Recent events in Nigeria as it relates to the government’s attempt to fight corruption and recovering looted funds from the Public coffers has raised some concerns with regards to the forfeiture of assets “ allegedly “ belonging to some individuals and groups, which have been described as proceeds of crime. The word “ allegedly “ seem to be very predominate in all the commentaries as none of the cases to the best of the writer’s knowledge has gone through a full evidential trial as required in a criminal proceedings and resulted in a conviction. However, they have recorded some “success” with an order of final forfeiture made in that regard.
It is pertinent to state from the onset that forfeiture actions can be Criminal, Civil or administrative depending on the enabling statute regulating the subject matter of the proceedings. There is virtually no limit on the kinds of property the government can seize through any of the three forfeiture actions. Common items include real estates, cash, bank accounts, antiques, jewelries, yacht, Jets, computers, servers or softwares, not to mention items, which in themselves are illicit or are used in manufacture and distribution of contraband.
The Term Forfeiture simpliciter is a sanction after an established wrongdoing. The Black Law Dictionary 6th Edition defines Forfeiture as
“ a divesture of specific property without compensation: it imposes a loss by taking away of some pre-existing valid right without compensation. A deprivation or destruction of a right in consequence of the non-performance of some obligations or conditions. Loss of some rights or properties as a penalty for some illegal acts”
In purely Civil Forfeiture such as infringement proceedings in IP related dispute, forfeiture does not necessarily involve any criminal proceedings or arrests. Often, instead of the filing of criminal charges and pursuing asset forfeiture as part of the criminal process against a defendant, the government commences a civil action only, by filing a complaint for the purpose of permanently seizing and forfeiting the specific item or property which it seeks to confiscate. The government’s decision to pursue civil, as opposed to criminal, asset forfeiture will often depend on the strength of the government’s case and the evidence the government has to show that the property is connected to an illegal activity. The key distinction is that in criminal cases, the government has the burden of proving the defendant’s criminal liability or guilt, by the legal standard known as beyond a reasonable doubt. By contrast, the burden of proving its case in a civil action is much lower. Generally, in a civil asset forfeiture case, the government is required to win its case by a much lower preponderance of evidential standard. The government is not required to prove anyone’s criminal guilt, only a sufficient connection between the property and criminal activity. Often, the government will succeed in shifting the entire burden of proof upon the owner or the claimant of the property, requiring him or her to show that the property came from a legitimate source and therefore was not connected to any criminal conduct. In short, because of the burden of proof and various other aspects of civil litigation, the government will often pursue civil forfeiture process as offering a better opportunity for taking your assets from you.
In a nutshell forfeiture is nothing but a punishment, which presupposes that the government has established a prima facie connection from an objective standpoint with the alleged infraction. See ABACHA v FRN (2002) 5 NWLR (Pt 761) 638. Ironically, since Crime is inferred there must be a discharge of strict burden of proof beyond a reasonable doubt either in Civil proceedings or Criminal proceedings. See Section 135(1) of the Evidence Act, 2011. However, the burden in Civil proceedings does not involve beyond all shadow of doubt such as a conviction before the government can successfully forfeit. Sufficient connection with the alleged act creates the presumption, and if not rebutted, bingo! The government succeeds. See the recent Supreme Court decision of SALEH v ABAH (2017) 12 NWLR Pt 1578 pg 100 @ 166-168. The Constitutionality or otherwise of this position has given rise to several scholarly debates.
NIGERIAN LEGAL FRAMEWORK.
There is no uniform legal framework addressing all aspects of forfeiture scheme in Nigeria. Several legislations provides for different approach depending on the context of the subject matter. Our concern in this article is with respect to the fight against corruption. The EFCC as a Major Forerunner in this fight, has predicated their applications mostly on two Penal Statutes to wit: the EFCC Act, and the Advance Fee Fraud Act. These statutes approach the subject matter on the premise of proceeds of crime, rendering them purely criminal or quasi-criminal proceedings therefore the burden does not shift.
FORFEITURE UNDER THE EFCC ACT.
Section 20-34 of the Act deals specifically with forfeiture, seizure and freezing of bank accounts. These processes are not divulged from the court system. This must be done in conformity with certain rules and constitutional provisions. For Example Section 31(4) of the Act provides that the Attorney General of the Federation “MAY” make rules or regulations for the disposal or sale of any property or assets forfeited pursuant to the Act. To the best of the writer’s information, since 2004 when the law came into force there have been no rules to that effect. Suffice it to say that the word “MAY” used in this context connotes a mandatory effect as it imposes a statutory function on a public officer, more fundamentality in a penal statute. See EDEWOR v UWEGBA (1987) 1 NWLR (Pt. 50) pg 313 at 339 Para C-G. Similarly, regulation in the United States such as the VICTIM ASSET RECOVERY PROGRAM (VARP), a vehicle set up by the Department of Justice under the auspices of the Attorney General, to ensure recovery of forfeited assets to victims. The purpose of VARP is to maximize the amount of forfeited money that can be returned to victims of crime. In Nigeria, the recovered loots so far are yet to be accounted for and proper restitutions made.
Albeit, Section 20 clearly provides for forfeiture after conviction which creates no constitutional conflict. Section 28 and 29 however set out a rather controversial procedure prior conviction. These provisions provides for interim measure of attachment after an arrest for an offence. It presupposes that the individual is only subject to a criminal charge or a pending investigation, wherein his or her assets are traced and attached so as to be used to prejudice the ongoing investigation or trial. It is pertinent to points out that assets here does not include a chose-in-action. The rationale behind this provision is a preservative measure pending the outcome of the criminal proceedings for both the victim and the defendant (if eventually acquitted). See DANGABAR v FRN (2012) LPELR-19732. The controversy becomes more eminent with the reading of Section 29(b), which tends to suggest not just preservation but forfeiture to the Government prior to conviction. This provision stipulates that on an exparte basis the court if satisfied that prima facie evidence has been adduced makes an order of forfeiture without an evidential hearing. This provision with respect is subjective and prone to abuse. There can be all manners of suppression of facts by the agencies seeking these orders and thereby depriving the defendant who is constitutionally presumed innocent of his asset. Although Section 33 of the Act provides for the consequences of an acquittal which will result in revocation of the earlier forfeiture order, it still goes against the evidential burden on the prosecution who assert to prove beyond a reasonable doubt, against the constitutional provision of affording the accused adequate time and facility to defend himself, before stripping him of his rights temporarily or permanently. In DIAMOND BANK LTD v GSFC LTD (2008) LPELR- 4035 CA it was held thus:
“Surely, a man deserves to be confronted with his crime before he is condemned. Indeed, by the provisions of Section 36 of the 1999 Constitution, he will not only be notified, he is entitled to be heard after due preparation. He is not only to be informed and confronted with the allegation; he is entitled to be a part of the process of proving the said allegation and is entitled to state his bit before he is condemned”
The law is trite that an exparte order is made only in an extreme situation of urgency. It is not meant to last up to the time when the civil rights and obligations of the parties are determined. See 7-Up Bottling Co. Ltd v. Abiola (1995) 3 NWLR (Pt 383) 257 at 282.
In NWAIGWE v FRN (2009) 16 NWLR Pt 1166 pg 169 at 201 para B-D Per Mukhtar JCA thus:
“ Forfeiture of property cannot be anything other than punishment and as provided by the above provision. It is quite natural and appropriate when it is inflicted on the appellant after due trial and conviction. Section 29 of the EFCC Act clearly imposes punishment on the appellants by way of forfeiture of property on the basis of mere suspicion. It constitutes an infraction on the rights of the appellants under Section 36(5) of the constitution and is a wild riot or conflict with that constitutional provision. I have no hesitation in finding the provision of Section 29 of the EFCC Act as unconstitutional. I therefore invoke the provision of section 1(3) of the constitution to declare the provision of Section 29 of the EFCC Act as null and void”
I will posit that forfeiture proceedings which is not an inter-party proceedings is per se unconstitutional, because forfeiture in its very nature involves a deprivation of a legal right without compensation contrary to Section 44(1) of the Constitution. The implication from the reviewed case laws is that Section 28 remains good law only to the extent that it sets out the pre-condition for interim preservative order pending a subsisting criminal charge vide DANGABAR, while Section 29 is unconstitutional to the extent that it tends to deprive an accused of his asset on mere suspicion on an exparte basis. While the procedure adopted in DANGABAR vide an exparte originating summons was sanctioned by the Court of Appeal on the premised that it was only interim in nature, the Court did not comment on the constitutionality of Section 29 which was expressly declared void in NWAIGWE earlier in time by the same court. Interestingly, My Lord, Justice MUKTAR JCA who delivered the Lead Judgment in NWAIGWE, concurred with the lead Judgment by BADA JCA in DANGABAR without commenting on the validity of Section 29 of the Act.