.
The modern origin of forfeiture laws under the common law began with the concept of deodand derived from the Latin word ‘deodandum’ which means “to give to God”, Deodand which was heavily used in England and France throughout medieval times started before the Norman Conquest and it was called banes whereby articles which caused damages or death were given to the victim. Where the victim died the article will be forfeited to the State and is re-distributed to the community. With the growth of the railways in the early 19th Century, deodand was abolished in England. After its abolition, Parliament introduced the Fatal Accidents Act which allowed compensation to be awarded by a Court to a deceased’s family. As a result of the colonization of the United States by the British, many of its laws were carried across the Atlantic among which was deodand. Deodand was abolished in the United States around 1790 and replaced by numerous forfeiture laws which were enacted mainly for the protection of shipping from piracy and maintenance of customs regulations. Many customs laws across the globe have long had forfeiture provisions traceable to these notions – if you smuggle goods, you
risk losing such goods, if you use a boat to smuggle the goods, you risk the boat being forfeited.
The modern explosion of civil forfeiture laws as a method of crime control is certainly due to organised crime. The pioneers in this activity are the United State and Italy. By the introduction of the Racketeering Influence and Corrupt Oganisations Act 1970 (“RICO”) which contained civil forfeiture remedies and in Italy as early as 1956, in law 1423/56, provisions were enacted to empower the forfeiture without conviction, the property of persons connected to the mafiosa. Encouraged by the US experience, many other countries and state legislatures introduced civil forfeiture laws in the 1990s and early into the 21st century. In 1990 New South Wales, Australia enacted the Criminal Assets Recovery Act, 1990, the Republic of Ireland introduced the Proceeds of Crime Act 1996 containing provisions for civil forfeiture, South Africa followed in 1998 with the Prevention of Oganised Crime Act 1998; then Ontario enacted the Remedies for Organised Crime and Other Unlawful Activities Act 2001, the UK and Federal Government of Australia
passed the Proceeds of Crime Act 2002 and New Zealand enacted the Criminal Proceeds (Recovery) Act 2009. All these laws make provision for forfeiture of assets that are connected to crime without any requirement for a conviction. All of them apply the standard of proof in civil law rather than proof beyond reasonable doubt required in criminal prosecution. Some only apply to proceeds of crime while others apply both to the proceeds of crime and the instruments used in the commission of crime. Nigeria is a member State and signatory to the United Nations Convention Against Corruption (UNCAC) which came into force in 2005. Article 54 enjoined each state party to consider taking such measure as may be necessary to allow confiscation of property suspected to be proceeds of unlawful act without a criminal conviction in cases in which the offender cannot be prosecuted. In 2006 the Advance Fee Fraud and Other Fraud Related Offences Act was enacted in line with the convention wherein non conviction based forfeiture was legalized through Section 17 of the said Act. This provision is not limited only to Nigeria. Part 5 of Proceeds of Crime Act, 2002 (POCA) of the United Kingdom
provides for a system of non-conviction based forfeiture in the UK. Although the respondents to Part 5 proceedings are the beneficial owners of the property, the proceedings are effectively in rem, with POCA establishing rules for tracing recovery property which is akin to the equitable jurisdiction of the civil Courts. The High Court then makes an order vesting property in the state where it is persuaded on a balance of probability that the relevant property represents the proceeds of crime. Non-conviction based forfeiture legislations have received judicial approval in many foreign jurisdictions. In Gogitidze & Ors v. Georgie 2015 the European Court of Human Rights (ECHR) held that proceedings for confiscation such as the civil proceedings in rem, which do not stem from criminal conviction or sentencing proceedings do not qualify as a penalty but rather represent a measure of control of the use of property and cannot amount to the determination of a criminal charge within the meaning of Article 6 of the European Convention on Human Rights which has a similar provision with Section 36 (1) and (5) of the 1999 Constitution. See: also Butler v. The United Kingdom (Dec. No.
41661/98 delivered on 27 June, 2002;Arcuri & Ors v. Italy (Dec.) No. 52024/99,ECHR 2001- VI.
In Simon Prophet v. The National Director of Public Prosecution CCT 56/05 (South Africa) the South African Constitutional Court decided that there was no need to prove any crime in forfeiture of properties suspected to be proceeds of crime. It further held that civil forfeiture provides a unique remedy used as a measure to combat organised crime which rests on the legal fiction that the property and not the owner has contravened the law and so the forfeiture does not require a conviction or even a criminal charge against the owner.
In United States v. Ursery (95-345) 518 US 267 (1996) the Supreme Court of the United States of America after reviewing a list of similar precedents found that in contrast to the in personam nature of criminal actions in rem forfeiture are neither “punishment” nor for criminal purposes. Similarly in Bennis v. Michigan (94-8729) 517 US 1163 (1996) forfeiture was found constitutionally permissible even in the case of a joint owner of property as the Court found that historically consideration was not given to the innocence of
an owner because the property subject to forfeiture was the evil sought to be remedied. The Supreme Court of Ireland in Gilligan v. Criminal Assets Bureau (2011) 1ESC 82 held that the authorities lend considerable weight to the view that in rem proceedings for the forfeiture of property, even when accompanied by parallel procedures for the prosecution of criminal offences arising out of the same events are civil in nature.
The entire world is now a global village, thanks to technological developments and Nigeria is part of that global village. Nigeria does not live in isolation and developments in other parts of the world impact either positively or negatively on this Country. Since Nigeria is a signatory to the United Nations Convention Against Corruption (UNCAC) and has gone ahead to enact several anti corruption laws, the practice in other jurisdictions as already highlighted above, while not binding, could serve as guide to the application of our local legislations. We should not forget that the cardinal rule of interpretation which is summed up in the Latin phrase ut res magis valeat quam pereat is that the words of a statute must be given their ordinary meaning
without importing into them what is not there and the duty of the Court is to interpret the language of a statute so as to convey the intention of the law maker. See: Owner of MV “Arabella” v. Nigeria Agricultural Insurance Corporation (2009) 4-5 SC (Pt. 2) 189; Tabik Investments Ltd v. Guaranty Trust Bank Plc (2011)6-7 SC (Pt. 3) 40; Hon. Justice Raliat Elelu-Habeeb (Chief Judge of Kwara State) & Anor v. Attorney-General of the Federation & 2 Ors (2012) 13 NWLR (Pt. 1318) 423. The argument advanced by learned counsel of the Supreme Court’s warning in Nafiu Rabiu v. The State (1980) 8-11 SC 85 that we should not place reliance on foreign decisions to decide cases based on our own written constitution and laws is of little assistance to the appellant’s case because the constitution is to establish a frame work and principles of government, broad and general in terms which include the abolition of all corrupt practices and abuse of power enshrined in Section 15(5) of the Constitution.
Learned Senior Counsel for the appellant disagreed with the Court of Appeal’s reasoning that the proceedings are civil because the ex-parte application was marked in
rem and submitted that an application, or proceedings in rem has its own procedure. As I have already explained the Advance Fee Fraud and Other Fraud Related Offences Act was enacted in line with the convention wherein non conviction based forfeiture has been legalised by Section 17 of the Act and is not limited to Nigeria alone as it follows the same pattern with Part 5 of the Proceeds of Crime Act 2002 (POCA) of the UK which was used in Butler v. The United Kingdom supra. It is not the procedure that matters but the substance of the application and what it is intended to achieve. Not only that, the proviso to Section 36 (5) of 1999 Constitution recognises the validity of any law which imposes the burden of proving particular facts on the person charged with an offence who is presumed innocent until proven guilty. A similar provision as contained in Section 17 (1) of the Act is to found in Section 19 (3) of the Money Laundering Act which states that
“19(3) 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 satisfactory
account and which is disproportionate to his known sources of income, or that he had at or about the time of the alleged offence obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, may be proved and may be taken into consideration by the Federal High Court as corroborating the testimony of any witness in such trial.”
The standard of proof required to invoke Section 17 (1) of the Act and Section 19 (3) of the Money Laundering Act read along with Section 36 (1) and (5) of Constitution is not proof beyond reasonable doubt but proof on a balance of probability. See: Daudu v. FRN (2018) 10 NWLR (Pt. 1626) 169.
The Court below after analysing Section 17 of the Act and Sections 36(1)(2) and (5) and 44 (1)and(2)(k) of the Constitution concluded that it is not only “after conviction for an offence” could a citizen’s property be forfeited especially in the case of a temporary forfeiture as in the instant case which is covered under Section 44 (2) (k) of the Constitution. This is a correct analysis of the law and the spirit behind the enactment of the Advance Fee Fraud Act. The intention of
the legislature in enacting the Advance Fee Fraud Act is clearly brought out in Section 17 (6) of the Act which provides that
“An order of forfeiture under this section shall not be based on a conviction for an offence under this Act or any other law.”
So an ex-parte application for interim forfeiture of property that is not predicated on conviction of the owner of the property would necessarily be an action in rem because it is the recovery of the property that the law aims at. In this regard the decisions in such cases as Nwaigwe v. FRN (2009) 16 NWLR (Pt. 1166) 169 wherein the lower Court struck down Section 29 of the Economic and Financial Crimes Commission Act as unconstitutional; Chidolue v. EFCC (2012) 5 NWLR (Pt. 1292) 160 and FRN v. Ikedinwa (2013) LPELR 21120 (CA) do not represent the correct position of the law.
The last issue in this appeal is that the respondent did not place material facts before the learned trial Judge as required by Section 17 of Advance Fee Fraud to warrant the interim forfeiture of the appellant’s money to the Federal Government. Learned counsel for the appellant argued that
whenever a statute gives the Court a discretion to do anything, that discretion must be exercised both judicially and judiciously. For the respondent it was submitted that in view of the materials placed before the Court it cannot be said that the learned trial Judge did not exercise his discretion judiciously and judicially and having done so, no appellate Court should interfere in the exercise of the said discretion.
From the affidavit in support of the ex-parte application for interim forfeiture of the properties, there were sufficient materials upon which the learned trial Judge exercised his discretion to grant the order of interim forfeiture. The Court below was perfectly right in refusing to interfere with the discretion exercised by the trial Judge to grant the interim order of forfeiture.
I do not find any merit in the appeal and it is hereby dismissed. The parties should go back to the trial Court for the appellant to show cause why the interim order of forfeiture should not be made final.
I wish to express my appreciation to learned counsels for the industry and research which they put into the preparation of this appeal.