LEGALPEDIA CITATION: LER CA/L/578/2017
Areas Of Law:
Appeal, Constitutional Law, Court, Criminal Law And Procedure, Fair Hearing, Interpretation Of Statute, Judgment And Order, Law Of Evidence, Practice And Procedure
Summary Of Facts:
The Respondent then Applicant filled an ex parte application at the Federal High Court, Lagos Judicial Division, for the following reliefs: an interim order of the Court, forfeiting the sum of $5,842,316.66 found in the account No. 2110001712 domicile in Skye Bank PLC belonging to the Appellant then 1st Respondent, which sum is reasonably suspected to be proceeds of unlawful activity, an interim order forfeiting the total sum of N2,421,953,522.78 found in account No. 2022000760 domicile in Eco Bank Plc. belonging to La Wari Furniture and Baths Ltd which sum is reasonably suspected to be proceeds of unlawful activity, and an order of the Court directing the publication in any National Newspaper of the interim order prayed for in reliefs above for the Appellant then Respondents or anyone who is interested in the property sought to be forfeited to appear before the lower Court to show cause within 14 days why the final order of forfeiture of the monetary properties mentioned herein should not be made in favour of the Federal Government of Nigeria.
The Court granted all the reliefs prayed by the Respondent. Dissatisfied with the decision of the lower court, the Appellant has filed this appeal against same.
Issues For Determination
Ø Whether Section 17 of the Advance Fee Fraud and other Related Fraud Offences Act No. 14 of 2006 is constitutional and the order granted there upon is valid
Ø Whether the 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.
MEANING OF FAIR HEARING – INTERPRETATION OF THE MEANING OF FAIR HEARING
“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 (Pt. 771) 90 at 105, Audu Vs FRN (2013) LPELR – 19897 (Sc) 13-14. PER M. A. OWOADE, J.C.A
INTERIM FORFEITURE ORDER- ESSENCE OF AN INTERIM FORFEITURE ORDER
“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 Co. Ltd Vs. Abiola & Sons Ltd (1995) 3 NWLR (Pt. 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 obligations 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 FRN (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 Appellant’s 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 render 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) Page 740.”- PER M. A. OWOADE, J.C.A
FORFEITURE OF PROPERTY- WHETHER IT IS ONLY AFTER THE CONVICTION FOR AN OFFENCE A CITIZEN’S PROPERTY CAN BE FORFEITED UNDER THE CONSTITUTION
“The provision of Section 44 (2) (b) of the Constitution provides a disjunctive or in between the words “whether under civil Process” AND “after conviction for an offence”.
Clearly, therefore it is not only “after conviction for an offence” could a citizen’s property be forfeited especially in the case of a temporary forfeiture as in the instant case which is clearly covered under Section 44 (2) (k) of the 1999 Constitution.
In particular, 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.” PER M. A. OWOADE, J.C.A
FORFEITURE PROCEEDINGS- NATURE OF FORFEITURE PROCEEDINGS
“Clearly, and contrary to the view expressed by the learned senior counsel for the Appellant the provision of Sub-section 6 of Section 17 of the AFF 2006 which reads:
An order of forfeiture under this Section shall not be based on a conviction for an offence under this Act or any other law
not only confirms the civil nature of the forfeiture proceedings under Section 17 of the AFF Act 2006 but also clearly consistent with the Provision of Section 44 (2) (b) and (k) of the 1999 Constitution.” PER M. A. OWOADE, J.C.A
INTERPRETATION OF THE LANGUAGE OF A STATUTE – DUTY OF A COURT IN THE INTERPRETATION OF THE LANGUAGE OF A STATUTE
It is my considered opinion that such principles of government in our dynamic society must include “the state shall abolish all corrupt practices and abuse of power” as in Section 15 (5) of the said Constitution. And, “that the economic system is not operated in such a manner as to permit the concentration of wealth or means of production and exchange in the hands of few individuals or of a group —–” as in Section 16 (2) (c) of the same Constitution.
The above broad principle must be considered together vis-a-vis the Provision of Section 17 of the AFF Act 2006 that should be given its content or natural meaning.
This is because the cardinal or golden rule of interpretation is ut res magis valeat quam pereat that is the words of a statute must be given the 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 & 2 Ors (2012) 2 Sc. (Pt. 1), Brig.General Mohammed Buba Marwa (Rtd) & Anor Vs. Admiral Muritala Nyako (Rtd) & 9 Ors (2012) 1 Sc (Pt.111) 44, Owners Of Mv “Arabella” Vs. Nigeria Agricultural Insurance Corporation (2008) 4-5 Sc (Pt. 11) 189, Ogaga Vs. Thomas E. Umukoro & 2 Ors (2011) 12 Sc (Pt.11) 189, Joseph Amoshima Vs. The State (2011) 6-7 Sc (Pt. 111) 1 and Tabik Investment Ltd Vs. Guaranty Trust Bank Plc. (2011) 6-7 Sc (Pt. 111) 40.” PER M. A. OWOADE, J.C.A
CONTENT OF AN AFFIDAVIT- AN AFFIDAVIT IN SUPPORT OF A MOTION IS TO STATE FACTS NOT LAW
“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.” PER M. A. OWOADE, J.C.A
EX PARTE APPLICATION- WHETHER AN EX PARTE APPLICATION CAN BE CHALLENGED BY AN ADVERSE PARTY
“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 Respondent’s Motion ex parte, the learned trial Judge was right by relying on the unchallenged Affidavit evidence in granting the ex parte application.” PER M. A. OWOADE, J.C.A
INVESTIGATION OF ECONOMIC AND FINANCIAL CRIME- WHETHER RECEIVING A COMPLAINT IS A CONDITION PRECEDENT TO THE INVESTIGATION OF PERSONS REASONABLY SUSPECTED TO HAVE COMMITTED ECONOMIC AND FINANCIAL CRIMES.
“Furthermore, by Sections 6 and 7 of the EFCC Establishment Act 2004 and the decision of the Court of Appeal in E.N. 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 Respondent’s source of information without the order of Court.” PER M. A. OWOADE, J.C.A
SECTION 17 OF THEADVANCE FEE FRAUD AND OTHER FRAUD RELATED OFFENCES ACT 2006 – APPLICABILITY OF SECTION 17 OF THE ADVANCE FEE FRAUD AND OTHER FRAUD RELATED OFFENCES ACT 2006
“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. Aghodemu (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.” PER M. A. OWOADE, J.C.A
PRESUMPTION OF INNOCENCE- WHETHER THE PRINCIPLE OF PRESUMPTION OF INNOCENCE IS APPLICABLE IN A NON-CONVICTION BASED FORFEITURE PROCEEDING
“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 Respondent indeed went as far as to title its ex parte summons “Action in Rem”. PER M. A. OWOADE, J.C.A
FORFEITURE PROCEEDING – CONSTITUTIONALITY OF FORFEITURE PROCEEDING
“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 M. A. OWOADE, J.C.A
BURDEN OF PROOF UNDER FORFEITURE PROCEEDING – CONSTITUTIONALITY OF THE BURDEN OF PROOF UNDER THE ADVANCE FEE FRAUD AND OTHER FRAUD RELATED OFFENCES ACT 2006,ON FORFEITURE PROCEEDINGS
“Finally, I do agree with the learned counsel for the Respondent that the procedure to show cause why Appellant’s money should not be finally forfeited under Section 17 of the AFF Act 2006 merely shifts the evidentiary burden of proof unto 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, 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.” PER M. A. OWOADE, J.C.A
Statutes Referred To:
Advance Fee Fraud and Other Fraud Related Offences Act No. 14 of 2006
Constitution of the Federal Republic of Nigeria 1999 (as amended)
Economic and Financial Crimes Establishment Act, 2004
Evidence Act 2011
Money Laundering Act of 2004
National Drug and Law Enforcement Act
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