ADIGUN v. EFCC & ORS (2020)

ADIGUN v. EFCC & ORS

(2020)LCN/14912(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, December 29, 2020

CA/LAG/CR/508/2019

RATIO

BRIEF: PURPOSE OF THE REPLY BRIEF

Most times from my little experience, they are not necessary as they are most times an amplification of the original brief. This with due respect is not the purpose of the reply brief. The reply brief is to answer fresh issues raised in the Respondent’s brief not issues within the contemplation of the Appellant when he was writing and filing his brief. As the name implies, it is a reply to a fresh position relating to the grounds of appeal or issues raised in the Respondent’s brief. It is not an opportunity to reargue the appeal or throw more light to a point not adequately addressed. See: Onwubuya & Ors vs. Ikegbunam (2019) LPELR-49373 (SC); APC vs. Karfi & Ors (2017) S.C. 153.
There is always a strong temptation on counsel to always file a reply brief but this window that the rules and the law allows should not be abused. PER TOBI, J.C.A.

ORDER: PROCEDURE FOR THE GRANT AND EXECUTION OF AN INTERIM ORDER OF FORFEITURE

When the Court is so satisfied, the Court will grant an interim order of forfeiture. This interim order of forfeiture will then be served on the persons who have possession of the properties either monetary or physical and further still the interim order will be published so as to enable any person with interest on the properties to file within 14 days an affidavit showing cause why the properties should not be finally forfeited. In Melrose General Services Limited vs. EFCC & Ors (2019) LPELR-47673 (CA), this Court along this line held thus:
“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.”
If the owner of the properties does not file any affidavit showing cause why the properties should not be forfeited or if the cause shown is not satisfactory to the Court, the final forfeiture order will be granted. See: Patience Jonathan vs. FRN (2019) LPELR-46944 (SC). PER TOBI, J.C.A.
CRIMINAL LAW: WHETHER REASONABLE SUSPICION WOULD AMOUNT TO PROOF BEYOND REASONABLE DOUBT

As to what will amount to reasonable suspicion, I will consider later in this judgment but for now suffice to say that the requirement of reasonable suspicion cannot by any stretch of imagination be equated with proof beyond reasonable doubt as required in criminal cases. PER TOBI, J.C.A.

ACTION: WHETHER CIVIL PROCEEDING SHOULD ABATE THE CRIMINAL PROCEEDINGS

I am not aware of any law that demands that the civil proceeding should abate the criminal proceedings as both action can go on at the same time. SeeKewalram Nigeria Limited vs. Olugbenga Rosiji (2019) LPELR-49696. PER TOBI, J.C.A.

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

AIR VICE MARSHAL JACOB BOLAJI ADIGUN APPELANT(S)

And

ECONOMIC AND FINANCIAL CRIMES COMMISSION 2. AIR MARSHAL ADESOLA AMOSU NUNAYON (RTD) 3. AIR COMMODORE GBADEBO OWODUNNI OLUGBENGA RESPONDENT(S)

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is predicated upon the judgment of Hon. Justice C.M.A. Olatoregun of the Federal High Court sitting in Lagos delivered on 16/1/2029 in Suit No. FHC/L/CS/932/2018 – Air Vice Marshal Jacob Bolaji Adigun vs. Economic and Financial Crimes Commission & 2 Ors. The facts of the case at the lower Court that culminated into this appeal is based on the Motion on Notice of the 1st Respondent (then Applicant) brought under Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 (in this judgment referred to as AFFRO Act, 2006) found on pages 443-445, Vol. II of the record of appeal. The 1st Respondent in its application sought the following reliefs to wit:
“1. AN ORDER of final forfeiture to the Federal Government of Nigeria the total sum of N2,244,500,000.00 (Two Billion, Two Hundred and Forty-Four Million, Five Hundred Thousand Naira) found and recovered by the Commission from the 1st Respondent in Lagos which sum is reasonably suspected to be proceeds of unlawful activity.
2. AN ORDER of final forfeiture to the Federal Government of Nigeria the total

sum of N190,828,978.15 (One Hundred and ninety Million, Eight Hundred and Twenty Eight Thousand, Nine Hundred and Seventy Eight Naira, Fifteen Kobo) found and recovered by the Commission from the 2nd Respondent which sum is reasonably suspected to be proceeds of unlawful activity.
3. AN ORDER of final forfeiture to the Federal Government of Nigeria the total sum of N101,000,000.00 (One Hundred and One Million Naira) found and recovered by the Commission from Solomon Enterprises, a business name of the 1st Respondent which sum is reasonably suspected to be proceeds of unlawful activity.
4. And for such further or other Orders as this Honourable Court may deem fit to make in the given circumstances.”

The ground upon which the application was premised was on reasonable suspicion that the monies sought to be attached were proceeds from an unlawful activity diverted from the Federal Government of Nigeria. The application was supported by a 12 paragraph affidavit and some exhibits. The Appellant and the 2nd Respondent in this appeal filed a counter affidavit to the motion and also a motion on notice seeking to set aside or discharge the interim

order as well as affidavit to show cause and further affidavits.

The lower Court after taking the application and the arguments of counsel delivered a considered judgment found on pages 1065-1077, Vol. II of the record of appeal (pages 1-13 of the judgment) and specifically on pages 1076-1077 of the record (page 12-13 of the judgment) held in this wise:
“Equally, I examined the affidavit of Air Vice Marshal Jacob Bolaji Adigun. That affidavit disclosed no reason why the Order of final forfeiture should not be made.
The Respondent and the party interested both failed to dispel the suspicion raised by the Applicant.
Nothing was provided by the Respondent and the party interested as can be glimpsed from their respective affidavits.
The only conclusion I can reach is that these funds are proceeds of unlawful activities within the meaning and contemplation of the;
1) The Advance Fee Fraud and other Related offences Act 2006.
2) The Money Laundering Act 2004
3) The Economic and Financial Crimes Commission Act 2004 and other laws enforceable under the Economic and Financial Crimes Commission Act 2004.

I therefore hereby order the final forfeiture of the following sums of money to the Federal Government of Nigeria.
1) N2,244,500,00 (Two Billion, Two Hundred and Forty Four Million, Five Hundred Thousand Naira).
2) N190,828,978.15 (One Hundred and Ninety Million, Eight Hundred and Twenty Eight Thousand Nine Hundred and Seventy Eight Naira Fifteen Kobo).
3) N101,000,000 (One Hundred and One Million Naira)
4) These sums are to be paid into the Central Bank Account No. 002008996115 T24 Account, Abuja within 14 days of today.
An affidavit of compliance to be filed within the said 14 days.”

The Appellant dissatisfied with the decision of the lower Court filed this appeal vide a notice of appeal dated and filed on 7/3/2019 found on pages 1044-1051 of Vol. II of the record of appeal containing four grounds of appeal. For ease of reference, I reproduce the grounds of appeal:
1. The Learned Trial Judge erred in Law when a final order that the sum of N2,244,500,000.00 (Two Billion, Three Hundred and Four Million, Five Hundred Thousand Naira) (sic) belonging to the Appellant be paid into the account of the Federal Government of Nigeria upon

reasonable suspicion that the said money is the proceeds of unlawful activity.
2. The Learned trial judge erred in law when the learned trial judge held that the burden is on the Appellant (Respondent at the Lower Court) to show that the said sum of N2,244,500,000.00 is not the proceeds of unlawful activity.
3. The learned trial judge erred in law to have made a final order for the confiscation of monies belonging to the Appellant by ordering payment of same to the Account of the Federal Government of Nigeria on the ground of mere suspicion.
4. The Learned trial judge erred in law to have made an order for the deposit of the sum of N2,244,500,000.00 (sic) (Two Billion, Three Hundred Forty four Million Five Hundred Thousand Naira) into the Account of the Attorney General of the Federation.

The Appellant’s brief of argument dated and filed on 6/12/2019 was settled by Abiodun Ogunnubi Esq., of Norrison I. Quakers, SAN law firm. Learned counsel in Appellant’s brief raised five issues for determination to wit:
1. Whether an action for forfeiture of assets under Section 17 of the Advance Fee Fraud and Other Related Offences Act

can lie against res which is the subject matter of an ongoing suit and whose owners are undergoing criminal trial over the same thereby rendering the final order of forfeiture of January 16, 2019 justifiable in the face of the criminal proceedings presently pending before Aneke J., of the Federal High Court?
2. Whether the final order of forfeiture granted to the 1st Respondent can be sustained against the clear and unambiguous provisions of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act 2006?
3. Whether the Appellant did not succeed in establishing that the res were (sic) proceeds of lawful activities as to be entitled to the lower Court’s refusal of the 1st Respondent’s application for a final order of forfeiture at the hearing of the 16th January, 2019?
4. Whether the 1st Respondent discharged the burden of proof required by the Evidence Act for offences pertaining to Advance Fee Fraud to warrant the grant of a final order of forfeiture against the Appellant on the 16th of January 2019?
5. Whether the 1st Respondent established the ingredient of reasonable suspicion that the said sum of

N2,244,500,000.00 (Two Billion, Two Hundred and Forty-Four Million, Five Hundred Thousand Naira Only) is a proceed of unlawful activity?

The brief was settled by Abiodun Ogunnubi Esq., but the appeal was argued by the learned silk. Norrison I, Quakers, SAN.

On issue one, it is the contention of learned silk that the properties, the subject of the application for the forfeiture order in the instant appeal, were neither unclaimed nor were they ever in possession of a third party as to warrant the grant of an order under Section 17(1) of the Advance Fee Fraud and Other Fraud Related Offences Act. It is the further contention of counsel that this instant case currently on appeal can be distinguished from the decision of this Court in Jonathan vs. FRN (2018) LPELR-43505 (CA) in that, in that case the Appellant never showed up at the trial Court whilst the action for forfeiture was ongoing, nor was she charged for a criminal offence in relation to the subject matter of the dispute. It was submitted by the silk that proceedings under Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act are unsuitable for a situation whereby the owner of

the property in dispute has been arrested, investigated and is undergoing trial by a Court of competent jurisdiction over the same property. It was further submitted by counsel that reliance on the said section was in error and is inapplicable in the circumstances of the instant case; the condition precedent required to trigger the proceedings having been overtaken by events, to wit, an on-going criminal trial against the owners of the property. It was argued by learned silk for the Appellant that it can be inferred that the 1st Respondent’s institution of the suit for forfeiture was deliberate and aimed at overreaching the ongoing criminal proceedings before Hon. Justice Aneke; which amounts to an abuse of Court process. It was further argued that the grant of the interim and final orders of forfeiture has unjustly deprived the Appellant, the 2nd and 3rd Respondents of their property (whose ownership is not in dispute) when the trial Court is yet to find them guilty, as same will be prejudicial to them where the trial Court finds that there is insufficient evidence to convict them as same would have already occasioned a situation of fait accompli on the

trial Court. Counsel relied on Josiah Cornelius Ltd vs. Ezenwa (1996) 4 NWLR (Pt. 443) 391; Dingyadi vs. INEC (2011) 10 NWLR (Pt. 1255); Arubo vs. Aiyeleru (1993) 3 NWLR (Pt. 280) 126; R-Benkay Nigeria Ltd vs. Cadbury Nigeria Ltd (2012) LPELR-782 (SC) @ 22; Ogbonmwan vs. Aghimien (2016) LPELR-40806 (CA) on abuse of Court process.

It is the submission of learned counsel that the Appellant by virtue of the order of final forfeiture of his properties has been presumed guilty by the lower Court in relation to the criminal charge in Charge No. FHC/L/280C/2016 before Aneke, J., of the Federal High Court since there is no way of recovering the property if that Court fails to find the parties guilty. Counsel cited Julius Berger (Nig) Plc vs. T.R. Comm. Bank (2007) 1 NWLR (Pt. 1016) 540; Amaefule vs. State (1988) 2 NWLR (Pt.75) 156 @ 177 in arguing that the 1st Respondent’s action at the lower Court was instituted mala fide.

Counsel argued issues two and three together. On these issues, it is the contention of counsel that from the clear wording of Section 17(2) of the Advance Fee Fraud and Other Fraud Related Offences Act, it follows that properties

which are subject of forfeiture must be those whose ownership is not immediately known to the 1st Respondent or in the event that the properties are reasonably suspected to be proceeds of unlawful activity. He cited Ogungbeje vs. EFCC (2018) LPELR-45317 (CA). It is the further contention of the Appellant’s counsel that the Appellant’s affidavit to show cause and the affidavit in support of the motion on notice in the instant suit disclose the ownership of the monies and as such, they were neither unclaimed nor were the owners unknown. Counsel reproduced extensively the provisions of Part I of the Advanced Fee Fraud and Other Related Offences Act on what constitute an offence under the Act. It was posited by the learned silk that a cursory look at the 26-count charge of the Amended Charge in Charge No. FHC/L/280C/2016 filed against the Appellant, 2nd and 3rd Respondents by the 1st Respondent, the charge failed to disclose any offence under the Part I of the Advanced Fee Fraud and Other Related Offences Act and that the Appellant’s affidavit to show cause before the lower Court disclosed that the monies were not proceeds of crime or advance fee

fraud, which were not controverted by any contrary evidence by the 1st Respondent to warrant the decision given in its favour. It is the final argument of counsel on these issues that Section 17(4) of the Advanced Fee Fraud and Other Related Offences Act does not contemplate a situation where the ownership of the property sought to be forfeited is not hidden or the property involved are proceeds of lawful activities. He placed reliance on Jonathan vs. FRN (supra).

On issue four, it was stated by Appellant’s counsel that the Act presupposes an intention to obtain under false pretence and/or defraud and as such the offences prescribed by the Advanced Fee Fraud and Other Related Offences Act 2006 are not applicable to the issue before the trial Court as no evidence was placed before the trial Court to establish the offence. It is the contention of the learned silk that the allegations contained in the 1st Respondent’s affidavit in support of both the motion exparte for interim forfeiture and final forfeiture requires proof beyond reasonable doubt. He placed reliance on Alhaji Isiyaku Yakubu vs. Alhaji Usman Jauroyel & Ors (2014) LPELR-22732

(SC); Famuroti vs. Agbeke (1991) 5 NWLR (Pt. 189) 1 @ 13; Akinkugbe vs. Ewulum Holdings Nig Ltd & Anor (2008) 12 NWLR (Pt. 1098) 375 SC; (2008) LPELR-346 (SC). Learned senior counsel also cited Okasi vs. State (2016) LPELR-40454 (CA) which is to the effect that before a trial Court comes to the conclusion that an offence has been committed by an accused person, the Court must determine the ingredients of the offence and critically ascertain that the act of the accused person falls within the confines of the particulars of the said offence. It is the submission of counsel that an order of final forfeiture can only be made where the ingredients of the offence under the Advanced Fee Fraud and Other Related Offences Act are established and proven. It is the further submission of learned silk that the ruling of the learned trial Judge is contrary to the general principle of criminal justice upon which our criminal law is predicated, which is the presumption of innocence of any person accused of a criminal offence. He cited Onianwa vs. State (2015) LPELR-24517 (CA) @ 38-39 and Section 135(1) of the Evidence Act and posited that it can be inferred from the

section that the 1st Respondent bore the duty to prove, beyond reasonable doubt, the Appellant, 2nd and 3rd Respondents’ guilt before the lower Court having alleged the commission of a crime. Norrison Quakers, SAN submitted that by mentioning unlawful activity and alleging that the properties are proceeds of crime, the proceedings become criminal in nature.

Relying on Anazodo vs. Audu & Ors (1999) LPELR-6770 (CA), he further submitted that assuming but not conceding that the proceedings remain civil in nature, the allegations of crime in a civil proceeding must be proved beyond reasonable doubt and that allegations of crime cannot be established using affidavit evidence. For this position, counsel relied onJoe Odey Agi vs. PDP & 2 Ors Suit No. SC/256/2016. Going further, learned silk argued that without conceding that the proceedings for forfeiture under the Advanced Fee Fraud and Other Related Offences Act are civil suits and not criminal in nature as stated in Jonathan vs. FRN (2018) LPELR-43505 (CA), the standard of proof will be on the balance of probabilities and this evidential burden has not been discharged by the 1st Respondent

looking at the 1st Respondent’s evidence before the lower Court. He relied on Sections 135 and 133(1) of the Evidence Act;Akinremi vs. Binuyo (2010) LPELR-9150 (CA). It is the final submission of counsel on this issue that evidence must be led to prove the facts relied upon by a party or to sustain the allegations raised in the pleadings. He called in aid the case ofUBN Plc vs. Astra Builders (W.A.) Ltd (2010) 2 SCNJ 84.

On issue five which is the final issue, it was stated by learned counsel for the Appellant that the definition section of the Advanced Fee Fraud and Other Related Offences Act did not define what constitute reasonable suspicion and therefore he resorted to the Black’s Law Dictionary (Tenth Edition) for the definition. It is the contention of learned silk that reasonable suspicion in this regard must be supported by specific and articulable facts for suspecting the individual or corporation of criminal activity. It is the further contention of senior counsel that mere circumstances of suspicion are not sufficient to justify a conviction but rather the establishment of reasonable suspicion against the accused person. Reliance

was placed on State vs. Ogbubunjo (2001) All FWLR (Pt. 37) 1097 @ 1102 and further Karimu & Anor vs. Lagos State Government & Anor (2011) LPELR-9059 (CA) to the effect that the Court cannot speculate in the absence of evidence on matter before it. Learned silk therefore urged this Court to allow the appeal and grant all the reliefs contained in the notice of appeal.

Only the 1st Respondent filed a brief of argument. The said brief of argument dated 16/6/202 but filed 17/6/2020 was settled by Rotimi Oyedepo Iseoluwa Esq., wherein he formulated two issues for determination viz:
1. Whether an action for forfeiture of assets under Section 17 of the advance Fee Fraud and Other Related Offences Act can lie against res which is the subject matter of an ongoing suit and whose owners are undergoing criminal trial over the same thereby rendering the final forfeiture of January 16, 2019 justifiable in the face of criminal proceedings presently before Justice Aneke J., of the Federal High Court?
2. Whether the final order of forfeiture granted to the 1st Respondent can be sustained against the clear and unambiguous provisions of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006?

The appeal was argued by Kufore Uduak. On issue one, it is the contention of learned counsel that Charge No. FHC/L/280C/2016 is a criminal action which was instituted to determine the guilt or innocence of the Defendants at the Federal High Court before Hon. Justice Aneke in which the ownership or source of the property in the forfeiture proceedings appealed against is not an issue and the forfeiture of the funds is not a mandatory order where the Court determines the guilt of the Defendants. It is the further contention of counsel that the Appellant was misconceived when he argued that the pendency of the charge as at when the forfeiture proceedings was commenced rendered the forfeiture proceedings nugatory and that same was made to overreach the Appellant. He relied onJonathan vs. FRN (2018) LPELR-43505 (CA). Counsel argued while relying on Olatubosun vs. Oluyole Local Govt. & Anor (2010) LPELR-4753 (CA) @ 15 that from the clear wording of the draftsmen of Section 17 of the Advanced Fee Fraud and Other Related Offences Act 2006, it is clear that the forfeiture under the said section is

none conviction based and has nothing to do with the pending criminal charge and as such a pending criminal charge cannot limit or affect the credibility of the proceedings commenced under the said section. It was posited that in the event that this Court disagrees that a literal interpretation be given to Section 17 of the Advanced Fee Fraud and Other Related Offences Act, this Court is urged to examine the nature of criminal trials as opposed to proceedings under Section 17 of the Advanced Fee Fraud and Other Related Offences Act and the distinctions that exist between them in order to arrive at the intent of the draftsmen of the said Act. He placed reliance onLa-Wari Furniture & Baths Limited vs. FRN & Anor (2018) LPELR-43507 (CA). Counsel in making the distinction between criminal proceedings and forfeiture proceedings posited that forfeiture proceedings is an action in rem which vests locus standi on any party interested in the property unlike a criminal trial that is an action in personam. Counsel commended the cases ofAjar & Anor vs. Ayip (2016) LPELR-41200 (CA); La-Wari Furniture & Baths Ltd vs. FRN & Anor (supra) to this Court and

submitted that since it is a property and not a person that is on trial in the proceedings under Section 17 of the Advanced Fee Fraud and Other Related Offences Act 2006, the presumption of innocence does not apply.

Learned counsel for the 1st Respondent stated that in the unlikely event that this Court finds that the ownership and the source of ownership of the funds, the subject matter of this appeal is part of the pending criminal charge, it is submitted that proceedings under Section 17 of the Advanced Fee Fraud and Other Related Offences Act has been declared by this Court to be civil in nature and by the principle laid down in Abaver vs. Alaga (2018) LPELR-46566 (CA), a civil and criminal matter can run side by side. It is the contention of learned counsel for the 1st Respondent that the reference of the Appellant in paragraph 4.15 of his brief to Suit No. LD/2534C/2016 between FRN vs. Adesola Nynayon Amosu & 4 Ors before Justice Akintoye of the High Court of Lagos State was not raised in any of the ground of appeal and was raised for the first time in the brief. It is the submission of counsel that assuming but not conceding that the properties

in the criminal matter before the High Court of Lagos State was the same with the ones in the instant appeal, there is no abuse of Court process as the order was to last pending the determination of the investigation and possible prosecution of the case and as such, the proceedings giving rise to the final forfeiture order was not an abuse of Court process. He relied on Christian Outreach Ministries Inc. & Ors vs. Cobham & Anor (2005) LPELR-11406 (CA) and further submitted that the Appellant having failed to lay claim to the funds forfeited by the trial Court, the Appellant is nothing but a meddlesome interloper. He cited Ogungbeje vs. EFCC (2018) LPELR-45317 (CA). He therefore urged this Court to resolve this issue in favour of the 1st Respondent.

On issue two, it was contended by learned counsel that the 1st Respondent in the course of its duties reasonably suspected the properties, the subject matter of this appeal to have been proceeds of unlawful activity. He commended the case of Oteri vs. Okorodudu & Anor (1970) LPELR-2824 (SC) to this Court on what amounts to reasonable suspicion and stated that the 1st Respondent need not have a prima

facie evidence that the funds are proceeds of unlawful activities but rather hold the belief and to exercise its discretion to act on that belief. It was argued by counsel that pursuant to Section 17(3) of the Advanced Fee Fraud and Other Fraud Related Offences Act 2006, the instant forfeiture proceedings was commenced by a motion exparte wherein the facts deposed were uncontradicted and the Court below was right to rely on it. He referred to the case of La-Wari Furniture & Baths Limited vs. FRN & Anor (supra). It is the contention of counsel that notwithstanding the fact that the proceedings under Section 17 of the Advanced Fee Fraud and Other Fraud Related Offences Act 2006 has been held to be civil in nature, the standard for the discharge of the burden of prove placed on the 1st Respondent in that application is neither to establish prima facie evidence nor in accordance with Section 135 of the Evidence Act. He therefore submitted that after the 1st Respondent averred to the grounds of its reasonable suspicion in the motion on notice, the onus of prove shifted and lays on the Appellant to show that the monies sought to be forfeited were not

proceeds of unlawful activities but from a legitimate source. He referred to La-Wari Furniture & Baths Limited vs. FRN & Anor (supra). It was argued by counsel that neither the Appellant nor the 2nd and 3rd Respondents made any attempt to state how they legitimately earned the monies, rather their only defence was the pendency of the charge against them. It is the final submission of counsel that in view of the evidence on record relied upon by the lower Court, it cannot be said that the learned trial Court did not exercise its discretion judicially and judiciously in forfeiting the funds to the Federal Government of Nigeria particularly when the Appellant failed to lay claim to the funds and same was never traced to and or recovered from him. He urged this Court to dismiss this appeal and uphold the decision of the learned trial Judge.

The Appellant exercising his right of reply filed a reply brief on 29/6/2020. I make bold to say that the reply brief of the Appellant is just to take another bite at the cherry. This is not the essence of a reply brief. In the light of the foregoing, I will not be considering the submissions contained therein.

It has become fashionable for most counsel for Appellants to file a reply brief. Most times from my little experience, they are not necessary as they are most times an amplification of the original brief. This with due respect is not the purpose of the reply brief. The reply brief is to answer fresh issues raised in the Respondent’s brief not issues within the contemplation of the Appellant when he was writing and filing his brief. As the name implies, it is a reply to a fresh position relating to the grounds of appeal or issues raised in the Respondent’s brief. It is not an opportunity to reargue the appeal or throw more light to a point not adequately addressed. See: Onwubuya & Ors vs. Ikegbunam (2019) LPELR-49373 (SC); APC vs. Karfi & Ors (2017) S.C. 153.
There is always a strong temptation on counsel to always file a reply brief but this window that the rules and the law allows should not be abused. This is a general comment. Specifically on the reply brief filed by the Appellant’s counsel, the point on the proper understanding and interpretation or purport of Section 17 of the AFFRO Act 2006, whether the proceeding for

forfeiture is an abuse and whether the forfeiture proceedings cannot stand in the light of the subsisting criminal action against the Appellant is not new or fresh issue that deserves reply as this was addressed in the Appellant’s brief. In the light of that, I will not delve into the arguments in the reply brief.

The main provision of the law on the front burner of the case and indeed this appeal is Section 17 of the AFFRO Act 2006 which makes provision for the 1st Respondent on reasonable suspicion that the monies, proceeds or properties in the possession of a person is proceeds from unlawful activities to apply for the forfeiture of that monies or proceeds. To achieve that, the 1st Respondent will satisfy the Court by affidavit evidence that the properties are proceeds of unlawful activities. This must be contained in the affidavit in support of the ex parte application. When the Court is so satisfied, the Court will grant an interim order of forfeiture. This interim order of forfeiture will then be served on the persons who have possession of the properties either monetary or physical and further still the interim order will be published so as to

enable any person with interest on the properties to file within 14 days an affidavit showing cause why the properties should not be finally forfeited. In Melrose General Services Limited vs. EFCC & Ors (2019) LPELR-47673 (CA), this Court along this line held thus:
“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.”
If the owner of the properties does

not file any affidavit showing cause why the properties should not be forfeited or if the cause shown is not satisfactory to the Court, the final forfeiture order will be granted. See: Patience Jonathan vs. FRN (2019) LPELR-46944 (SC).
The burden of proof which will be addressed later in this judgment is not static on any of the parties but shifts as the need arises. For instance to secure the interim order, the burden is on the 1st Respondent in this appeal to show that the monies are suspected to be the product of unlawful activities. This is all that the 1st Respondent needed to show in the affidavit evidence and if the Court is satisfied that there is reasonable ground for the suspicion, the Court will grant the interim order.
I am tempted to address the argument of the learned silk that the standard of proof required to secure an interim or final forfeiture order is as required in criminal cases, that is, beyond reasonable doubt. I am inclined to fall for that temptation, however briefly as I may have the opportunity to fully address the issue of the burden and standard of proof later in this judgment. I do not buy into the argument of the

legal silk that the standard of proof required to secure an interim or final forfeiture order in any proceeding under Section 17 of AFFRO Act 2006 is beyond reasonable doubt because the liability under the Act is based on ‘proceed of unlawful activities.’ This position held by the learned silk is not correct with due respect to him. The standard of proof required under this section is clear and it is not open to double interpretation. Section 17(1) is clear to the effect that what the 1st Respondent need to show is that the proceeds are reasonably suspected to be from some unlawful activity as defined under the provisions of the AFFRO Act 2006, Money Laundering Act of 2004, EFCC Act 2004. As to what will amount to reasonable suspicion, I will consider later in this judgment but for now suffice to say that the requirement of reasonable suspicion cannot by any stretch of imagination be equated with proof beyond reasonable doubt as required in criminal cases. The words as used in the law are very clear and the rule of interpretation that is appropriate in this instance is the literal rule of interpretation. This rule requires that when the words used

in any statute is clear, in trying to find out the intention of the law maker, the words used are to be given their ordinary grammatical meaning. See Lawal vs. EFCC (2020) LPELR-49590; Gana vs. SDP & Ors (2019) LPELR-47153(SC); Abegunde vs. Ondo State House of Assembly & Ors (2015) 8 NWLR (Pt. 1461)314.
There is nothing in Section 17 that import in the widest imagination that the standard of proof required in a forfeiture proceeding under Section 17 is beyond reasonable doubt. That is not the position of the law. It is important to note that while it is true that generally in criminal cases the standard of proof required is beyond reasonable doubt and that even in a civil case where a crime is alleged, that aspect must be proved beyond reasonable doubt but that will not apply to cases of forfeiture under the AFFRO Act, 2006. The AFFRO Act is a specific law passed to govern the forfeiture proceedings and on the clear rules of interpretation when there is a conflict between the general provision and a specific provision, the specific provision will prevail. See: America Specification Autos Limited & Anor vs. AMCON (2017) LPELR-44016 (CA);

Nobis-Elendu vs. INEC & Ors (2015) 16 NWLR (Pt. 1485) 197.
After securing the interim order, the burden now shifts to the Appellant to show cause why the final order of forfeiture should not be made. The implication of this is that the Appellant need to show that the properties are not proceeds of unlawful activities. This means the burden is now on the Appellant’s to show the source of the income that led to those monies in his account. If he fails to show good cause then the monies will be forfeited. The lower Court has held that the Appellant did not satisfy it in showing the source of those monies and therefore the final forfeiture order was made. In this appeal, this Court will decide whether the lower Court was right or wrong.

Before I formulate the issues for determination in this appeal and address same, one point I will need to briefly look at is that there is a wide difference between proceedings under Section 17 and general criminal proceedings. The outcome or the end result of the proceedings under Section 17 if liability is established is not conviction but rather the forfeiture of the assets. On the other hand, the end result

of a person found guilty in a criminal proceeding is a conviction. The standard of proof as mentioned above is also different. In criminal cases, to secure conviction the Prosecution must prove its case beyond reasonable doubt while for action under Section 17, all that is required is reasonable suspicion. Finally, action under Section 17 is in rem, that is to say, the action is not in relation to the person but rather it is the property. It therefore appears that the center of focus is the property and not the person under Section 17 AFFRO. For criminal matters, the property is not the focus but rather the person. Once the person who institute the action succeeds under Section 17, the only punishment is the forfeiture of the property and nothing happens to the person in possession of the property except further criminal action is instituted against him. In criminal matters, nothing happens to the property but rather the person who will then be sentenced accordingly. That there is a difference between proceedings under Section 17 and criminal action cannot be in dispute.
The main thrust of the case of the Appellant in this appeal is that there was a

subsisting criminal charge against the Appellant over the same monies in a competent Court and that the action under Section 17 is instituted in bad faith and overreaching to the Appellant. The effect of a not guilty verdict on the Appellant will amount to rendering that decision nugatory if the forfeiture order is not set aside. That will produce a situation of fait accompli which the Court does not allow. The 1st Respondent on the other hand is of the view that the proceeding under Section 17 being civil in nature can go on at the same time with the criminal action as none should stop the other.

At this stage I think it is appropriate now to formulate the issues for determination in this appeal. In doing so, I will adopt the issues formulated by the 1st Respondent as they are clear enough to cover the five grounds of appeal as stated in the notice of appeal. I will reproduce them here again for ease of reference and clarity:
1. Whether an action for forfeiture of assets under Section 17 of the advance Fee Fraud and Other Related Offences Act can lie against res which is the subject matter of an ongoing suit and whose owners are undergoing criminal

trial over the same thereby rendering the final forfeiture of January 16, 2019 justifiable in the face of criminal proceedings presently before Justice Aneke J., of the Federal High Court?
2. Whether the final order of forfeiture granted to the 1st Respondent can be sustained against the clear and unambiguous provisions of Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006?

I will now address issue 1. This is the main issue upon which the Appellant based his case at the lower Court and in this Court. The Appellant in the processes filed in the lower Court has shown in the affidavits to set aside the interim forfeiture order found on pages 935-941 of the records and affidavit to show cause found on pages 957-960 of the records is challenging the forfeiture order made over monies which he claims are subject of a pending criminal action which has put the decision in the criminal action nugatory and foist upon the Court a fait accompli. I have gone through the affidavit evidence of the Appellant as contained in the affidavit in support of the motion to set aside the interim order and affidavit to show cause, I agree with the

Respondent’s counsel argument that the Appellant did not in those affidavit really show cause as to why the order for final forfeiture should not be granted. All the Appellant was concerned about is that the lower Court had no jurisdiction to grant the interim and final forfeiture order since there is a pending criminal case against the Appellant, the 2nd and 3rd Respondents. This can be clearly deduced from the 25 paragraph affidavit to show cause found on pages 957-960 of Vol. II of the records. In this respect, paragraphs 11, 14, 16, 17, 22, 23 & 24 of the affidavit is relevant. I will however reproduce paragraphs 14 and 22 of the affidavit:
“14. The Applicant cannot seek forfeiture orders while there is an ongoing criminal trial directly in connection to the property it seeks forfeiture orders for and which trials is yet to be determined…
22. The order of forfeiture if made will overreach the on-going criminal proceedings in Charge No: FHC/L/280C/2016 and foist upon the Court a fait accompli.”
Since the affidavit to show cause did not show any cause within the context of Section 17(2) of AFFRO Act 2006, the

implication is that if I hold that the pendency of the criminal case does not affect the proceedings under Section 17, the appeal will fail as there is no cause shown. To show cause requires that the Appellant should in the affidavit state the source of the monies in the accounts which will imply that the monies are not products of unlawful activity. It is after the Appellant should have so shown that the Respondent will now prove that the monies are proceeds of unlawful activity to secure the final forfeiture order.
I will now address the main issue put forward by the Appellant, which is whether in the light of the pending criminal case against the Appellant, the lower Court was right to have granted an interim and final forfeiture orders. It is not in dispute that as at the time the lower Court granted the interim and final orders of forfeiture there was a pending criminal action against the Appellant, the 2nd and 3rd Respondent. The charge against the Appellant in the criminal case runs into 26 counts found on pages 892-902 of Vol. II of the record of appeal. The counts in summary are for conspiracy, concealing the proceeds of crime contrary to Section 18(a) of the Money Laundering (Prohibition)(Amendment) Act,

stealing various monies under Section 15 (1) of the Money Laundering Act. The 1st Amended charge has 13 counts. The offences therein are for criminal breach of trust contrary to Sections 15(3) and 18(a) of the Money Laundering Act. It is worthy of note that the amounts which the forfeiture orders cover are N2,244,500,000.00 (Two Billion, Two Hundred and Forty Four Million, Five Hundred Thousand Naira), N190, 828,978 (One Hundred and Ninety Million, Eight Hundred and Two-Eight Thousand Naira, Nine Hundred and Seventy Eight Naira) and N101,000,000.00 (One Hundred and One Million Naira). The case of the Appellant is that the Appellant is standing trial for criminal offence in relation to those monies and therefore the order of forfeiture will be prejudicial and overreaching. I have painstakingly looked at the criminal charge against the Appellant both the original and the amended charges and I cannot agree with the averment of the Appellant and the submission of the learned silk that the criminal charge is in direct relation or connection to the amount of monies or property forfeited. I say this in view of the

fact that all the amount or sums of money stated therein in the criminal charge does not make reference to those amounts forfeited. The amounts of money under which the Appellant was charged are as follows;
Count 1- N21,467,634,707.43
Count 2- N1,000,000,000.00
Count 3- N1,000,000,000.00
Count 4- N976,000,000.00
Count 5- N5,291,306,950.00
Count 6- N627,702,307.98
Count 7- N5,424,159,050.89
Count 8- N749,844,792.82
Count 9- N3,604,557,608.20
Count 10- N615,994,818.22
Count 11- N160,254,738.07
Count12- N257,236,968.86
Count 13- N828,685,616.34
Apparently, the amount under which the Appellant is standing criminal trial is not the same amount which the forfeiture order covers. What therefore is the implication of this? It does not seem good for the Appellant since what is in evidence in the criminal case has nothing to do with the sums of monies which are the subject of the forfeiture. In the circumstance, the argument that there is a criminal charge against the Appellant connecting the amounts covered by the forfeiture order will not fly as the forfeiture order does not cover the monies in the

charge against the Appellant before Justice Aneke of the Federal High Court, Lagos Division in Suit No. FHC/L/280C/2016. The criminal action is therefore independent of the forfeiture proceedings under Section 17 of AFFRO Act 2006. It is true that there is a criminal action against the Appellant but the asset in both the criminal action and the forfeiture order are not the same as the specific amounts are different. This means the res in both actions are different. Even if I agree that the res in each action is the amount involved, the res cannot be the same as the amount involved in both cases are different. The criminal action is brought under the Money Laundering Act while the forfeiture proceeding is brought under the AFFRO Act. This therefore does not amount to abuse of Court process as the law permits both civil and criminal action to be instituted on the same facts over the same issues and the same parties at the same time. This Court took this position in Oti vs. EFCC (2020) 14 NWLR (Pt. 1743) 48, when it held:
“Criminal case cannot operate to hinder the civil forfeiture proceedings even on the same facts. Thus, the present civil forfeiture

proceedings could not constitute an abuse of the process of the Court as the subject matter as well as the reliefs in the criminal action were not the same as or similar to those in the civil forfeiture action. Hence, the criminal proceedings in the High Court in Case No. LD/2828C/2016 did not bar the instant civil action for forfeiture. [Osagie v. Oyeyinka (No.2) (1987) 3NWLR (Pt.59) 144 referred.”
I am not aware of any law that demands that the civil proceeding should abate the criminal proceedings as both action can go on at the same time. SeeKewalram Nigeria Limited vs. Olugbenga Rosiji (2019) LPELR-49696.
I had mentioned earlier in this judgment that the proceeding under which the forfeiture order is made is Section 17 of AFFRO Act 2006. Under this section, an order can be made without conviction. All that the 1st Respondent needs to prove is that there is reasonable suspicion that the monies in the accounts are proceeds of unlawful activity. This is therefore not a full blown criminal action that requires proof beyond reasonable doubt. In fact, the law is settled that unlike criminal actions, proceeding under Section 17 of the AFFRO Act 2006 are civil actions.

See Board of Customs & Excise vs. Kalu (1965) 1 ANLR 414.
This therefore means that the burden and standard of proof in proceedings under Section 17 which is not based on conviction is totally different. Upon liability, under Section 17, the focus is towards the property and not the individual. In legal parlance, the action for forfeiture under Section 17 is in rem and not in personam. The implication of this is that the argument on the innocence of Appellant until proven guilty does not apply to proceedings under Section 17 as what is really on trial on forfeiture proceedings is the property and not the individual. See Patience Jonathan vs. FRN (supra). The learned silk, counsel to the Appellant conceded that proceedings under Section 17 of AFFRO Act is civil and not criminal, it therefore stands to reason that all his argument on the presumption of innocence of the Appellant under criminal law until he is proven guilty will not hold water at all. This is a different kind of proceeding from a criminal proceeding. There is a difference in the applicable rules and sometime procedures between civil and criminal proceedings. That a

forfeiture procedure under the AFFRO Act is civil is settled and therefore the law and procedure governing criminal procedure will not apply to it. Apart from the fact that the res in both the criminal action and the forfeiture order are different, it is also clear that the consequences of both actions are different. At the risk of sounding verbose but for emphasis sake I must say again that the proceedings under Section 17 is in rem meaning what is really standing trial is the property and not the individual, sounding more specific, the order under Section 17 does not affect the individual directly but rather the property to be forfeited. As against this position, the criminal action has nothing to do with the monies but rather the Appellant. If the Appellant is found guilty in the criminal trial he will serve jail term as the focus in the criminal action is the Appellant while the focus in the proceedings under Section 17 is the property. This makes the consequences of both actions fundamentally different. The argument that the forfeiture order will make the decision of the criminal trial nugatory and foist a state of fait accompli on the Court cannot stand

the test of time. The forfeited amount is not part of the monies which the case of breach of criminal trust against the Appellant was instituted for. There is no relationship and connection between the criminal case and the forfeiture order and therefore both are independent and can operate on their own. If the Appellant is declared not guilty in the criminal case, he will be so declared in relation to the monies in the charge and not in relation to the monies forfeited by the final order of forfeiture. I had made the point above that the monies covered in the criminal charge are not the same as the monies covered in the forfeiture order. With that position, it is clear that the res or the subject matter is not the same. This position alone crumbles all the argument of the learned silk on abuse of Court process, presumption of innocence, mala fide action, subject matter of both suits being the same, the decision of the criminal case been rendered nugatory and foisting on the Court fait accompli. I resolve this issue in favour of the 1st Respondent.

I will now address issue 2, which is whether in the light of all the evidence before the lower Court, the

decision of the Court can be justified by the provision of Section 17 of AFFRO Act. The proper place to start in determining this issue is the provision of the Act itself. Section 17 provides thus:
“(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.
(5) In this section: “financial institution” shall have the same meaning as in Section 7 of this Act. “property” includes assets whether movable or immovable, money, monetary instruments, negotiable instruments, securities, shares, insurance policies, and any investments.
(6) An order of forfeiture under this section shall not be based on a conviction for an offence under this Act or any other law.”
The above provision which governs forfeiture proceedings deals with civil forfeiture and it is not based on conviction. This means without conviction a Court can make a forfeiture order provided the above procedure is fully followed. This in my opinion can be made even when the person in whose possession the property is located is standing a criminal trial. This is why it is called forfeiture not based on conviction. The procedure must be strictly followed otherwise the forfeiture order will be discharged. The procedure as stated above is clear and therefore should be given its literal interpretation. For the order of forfeiture to stand, by the above provision the following procedure

must be strictly followed; in doing so I will also apply the facts to the procedure:
1. The property on which the forfeiture order can be made must either be an unclaimed property or property in the possession of a person, body corporate and financial institution. This means that as against the argument of learned silk, forfeiture will not only be made on unclaimed properties but also on properties in the possession of persons. In specific reference to this appeal, it is not in dispute that the monetary property which is covered by the forfeiture order is in the possession of the Appellant as he claims ownership to the monies.
2. The property to be forfeited must reasonably be suspected to be proceeds of unlawful activity. All that the 1st Respondent needs to show is that the proceeds in the account to be forfeited are from unlawful activity. The proof required here is not beyond reasonable doubt but based on a reasonable suspicion. This is obvious since what is at stake here is not criminal conviction. That is why the trite position of the law that suspicion no matter how strong cannot secure conviction cannot apply to cases of civil forfeiture.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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All that the 1st Respondent needs to satisfy itself is that there is reasonable suspicion that the monies sought to be forfeited are proceeds of unlawful activities. What will amount to reasonable suspicion implies that based on the facts of the case, any reasonable man will come to the conclusion that the monies in the account are not within the legitimate earnings of the Appellant. The test here is an objective test.
If the monies are way outside the legitimate earnings of the Appellant then the 1st Respondent can come to the reasonable suspicion that the monies are proceeds of unlawful activities. The unlawful activity must not be defined alone within the context of the AFFRO Act (as the learned silk intend this Court to believe) but also what will consist unlawful activity within the provision of the AFFRO Act, the Money Laundering Act 2004, EFCC Act and any other law enforceable under EFCC Act. The argument therefore that there is no evidence of fraud as defined under the AFFRO Act as argued by counsel to the Appellant is of no moment. The 1st Respondent did not just base his suspicion on empty grounds but on Exhibit EFCC 10 attached to the

affidavit in support of the forfeiture order which states clearly the basis of the suspicion. The Appellant had no response to that.
3. The 1st Respondent cannot on its own make any order for forfeiture. The order must be made by a Court. The order will be requested for in two levels. The interim and the final order of forfeiture. To secure an interim order the 1st Respondent will have to file an ex parte application. The 1st Respondent will present the basis of his reasonable suspicion before the Court by way of affidavit evidence. When the Court is satisfied that the suspicion is not a witch hunt or for other reasons that cannot be reasonably justified, the Court will now grant an interim forfeiture order. This step is very important so much so that a Court must be involved so as to avoid using the order to witch hunt people. At this stage, the Court must not allow itself to be used but must look out for evidence that will amount to reasonable suspicion. The lower Court relied among others on Exhibit EFCC 10 in coming to the conclusion that the 1st Respondent has established reasonable suspicion that the proceeds are products of unlawful activities.

It will not be out of place to quote from the judgment. In this respect I quote pages 1074 -1077 of the records:
The Applicant had averred that there is a reasonable suspicion that the funds sought to be forfeited are funds belonging to the Nigerian Air Force but which the Respondents fraudulently converted.
The 1st Defendant failed to provide any fact on the level of probability explaining the lawfulness of the funds which this Court can examine against the suspicion raised that he obtained the funds through unlawful activities.
On the contrary the Note Exhibit EFCC 10 attached to the affidavit of Hyacinth Obinna dated 6th November, 2018 reinforced the suspicion that the funds are proceeds of unlawful activity. The 1st Respondent placed nothing before the Court upon which an evaluation dispelling the suspicion that the funds belong to the Nigerian Air Force can be based.
Exhibit EFCC 10 States:
Tell ADC to delete Myke’s number and all my other friends’ number from his phone? Tell Myke to avoid too much calls till all is over, discussion as to how conversion should be made should not be on phone. You will need about a total of

about 10.5 Million to make up the 3 Billion initially. For ease of movement buy those samm bags that can take 1 Million each. Let Myke commence the procurement of the Draft immediately. Let him be careful of only use Safe Facility. The DRAFT should be to FEDERAL GOVERNMENT OF NIGERIA, they may only be made in N10 Million Denomination. Keep $1 Million US Dollars separately, it will go to ADIGUN to take care of things. N300 Million be made available in Abuja. You must destroy the note as soon as content is read. While arrangement is ongoing to secure the Draft, you can actually present the N1 Million Draft to Oba of Lagos to present to on my behalf and request that I should be allowed to be free for a week to sort out the rest. Please tell Myke to be careful as these people may have their Security Network Monitoring the Banks. Delete Myke Number from your phone and write it out on paper without showing his name. Anytime you bring food for me always leave your phone in the car, tell the ADC to always park outside the compound and trek in. He should always leave his phone in the car, and if asked tell them you took a Drop. Avoid Bisoye get involved in the purchase

of the Draft. Also that person with Kola, Mr. Tolu may be an EFCC Agent don’t allow him to know the arrangement to purchase Draft with what we have and let him not know where you stay. If possible separate all you need to buy the total Draft we need to Buy which…
Buy up to N3.7 Billion total and keep rest away and if possible Buy all the N3.7 Billion…
“Equally I examined the affidavit of Air Vice Marshal Jacob Bolaji Adigun. That affidavit disclosed no reason why the order of final forfeiture should not be made.
The Respondent and the party interested both failed to dispel the suspicion raised by the Applicant.
Nothing was provided by the Respondent and the party interested as can be glimpsed from their respective affidavits.
The only conclusion I can reach is that these funds are proceeds of unlawful activities within the meaning and contemplation of the:
1) The Advanced Fee Fraud and Other related Offences Act 2006
2) The Money Laundering Act 2004
3) The Economic and Financial Crimes Commission Act 2004 and other laws enforceable under the Economic and Financial Crimes Commission Act 2004.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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I therefore hereby order the Final Forfeiture of the following sums of money to the Federal Government of Nigeria
1) N2,244,500,00 (Two Billion, Two Hundred and Forty-Four Million, Five Hundred Thousand Naira)
2) N190,828,978.15 (One Hundred and ninety Million, Eight Hundred and Twenty Eight Thousand, Nine Hundred and Seventy Eight Naira, Fifteen Kobo)
3) N101,000,000.00 (One Hundred and One Million Naira)
4) These sums are to be paid into the Central Bank Account No. 002008996115 T24 Account, Abuja within 14 days of today.
An affidavit of compliance to be filed within the said 14 days.”
The interim order for forfeiture was made by the lower Court on 7/6/2018.
4. After the interim forfeiture order has been made the notice of such order will be given to the party in possession of the property and it will also be published to enable any other person who has interest in the property to apply to set it aside and most importantly show cause why the order should not be made final. This the 1st Respondent complied with in the publication in the National Newspaper on 15/6/2018. The purpose of the notice and publication is to

enable the person in possession and any other person who has interest in the property to show cause why the final order should not be granted.
In my opinion, this is the main step that the Appellant should have taken in this case. It is not just enough to tag the affidavit ‘Affidavit to show cause’ but much more than that, the affidavit must truly show cause why the order should not be made final. At this stage the burden has shifted to the Appellant to show the source of his income and indeed the legitimate source of his income to warrant all that deposit in his account. Surprisingly instead of doing that, the Appellant was challenging the fact that since there was a criminal matter over the same subject matter, the order should not have been granted. He was challenging the jurisdiction of the lower Court to grant that order. That was all he stated in the affidavit to show cause. That was all the cause he showed. The danger with that approach which has become obvious is that, should that objection fail his appeal will fail largely. This is because, there is an implication in law that the Appellant admitted the averment of the 1st Respondent.

The Appellant’s strategy in my opinion was not helpful as he did not show cause as to why the final forfeiture order should not be made apart from the fact of the pendency of a criminal matter against the Appellant. The Appellant instead of showing cause was raising objection to the forfeiture order. The objection having failed as I had held in the first issue, there is nothing upon which the lower Court could be restrained from making the order final.
5. The 1st Respondent will upon the expiration of 14 days after the notice and publication to the Appellant, file by way of a motion an application for a final order of forfeiture. The Appellant has an opportunity at this stage to show cause why that order should not be granted. This opportunity the Appellant did not take advantage of. The 1st Respondent filed the motion for a final forfeiture order on 25/10/18 found on pages 443-837 along with the exhibits therein. I had earlier mentioned that the affidavit to show cause by the Appellant did not show any cause whatsoever.
The lower Court based on this granted the motion of the 1st Respondent of 24/10/2018.

I have not only, in looking at the provision of Section 17 itemized the procedure but also applied the factual situation confronting this appeal so that each step can be appreciated. I have no difficulty in holding that the final forfeiture order given by the lower Court was in line with the laid down procedure under Section 17 of AFFRO Act. I resolve the second issue in favour of the 1st Respondent.

The decision of this Court is obvious by now. This appeal fails and it is hereby dismissed. I affirm the judgment of Hon. Justice C.M.A. Olatoregun of the Federal High Court of Lagos Division in Suit No: FHC/L/CS/932/2018 – EFCC vs. Air Marshal Adesola Amosu Nunayon (Rtd.) & Anor delivered on 18/1/2019.

Cost of N300,000 (Three Hundred Thousand Naira) is awarded against the Appellant in favour of the 1st Respondent.

OBANDE FESTUS OGBUINYA, J.C.A.: I agree with the erudite leading judgment delivered by my learned brother Ebiowei Tobi, JCA.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother EBIOWEI TOBI JCA, afforded me the opportunity of reading in draft before today the lead judgment just delivered and I agree with the reasoning and conclusion contained therein, adopt the

judgment as mine with nothing further to add.

Appearances:

I. Quakers, SAN, with him, B. F. Ajudua, Esq. and O. Okonkwo, Esq. For Appellant(s)

Kufre Uduak, Esq. – for 1st Respondent
Adedoyin Ologbenla, Esq. – for 2nd Respondent
3rd Respondent – Absent For Respondent(s)