MELROSE GENERAL SERVICES LIMITED v. ECONOMIC AND FINANCIAL CRIMES COMMISSION & ORS (2019)

MELROSE GENERAL SERVICES LIMITED v. ECONOMIC AND FINANCIAL CRIMES COMMISSION & ORS

(2019)LCN/13403(CA)

In The Court of Appeal of Nigeria

On Friday, the 31st day of May, 2019

CA/L/715/2018

RATIO

FAIR HEARING: REASONABLE MAN’S TEST

The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his own observation justice has been done in the case. Moreover, the question whether there has been a denial of fair heating (sic) being one of substance and not of form will always be decided in the light of the realities of any particular case. See the cases of:
(1) Mohammed v. Kano N. A. (1968) All NLR p.424 and
(2) U.B.N. Plc. v. Ikwen (2000) 3 NWLR (Pt. 648) p. 223.PER TOBI EBIOWEI , J.C.A.

DEFINITION OF FAIR HEARING
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 in Ariori & Ors vs. 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 vs. Oko (1986) 5 NWLR (Pt.45) 909 at 933 and applied to the case of Bamaiyi vs. State (2001) 8 NWLR (Pt. 715) 270 in the leading judgment of Uwaifo JSC at page 284. It is in Uguru vs. 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 vs. Egeibon (1994) 6 NWLR (Pt. 348) 23; Mohammed vs. Olawunmi (1990) 2 NWLR (Pt. 133) 458.”PER TOBI EBIOWEI , J.C.A.

FAIR HEARING UNDER SECTIONS 36 (1) AND 36(4) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA IN CIVIL AND CRIMINAL LAW ARE THE SAME

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 causasua 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.PER TOBI EBIOWEI , J.C.A.

JUSTICES

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

TOBI EBIOWEI Justice of The Court of Appeal of Nigeria

Between

MELROSE GENERAL SERVICES LIMITED Appellant(s)

AND

1. ECONOMIC AND FINANCIAL CRIMES COMMISSION
2. WASP NETWORKS LIMITED
3. THEBE WELLNESS SERVICES Respondent(s)

TOBI EBIOWEI , J.C.A. (Delivering the Leading Judgment): This appeal is challenging the judgment of the Federal High Court, Lagos Division delivered on 27/4/18 by Hon. Justice C.M.A. Olatoregun. The 1st Respondent secured an order of interim forfeiture of the sum of N1,222,384,857.84 in the account of the Appellant with Access Bank and N220,000,000 from the account of 2nd & 3rd Respondents. The interim order was obtained on 13/10/17. The reason for the order is that the monies were suspected to be proceeds from crime. This order was obtained in line with Section 17 of the Advanced Fee Fraud (and other related offences) Act 2006.

The Appellant filed a motion on 26/10/17 among other prayers seeking for the Court to set aside the order, remove the Post No Debit order placed on his account with Access Bank and to release the monies which are his legitimate earnings. The 1st Respondent on 14/11/17 filed a motion for final forfeiture order of the monies. The lower Court in the 34 page judgment found in pages 1411-1443 in volume 3 of the records dismissed the Appellant?s motion of 26/10/17 and granted the final forfeiture order

sought by the 1st Respondent in its motion of 14/11/17. The lower Court in its judgment in pages 1442-1443 of the records held:
I found after evaluating and juxtaposing all the facts presented by the parties that the affidavit showing cause rendered by the 1st Respondent falls below that which would discharge the reasonable suspicion that the sum of N3,500,000,000 billion naira deposited with the Access Bank Plc is not a result of an unlawful activity within the meaning and contemplation of the
1. The Advance Fee Fraud Act 2006.
2. The Money Laudering Act 2004
3. The EFCC Act 2004 and other laws enforceable under the EFCC Act of 2004.
In the circumstance the Court finds that the only order to make is one forfeiting the said sum to the Federal Government of Nigeria.
An Order of Final Forfeiture is accordingly made forfeiting to the Federal Government of Nigeria the sum of N1,222.334.857.84 found in the Melrose Account No. 0005892453 domiciled in Access Bank Plc.
In addition the sum of N220,000,000 recovered from Wasp Network Ltd and Thebe Wellness Services is forfeited to the Federal Government of Nigeria.?

The Appellant filed this appeal of 5 grounds in the notice of appeal found in pages 1445-1452 of volume 3 of the records. The learned counsel for the Appellant is Kolade T. Olawunmi Esq., of Olawale Akoni SAN who settled and adopted the Appellant?s brief on 11/4/19. The brief of the 1st Respondent is settled and adopted by E.E. Iheanacho Esq., on the same day. The Appellant?s counsel in arguing the appeal adopted the Appellant?s brief wherein four issues are raised for determination. These are:
i. Whether the lower Court did not breach the Appellant?s right to fair hearing when it failed to consider and determine the issues properly raised before it by the Appellant? (Distilled from Ground 1 of the notice of appeal)
ii. Whether Section 17 of the Advanced Fee Fraud (and other related offences) Act is not unconstitutional, null and void for being inconsistent with Sections 1(3), 36 and 44(2)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)? (Distilled from Ground 2 of the notice of appeal)
iii. Whether the lower Court was not in grave error when it made orders of final

forfeiture against the Appellant on the basis of mere suspicion that the funds forfeited were proceeds of unlawful activity? (Distilled from Grounds 3 and 4 of the notice of appeal)
iv. Whether the lower Court was not in error when it refused to set aside the interim orders of the 13th October 2017 in the face of the apparent misrepresentation and/or suppression of material facts by the 1st Respondent in obtaining same? (Distilled from Ground 5 of the notice of appeal)

On issue 1, it is the submission of counsel that the lower Court abdicated its constitutional duty by not pronouncing on all issues raised by the parties particularly on the issue of the constitutionality of Section 17 of Advance Fee Fraud Act and this obviously makes the proceedings liable to be set aside. He referred to Okonji vs. Njokanma (1991) 7 NWLR (Pt. 202) 131 @ 150; Ovunwo vs. Woko (2011)17 NWLR (Pt. 1277) 522: Unical vs. Akintunde (2013)1 @ 26; Otapo vs. Sunmonu (1987) 2 NWLR (Pt.58) 587 @ 605; Nigerian Arab Bank Ltd vs. Comex Ltd (1999) 6 NWLR (Pt.608) 648 @ 663-664; Uzuda vs. Ebigah (2009) All FWLR (Pt. 493) 1224 @1247; Brawal Shipping Ltd vs. F. I. Onwadike Co Ltd

(2000)11 NWLR (Pt. 678) 403; Atolagbe vs. Awuni (1997) 9 NWLR (Pt. 522) 536: Aig-Imokuede vs. Uba (2015) 8 NWLR (Pt. 1462) 399 @ 433; CPC vs. Yuguda (2013) 7 NWLR (Pt. 1354) 450 @ 456. The inability of the lower Court to pronounce on all the issues raised amounts to denial of fair hearing and therefore the decision of the lower Court is liable to be set aside, counsel submitted.

The constitutionality of Section 17 of the Advance Fee Fraud 2006 is the second issue raised in the Appellant?s brief. It is submitted that Section 17 of the Act which deals with forfeiture without conviction is contrary to the Constitution which provides that property can only be forfeited after conviction. The Constitution is therefore superior to the Act and so, that provision should be declared null and void. He referred to Saraki vs. FRN (2016) LPELR-40013 (SC)1 @ 109; Calabar Central Operative & Ors vs. Bassey Eppong Ekpo ( 2008) 6 NWLR (Pt. 1083)362 @ 392; Marwa vs. Nyanko (2012)6 NWLR (Pt. 1296)199 @ 307; INEC vs. Musa (2003)3 NWLR (Pt. 806) 72 @ 157; Orhiunu vs. FRN 9 (2005)1 NWLR (Pt. 906) 39,57; AG Abia vs. AG Federation (2006) 16 NWLR (Pt. 1005) 265,

381-382; Fasakin Foods (Nig.) Ltd vs. Shosanya (2006) All FWLR (Pt. 320) 1059, 1076-1077. Learned counsel submitted further that Section 17 of the Act becomes applicable upon suspicion that the proceeds are from unlawful activity and the burden of proof moves to the Appellant which changes the usual burden required in criminal law and all these are not in line with constitutional requirement. It is counsel?s submission that only the Court can determine whether an act is criminal and the burden of proof has always been with the law enforceable agency. He cited Idowu vs. State (1998) 11 NWLR (Pt.574) 354; Liman vs. State (2016) LPELR-40260 (CA) 1 @ 26.

On issue 3, counsel submitted that the lower Court was wrong in accepting the case of the 1st Respondent and not the explanation of the Appellant to show that the money in its account in Access bank is from legitimate source. It is counsel?s submission that the 1st Respondent did not show that the money was from the unlawful acts or activities of the Appellant. Counsel faulted the reasoning of the Court that by the letter of appointment to the Appellant, they could not have been appointed to

handle data that has not been produced and therefore the Appellant did not do any job for the NGF to warrant any payment. He however submitted that the generated data were those before the report of GSCL Biz plus. The inability of the lower Court to consider the uncontroverted evidence of the Appellant on this point is perverse and leads to the conclusion which is a miscarriage of justice counsel submitted referring to Nwoke & Ors vs Okere & Ors (1994) 5 NWLR (Pt. 343) 159; Asol Nig. Ltd vs. Access Bank Plc (2009) 10 NWLR (Pt.1149) 283; Ogunyade vs. Oshunkeye (2007) 15 NWLR (Pt. 1057) 218 @ 242; Udengwu vs. Uzuegbu (2003) 13 NWLR (Pt. 836) 136 @ 151-152. Counsel further submitted that the inability of the 1st Respondent to show one single act of unlawful activity makes the decision one based on speculation, conjecture and guess work which a Court should not be involved in. He referred to Adigwe vs. FRN (2015) LPELR 24694 (SC). Learned silk was emphatic in submitting that the lower Court disregarded the presumption of innocence guaranteed by the Constitution in favour of an accused person. This disregard for the law made the lower Court to grant the

final forfeiture order. This has caused a miscarriage of justice.

The final issue for determination is failure of the Court to set aside the interim order. It is submission of counsel that the lower Court did not consider the case of the Appellant in the lower Court which is, that the order of interim order was given based on misrepresentation of facts by the 1st Respondent. The lower Court did not consider that point before dismissing the motion seeking to set aside the order. The lower Court therefore misapprehended the case of the Appellant and therefore it should be set aside. He referred to Federal Ministry of Housing & Anor vs. Comet shipping Agencies Limited (2009) 9 NWLR (Pt.1145) 193; Udengwu vs. Uzuegbu (supra); UTB vs. Domeltsch P. Ltd (2007) 16 NWLR (Pt.1016) 520 @ 542; Okechukwu vs. Okechukwu (1989) 3 NWLR (Pt. 108) 234 @ 246.

The misrepresentation of facts as alleged by the Appellant is enough for the lower Court to set aside the interim order. The suppression of facts by the 1st Respondent makes its desire for equity out of place, counsel submitted referring to Emeshie vs. Abiose (1991) 2 NWLR (Pt.172) 192 @ 200; Alalade vs.

NBN (No. 2) 1997 8 NWLR (Pt. 517) 514 @ 520; R Benkay vs. Cadbury (2012) 9 NWLR (Pt. 1306)596. It is the firm submission of counsel that if the lower Court considered the undisclosed facts it would not have granted the ex parte order because those facts shows that the Appellant carried out a consultancy service for the NGF. It is the final submission of counsel that the decision of the lower Court should be set aside and the appeal allowed.

The counsel that settled the 1st Respondent?s brief filed on 29/9/18 but deemed on 17/1/19 and argued same is E.E. Iheanacho Esq., counsel raised two issues for determination these are:
1. Whether the learned trial judge was right not to have declared Section 17 of the Advance Fee Fraud (and other related offences) Act, 2006 unconstitutional, null and void.
2. Whether the learned trial judge was not right to have ordered for the final forfeiture of the total sum of N1,442,334,857.84 in view of the facts disclosing that the fund is proceed of unlawful activities and after the Appellant failed to show cause why the interim forfeiture order should not be made final.

On issue 1, counsel submitted

that Section 17 makes provision for Non-Conviction Based (NCB) Forfeiture which is a world acceptable practice and convention which Nigeria as a nation has subscribed to. The premise of NCB is that if a thing offends the law, it must be forfeited to the state. It is a proceeding that concerns the property and not the owner. It is a civil proceeding that places the required proof on the balance of probability. He referred to Article 54 of the United Nations Convention Against Corruption and the cases of Gogitidze & Ors vs. Georgia ECHR 158 (2015); Hackl vs. Financial Intelligence Unit & Anor (2012) SLR 225. In justifying the NCB procedure, counsel referred to Section 15 (5) of the Constitution. It is his further submission that while Section 41 (1) of the Constitution makes provision for fundamental right but that such right is not absolute. Section 44 (2)(b) of the Constitution counsel submit only protect people who acquire property legitimately. It is counsel?s firm submission that Section 17 of AFF Act is in line with Section 44 (2) of the Constitution and therefore Section 17 is not in conflict with the Constitution. He referred to

Dane Mrs. Patience Ibifaka Jonathan vs. FRN (2018) LPELR-43505 (CA); La-Wari Furniture & Baths Ltd vs. FRN & Anor (2018) LPELR-43507 (CA).

Interpreting Section 44(2) of the Constitution, it is the submission of counsel that the section deals with two ways by which forfeiture can be made. One is after conviction while the other is civil forfeiture which is based on civil proceedings. The Court should interpret the provision literally and if the whole constitutional provisions are read together, it will be clear that Section 17 AFF Act is not in conflict with the Constitution. It is the further submission of counsel that the argument by Appellant counsel that suspicion cannot be the basis for conviction will not hold water as proceedings under Section 17 of the Act is civil in nature and therefore the presumption of innocence is not applicable here. This is more so that the proceeding under Section 17 of the Act is not targeted at the individual but rather on the property.

On issue 2, it is the submission of counsel that what the law requires that the 1st Respondent need to prove on balance of probability that the money is proceeds from criminal

act and after that the burden shifts to the Appellant to show cause why the money should not be forfeited. Counsel cited Muneka vs. Customs and Excise Commissioners (2005) EWHC 495 (Admin); [2005] ALL ER (D) 21 Feb, (2005)169 JPN 145; United State v 7715 Betsy Bruce Lane, 906 F. 2d 110,111 (4th Cir.1990). Learned counsel in his submission tried to show that the Appellant did not carry out any job for which it is entitled to be paid N3,500,000,000. This he showed by stating that the NGF had appointed GSCL Bizplus Consortium as consultants in May. NGF in its correspondence with Minister of Finance and the Debt Management Office, has introduced GSCL Bizplus consortium as the sole consultant. The sole consultant presented its report on 31/8/16. Following that on 2/9/16 it was forwarded by NGF to the Minister of Finance and the DMO. Following meetings, President Letter for approval of payment was made on 21/11/16 to CBN to pay the money to the NGF account. It is after this that the Appellant?s report was forwarded after all processes have been completed for payment. It is the submission of counsel that based on the facts of the case the Appellant has not been

able to show cause why the money should not be forfeited as it is proceed from unlawful activity. The counsel also showed that the Appellant report of 30/11/16 is a doctored report of the GSCL report made on 31/8/16. Also doctored is Exhibit MGS 4 as it is a document made on 30/11/16 purporting to deal with deductions made on December 2016. This is a most improbable situation and as such the evidence will be untrue and a Court cannot rely on same. This amount to fraud and forgery, counsel submitted relying on Tsalibawa vs. Habiba (1991) 2 NWLR (Pt. 174) 461 @ 480-481; APC vs. PDP & Ors (2015) LPELR 24587; Babalola vs. State (1989) 4 NWLR (Pt. 115) 264 @ 277; Hon. Gozie Agbakoba vs. INEC (2008) 18 NWLR (Pt. 1119) 489; Dibiamaka vs. Osakwe (1989) 3 NWLR (Pt.107) 101 @ 113. It is further submitted that the scope of work of the Appellant include recovery of money for the deductions made. The Appellant did not recover any money and so not entitled to any payment. In the circumstance, it is submitted that the lower Court was right to have ordered final forfeiture as the Appellant should not be allowed to keep money gotten from unlawful activity. He referred to

Ebuka vs. State (2014) LPELR-23491 (CA); Nwude vs. FRN (2016) 5 NWLR (Pt. 1506) 471. Counsel also in his attempt to respond to the submission of the Appellant principally was rearguing the points earlier argued. There is therefore no need to go into all that. It only remains to say that the 1st Respondent urged Court to uphold the decision of the lower Court and dismiss the appeal.

The Appellant filed a reply brief on 5/11/18. In it, counsel submitted that there can be no forfeiture when no law is infringed or broken as there is no legal foundation for non-conviction based forfeiture particularly when the Nigerian law has not domesticated the Non Conviction Based Forfeiture. Counsel challenged the argument that the action is in rem and opined that the facts do not come within the premise of civil forfeiture. In attempting to distinguish the authority of La-wari and that of Dame Patience Jonathan case, counsel submitted relying on Adegoke Motors vs. Adesanya (1989) 3 NWLR (Pt. 109) 250 @ 275 that a case is only good for the authority for what it actually decides. It is submitted that those cases are not applicable to this case. He emphasized his

submission again that it is only a Court that has the powers to determine whether an offence has been committed and in the circumstance the concept of non-conviction based forfeiture is strange to our law. He urged Court to follow the decision of this Court on Nwude vs. FRN (supra) where it was held that forfeiture is an additional punishment.

The Appellant in the grounds of appeal is very concerned in addressing two issues which broadly are on denial of fair hearing and the constitutionality of Section 17 of the Advanced Fee Fraud Act (herein after referred to as AFF Act 2006). This is the two broad issues for determination. However for completeness, I will adopt the issues for determination as formulated by the Appellant in his brief of argument filed on 11/6/18. I have mentioned them above; I will therefore not reproduce them. I will address them one after the other. I will start with issue one which deals with the issue of the denial of fair hearing. This issue is based on the premise that the lower Court failed to consider and determine the issues raised before it. In the Appellant brief, the Appellant argued that the lower Court did not consider

the very important issue of the constitutionality of Section 17 of AFF Act 2006. This amounts to the denial of fair hearing. The other issues which the lower Court did not consider according to the Appellant in paragraph 4:11 of the brief include the contention on the Post No Debit Order and the failure to consider the contention of the interim and final forfeiture orders been based on misrepresentation of facts. The problem of the Appellant here is not whether the Appellant was allowed to adequately present its case at the lower Court but that the lower Court after hearing its case in the judgment did not make finding on some valid issues that would have changed the decision of the Court. Whether this is true or not, we will be seeing later in this judgment if need be. What is at stake here is whether, even if it is true, does that amount to lack of fair hearing? The answer to this question will warrant our taking an excursion into the law on fair hearing and what will amount to an abuse of same.
The law on this point is almost settled beyond dispute; however a few cases on this point will not be out of place. In Nwabueze vs. The People of Lagos State

(2018) LPELR-44113 (SC), the Supreme Court per Muhammad, JSC at pages 14-15 in defining the principles of fair hearing held:
?The right to fair hearing is a universal concept which, being enshrined and entrenched in Section 36(1) of the 1999 Constitution (as amended), guarantees the twin pillars of natural justice: nemo judex in causa sua and audi alteram partem. The two simply mean that no person shall be a judge in his own cause and that both sides to a dispute should enjoy equal opportunity to present their case. See Awoniyi vs. Reg. Trustees of A.M.O.R.C (2000) 6 SC 103 and Garba vs. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 at 618.?
Similarly, Unibiz (Nig.) Ltd vs. Commercial Bank Credit Lyonnais Ltd (2003) 2 SC 23, Ejiwunmi, JSC held:
?Thus, fair hearing in the con of Section 33 (1) of the Constitution of 1979 encompasses the plentitude of natural justice in the narrow technical sense of the twin pillars of justice ? audi alteram partem and nemo judex in causa sua- as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so.”

The Supreme Court exhaustively dealt with what the principle of fair hearing is all about in Arije vs. Arije & Ors (2018) LPELR- 44193 (SC). In that case, the apex Court per Kekerun-Ekun, JSC at pages 19-20 held:
?Now the right to fair hearing is one of the fundamental rights guaranteed in Chapter IV of the 1999 Constitution. See Section 36 (1) thereof. It is one of the twin pillars of natural justice which support the Rule of Law. The pillars are an indispensable part of the process of adjudication in any civilized society. They are: audi alteram partem (hear the other side i.e. one must be heard in his own defence before being condemned) and nemo judex in causasua (no one may be a judge in his own cause). See: R Vs. Rand (1866) LR Q.B. 230; Ndukauba vs.Kolomo & Anor. (2005) 4 NWLR (PT.915) 411; Ikomi vs. The State (1986) 5 SC 313; Akpamgbo Okadigbo vs. Chidi (2015) LPELR-24564 (SC) 1 @ 39 E – F. The concept of fair hearing encompasses not only the principle of natural justice in the narrow technical sense just referred to, but in the wider sense of what is right and fair to all concerned and is seen to be so. See: Unibiz Nig. Ltd. vs. Commercial Bank Credit Lyonnais Ltd.

(2003) 6 NWLR (Pt.816) 402. Fair hearing requires that the trial must be conducted according to all applicable legal rules with a view to ensuring that justice is done to all parties before the Court. The law is trite that any proceedings conducted in breach of the right to fair hearing are a nullity and liable to be set aside. See: Ariori vs. Elemo (1983) 1 SC 81; Kotoye vs. C.B.N (1989) 1 NWLR (Pt.98) 419. It is equally trite that where the principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same, the proceedings would still be null and void. See: Salu vs. Egeibon (1994) 6 NWLR (Pt. 348) 23; Adigun vs. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678; Bamgboye vs. University of Ilorin (1999) 10 NWLR (Pt. 622) 290.
All the authorities referred to above underpin the importance attached to the observance of the principles of natural justice in any adjudication. It follows that if the appellant’s contentions are well founded, and the lower Court raised certain issues suo motu without the benefit of any input from the parties before reaching its decision, the entire

proceedings, no matter how well conducted would amount to a nullity.?
What the concept of fair hearing implies is that all parties in an action should be given the opportunity to present their case and defend the case against them. Fair hearing will be said to be denied if the party is denied the opportunity of presenting their case. In Ndukauba vs. Kolomo & Anor (2005)2 FWLR (Pt. 265) 785, it was held:
“In Otapo vs. Sunmonu (1987)2 NWLR (Pt. 58) 587 at 605, this Court per Obaseki, JSC considered the nature of this concept of fair hearing thus: “A hearing can only be fair when all parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as a fair hearing…. Without fair hearing, the principles of natural justice are abandoned; and without the guiding principles of natural justice, the concept of the Rule of Law cannot be established and grow in the society. As aptly stated by Nnamani, JSC in ExParte Olakunrin (1985) 1 NWLR (Pt.4) 652 at 668. The principles of natural justice are part of the pillars that

support the concept of the Rule of Law. They are indispensable part of the process of adjudication in any civilized society. The twins (sic) pillars on which they are built are ? the principles that one must be heard in his own defence before being condemned and that, put shortly, no one should be a judge in his own cause.”

A Court is under obligation to consider the case presented by all the parties. If the parties present their cases and the lower Court did not consider the case of one of the parties in coming to the conclusion it reached, the party whose case was not considered can complain of lack of fair hearing. This the Supreme Court held in Ejeka vs. State (2003) 4 SC (Pt.1) 147 as follows:
?The principle of fair hearing is breached where parties are not given equal opportunity to be heard in the case before the Court. Where the case presented by one part is not adequately considered, the facts (sic) party can complain that he was denied fair hearing. Fair hearing is not an abstract term that a party can dangle in the judicial process but one which is real and which must be considered in the light of the (sic) and

circumstances of the case. A party who alleges that he was denied fair hearing must prove specific act or acts of such denial and not a mere agglomeration of conducts which are merely cosmetic and vain.”
If a Court gives the opportunity to both parties to present their cases but when the lower Court was writing the judgment for whatever reason the Court did not consider one issue or decide the issue one way or the other, can any of the parties complain of lack of fair hearing. I really do not think so as the real essence of fair hearing is opportunity to present the case of the parties. Fair hearing is more concerned with the presentation of cases and not about the attitude of the Court towards the evidence presented. It will in my opinion be taking the position of the case law too far that a Court has a duty to pronounce on all issues before it and therefore to say because the Court did not address all the issues before it, fair hearing has been denied. It is further wrong to say because the Court did not consider the issues the way the Appellant wants it addressed, then there is a violation of fair hearing. It is even taking it too far that a

Court will be said to have violated the principle of fair hearing because the Court did not copiously address the issues particularly when the issues left out are not directly relevant to the issues before the Court, by that I mean the live issues. What is relevant in my opinion is that apart from giving all the parties equal opportunity to present their case, the Court considered the issue and made a pronouncement one way or the other. I must further confirm that what matters even in issue of fair hearing is whether the issue not considered did occasion a miscarriage of justice. A Court should not allow itself to be intimidated by the concept of fair hearing and parties should not see it as an easy way out in cases. In Awusa vs. Nigerian Army (2018) LPELR-44377 (SC), the apex Court per Augie, JSC at page 65-66 held:
“The Appellant smuggled in this Issue under the cover of his right to fair hearing, but it is not enough for him to merely wave the banner of fair hearing, and expect this Court to jump to attention and decide in his favour, just for the asking. The position is that the appellate Court must be satisfied that the alleged miscarriage of

justice is really substantial, not one of mere technicalities, which had caused no embarrassment or prejudice to the Appellant.” – See Adebayo V. A.-G., Ogun State (2008) 7 NWLR (Pt.1085) 201 SC, where this Court per Tobi, JSC, hit the nail on the head, as follows:
I have seen – – that Parties’ who have bad cases’ embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse Party and the Court, with a view to moving the Court away from the live issue in the litigation. They make the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a causal principle of law available to a Party to be picked up at will in a case and force the Court to apply to his advantage. It is a formidable and fundamental constitutional prevision (sic) available to a Party, who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants, who have nothing useful to advocate in favour of

their case, leave the fair hearing constitutional provision alone because it is not available to them just for the asking.
This Court puts the position clearly in Ojo & Anor vs. FRN (2008) 11 NWLR (Pt. 1099) 467; (2008) LPELR-5155 (CA) per Omoleye, JCA thus:
The learned senior counsel for the appellants contended that the appellants were denied fair hearing because according to him, the trial Court failed to consider and pronounce on some points raised by him at trial. Rightly, the principle of law is that when a party submits an issue for Court’s determination, the Court is expected to consider and pronounce upon that issue one way or another. However, the essence of fair hearing is that the parties must be given an equal opportunity to be heard throughout the trial, that is, when the trial commences with the taking of the plea of the accused person on the charge.
On the whole, the right to be heard is a fundamental and indispensable requirement of a valid judicial decision. However, fair hearing is in the procedure followed in the determination of the case, and not in the correctness of the decision. See the cases of:

(1) Rabiu v. State (2005) 7 NWLR (Pt. 925) p. 491 and
(2) State v. Onagoruwa (1992) 2 NWLR (Pt. 221) p. 33.
The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his own observation justice has been done in the case. Moreover, the question whether there has been a denial of fair heating (sic) being one of substance and not of form will always be decided in the light of the realities of any particular case. See the cases of:
(1) Mohammed v. Kano N. A. (1968) All NLR p.424 and
(2) U.B.N. Plc. v. Ikwen (2000) 3 NWLR (Pt. 648) p. 223.
In the case of: Irolo v. Uka (2002) 14 NWLR (Pt. 786) p. 195 my Lord Ogundare, JSC of blessed memory observed at page 237 paras. C -D that:
“…The trial Judge did not resolve the issue of traditional history. That is bad enough, it is his bounden duty, on the evidence before him, to resolve it either way…”
?It was however held in that case that failure of a Court to decide on one of the issues placed before it does not amount to a denial of fair hearing but only an abandonment of a duty placed on the Court to adjudicate.

See also the cases of:
(1) Omokhodion v. FR.N. (No.1) (2005) 10 NWLR (Pt.934) p. 568
(2) Okeke vs. The State (2003) 15 NWLR (Pt. 842) p.25.
From all the circumstances of the instant case, the appellants cannot validly complain that they were denied fair hearing by the trial Court. The appellants have rightly exercised their constitutional right by appealing the judgment of the trial Court which they consider incorrect.?

It is my view that the Appellant cannot complain of lack of fair hearing taking a general overview of the facts of the case and the decision of the lower Court. It is my firm view that the lower Court considered and pronounced on the relevant issues before it in pages 7-9 of the judgment (page 1416-1418 of the records) on the issue of the constitutionality of Section 17 of AFF Act 2006. In pages 30-33 of the judgment found in pages 1439-1442 of the records, the lower Court made a finding on the facts available before coming to the decision not to set aside the interim order and went on to order the final forfeiture. In the circumstance, I hold the first issue in favour of the 1st Respondent.

Now to the second issue, which is whether Section 17 of AFF Act is not in conflict with the provisions of the Constitution of the Federal Republic of Nigeria 1999? It is not in dispute that the Constitution is supreme and therefore any law which is in conflict with it is to be declared null and void. See Owelle Rochas Okorocha vs. PDP & Ors NSCQR Vol. 57 2014 page 272; A.G. Federation vs. A.G. Lagos State NSCQR Vol. 55 2013 page 374; Lafia Local Government vs. Executive Governor Nasarawa State & Ors (2012)17 NWLR (Pt. 1328) 94; Madumere & Anor vs. Okwara & Anor (2013)12 NWLR (Pt. 1368) 303.
The Appellant is emphatic in submitting that Section 17 is unconstitutional as it takes away the presumption of innocence in favour of a Defendant and the fact that it places the burden of proof on the Appellant which is not in line with the Evidence Act and Constitution of Nigeria. Expectedly, the 1st Respondent is of the firm view that Section 17 is not in conflict with the constitution as what is involved is not forfeiture in the con of criminal law but rather a civil forfeiture which does not require any conviction. It is counsel?s submission for

the 1st Respondent that what is involved is non-conviction based forfeiture. In reply the Appellant submitted that non-conviction based forfeiture is not known to our law and under our law there is no forfeiture without conviction. Both of them cannot be right. One is right and the other is wrong. Who is right and who is wrong? In the circumstance, I will reproduce the provision of Section 17 of AFF Act 2006;
?17(1) where any property has come into the possession of any officer of the Commission as unclaimed property or any unclaimed 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 of 2004, the Economic and Financial Crimes Commission Act of 2004 or any other law enforceable under the Economic and Financial Crimes Commission Act of 2004, the High Court shall upon application made by the commission, its officers, or any other person authorized 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, corporate or financial institution in whose possession the property is found or who may have interest in the property or claim ownership of the property to show cause why the property should not be forfeited to the Federal Government of Nigeria.
(3) Application under Subsection (1) above shall first be made by a motion ex parte for interim forfeiture order of the property concerned and the giving of the requisite notice or publication as required in Subsection (2) of this section.
(4) At the expiration of 14 days or such other period as the High Court may

reasonably stipulate from the date of the giving of the notice or making of the publication stated in 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.”
The clear provision of Section 17 is that property can be forfeited if the property is reasonably suspected to be proceeds of some unlawful activity under the Act and other financial related provision of the law including Money Laundering Act 2004, EFCC Act 2004. A Court can make an order for interim forfeiture if it is satisfied that the property is from proceed of an unlawful act or activity. After granting such interim order, publication is made and that gives an opportunity to anyone to challenge the forfeiture by showing cause why the forfeiture should not be made a final forfeiture. The Court will then look at the reasons given which is the cause why the forfeiture should not be final. If the Court does not see any good cause why the forfeiture should not be made final, it will then give the final order for forfeiture. This is what happened in this case.

On 13/10/17, the 1st Respondent obtained an interim forfeiture order in line with Section 17 of AFF Act. The amount involved is N1,442,384,857. On 26/10/2017 the Appellant instituted a motion to set aside the interim order. The 1st Respondent brought a motion for final forfeiture in 14/11/17.
The lower Court in its decision on 27/4/18 dismissed the Appellant?s motion to set aside the interim order for forfeiture and granted the 1st Respondent?s order for final forfeiture. This is the judgment the Appellant is appealing against. What is clear is that the lower Court did not act arbitrarily as the Court acted within legal limits as the orders were made according to law. The question is not whether the lower Court acted within legal limits but rather whether the law which enabled the lower Court to make the order it made is not in conflict with the Constitution? This is what I am considering in issue 2. Once this Court holds that Section 17 of AFF Act is consistent with the Constitution all the argument of the Appellant as to burden of proof, presumption of innocence and that there can be no forfeiture without conviction will amount to nothing and

will be of no moment. The real issue therefore is the constitutionality of Section 17 of AFF Act 2006. The 1st Respondent in its brief referred to two cases on the point. These are Dame Mrs. Patience Ibifaka Jonathan vs. FRN (2018) LPELR-43505 (CA) And La-Wari Furniture & Baths Ltd vs. FRN & Anor (2018) LPELR-43507 (CA). Both cases are very instructive on the point. This Court in both cases expressly held that Section 17 of AFF Act is not in conflict with Sections 36 & 44 of the Constitution. In the case of La- Wari furniture & Baths Ltd vs. FRN & Anor (supra), this Court per Owoade, JCA had held that Section 17 is not in conflict with the Constitution and that the presumption of innocence does not apply since the action is not against the individual but against the property. This is what his lordship said:
?There is no gainsaying that the said Section 17 of the AFF 2006 was enacted in line with Article 54 of the United Nations Convention on Corruption (UNCAC) and also in line with current attitudes worldwide towards the Administration of Criminal Justice and Prevention of Crime. Clearly and as pointed out by the learned counsel

to the 1st Respondent the Non-conviction based (NCB) forfeiture as contained in Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act is not limited to Nigeria. The cases cited to us by the learned Counsel to the 1st Respondent from the European Court of Human Rights and other jurisdictions the world over have shown us on a comparative basis that forfeiture of properties suspected to be proceeds of crime is not unconstitutional. That such civil forfeiture provides a unique remedy as a measure to combat organized crime and that it rests on the legal fiction that the property and not the owner has contravened the law. That in contrast to the in personam nature of criminal actions in rem forfeitures are neither ?punishment? nor criminal for purposes. That a non-conviction based forfeiture is an action in rem targeted against the property and not against the Appellant in whose name the property is known and therefore that the issue of presumption of innocence does not arise as the presumption of innocence only inures in a person charged with a criminal offence and not in properties suspected to be proceeds of unlawful acts.

Incidentally, this position as to non-conviction based forfeiture of property that was achieved through legislation and case law in the U.K. through POCA, in the U.S.A. for example as it is in the case of United States vs. Ursery (95-345)518 U.S 267(1996), in South Africa in the case of Simon Prophet vs. The National Director of Public Prosecution CCT 56/05 (south Africa) and in the European Court of Human Rights as in the case of Gogitidze and Others vs. George Echr (2015) is also achievable in Nigeria and it is not different as the end results are the same on a proper interpretation of the provision of Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act vis–vis the provision of Sections 36 (1) (2) (5) and 44 (2) (b) and (k) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).”
This Court in Dame Mrs. Patience Jonathan vs. FRN (Supra) in page 27 of the judgment was more explicit on the position. This Court held:
?it is my considered opinion that not only is Section 17 of the Advance Fee Fraud (sic) Related Offence Act consistent with the fair hearing provisions of Sections 36(1)(2)

and (5) of the 1999 Constitution, but also that the said Section 17 AFF 2006 is squarely in line with the provision of Section 44 (2)(b) and (k) of the said Constitution.?
This above position of this Court is clear on the subject. For the good reason of consistency in the judgment of this Court I cannot see my way clear to divert from that decision. Most recently the Supreme Court affirmed the above position in the case of Dame Mrs. Patience Jonathan vs. FRN (2019) LPELR-46944 (SC). I will quote extensively from that decision as it covers the whole field on whether Section 17 of AFF Act is unconstitutional. Aka?ahs JSC in pages 17-27 of the case held as follows:
?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 authorized 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) stipulates:-
“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. In Mohammed vs. 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 parimateria with Section 33(4) of the 1979 Constitution andSection 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 in Ariori & Ors vs. 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 vs. Oko (1986) 5 NWLR (Pt.45) 909 at 933 and applied to the case of Bamaiyi vs. State (2001) 8 NWLR (Pt. 715) 270 in the leading judgment of Uwaifo JSC at page 284. It is in Uguru vs. 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 vs. Egeibon (1994) 6 NWLR (Pt. 348) 23; Mohammed vs. 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 vs. 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 causasua. These rules (sic) 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 vs. 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 vs. The State (1988) 3 NWLR (Pt. 85) 729 at 753 and Bamgboye vs. 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 causasua 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.?(underlined for emphasis sake).

His Lordship continued in the judgment to hold that the lower Court has power to make an interim order and subsequently a final order of forfeiture if the other party is unable to show cause why the properties should not be forfeited. In pages 30-40, his Lordship further held:
..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 (sic) 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 vs. Chairman, EFCC (2005)

All FWLR (Pt. 276) 740; Akingbola vs. Chairman EFCC (2012) 9 NWLR (Pt. 1306) 475; Felimon Ent. Nigeria Ltd vs. The Chairman, EFCC & Anor (2013) 1 BFLR 94; Federal Republic of Nigeria vs. Ikedinwa (2013) LPELR 21120 (CA); Dangabar vs. Federal Republic of Nigeria (2014)12 NWLR (Pt. 1422) 575?.. 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 explosion of civil forfeiture laws as a method of crime control is certainly due to organized crime. The pioneers in this activity are the United State and Italy. By the introduction of the Racketeering Influence and Corrupt Organizations 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 Organized Crime Act 1998; then Ontario enacted the Remedies for Organized 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 vs. 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 vs. 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 organized 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 vs. 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 vs. 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 utres 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” vs. 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 legalized 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 the 1999 Constitution

recognizes 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 (sic) 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 vs. 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 vs. EFCC (2012) 5 NWLR (Pt. 1292) 160 and FRN vs. Ikedinwa (2013) LPELR 21120 (CA) do not represent the correct position of the law.?
The above decision of the Supreme Court has settled beyond any doubt that Section 17 of the AFF Act is not unconstitutional and indeed has answered all the issues raised by the Appellant in the brief of the Appellant. The argument that there can be no forfeiture without conviction and that Non Conviction Based forfeiture is not known to our law does not represent the true position of the law. The Supreme Court has spoken and that is the final position. This issue I resolve in favour of the 1st Respondent.

The Appellant in issue 3 has raised the question whether the lower Court was not in error to have granted the final forfeiture order in line with the motion for final forfeiture on 14/11/16. The lower Court in the judgment in pages 33-34 of the judgment found in pages 1442-1443 held as follows:
?I found after evaluating and juxtaposing all the facts presented by the parties that the affidavit showing cause rendered by the 1st Respondent falls below that which would

discharge the reasonable suspicion that the sum of N3,500,000,000 billion naira deposited with the Access Bank Plc is not a result of an unlawful activity within the meaning and contemplation of the
1. The Advance Fee Fraud Act 2006
2. The Money Laundering Act 2004
3. The EFCC Act 2004 and other laws enforceable under the EFCC Act of 2004.
In the circumstance, the Court finds that the only order to make is one forfeiting the said sums to the Federal Government of Nigeria.
An Order of Final Forfeiture is according made forfeiting to the Federal Government of Nigeria the sum of N1,222,334,857.84 found in the Melrose Account No 0005892453 domiciled in Access Bank Plc. In addition the sum of N220,000,000 recovered from Wasp Network Ltd and Thebe Wellness Services is forfeited to the Federal Government of Nigeria.?

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.?

The stage is now set to determine whether the lower Court was right to have ordered the final forfeiture. What was the evidence before the lower Court? The Appellant says the money that was credited into his account was for consultancy job done for the Nigerian Governors Forum (NGF). The Appellant tried to show this by tendering Exhibits MSG 1, MSG 2 and MSG 3. These are documents which tend to show that the NGF gave the job for consultancy to verify and reconcile data already collected in respect of the over-deduction on state and Local Government account on the London and Paris Club debt for the period 1995-2002. The Appellant in the affidavit to show cause has said that the sum of N3,500,000,000 was payment for consultancy job he carried out for the NGF. The 1st Respondent on the other hand in the counter affidavit to show cause, is emphatic that the Appellant was not a consultant to the NGF and therefore did nothing but fraudulently collected that huge sum of money by copying and duplicating the report of the sole consultant to the NGF which is GSCL Bizplus consortium. The lower Court evaluated the affidavit

evidence before it and the exhibits before coming to the conclusion that the 1st Respondent deserves the final forfeiture order. I will now cautiously within the limit of the law look at the evidence in determining whether the lower Court was right. In doing this, I must warn myself that evaluation of evidence is not for the Appellate Court as this Court is not to interfere with the finding of fact by the lower Court except such finding is perverse and occasion miscarriage of justice. See Hon vs. Umennadi (2019) LPELR-47023 (CA); Nomayo vs. State (2018) LPELR-44729 (SC); Tobi vs. State (LPELR-46537 (SC); Michael Eyo vs. Emeka Collins Onuoha NSCQR Vol. 45 2011 page 210.

The lower Court in pages 27-33 of the judgment found in pages 1436-1442 of the records reviewed the evidence before it and came up with a finding rejecting the Appellant?s case and accepted the 1st Respondent?s case. This finding made the lower Court to dismiss the motion to set aside the interim order for forfeiture filed by the Appellant and granted the motion for final forfeiture order filed by the 1st Respondent. It would appear that the Appellant?s case is founded

on Exhibits MSG 1, MSG 2 AND MSG 3. MSG 1 is a letter of introduction by the Appellant to carry out the responsibility as consultants to the NGF to verify, reconcile and recover over-deductions on the State and Local Government accounts on the London and Paris Club debt for the period 1995-2002. This letter was made on 3/8/16. MSG 2 made on 8/8/16 is the approval for the assignment. MSG 3 is the agreement between the Appellant and NGF. This gives the impression that the Appellant was engaged by NGF as consultant for the purpose of the over-deduction on the state and Local Government account on the London Paris Club debt. The Appellant report was made ready on 14/11/16. The 1st Respondent on the other hand based its case on engagement of GSCL Bizplus as the sole consultant of the NGF for the same assignment the Appellant claims it was engaged for. GCSL Bizplus was appointed as the sole consultant to the NGF for the purpose of verifying, reconciling and the recovery of the over deduction from the states account on the London Paris debt. The appointment of GCSL Bizplus Consortium was made on 26/5/16.

On 31/5/16, NGF introduced GCSL Bizplus consortium as

the sole consortium for that purpose to the Hon. Minister for Finance. This was further confirmed by the NGF to the Minister for Finance and the Debt Management Office (DMO) on 3/8/16. The Minister of Finance had meetings with GCSL. The report was made by GCSL to NGF on 31/8/16. Based on this report by GCSL, the NGF forwarded same to the Minister of Finance and DMO. Payment demand was made on 31/8/16. After the processing, payment was approved by the President. Demands were made by the State and they were subsequently paid. One exhibit which the 1st Respondent submitted that supported its case is Exhibit MSG 4. If there was any appointment at all made by the NGF to the Appellant, it is to verify and reconcile data already generated. It is the case of the 1st Respondent which the lower Court agreed with after evaluating the evidence that, the Appellant ought not to have receive any payment from the NGF as it did not carry out any consultancy work on the subject since GCSL BizPlus is the sole consultant. It is impossible to have appointed the Appellant as consultant to review the data that has not been generated at the time of appointment.

This the lower Court agreed with. By Exhibit MSG 2, the alleged appointment of the Appellant was made on 8/8/16 while the report of the sole consultant was made on 31/8/16. The President?s approval and payment were made long before the Appellant got their report ready for the NGF. The Appellant report was ready on 30/11/16 while Presidential approval for payment was made before 7/11/16. The lower Court also held that the Appellant?s report of 30/11/16 is on all fours the same with the earlier report of GCSL BizPlus consortium. The lower Court clearly held in page 30 of the judgment found in page 1439 of the records that ?the 1st Respondent falsely reproduced and represent as its own work, the work of the consortium GSCL BIZPLUS.? It will not be out of place to reproduce what the lower Court said in pages 30-32 of the judgment found in pages 1439-1442.
?The 1st Respondent exhibited a copy of the letter issued by the Nigeria Governors? forum dated 8th August, 2016. Exhibit MGS 2 and a copy of the agreement Exhibit MGS 3. His assignment was to verify and reconcile the already generated Report. He was subsequently paid the sum of

N3,500,000,000.00 Billion Naira. The applicant has informed the lower Court that the N3,500,000,000.00 was fraudulently obtained by the 1st Respondent from the Nigeria Governors? Forum while purporting to have carried out a consultancy job for the Nigeria Governors? Forum. That the 1st Respondent falsely reproduced and represented as its own work, the work of the consortium GSCL BIZ PLUS. That 1st Respondent had within a short time made several withdrawals, leaving a balance of N1, 222, 384, 857.84 before the Commission intervened. There is uncontroverted Evidence that the consortium which carried out the verification of the London Paris Club Refunds is the GSCL Biz Plus. It is on record that the letter referred to by the 1st Respondent appointing him a consultant by the Nigeria Governors? Forum is dated 8th August 2016. The report prepared by the GSCL Biz Plus consortium was dated 31st August, 2016 and same was submitted to the Nigeria Governor?s Forum on 2nd September, 2016. As at that time i.e. 8th August 2016 there was no data already generated for the 1st Respondent to work on while the 1st Respondent?s mandate was to work on

the data already generated. By 8th August 2016, none was in existence. By the covering letter dated 31st August, 2016 the Nigeria Governors? forum forwarded to the Honourable Minister of finance and copied the Debt Management Office, the Consultant?s report of GSCL Biz Plus consortium on refund of excess deductions from State Governments Funds on foreign loan between 1995-2002.
After receiving the Report of GSCL Biz Plus consortium from the Nigeria Governors? Forum, the Honourable Minister of Finance wrote a letter dated 21st November 2016 made recommendation to the President of the Federal Republic of Nigeria for payment to the Nigeria Governors? Forum. On the same 21st November, 2016 the President approved payment of 25% of the total amount arrived at, in the GSCL Biz Plus consortium?s report. Based on the approval of the President, the Honourable Minister of Finance by the letter dated 21st November 2016 wrote to the Central Bank of Nigeria to effect the payment of $86,546,526.65 US Dollars to the account of the Nigeria Governors? Forum. A similar letter dated 7th December, 2016 was written by the Honourable

Minister of Finance to the Central Bank of Nigeria to effect payment of N19,439,225,871.11 to the Nigeria Governors? Forum.
The Consortium GSCL Biz Plus was invited by the Debt Management Office for deliberation of its Report. All these steps taken before the consultant GSCL Biz Plus was paid have not been shown by the 1st Respondent to have taken place before the sum of N3,500,000,000.00 was paid into its account, thus reinstating the reasonableness and satisfaction set out in Section 17 of the Advance Fee Fraud that the monies were the proceeds of unlawful activity under the Act and other related laws enforceable under the EFCC Act.”

Taking the general overview of the evidence before the lower Court, I cannot see any reason whatsoever to interfere with the finding of facts of the lower Court on the premise that the sole consultant for the NGF on the subject and who actually carried out the job they were appointed for is GCSL BizPlus consortium. It is also not out of place to agree with the finding that the Appellant did not carry out any duty for the NGF as consultant on the subject so as to deserve the N3,500,000,000 paid over to

it. I have no difficulty whatsoever to resolve this issue in favour of the 1st Respondent that is to say the lower Court was not in error in making the final order for forfeiture as the Appellant was unable to show because why the order should not be made final. It is not as irrelevant as learned counsel for the Appellant wants this Court to believe that it does not matter that the payment made to the Appellant did not pass the process which the payment made to GSCL Bizplus Consortium pass. That is the due process. Anything outside due process is suspicious. I resolve this issue in favour of 1st Respondent.

Having resolved issue 3 in favour of the 1st Respondent, it will be abnormal not to resolve issue 4 in favour of the 1st Respondent. This is clear as the granting of the final forfeiture order implies that the lower Court cannot set aside the interim order. Though the lower Court has the power to set aside its judgment or an order earlier made but it is not applicable in this instance as there is no misrepresentation and suppression of facts in securing the interim order.
This issue I also resolve in favour of the 1st Respondent.

The four issues raised for determination in the Appellant?s brief I resolve in favour of the 1st Respondent. The implication of this on the appeal is clear and it is that the appeal lacks merit and it is hereby dismissed. I affirm the decision of Hon. Justice C.M.A. Olatorgun of the Federal High Court, Lagos Division delivered on 27/4/18.
I award N100,000.00 (One Hundred Thousand Naira) cost against the Appellant in favour of the 1st Respondent.

TIJJANI ABUBAKAR, J.C.A.: I had a preview of the leading Judgment prepared and rendered in this appeal by my learned brother Ebiowei Tobi, JCA. I agree and adopt the entire Judgment as my own, I have nothing extra to add.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had a preview of the judgment just delivered by my learned brother EBIOWEI TOBI, JCA and I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother.

?I also find the appeal unmeritorious and it is hereby dismissed. The judgment of the Federal High Court, Lagos division delivered on 27/4/18 by Hon. Justice C. M. A Olatoregun

is hereby affirmed and I abide by all other consequential orders in the lead judgment.

Appearances:

K. T. Olawuni, Esq. with him, O. Ibrahim, Esq.For Appellant(s)

Respondent absentFor Respondent(s)

Appearances

K. T. Olawuni, Esq. with him, O. Ibrahim, Esq.For Appellant

AND

Respondent absent For Respondent

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