LA-WARI FURNITURE AND BATHS LIMITED v. FEDERAL REPUBLIC OF NIGERIA & ANOR
(2018)LCN/12060(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of January, 2018
CA/L/578A/2017
RATIO
EVIDENCE: PRESUMPTION OF INNOCENCE
“On presumption of innocence, I must say that the Appellant in the instant case was never on trial for a criminal offence; therefore the doctrine of presumption of innocence is not applicable to the circumstances of the case.
The issue of innocence of the Appellant does not come into play in a non-conviction based forfeiture proceeding. Incidentally, the 1st Respondent indeed went as far as to title its ex parte summons “Action in Rem”. More importantly, the proviso to Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (As amended) states clearly that nothing shall invalidate any law by reason only that the law imposes upon any person the burden of proving a particular fact. So also, it is that the provisions of Sections 44(2) (b) and (K) of the 1999 Constitution leaves no one in doubt as to the constitutionality of forfeiture of properties for breach of any law, whether under civil process or even after conviction for an offence.” PER MOJEED ADEKUNLE OWOADE, J.C.A.
INTERPRETATION: STATUTE OF INTERPRETATION
“This is because the cardinal or golden rule of interpretation is ut res magisvaleat quam percat that is the words of a statute must be given their ordinary meaning without importing into them what is not there. In other words, the duty of the Court is to interpret the language of a statute in its grammatical meaning to convey the intention of the law maker. See: HON. JUSTICE RALIAT ELELU HABEEB (CHIEF JUDGE OF KWARA STATE) & ANOR VS. THE HON. ATTORNEY GENERAL OF THE FEDERATION AND 2 ORS. (2012) 2 SC (PT. 1);
BRIG GENERAL MOHAMMED BUBA MARWA (RTD) AND ANOR VS. ADMIRAL MURTALA NYAKO (RTD) AND 9 ORS (2012) 1 SC (PT. 111) 44;
OWNERS OF MV ARABELLA VS. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2009) 4 5 SC (PT. 11) 189); OGAGA VS. THOMAS E. UMUKORO AND 2 ORS (2011) 12 SC (PT. 11) 74;
JOSEPH AMOSHIMA VS. THE STATE (2011) 6 7 SC (PT. 111) 1;
TABIK INVESTMENT LIMITED VS. GUARANTY TRUST BANK PLC (2011) 6 7 SC (PT. 111) 40.” PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICE
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
Between
LA-WARI FURNITURE AND BATHS LIMITEDAppellant(s)
AND
1. FEDERAL REPUBLIC OF NIGERIA
2. DAME MRS. PATIENCE IBIFAKA JONATHANRespondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment):
This is an Appeal against the decision/Ruling of Hon. Justice C. M. A. Olatoregun of the Federal High Court, Lagos Judicial Division, delivered on the 26th day of April, 2017 in suit No. FHC/L/CS/640/2017.
On 26/04/2017, the 1st Respondent as Applicant in the Court below filed a Motion Ex-Parte in which the Appellant and the 2nd Respondent were named as parties praying for an order of forfeiture of monetary property in Account No. 2110001712 Domiciled in SKYE Bank PLC in the name of Dame Patience Jonathan AND Account No. 2022000760 Domiciled in ECOBANK NIGERIA LIMITED in the Name of LA WARI FURNITURE AND BATHS LIMITED pursuant to Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act No. 14 of 2006.
The said Motion Ex-Parte for an Order of Interim Forfeiture was brought under Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act No. 14 2006, Section 44 (2) (K) of the Constitution of Federal Republic of Nigeria 1999 (as amended) and under the inherent jurisdiction of the Court.
The prayers of the said 1st Respondent/Applicant and the grounds upon which the Application was sought as contained on Pages 31 – 32 of the Record of Appeal are reproduced below as follows:
1. AN interim Order of this Honourable Court forfeiting the sum of $5,842,316.66 (Five Million, Eight Hundred and Forty Two Thousand, Three Hundred and Sixteen United States (sic) Dollars, Sixty Six cent) found by the Commission in account No. 2110001712 domiciled with Skye Bank PLC in the name of Dame Patience Jonathan which sum is reasonably suspected to be proceeds of unlawful Activity.
2. AN interim Order of this Honourable Court forfeiting the total sum of sum 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) found by the Commission in account No. 2022000760 domiciled with Ecobank Nigeria Ltd in the name of La Wari Furniture and Baths Ltd which sum is reasonably suspected to be proceeds of unlawful Activity.
3. An Order of this Honourable Court directing the publication in any National Newspaper of the interim 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 this Honourable Court to show cause within 14 days why the final order of forfeiture of the monetary properties mentioned in reliefs 1 and 2 herein should not be made in favour of the Federal Government of Nigeria.
4. AND for such further or other Orders as this Honourable Court may deem fit to make in the circumstances of this case.
GROUND UPON WHICH THE APPLICATION IS BROUGHT
1. That this Honourable Court has the statutory powers under the provisions of Section 17 of the Advance Fee Fraud and Other Related Offences Act, 2006 to grant the reliefs being sought.
2. That the monetary properties sought to be attached are reasonably suspected to be proceeds of an unlawful activity.
The said 1st Respondent’s Applicant’s Motion Ex-Parte was supported by Affidavit in support, Exhibits and Written Address.
On the said 26/04/2017, the learned trial Judge granted the 1st Respondent’s Applicant’s prayers on the Motion Ex-Parte and fixed 15/05/2017 as return date.
The learned trial Judge granted the order on the 1st Respondent’s Originating Summons Ex-Parte in the following terms:
1. AN interim Order of this Honourable Court forfeiting the sum of $5,842,316.66 (Five Million, Eight Hundred and Forty Two Thousand, Three Hundred and Sixteen United (sic) states Dollars sixty six cent) found by the commission in account No. 2110001712 domiciled with Skye Bank PLC in the name of Dame Patience Jonathan which sum is reasonably suspected to be proceeds of un-lawful activity.
2. AN interim order of this Honourable Court forfeiting the total sum 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) found by the commission in account No. 2022000760 domiciled with Ecobank Nigeria Ltd in the name of La Wari Furniture and Baths Ltd which sum is reasonably suspected to be proceeds of unlawful Activity.
3. An Order of this Honourable Court directing the publication in any National Newspaper of the interim 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 this Honourable Court to show cause within 14 days why the final order of forfeiture of the monetary properties mentioned in reliefs 1 and 2 herein should not be made in favour of the Federal Government of Nigeria.
Dissatisfied with the decision of the Court, the Appellant filed a Notice of Appeal containing two (2) Grounds of Appeal into this Court on 19th September, 2017.
The relevant Briefs of Argument for the Appeal are as follows:
I. Appellant’s Brief of Argument dated and filed 11/07/2017 but deemed filed on 18/09/2017. It is settled by Chief Mike A. A. Ozekhome, SAN.
II. 1st Respondent’s Brief of Argument dated 29/08/2017 and filed on 30/08/2017 but deemed filed on 18/09/2017. It is settled by Rotimi Oyedepo Iseoluwa, Esq.
III. Appellant’s Reply Brief dated and filed on 14/09/2017 but deemed filed on 18/09/2017. It is settled by Chief A. A. Ozekhome, SAN.
Learned Senior Counsel for the Appellant nominated Two (2) Issues for the determination of the Appeal as follows:
1. Whether Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act No. 14 of 2006 is inconsistent with Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and consequently unconstitutional, null and void having regards to Section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
2. Whether the Order of Interim Forfeiture against the money of the Appellant domiciled in ECOBANK PLC occasioned a miscarriage of Justice having regard to the requirements of Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act, Number 14 of 2006 vis-a-vis the materials placed by the 1st Respondent to secure the order.
Learned Counsel for the 1st Respondent on the other hand also formulated Two (2) Issues as follows:
1. 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 Fraud Related Offences Act, 2006, violates the Appellant’s right to fair hearing guaranteed by the Constitution, so as to render the said Section 17 of the said Act unconstitutional.
2. Whether having regard to the facts and circumstances of this case it can be said that Order of Interim Forfeiture granted by the lower Court occasioned a miscarriage of Justice.
On Issue One, learned Senior Counsel for the Appellant submitted that the provisions of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act No. 14 of 2006 are inconsistent with those of Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 as altered and consequently unconstitutional, null and void having regards to the provisions of Section 1(3) of the said Constitution.
He submitted further that the provisions of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act No. 14 of 2006 runs contrary to the general provisions of fair hearing in the Constitution as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and most especially the right to presumption of innocence.
Learned Senior Counsel for the Appellant reproduced the provisions of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act No. 14 of 2006 as well as that of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
He submitted that a community reading of those two provisions show clearly that there are conflicts between the two and that Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act No. 14 of 2006, presents itself as 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 go ahead and make an order forfeiting the said properties finally to the Federal Government of Nigeria, without any prior investigation, arraignment, trial and conviction of the owner of the property.
Learned senior counsel for the Appellant argued that the provision of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is synonymous with the age long Latin maxim Audi Altarem Partem – meaning – Hear the other side or a person must not be condemned unheard.
That the principle manifests in three important requirements, namely (a) the Court or tribunal must hear both sides (b) equal treatment, equal opportunity and equal consideration (c) that Justice must not only be done but must be seen to have been done.
He referred to the cases of:
IKA LOCAL GOVERNMENT AREA VS. MBA (2007) 12 NWLR (PT. 1049) 676 at 704; KOTOYE VS. C.B.N. (1989) 1 NWLR (PT. 98) 419 at 448; ADIGUN VS. A.G. OYO STATE (1987) 1 NWLR (PT. 53) 678 at 721.
Appellant’s counsel submitted that based on the above decisions, Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act No. 14 of 2006 which purportedly empowered the Court below to grant an Order of Interim Forfeiture against the Appellant’s money ex parte upon the application of the Economic and Financial Crimes Commission (EFCC) violate the said Section 36(1) of the Constitution. This, according to Appellant’s Counsel is because since the 26th of April 2017 when the lower Court made the order of forfeiture against the Appellant’s money, the Appellant has not had any access to the said money.
In effect, said Counsel, the Appellant is being punished by the Court, without any hearing from her. He referred once again to the provision of Section 1(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and submitted that by virtue thereof, the Constitution is supreme, inviolate and sacrosanct. That any law that conflicts with the provisions of the Constitution shall be inapplicable to the extent of its inconsistency.
After further relying on the case of INSPECTOR GENERAL OF POLICE VS. A.N.P.P. AND ORS. (2007) 18 NWLR (Pt. 1066) 457 on the above proposition, learned senior counsel for the Appellant submitted that the money in the Appellant’s Account could not be said to be “unclaimed property.”
He referred to the case of NAPOLEON S. ORIANZI VS. THE ATTORNEY-GENERAL, RIVERS STATE AND ORS. (2017) LPELR – 41737 (SC) Section 44 (2) (K) of the 1999 Constitution and the United States Unclaimed Property Act, (1995).
He submitted that there is a difference between a situation where assets of a citizen are merely acquired by the government temporarily without the payment of compensation for the purpose of “examination, investigation or enquiry” as stated in Sub section (2) (K) of Section 44 and a situation, where upon mere suspicion, the EFCC could apply to a Court ex parte, for the seizure or attachment of a citizen’s property in the interim, which said seizure would inexorably culminate into the final forfeiture to the Federal Government of Nigeria of the assets so seized or forfeited, without any prior arraignment, trial and conviction of the person concerned.
He submitted that in this case, the 1st Respondent’s Application ex parte made pursuant to Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act No. 14 of 2006, 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, as altered. That in fact, the 1st Respondent’s Affidavit in support of the application did not state so. That, on the contrary, the Affidavit stated that, upon the receipt of an Intelligence Report, investigation was carried out and the investigation revealed that the money in the Appellant’s Account is a proceed of unlawful activities.
In other words, according to Appellant’s Counsel, the purpose of the 1st Respondent’s Application was to move the Court to issue an interim order forfeiting the Appellant’s money to the Federal Government of Nigeria, (towards final forfeiting) based on its already completed purported investigation anchored on an “Intelligence Report”.
He submitted that based on the tenor of Section 44 (1) (2) (K) of the Constitution, and the facts deposed to by the 1st Respondent, the provisions of Section 44 (2) (K) of the Constitution are not at all relevant to the Application of the Applicant and do not validate, in anyway, howsoever, the provisions of Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act No. 14 of 2006, which makes provisions for the forfeiture of assets of a person, once the EFCC through any of its officials, brings an application to that effect, and upon the Court having been satisfied that the money in an Account is a “Proceed of unlawful activity notwithstanding the fact that the owner of property concerned has neither been charged, arraigned, tried nor convicted of any offence, however, pertaining to the property.
He referred to the decisions of the court of Appeal in:
NWAIGWE VS. F.R.N. (2009) 16 NWLR (PT. 1166) 173 at 201; and CHIDOLUE VS. EFCC (2012) 5 NWLR (PT. 1292) 160 at 179, and urged us first to hold that any law which purports to punish any person without trial and conviction is unconstitutional and the said law as Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act No. 14 of 2006, ought to be declared null and void.
Secondly, Appellant’s counsel urged us to set aside the order made on the 26th of April, 2017, pursuant to the said Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act No. 14 of 2006.
Learned counsel for the Respondents also reproduced the provision of Section 36 (1) of the 1999 Constitution and submitted that there is no denial of fair hearing in the face of Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act No. 14 of 2006.
He submitted that the hearing envisaged by the provision of Section 36 (1) of the Constitution is hearing conducted in line with practice, procedure and the rules formulated by statute and the rules of Court to ensure Justice.
He referred to the Supreme Court authorities of:
BAMAIYI VS. STATE (2001) 8 NWLR (PT. 715) 270 at 284; UGURU VS. STATE (2002) 2 NWLR (PART 771) 90 at 105; and AUDU VS. F.R.N. (2013) LPELR 19897 (SC) PP. 13 – 14
He submitted that having regard to the judicial pronouncements on the term fair hearing in the above cases, Section 17 of the Advance Fee Fraud and other Fraud Related Offences 2006, has in built in it, the mechanism for the hearing of parties. The law, he said, prescribes that the Economic and Financial Crimes Commission (EFCC) should after identifying an 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, said counsel, 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.
1st Respondent’s Counsel submitted that the procedure provided under Section 17 of the AFF has sufficiently complied with the provisions of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria by prescribing the procedure in which the affected party may challenge the interim order of forfeiture.
Therefore, said counsel, once this procedure is followed, there cannot be question of infringement of right to fair hearing as guaranteed by the Constitution.
Learned Counsel for the 1st Respondent submitted further that Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act 2006 is constitutional and is in line with both Sections 36 (1) (5) and 44 (1) of the Constitution. That the section only empowers the Commission to apply for an order of interim forfeiture which is different from final order of confiscation and forfeiture. He submitted that an order of interim forfeiture inures until the end of the substantive application which is still pending before the lower Court or until the interim forfeiture order is discharged by the lower Court.
If at the end of the hearing of the Application, the lower Court finds that it ought not to grant the interim forfeiture order, the interim forfeiture order is liable to be discharged.
Respondent’s Counsel submitted that the essence of an interim forfeiture order is not to deprive a suspect of his property or asset, but to preserve the property from being wasted and dissipated by the suspect so that the Judgment of the Court will not be rendered nugatory.
He referred to the cases of:
ENVIRONMENTAL DEVELOPMENT AND ANOR CONSTRUCTION VS. UMARA ASSOCIATES NIGERIA (2000) 4 NWLR (PART 652) 293 at 308; and 7-UP BOTTLING COMPANY LIMITED VS. ABIOLA AND SONS LIMITED (1995) 3 NWLR (PART 383) 257 at 285 the first to show that interim order presupposes that there would be a final order.
And, the second for the proposition that “they determine the ‘Civil rights and obligation’ of the parties proceeding as envisaged by the Constitution”.
Learned Counsel for the 1st Respondent submitted that contrary to the submission of the Appellant that Sections 28 and 29 of the Economic and Financial Crimes Establishment Act, 2004 was declared unconstitutional in the case of F.R.N. VS. NWAIGWE (2009) NWLR (PT. 1166) 169, that later decisions of the Court of Appeal has repeatedly held that the Sections were not unconstitutional.
In this respect, 1st Respondent’s counsel quoted extensively from the Judgment of the Court of Appeal per Bada, JCA in the case of ESAI DANGABAR VS. F.R.N. (2014) 12 NWLR (PT. 1422) 575 at 607 – 608.
He submitted that under Sections 28 and 29 of the EFCC Act, the interim order envisaged is the one pending the criminal charge, whereas the interim forfeiture envisaged under Section 17 of the AFF 2006 is the one pending the outcome of the Motion on Notice for final forfeiture of properties or assets reasonably suspected to be proceeds of unlawful activities.
That in either case, the order of interim forfeiture may be challenged by a party affected by it once sufficient evidence establishing the genuine origin of the property or asset sought to be forfeited is presented before the lower Court. And, that in both instances, the interim order are not final but pending final proceedings. So the question of finally determining the Appellant’s criminal liability does not arise at the stage of interim forfeiture.
Learned Counsel for the 1st Respondent further supported his arguments with the Court of Appeal decisions of:
F.R.N. VS. IKEDINWA (2013) LPELR 21120 (CA); AKINGBOLA VS. CHAIRMAN, EFCC (2012) 9 NWLR (PT. 1306) 475 at 500 502; FELIMON ENT LIMITED VS. THE CHAIR, EFCC AND ANOR (2013) 1 BFLR 94 at 105-106;
NWUDE VS CHAIRMAN, EFCC (2005) ALL FWLR (PT. 276) 740 and the Supreme Court decision in A.G., ONDO STATE VS. A.G. FED. (2002) 9 NWLR (PT. 772) 22 at 308 309 and came to the conclusion that the grant of ex parte motion by the lower Court was not an infringement on the Appellant’s fundamental right to fair hearing as it is trite that when an ex parte application is brought before the Court, it is a proceeding between the Applicant and the Court, the Respondent to an ex parte application even if present in Court can only be seen and not heard.
Learned Counsel for the Respondent then ventured to trace the historical perspective behind non-conviction based forfeiture as contained in Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act No. 14 of 2006. He traced the modern origin of forfeiture laws to the pre-Norman times concept of deodand” and that perhaps encouraged in recent times by the introduction of the Racketeering Influenced and Corrupt Organizations Act 1970 (RICO”) in the United States that many other countries and State legislatures introduced Civil Forfeiture Laws.
Respondent’s Counsel cited amongst others the Criminal Assets Recovery Act, 1990 (New South Wales) the prevention of Organized Crime Act 1998 (South Africa) and the Proceeds of Crime Act 2002 in Australia and the United Kingdom.
Learned Counsel also referred to Article 54 of the United Nations Convention Against Corruption (UNCAC) which came into force in 2005 and which 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.
He stated that the Non-Conviction Based (NCB) Forfeiture as contained in Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act No. 14 of 2006 is not limited to Nigeria. That, for example, Part 5 of the Proceeds of Crime Act 2002 (POCA) of United Kingdom provides for a system of Non-Conviction Based Forfeiture where the High Court may make an order vesting property in the State where it is persuaded on the civil standard of proof that the relevant property is ‘recoverable’ (i.e. that it represents the proceeds of crime).
That although, the Respondents to Part 5 proceedings are the beneficial owners of the property in question, the proceedings are effectively in rem, with POCA establishing rules for tracing recoverable property akin (but not identical) to the equitable jurisdiction of the civil Courts.
1st Respondent’s Counsel followed up by referring to cases from various foreign jurisdictions where Non-Conviction Based Forfeiture legislations have received judicial approval.
They are:
GOGITIDZE AND ORS VS. GEORGIE ECHR (2015); BUTLER VS. THE UNITED KINGDOM (DEC) NO.41661/98 delivered on 27th June, 2002.
ARCURI AND ORS VS. ITALY (DEC) NO. 52024/99, ECHR 2001 VI;
SIMEON PROPHET VS. THE NATIONAL DIRECTOR OF PUBLIC PROSECUTION CCT 56/05 (SOUTH AFRICA)
UNITED STATES VS. URSERY (95 – 345) 519 U.S. 267 (1996); BENNIS VS. MICHIGAN (94 8729) 517 U.S. 1163 (1996).
Counsel also referred to the Supreme Court of Ireland in the case of GILLIGAN VS. CRIMINAL ASSETS BUREAU (2001) IESC 82 where the Supreme Court of Ireland found that the Court is satisfied that the United States 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.
He submitted 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.
He concluded that the misconception of the Appellant lies in the assumption that the suit before the lower Court is against his person whereas it is an action in rem as clearly stated on the face of the motion. And, therefore, being an action in rem, 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.
He urged us on Issue one to hold that Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act 2006 is constitutional.
In his Reply Brief, learned senior counsel for the Appellant further submitted on Issue one that a community reading of the Provisions of Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act No. 14 of 2006 and Sections 28 and 29 of the EFCC Establishment Act will show clearly that Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act No. 14 of 2006 is solely intended for forfeiture of unclaimed properties belonging to a known individual.
He submitted that once a crime has been alleged against the Appellant, whether in civil or criminal proceedings Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act must bow to the superior force of Section 36 of the Constitution.
On this, learned Senior Counsel for the Appellant referred to the cases of: PROFESSOR AJIBAYO AKINKUGBE VS. EWULUM HOLDINGS NIGERIA LIMITED AND ANOR (2008) LPELR 346 (SC) PP. 18 19; OTUKPO VS. JOHN AND ANOR (2012) LPELR 20619 (SC) at page 15; RE: OSIBAAKORO D. OTUEDON (1995) LPELR 1506 (SC) PAGE 23; ANANABA VS. FRI EL ABA PALM (NIG) LIMITED AND ORS. (2016) LPELR 40463 (CA) PP. 24 – 27.
He noted that the United Nations Convention Against Corruption (UNCAC) has not been domesticated in Nigeria in line with Section 12 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and repeated that the provisions of Section 17 of the Act contravenes Section 36(5) and Section 1(3) of the Constitution and consequently, the said Section 17 is unconstitutional null and void.
RESOLUTION OF ISSUE ONE
In considering Appellant’s Issue One, it is pertinent to reproduce the provisions of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act 2006 as well as the provisions of Section 36(1) (2) and (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as follows:
SECTION 17 AFF 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 Crime 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 Subsection (2) and (3) of this section, an application shall be made by a motion on notice for the final forfeiture of the property concerned to the Federal Government of Nigeria.
SECTION 36 (1) (2) AND (5) 1999 CONSTITUTION
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.
2. Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the determination of a law that affects or may affect the civil rights and obligations of any person if such law
a) Provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and
b) Contains no provision making the determination of the administering authority final and conclusive.
(5) Every person who is charged with a criminal offence shall be presumed to be 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 such person the burden of proving particular facts.
A holistic interpretation of the provision of Section 36 of the 1999 Constitution would lead one to the conclusion that fair hearing within the meaning of the Section actually means a trial or hearing conducted according to all the legal rules formulated to ensure that Justice is done to the parties.
See: BAMAIYI VS. STATE (2001) 8 NWLR (PT. 715) 270 at 284; UGURU VS. STATE (2002) 2 NWLR (PART 771) 90 at 105; and AUDU VS. F.R.N. (2013) LPELR 19897 (SC) PP. 13 – 14.
In the instant case, I do agree with the learned counsel to the 1st Respondent that the procedure provided under Section of the AFF 2006 has sufficiently complied with the provisions of Section 36 (1) (2) and (5) of the 1999 Constitution by prescribing the procedure in which the affected party may challenge the interim order of forfeiture. And, that once this procedure is followed there cannot be question of infringement of right to fair hearing as guaranteed by the Constitution.
Relatedly, an interim forfeiture as in the instant case, presupposes that there would be a final order and could therefore not be treated or interpreted as a final forfeiture order. Indeed, the essence of an interim forfeiture order is not to deprive a suspect of his property or asset, but to preserve the property from being wasted and dissipated by the suspect so that the judgment of the Court or in the instant case, the final forfeiture order will not be rendered nugatory.
This is the reason why in relation to ex parte injunctions generally, the Supreme Court held inter alia in 7-UP BOTTLING LIMITED VS. ABIOLA AND SONS LIMITED (1995) 3 NWLR (PART 383) 257 at 285 that:
“…the orders to be made by the Court unlike final decisions, are temporary in nature, so that they do not determine the “civil rights and obligation” of the parties in the proceedings as envisaged by the Constitution.”
In line with the above reasoning, the Court of Appeal, Abuja Division per Bada, JCA held in the case of ESAI DANGABAR VS. F.R.N. (2014) 12 NWLR (PT. 1422) 575 at 601 that:
Therefore I do not see how the ex parte order granted by the lower Court violated Appellants right to fair hearing because the order was in the nature of a preservatory order. The order is in my view in the interest of both parties. This is because it will prevent dealing with the properties in such a way that could renders the final judgment of the Court nugatory. The order therefore operates until the determination of the civil rights and obligations of the parties with regard to the properties under consideration. See the case of NWUDE VS. CHAIRMAN EFCC (2005) ALL FWLR (PT. 276) 740.
Indeed, it is my considered opinion that not only is Section 17 of the Advance Fee Fraud and other Fraud Related Offences 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) (K) of the said Constitution.
The provision of Section 44 (2) (K) of the 1999 Constitution creates an exception to the general right given to citizens to own movable and immovable properties in the following manner:
“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.”
In the case of ESAI DANGABAR VS. F.R.N. (Supra), the Court of Appeal refused to follow its earlier decision in the case of F.R.N. VS. NWAIGWE (2009) 16 NWLR (PT. 1166) 169 and held that the provision of Section 44 (2) (K) of the 1999 Constitution showed the intention of the law maker to validate any such law such as Sections 28 and 29 of the EFCC Act which allows temporary taking over of assets of the accused persons pending the hearing and determination of a criminal case that has been pending against him.
Similarly, the Court of Appeal in the interpretation of Sections 35 and 36 of the NDLEA Act which are similar to the provisions of Sections 28 and 29 of the EFCC Act held in the case of F.R.N. vs. IKEDINWA (2013) LPELR – 21120 (CA) that the provisions of Sections 28 and 29 of the EFCC Act are validated by the provision of Section 44 (2) (K) of the 1999 Constitution.
I make bold to say that the consistency of the Courts in holding that the process of forfeiting property in the interim is constitutional has rendered the earlier contrary view expressed by the Lagos Division of the Court of Appeal in the case of F.R.N. vs. NWAIGWE (2009) 16 NWLR (PT. 1166) 169 into a minority dissenting view.
See also:
AKINGBOLA VS. CHAIRMAN, EFCC (2012) 9 NWLR (PT. 1306) 475 at 500 – 502;
FELIMON ENT.LIMITED VS. THE CHAIR, EFCC AND ANOR (2013) 1 BFLR 94 at 105 – 106.
Still on Appellant’s Issue One, one cannot in all seriousness ignore the historical perspective and international dimension to the provision of Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act 2006 and such similar provisions in our extant jurisprudence. This is so, notwithstanding the rather legalistic argument of the learned Senior Counsel for the Appellant that the provision of Article 54 of the United Nations Convention Against Corruption (UNCAC) is yet to be domesticated in Nigeria under Section 12 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
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 ORS 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-a-vis the provision of Sections 36 (1) (2) (5) and 44 (2) (K) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Before I leave the treatment of Issue One, I must quickly add that the cases of:
PROF. AJIBAYO AKINKUGBE VS. EWULUM HOLDINGS NIGERIA LIMITED AND ANOR (2008) LPELR 346 (SC) PP. 18 19; OTUKPO VS. JOHN AND ANOR (2012) LPELR 20619 (SC) at PAGE 15; RE: OSIBAKORO D. OTUEDON (1995) LPELR 1506 (SC) PAGE 23; ANANABA VS. FRI-EL ABA PALM (NIG) LIMITED AND ORS. (2016) LPELR – 40463 (CA) PP. 24 – 27
All dealing with the proof of allegation of crime in civil proceedings as for example, under the provision of Section 135(1) of the Evidence Act 2011 are inapplicable to the facts and circumstances of this case. This is because while Section 135 (1) of the Evidence Act deals with allegations of crimes in civil proceedings in the course of trials, the provision of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act 2006 deals with an ex part application simpliciter to be followed by a Motion on Notice wherein such owner of property could explain the genuineness of his/her transactions in property as legitimate.
Finally, it is a misconception on the part of the learned Senior Counsel for the Appellant to suggest that non-conviction based forfeiture in Nigeria is not applicable against any property belonging to a known person.
Clearly, the word OR” in between ‘property or proceeds’ in the last lines of the provision of Section 17 (1) of the AFF 2006 is disjunctive, meaning that the Section applies either to ‘unclaimed property’ or proceeds of unlawful activity’ as follows:
“…..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.”
This is because the cardinal or golden rule of interpretation is ut res magisvaleat quam percat that is the words of a statute must be given their ordinary meaning without importing into them what is not there. In other words, the duty of the Court is to interpret the language of a statute in its grammatical meaning to convey the intention of the law maker.
See: HON. JUSTICE RALIAT ELELU HABEEB (CHIEF JUDGE OF KWARA STATE) & ANOR VS. THE HON. ATTORNEY GENERAL OF THE FEDERATION AND 2 ORS. (2012) 2 SC (PT. 1);
BRIG GENERAL MOHAMMED BUBA MARWA (RTD) AND ANOR VS. ADMIRAL MURTALA NYAKO (RTD) AND 9 ORS (2012) 1 SC (PT. 111) 44;
OWNERS OF MV ARABELLA VS. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2009) 4 5 SC (PT. 11) 189); OGAGA VS. THOMAS E. UMUKORO AND 2 ORS (2011) 12 SC (PT. 11) 74;
JOSEPH AMOSHIMA VS. THE STATE (2011) 6 7 SC (PT. 111) 1;
TABIK INVESTMENT LIMITED VS. GUARANTY TRUST BANK PLC (2011) 6 7 SC (PT. 111) 40.
My Lords, I conclude Appellant’s Issue one that Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act is constitutional and in line with the provisions of Sections 36 (1) (2) (5) and 44 (2) (K) of the Constitution of the Federal Republic of Nigeria 1999 as amended.
Issue One is resolved against the Appellant.
ISSUE TWO
On Issue Two, learned senior counsel for the Appellant reminded us that the 1st Respondent’s Application before the Court below, praying for the interim order of forfeiture of Appellants money was supported by a 9-paragraph Affidavit. That the Affidavit stated the basis of the application ex parte, which essentially is that the 1st Respondent received an Intelligence Report that the money in the Account of the Appellant is a proceed of unlawful activity.
It was stated that the 1st Respondent’s investigation of the said report revealed the said unlawful activity. Learned Senior Counsel for the Appellant observed that the said Intelligence Report was not attached to the said Affidavit to enable the Court appreciate what the Intelligence Report was all about.
He argued that the 1st Respondent did not place material facts before the learned trial Judge as required by Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act 2006 to warrant the Interim Forfeiture of the Appellant’s money to the Federal Government.
He submitted that the discretion given to the trial Judge under Section 17 of the AFF 2006, to make an order of Interim Forfeiture of a person’s property to the Federal Government “upon being reasonably satisfied that such property is a proceed of unlawful activity” is a discretion that must be exercised judicially and judiciously based on facts and established principles of law.
After referring to the cases of:
ABAH vs. MONDAY (2015) 14 NWLR (PT. 1480) 569 at 595; and
CEEKAY TRADERS LIMITED VS. GEN. MOTORS COMPANY LIMITED (1992) 2 NWLR (PT. 222) 132 at 162 – 163
generally on the exercise of judicial discretion, learned Senior Counsel for the Appellant further submitted that in the Affidavit in support of its Application, the 1st Respondent did not state which Federal Government’s allegedly accounts the money that was found in the Appellant’s Account was taken from. No complainant was shown complaining about any missing money. There was no deposition as to how the money was taken by the Appellant who is not a public officer. The alleged Intelligence Report (which was never attached) did not disclose how the money was taken from the Federal Government.
The particular law allegedly contravened by the Appellant was never stated so as to satisfy the provisions of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act No. 14 of 2006. Learned Senior Counsel for the Appellant reasoned, relying on the case of R v. UNIVERSITY OF CAMBRIDGE (DR BENTLY’S CASE (1722) 92 ER 818 that the Appellant was being punished for an offence not disclosed to her, and over which she was not given any opportunity to defend herself.
He submitted that the failure of the 1st Respondent to supply the above germane particulars was enough to have led the learned trial Judge to refuse to grant the application for an order of interim forfeiture of the Appellant’s money, the entire Affidavit said Counsel, was bare, scanty, unreliable, speculative and gold digging.
Appellant’s counsel submitted relying on the cases of:
R. V. ANWOIR (2008) 4 ALL ER 582; IDOWU VS. STATE (2000) 12 NWLR (PT. 680) 48 at 80-81; and ALOR VS. STATE (1997) 4 NWLR (PT. 501) P. 511 that the onus was on the 1st Respondent to establish the unlawful activity engaged in by the Appellant and tie said activity to the funds sought to be forfeited. The Appellant is never in law to prove his innocence.
Counsel further submitted that the learned trial Judge did not state the basis for granting the Application, at all.
He added that Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act No. 14 of 2006 which requires a Judge of a High Court to grant an ex parte order of forfeiture of a person’s property upon being satisfied that the property is a proceed of an unlawful act” is a law that purports to command the impossible. That the trite legal maxim is the law does not command the impossible (Lex non cogit ad impossibillia). This, counsel said is because, in the absence of a trial and conviction, or at least a fair hearing from a person, it will not only be unconstitutional as argued under Issue one (1) above, but it will be practically impossible, for a Judge to be satisfied that the persons property is a ‘proceed of crime’ or ‘proceed of unlawful activity.
Learned senior counsel for the Appellant referred to and quoted copiously from the Judgment of the Court of Appeal, Ado-Ekiti Division in the unreported case of THE ECONOMIC AND FINANCIAL CRIMES COMMISSION VS. MR. AYODELE FAYOSE AND ANOR (unreported) SUIT No. CA/EK/8/2017 decided on 20th June, 2016 where it was observed inter alia that a man is innocent until proven guilty in a Court of law.
He also referred to the cases of:
LAFFERI VS. NAL (2001) 35 WRN 1071; IDEOZU VS. OCHOMA (2006) LPELR PAGE 1419; ADELAJA VS. OGUNYADE (1999) LPELR 5264 (CA)
Learned Senior Counsel for the Appellant insisted that directing the Appellant to show cause why her money should not be forfeited finally to the Federal Government of Nigeria amounts to placing the onus on her to prove her innocence.
He argued that where a statute encroaches on the private rights of a citizen or individual as in this case, the law, must be construed fortissimo contra proferentum.
He referred to the cases of:
ARARUME VS. I.N.E.C. (2007) 9 NWLR (PT. 1038) 127 at 157- 158; F.C.D.A. VS. SULE (1994) LPELR 1263 (SC); PEENOK INVESTMENT LIMITED VS. HOTEL PRESIDENTIAL LIMITED (1982) LPELR 2908 (SC); NDOMA-EGBA VS. CHUKWUOGOR AND ORS. (2004) LPELR 1974 (SC); NANGIBO VS. OKAFOR AND ORS. (2003) LPELR 1938.
Learned senior counsel for the Appellant continued to emphasize the issues of presumption of innocence and onus of proof which he had already dwelt on in the treatment of Issue one.
On this, he referred to numerous cases including:
IBRAHIM VS. STATE (2015) 11 NWLR (PT. 1469) 164 at 192; F.R.N. vs. IBRAHIM (2015) 4 NWLR (PT. 1450) 411 at 427; C.O.P. VS. AMUTA (2017) LPELR 41386 (SC); OKOH VS. STATE (2014) LPELR 22589 (SC); IGHALO VS. STATE (2013) LPELR 20762 (CA); STEPHEN VS. THE STATE (2008) LPELR 8360) CA).
In relation to Issue Two, he reiterated that the 1st Respondent must prove by Affidavit evidence that the said property is proceeds of some unlawful activities under Section of the AFF 2006.
He concluded that the Application did not contain sufficient materials, upon which the lower Court could have based her Ruling or exercisable for discretion judicially and judiciously, assuming Section 17 of the Act is valid.
Learned counsel for the 1st Respondent opened up Issue Two by saying that when a statute confers an exercise of judicial discretion on the Court, decided cases only serve as a guide and do not constitute a binding authority or precedent.
On this, 1st Respondent’s counsel referred to the cases of:
INCAR (NIG) PLC VS.BOLEX ENT.(NIG.} PLC (1996) 8 NWLR (PT. 460) 687; BANK OF THE NORTH LIMITED VS. ADEGOKE (2007) (VOL. 29) WRN 25 at 67; ALHAJI MUJAHID DOKUBO ASARI VS. FEDERAL REPUBLIC OF NIGERIA (2007) LPELR 958 (SC); JENKINS VS. BUSHEBY (1891) 1 CH. 484; KUDORO VS. ALAKA (1956) 1 FSC 82; SOLANKE VS. AJIBOLA (1968) 1 ALL NLR 46; F.R.N. VS. BULAMA (2005) LPELR 7493 (CA) PP. 31-32.
He submitted that in paragraphs 4-6 of the Affidavit in support of the ex parte Application, the 1st Respondent placed evidence on oath before the Court below, showing that an Intelligence Report was received by the Economic and Financial Crimes Commission (EFCC) indicating that the Account of the Appellant received funds reasonably suspected to be proceeds of unlawful activities and that pursuant to the said intelligence investigation was conducted which led to the tracing of the funds sought to be forfeited to the Account of the Appellant.
He submitted that three (3) exhibits were attached to Paragraph 6 of the Affidavit in support of the 1st Respondents Application. The exhibits are marked Exhibits EFCC 01, EFCC 02 and EFCC 03 – 6 (a) 6 (j) and 6 (p). That Exhibit EFCC 02 on Page 51 241 of the Records is the Account opening package, mandate and statement of Account of the Appellant. Exhibit EFCC 03 on Page 242 – 247 was/is the extra judicial statement of one Chima – Nwafor John who was procured to participate in the scheme of fraud leading to the deposit of the funds in the Appellants Account.
Counsel submitted that the said Chima – Nwafor John stated in Exhibit EFCC 03 that he received United States Dollars from Esther, the contact person to the 2nd Respondent either at the Villa or at her residence.
The funds were subsequently converted to Naira and deposited in Exhibit EFCC 02 as shown in pages 172 – 217 of the Records. He submitted that from the statement of Chima – Nwafor John, he always received$500,000.00 or $1,000,000.00 cash from Esther before proceeding to convert same.
He submitted that it is beyond argument that the Money Laundering Prohibition Act 2004 prohibits the receiving and making of cash payment in excess of #500,000.00 or its equivalent in the case of an individual or #2,000,000.00 or its equivalent in the case of a body Corporate (Section 1 of the Money Laundering Prohibition Act 2004).
He further submitted that the Money Laundering Prohibition Act 2011 which repealed the 2004 Enactment, particularly Section 1(a) and Section 16(d) of the Money Laundering (Prohibition)(Amendment) Act 2012 prohibits the making or receiving of a cash payment exceeding the sum of #5,000,000.00 its equivalent in the case of individual or #10,000,000.00 or its equivalent in the case of a body Corporate without going through a financial institution.
He submitted that the funds deposited in the Account of the Appellant represented the Naira equivalent of the various cash payments ranging from $500,000.00 to $1,000,000.00 per transaction made by the said Esther to Mr. Chima – Nwafor John.
Learned counsel for the 1st Respondent submitted relying on the cases of:
7-UP BOTTLING COMPANY LIMITED VS. ABIOLA AND SONS (Supra) at P. 275 and NAA VS. ORJIAKOR (1998) 6 NWLR (PT. 553) PAGE 253; and OKIYE VS. STATE (2014) LPELR 22194 (CA)
that it is trite that where a party has an ex parte Application before the Court, it is only the Applicant that is allowed to address the Court. The other party need not be in Court and even when in Court can only be seen and not heard.
That the learned trial Judge judiciously and judicially exercised his discretionary power in granting the interim forfeiture of the funds having regards to the unchallenged evidence presented before the Court by the 1st Respondent.
Learned counsel for the 1st Respondent submitted that the case of ECONOMIC AND FINANCIAL CRIMES COMMISSION VS. MR. AYODELE FAYOSE AND ANOR (unreported SUIT NO. CA/EK/8/2017 decided on 20th June, 2016 heavily relied on by the Appellant is not relevant to the fact in issue in this case.
In the said case, said counsel, the EFCC filed an Application for stay of execution which the Court of Appeal, Ekiti Division dismissed. That no reference or pronouncement was made on the constitutionality or otherwise of Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act No. 14 of 2006. He submitted further that it is not material for the 1st Respondent to attach the source of its information leading to the discovery of this massive funds in the Account of the Appellant more so when Section 39 (1) of the Economic and Financial Crimes Establishment Act 2004 forbids the disclosure of the 1st Respondent’s source of information without the order of Court.
He submitted that the use to which the Intelligence Report may be put is at the discretion of the Respondent and failure to attach same the Affidavit in support of the ex parte Motion is not fatal to the Respondent’s case.
He submitted that the Intelligence Report is not a material evidence to be presented before the lower Court by the Respondent to persuade the Court below to grant the order of interim forfeiture. The evidence supporting the reasonable suspicion of the Respondent are Exhibits EFCC 02 and EFCC 03 and the investigative findings of the 1st Respondent contain in the Affidavit in support.
He submitted that the 1st Respondent placed sufficient materials before the court below to justify the grant of the said ex parte application.
On the contention whereby the Appellant relied on Mr. Ayodele Fayose’s case (supra) to the effect that the Appellant ought to have been tried and convicted by a competent Court of law before granting the ex parte order, 1st Respondent’s Counsel submitted that where a statute prescribes the mode of doing an act, such an act cannot be competently done without complying with the statutory provision. He referred on this to the cases of:
SLB CONSORTIUM LIMITED VS. N.N.P.C. (2011) 9 NWLR (PT. 1252) PAGE 317 at 332.
AGBOOLA VS AGBODEMU (2009) 37 WRN 59; AUCHI VS. OKUOGHAE (2005) 28 WRN 177: CORPORATE AFFAIRS COMMISSION VS. AYEDUN (2005) 44 WRN 97; and GBADAMOSI VS. NIGERIA RAILWAY CORPORATION (2007) 8 WRN 87.
He argued that Section 17 of the AFF 2006 did not say that the Appellant must first be tried and convicted before the funds reasonably suspected to be proceeds of unlawful activity could be forfeited in the interim. That what the law requires the Court below to do is to be reasonably satisfied before determining the application.
He repeated that in view of the unchallenged evidence placed before the Court below, it cannot be argued that the Court below did not satisfy itself before granting the ex parte application.
In reaction to the issues of presumption of innocence, burden of proof and proof of guilt further raised by the Appellant in Issue Two, 1st Respondent’s Counsel reiterated the view that Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act No. 14 of 2006 is a non-conviction based civil forfeiture and not a quasi criminal proceedings. And, that being the case, the issue of presumption of innocence and proof of guilt of the Appellant does not arise.
He added that assuming without conceding that the issue of innocence of the Appellant comes into play in a non-conviction based forfeiture, the provision of Section 36 (5) of the 1999 Constitution saves any law by reason only that imposes upon any person the burden of proving a particular fact.
He referred to the case of CHUKWU VS. STATE (2007) ALL FWLR (PT. 389) 1224 at 1244 – 1245 and submitted also that Section 42 (2) (b) of the 1999 Constitution leaves no one in doubt as to the constitutionality of forfeiture of properties for breach of any law, whether under civil process or after conviction for an offence.
Learned counsel for the 1st Respondent highlighted the procedure for hearing of the Motion on Notice and submitted that Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act No. 14 of 2006 which gave opportunity to the Appellant to show cause why the property should not be forfeited is clearly in line with the constitutional provision guaranteeing the Appellants right to fair hearing and cannot be said to be in conflict with Section 135 of the Evidence Act. All that is required of the Appellant, said counsel, is to file a counter Affidavit in opposition to the Respondent’s Motion on Notice disproving the fact alleged by the Respondent.
He submitted that the evidential burden of proof only shifts to the Appellant to disprove the facts raised by the Respondent in its Motion on Notice for final forfeiture of the funds since it is the Appellant who is asserting that the funds came from legitimate source or origin. To that extent, it is not correct for the Appellant to argue that Section 17 of the AFF Act 2006 is in conflict with Section 135 (1) of the Evidence Act 2011.
He urged us to dismiss the Appeal.
RESOLUTION OF ISSUE TWO
It would seem that having regard to my decision on Issue one, the more germane question in relation to Issue Two is whether the 1st Respondent placed material facts before the learned trial Judge as required by Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act No. 14 of 2006 to warrant the interim forfeiture of the Appellant’s money to the Federal Government.
In particular, learned senior counsel for the Appellant complained that the Intelligence Report which led to the Application by the 1st Respondent was not attached to the Affidavit in support of ex parte summons and therefore not part of the materials placed before the Court. Appellant’s counsel also reminded us that the exercise of the discretion envisaged under Section 17 of the AFF Act must be done judicially and judiciously.
For case of reference, the 9-paragraph Affidavit in support of the 1st Respondent’s Ex parte originating summons sworn to by one Musbahu Yahaya Abubakar is reproduced from pages 33 to 37 of the Record of Appeal beneath:
1. That I am one of the Operatives of the Economic and Financial Crimes Commission attached to the special Task Force Team assigned to investigate this case.
2. That I have the consent and authority of the Ag. Chairman of the Economic and Financial Crimes Commission to depose to this affidavit in support of this application.
3. That by virtue of my position as aforesaid, I am conversant with the facts and circumstances of the case, having derived same in the cause (sic) my duties as an Investigating Officer.
4. That the Applicant received an intelligent report that funds suspected to the proceeds of unlawful activities were warehoused in account No. 211000712 domiciled with Skye Bank PLC in the name of Dame Patience Jonathan and another account No. 2022000760 domiciled with Ecobank Nigeria Ltd in the name of La wari Furniture and Baths Ltd.
5. That the said intelligence was analysed and found worthy of investigation.
6. That I know as a fact and I verily believe that our investigation revealed the following facts:
a) That on or about the 7th day of February, 2013, the former first Lady, Dame Patience Jonathan opened an account No. 2110001712 domiciled with the Skye Bank Plc. Attached and marked exhibit EFCC 01 is a copy of mandates, statement and certificate of Identification of the said account.
b) That upon the opening of the said account several huge cash deposits in United State Dollars were made to the account.
c) That one Dudafa Waripamo Owei who was the Senior Special Assistant to the former President, Goodluck Ebele Jonathan was one of the frequent depositors in the said account.
d) That another frequent cash depositor of funds reasonably suspected to be proceeds of unlawful activities in to the said account is one Festus Iyoha Isidahomen, a steward at the State house Abuja.
e) That the said Festus Isidahomen Iyoha was also making deposits with fictitious names.
f) That between the 8th day of February, 2013 and 30th day of January, 2015 the sum of about $6,791,599.64 (Six Million, Seven Hundred and Ninety One Thousand, Seven Hundred and Five Hundred and Ninety Nine United States Dollar, Sixty Four Cent) suspected to be proceeds of unlawful activities were deposited into the said account in cash.
g) That the Mrs. Dame Patience Jonathan had dissipated this funds leaving a balance of the sum of $5,731,173.55 (Five Million, Seven Hundred and Thirty One Thousand, One Hundred and Seventy Three United States Dollars, Fifty Five Cent).
h) That if this funds are not forfeited in the interim the operator of the account, Mrs. Dame Patience Jonathan will fully dissipate the funds warehouse in the account.
i) That Mrs. Dame Patience Jonathan made cash withdrawal of the sum of $100,000.00 (One Hundred Thousand United State Dollars) on the 7th day of April, 2017 from the said account after obtaining Court order in suit No.FHC/L/CS/1343/16 on the ground that she was not made a party to the suit.
j) That we also traced funds suspected to be proceeds of unlawful activities to account No. 2022000760 domiciled with Ecobank Nigeria Ltd in the name of La wari Furniture and Baths Ltd. Attached and marked exhibit EFCC 02 is a copy of the mandate, account opening documents, statement of account and Letter of identification from Ecobank Nigeria Ltd.
k) That the purported signatory of this account is one Ada Ifegbu with a telephone number 08068593017 belonging to one Esther Oba.
l) That the total sum 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) kept in account No. 2022000760 domiciled with Ecobank Nigeria Ltd in the name of La wari Furniture and Baths Ltd were substantially the Naira equivalent of United State Dollars given to one Chima Nwafor John of Ecobank Nigeria Ltd by one Esther Oba at the Aso Rock Villa.
m) That it was the said Chima Nwafor John, who upon the receipt of the Dollar in cash that contracted Bureau de change operators to convert the money to Naira and deposit the Naira equivalent to Lawari Furniture and Bath Ltds account.
n) That the United States Dollar which were subsequently converted to Naira and deposited into the La wari Furniture and Bath Ltd’s account were all received in cash by Chima Nwafor John of Ecobank Nigeria Ltd.
o) That the various deposit by Chima Nwafor John through the bureau de change operators were placed on fixed deposit.
p) That the said Chima Nwafor John volunteered extra judicial statement to my team. Attached and marked Exhibit EFCC 03 is a copy of extra judicial statement of Chima Nwafor John.
q) That the sum of N2, 033, 196,721.31 (Two Billion, Thirty Three Million, one Hundred and Ninety six Thousand, seven Hundred and Twenty one Naira, Thirty one Kobo) reasonably suspected to be proceed of unlawful activities is currently on fixed deposit in the said La wari furnitures account.
r) That apart from the said fixed amount, the sum of N388,756,801.47(Three Hundred and Eighty Eight Million, seven Hundred and Fifty six Thousand, Eight Hundred and one Naira, Forty seven Kobo) reasonably suspected to be proceed of unlawful activities is currently standing to the credit of La wari Furniture and Bath Ltds account.
7. That it is in the interest of Justice to, in the interim, make an order of forfeiture to the Federal Government of Nigeria and allow any person who has interest in the properties sought to be forfeited to appear before This Honourable Court within 14 days to show cause why the properties reasonably suspected by the Applicant to be proceeds of unlawful activities should not be forfeited to the Federal Government of Nigeria.
8. That it is in the interest of Justice to grant this application.
9. That I make this affidavit in good faith knowing and believing the facts deposed herein to be true and correct and in accordance with the Oaths Act of Nigeria.
From the 1st Respondent’s Affidavit in support reproduced above, it is obvious that there are sufficient materials, more especially Exhibits EFCC 02 and EFCC 03 for the learned trial Judge to be convinced that the funds to be forfeited in the interim are reasonably suspected to be proceeds of unlawful act.
The unlawful act could not have been specifically disclosed in the Affidavit in support of the ex parte summons, since an Affidavit is to state facts and not law.
In the instant case, I am convinced that the reliance placed on Exhibit EFCC 03 by the 1st Respondent in this case is neither misplaced or out of place. It would be recalled that Chima Nwafor John, a staff of ECOBANK stated of the transactions in Exhibit EFCC 03 at Page 244 of the Records as follows:
“In addition to my earlier statement dated 5/10/16 I wish to state further that the deposit were all given to me in Dollars cash and the funds are handed over to the BDC after they have made the Naira deposit equivalent to the Naira account in Ecobank for La- wari furniture Ltd, Finchley Top Homes Ltd and Ariwabai Ariera Reachout Foundation account as the case may be and as directed by the customer. Those funds will subsequently be fixed as term deposit. The cash deposit (sic) are (either) given to me by first lady contact Esther who I normally meet either at the villa or at her residence in Maitama Abuja. My contact with the first lady was reestablished (sic) in 2010 when I got a call from Esther inviting me to come to meet with Madam after I lost contact with her after several years she came to pay condolence visit to my family on the death of my father in 2006. I gave the account opening document to Esther and the first account opened was La-wari Furniture Ltd sometime in June 2010 and later about November in 2010 we opened Finchlev top Homes Ltd. The first money given to me to fund the account was $ 500,000 five Hundred Thousand Dollars cash and subsequently monies were either $500,000 or $1,000,000 for the two accounts (sic) and at a later date in 2011 the third account by name Ariwabai Aruera Reach Out Foundation was opened. Monies were collected to fund of the three accounts from time to time until sometimes in January,2014 when the last monies was paid into the account of La-wari and Finchley Top Home. We stopped receiving monies to ArueraReachout foundation since 2013. The instruction given to me to keep rolling over the investment on the fixed deposit and once the interest on the current account get to one Billion to merge have been making effort to reach the customer to regularize or the outstanding documents and the BVN on the account of La-wari furniture and Finchley through Esther but all to no avail hence the account have continued on post no debit status.”
By the above statement, the funds deposited in the Account of the Appellant represented the Naira equivalent of the various cash payments ranging from $500,000.00 to $1,000,000.00 per transaction made by said Esther to Mr. Chima Nwafor John. Clearly, the making of cash payment of the sum of $1,000,000.00 in a single transaction by Esther to Chima – Nwafor John without going through a financial institution is in violent contravention of Section 1(a) and Section 16(d) of the Money Laundering (Prohibition) (Amendment Act of 2012).
Furthermore, by its very nature an ex parte application as in the instant case cannot be challenged or contradicted by the other party.
See: 7-UP BOTTLING COMPANY LIMITED VS. ABIOLA AND SONS LIMITED (1995) 3 NWLR (PART 383) 257;
NAA VS. ORJIAKOR (1998) 6 NWLR (PT. 553) PAGE 253; and
OKIYE VS. STATE (2014) LPELR 22194 (CA) PAGE 33.
In other words, in view of the fact that at the ex parte stage, there was no contrary evidence before the lower Court disproving or discrediting the Affidavit evidence in support of the 1st Respondents Motion ex parte, the learned trial Judge was right by relying on the unchallenged Affidavit evidence in granting the ex parte application.
On the failure to attach the Intelligence Report, I totally agree with the learned counsel for the 1st Respondent that the 1st Respondent need not to have exhibited the source of its information leading to the tracing and discovery of the funds sought to be forfeited to the Account of the Appellant. Undoubtedly, the 1st Respondent must have got wind of the information that suspected proceeds of unlawful activity was lodged into the Appellant’s Account before requesting for Exhibit EFCC 02 from Ecobank. Also, Exhibit EFCC 03 has shown that the 1st Respondent whilst acting on the said Intelligence Report or the source of its information invited and cautioned Chima Nwafor John the staff of Ecobank who was procured by the Appellant to disguise and conceal the funds.
Furthermore, by Sections 6 and 7 of the EFCC Establishment Act 2004 and the decision of the Court of Appeal in E.O. WIKE vs. FEDERAL REPUBLIC OF NIGERIA (2009) LPELR 8077, the EFCC need not receive a petition or criminal complaint or intelligence report before investigating any person who is reasonably suspected to have committed economic and financial crimes. In any event, Section 39(1) of the Economic and Financial Crimes Establishment Act 2004 forbids the disclosure of the 1st Respondents source of information without the order of Court.
Learned Senior Counsel for the Appellant further raised two or three related points in Issue Two which I think however, have been covered and decided in my treatment of Issue One.
They are first, that the Appellant ought to have been tried and convicted by a competent Court of law before granting the ex parte order. Second, that the application by the 1st Respondent and the order so granted breached the constitutional presumption of innocence. And, thirdly, that the order of the learned trial Judge directing the Appellant or anyone who is interested in the funds sought to be forfeited to show cause why the funds should not be forfeited is placing the onus of proof on the Appellant to prove her innocence.
In answer to each of these questions from the Appellant, from the first, the provision of Section 17 of the AFF 2006 does not require a trial and conviction before its application. Rather, it provides in the fashion of non-conviction based forfeiture models for a Motion Ex Parte to be followed by a Motion on Notice. In my opinion, Section 17 provides properly so called for an action in rem and not a form of quasi-criminal proceedings. In any event, the law is that where a statute prescribes the mode of doing an act, such an act can only be competently done in the way and manner prescribed by the statute.
See: SLB CONSORTIUM LIMITED VS. N.N.P.C. (2011) 9 NWLR (PT. 1252) PAGE 317 at 332; AGBOOLA VS. AGBODEMU (2009) 37 WRN 59; AUCHI VS. OKUOGHAE (2005) 28 WRN 177: CORPORATE AFFAIRS COMMISSION VS. AYEDUN (2005) 44 WRN 97; and GBADAMOSI VS. NIGERIAN RAILWAY CORPORATION (2007) 8 WRN 87.
In the instant case, the learned trial Judge fully complied with the provision of Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act No. 14 of 2006 in granting the interim order of forfeiture.
On presumption of innocence, I must say that the Appellant in the instant case was never on trial for a criminal offence; therefore the doctrine of presumption of innocence is not applicable to the circumstances of the case.
The issue of innocence of the Appellant does not come into play in a non-conviction based forfeiture proceeding. Incidentally, the 1st Respondent indeed went as far as to title its ex parte summons “Action in Rem”.
More importantly, the proviso to Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (As amended) states clearly that nothing shall invalidate any law by reason only that the law imposes upon any person the burden of proving a particular fact. So also, it is that the provisions of Sections 44(2) (b) and (K) of the 1999 Constitution leaves no one in doubt as to the constitutionality of forfeiture of properties for breach of any law, whether under civil process or even after conviction for an offence.
On the issue of presumption of innocence and proof of guilt, learned Senior Counsel for the Appellant put special reliance on the decision of the Court of Appeal, Ekiti Division in the case of THE ECONOMIC AND FINANCIAL CRIMES COMMISSION VS. MR. AYODELE FAYOSE AND ANOR (unreported) SUIT NO. CA/EK/8/2017 decided on 20th June, 2016.
Therein, Appellant’s counsel relied on passages at pages 15, 42 and 43 of the unreported Judgment of the Court of Appeal which suggest the application or lack of it of the doctrine of presumption of innocence in the particular case.
With due respect to the learned senior counsel to the Appellant, the various passages by the Court of Appeal in that case particularly at Pages 15, 42 and 43 of the unreported decision of the Court of Appeal contained at pages 20 – 21 of the Appellants Brief of Argument are neither relevant to the actual decision in the Ayo Fayose’s case nor relevant to the circumstances of the instant case.
This is because, a case is authority for what it decides and perhaps also under the principle of precedents what it is called upon to decide.
In the Ayodele Fayose’s case, (Supra) the EFCC filed an application for stay of execution, which the Court of Appeal dismissed. The reference to the issues of presumption of innocence, proof of guilt etc. in the said Judgment of Akinbami, JCA is clearly Obiter to the tenor of the decision itself.
To buttress the above point, the kernel of the decision of the Court of Appeal in the Ayo Fayose’s case (supra) could be found at Page 33 of the unreported lead decision of Akinbami, JCA as follows:
“Senior Counsel to the 1st Respondent, Chief Ozekhome, SAN, has challenged the Appellants to exhibit their Notice of Appeal. I am of the view that the Applicant would have exhibited his Notice of Appeal if he had one. Having not exhibited the Notice of Appeal, the only logical conclusion is that the Appellant does not have a competent subsisting Appeal. Having come to the irrevocable conclusion that the Appellant has no Notice of Appeal, the plank upon which this application is premised. Consequently there is no valid appeal upon which a stay of enforcement of judgment of the lower Court can be granted.”
Finally, I do agree with the learned counsel for the 1st Respondent that the procedure to show cause why Appellants money should not be finally forfeited under Section 17 of the AFF Act 2006 merely shifts the evidential burden of proof unto the Appellant to disprove the facts raised by the 1st Respondent in its Motion on Notice for final forfeiture of the funds since it is the Appellant who is asserting that the funds came from legitimate source or origin.
To that extent, the provision of Section 17 of the Advance Fee Fraud and other Fraud Related Offences Act No. 14 of 2006 are neither in conflict with Section 135 (1) of the Evidence Act 2011 nor with the provision of Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
There is therefore nothing unusual or unconstitutional in the provision of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act No. 14 of 2006 imposing on the Appellant the burden of proving particular facts to wit, that the funds sought to be forfeited are not proceeds of unlawful activities.
In conclusion, the 1st Respondent placed sufficient materials before the Court below to justify the grant of the said ex parte application vis-a-vis the provision of Section 17 of the AFF Act 2006.
Issue Two is resolved against the Appellant.
Having resolved the two Issues in the Appeal against the Appellant, the Appeal lacks merit and it is accordingly dismissed.
I make no order as to costs.
CHIDI NWAOMA UWA, J.C.A.: I was privileged to have read in advance the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA. My learned brother has painstakingly considered and resolved the issues that were distilled in this appeal. I agree with the decision and adopt same as mine in holding that the appeal lacks merit. I also dismiss it and abide by the order made as to costs.
HAMMA AKAWU BARKA, J.C.A.: I was priviledged to have read in draft the judgment of my learned brother MOJEED ADEKUNLE OWOADE, JCA. just delivered.
Having carefully studied the Grounds of Appeal, and the submissions on the issues identified, and having also painstakingly studied the affidavit evidence and the case law submitted by both parties, I am convinced and do agree that Section 17 of the Advance Fee Fraud and other Related Offences Act No. 14 of 2006 is not inconsistent with Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
I equally fail to agree with the Appellant that the order of interim forfeiture made by the Lower Court occasioned any miscarriage of Justice as contended by them.
Having said this, and for the fuller and more reasoned decisions and conclusions reached in the lead Judgment, to which I am in full agreement, I see no merit in this Appeal and thereby dismiss the same.
I abide on Order made as to costs in the lead Judgment.
Appearances:
Chief Mike Ozekhome, SAN with him, Jeff Kadiri, Esq., Charles Ogboli, Esq., Kamal Gani-Fawehinmi, Esq., C. Anyanwu, Esq. and Chimaobi Onigbo, Esq.For Appellant(s)
Rotimi Oyedepo, Esq. for the 1st Respondent
Chief I. A. Adedipe, SAN with him, G. I. Abibo, SAN, A. A. Akimbola, Esq., S. A. Somiari, Esq., M. Aderuku, (Miss), Alex A. Adedipe, Esq. and J. P. Ojo, Esq. for the 2nd RespondentFor Respondent(s)
Chief I. A. Adedipe, SAN with him, G. I. Abibo, SAN, A. A. Akimbola, Esq., S. A. Somiari, Esq., M. Aderuku, (Miss), Alex A. Adedipe, Esq. and J. P. Ojo, Esq. for the 2nd RespondentFor Respondent
