FORFEITURE UNDER THE ADVANCE FEE FRAUD ACT.
As indicated in the previous Edition of this topic, the Advance Fee Fraud Act is one of the statute upon which the authorities pursue their fight against corruption, particularly with regard to forfeiting assets suspected to have been proceeds of crime. The two provisions relevant to our discussion is Section 16 and 17 of the Act. While Section 16 emphasizes the power to control property of an accused person pending trial, Section 17 expressly sets out power to make an order of forfeiture without conviction for an offence. The latter provision which is rather controversial in light of numerous constitutionally safeguarded rights of a suspect has been capitalized upon by the EFCC and other prosecuting agencies in their pursuit to forfeit assets to the government and this has gained significant currency lately.
Section 17(1) provides thus:
“…… where any property has come in the possession of any officer of the commission as unclaimed property OR any property is found by any officer of the commission to be in the possession of any other person, body corporate or financial institution is reasonably suspected to be proceeds of some unlawful activity under this Act, the Money Laundering Act of 2004, the Economic and Financial Crimes Act of 2004, the High Court shall upon application made by the commission, its officer or any person authorized by it and upon being reasonably satisfied that such property is 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”
The most critical aspect of this provision sought to be reviewed, is the underlined segment in the afore-produced section to wit- where the properties are unclaimed and/or where they are reasonably suspected to be proceeds of crime. Section 17(2) provides for the pre-condition of a publication before the final forfeiture order will be made, which is stipulated to be within 14days vide Section 17(4) of the Act. Section 17(3) provides for the procedure for commencement vide an exparte motion for an interim order which will metamorphose into final order upon the expiration of the 14days notice.
A cursory look at the import of this law and the practical application thus far, one can safely conclude on the footing of the disjunctive interpretation of the word “OR” used therein, that there are two distinct prongs, which the commission can elect to premise their application on, jointly or separately. The First being when the property is ascertained from investigation to be unclaimed having been in possession of the commission for a reasonable time. Suffice it to say the word “reasonable” in this context must be given an objective interpretation (which will be canvassed in the subsequent part of this article). Albeit, there is little or no controversy when the properties are unclaimed and the procedure stipulated in the statutes strictly adhered to by the applicant. However, there appear to be a controversy under the second prong, which seem worrisome since it is premised on mere suspicion. It is the writer’s submission that the Advance Fee Fraud Act is undoubtedly a penal statute and does not contemplate forfeiture by civil standard of proof. This is evident in the preamble to the Act which reads thus:
“ An Act to prohibit and punish certain offences pertaining to advance fee fraud and other related offences and to repeal other Acts related therewith”
It is an elementary principle of criminal law, that the burden of proof is on the prosecution who asserts the commission of a crime and not otherwise. Curiously, Section 17(6) of the Act expressly provides thus: “ an order of forfeiture under this Act shall not be based on a conviction for an offence under this Act or any other law”. The implication of this provision is that, on the return date after the 14days publication has been caused by the applicant, the owner of the property who for all intent and purpose is still a suspect is expected to show cause on the allegations leveled against him. This amounts to switching sides in a criminal or at best quasi-criminal proceedings, as the owner will be at the receiving end while the prosecutor sits back, relax awaiting a satisfactory justification from the suspect, what a proper investigation would have reveled before lawyering to court.
It is therefore irreconcilable how the evidential burden can be misplaced when crime is inferred under the Nigeria Criminal Jurisprudence were burden of proof rest on the state. The implication of misplacement of the burden of proof is that any decision reached on that notion is erroneous and liable to be set aside. In GILSON ASSOCIATES LTD v ALGON (2011) LPELR-4197 (CA) pg 32 the Court held aptly reiterated the misplacement doctrine thus:
“ … to misplace the onus or burden of proof in a case by the court is to require a party whom the law does not impose the duty or responsibility of adducing or calling evidence in proof of a particular fact which needed to be proved in a case to provide or call such evidence….it would amount to misplacing the burden or onus of proof for a court to require proof of facts by that party since no such burden or onus of proof exists in law on him. Such misplacement of burden or onus of proof would therefore be wrong in law and if relied on by a trial Court in its determination of a case then depend on the peculiarities of the case, it’s decision cannot and should not be allowed to stand on the ground that it would amount to be erroneous in law”
It is the writer’s further submission, that an allegation will always remain an allegation until proven by the party asserting the positive. This provisions which tends to suggest that a person’s asset can be forfeited on mere suspicion is unconstitutional vide Husseini Muktar JCA in NWAIGWE v FRN (Supra).
Forfeiture is contingent on finding of guilt or proof of any offence. The effect of final forfeiture therefore divests the CONVICT (not SUSPECT) of any interest or title in the property. The contention that it is the duty of the suspect who is at liberty to remain mute and allow the state prove his guilt, to show cause on his innocence is misconceived. This dictatorship like provision is an unfortunate misapplication into our laws in a constitutional democracy. The concomitant effect is that the victories recorded by the EFCC on this misplaced notion is with respect pyrrhic victories. In GILSON ASSOCIATES LTD v ALGON (Supra), the Court concluded thus:
“ …where a court misplaces the onus of proof on the wrong party thus erroneously shifting the burden of proof placed by the law under Section 136 of the Evidence Act Cap 22 LFN, then the Judgment ought to be set aside”.
USE AND ABUSE OF EXPARTE APPLICATIONS
The law is now settled that exparte orders are to be made in cases of extreme urgency and should only last for limited Period of time. In the case of the Advance Fee Fraud Act under review, the return period is not less than 14days, which is reasonable in an extreme case of urgency. The question therefore is whether there is genuine urgency contemplated under Section 17(1) of the Act? The writer begs to differ. The provision clearly stipulates that where the property has come in the possession of the commission. This presupposes that there is no fear of the property being dissipated or used to prejudice ongoing investigation. The contention therefore is; why an exparte proceeding under this circumstance pursuant to Section 17(3) of the ACT?
I will posit that exparte proceedings contemplated under the Act is not at large or granted as of cause. The court must satisfy itself with the relevant requirements stipulated in Section 17(1). In OKAFOR v ONEIDINBE (2003) 9 NWLR (Pt 825) 399 at 414-415 UBAEZUNU JCA aptly reiterates these principles thus:
“ Exparte Orders have been a source of headache to the courts. The decisions on them are however clear. I have said it before and I say it again, exparte order must not repeat, not be made except in exceptional circumstances. It should only be made where the res is likely to be destroyed within a matter of few days or hours or where the harm sought to be prevented is about to happen in a matter of days or hours. If and when it is made, it must be limited to a period of time such as a time for hearing the motion on notice which must be fixed for hearing forthwith. The reason for frowning on exparte orders by the courts is clear. There is no justice in making an order behind a party when no papers for such an orders are served on him. Such orders make the court look small. They must be avoided”
The policy behind this dictum is clear to wit: fair hearing as enshrined in our constitution, and our courts in plethora of case laws have restated it. It is therefore antithesis to the provisions of Section 17(3) which tend to commence forfeiture proceedings on an exparte basis premised on suspicion. It is my respectfully suggestion that courts of law not being rubberstamps should reframe from acceding to this procedure and demand that the parties be put on notice in the interest of a fair hearing and the heaven will not fall, thereby satisfying itself that the suspicion is indeed reasonable from an objective perspective after issues have been joined. See OHUKA v STATE (1988) NWLR Pt 72. In the case of Fox, Campbell & Hartley v. United Kingdom (1990) (EC1HR) the European Court of Human Right interpreted reasonable suspicion to mean:-
“If his suspicion is an honest genuine suspicion that the person being arrested is a terrorist, a court cannot enquire further into the exercise of the power. But where the requirement is reasonable suspicion it is for the court to judge the reasonableness of the suspicion. It is an objective standard. The facts which raised the suspicion may be looked at by the court to see if they are capable of constituting reasonable cause.”
In UBOCHI v EKPO (2014) LPELR-23523 CA the Court of Appeal held thus:
“ Reasonable suspicion presupposes existence of facts or information which would satisfy an objective that the person concerned may have committed the offence or likely to commit the offence”
While the fight against corruption is our collective duty, strict adherence to the rule of law in accordance to our constitution, which is the supreme law, is a sine quo non.