ABDULHAMID SHEHU V KANO STATE
March 5, 2025MUKHTAR LUKMAN LADAN V ENGR. MUHAMMAD KABIR LAWAL
March 5, 2025Legalpedia Citation: (2024-04) Legalpedia 12432 (CA)
In the Court of Appeal
Fri Apr 26, 2024
Suit Number: CA/ABJ/CV/670/2022
CORAM
1. Hamma Akawu Barka Justice Court of Appeal
2. Abba Bello Mohammed Justice Court of Appeal
3. Peter Chudi Obiorah Justice Court of Appeal
PARTIES
1. MARHABA EVENT PLACE LIMITED
2. AFLAC PLASTICS LIMITED
3. ATLASFIELD INTEGRATED LIMITED Interested Persons Concerning The 24 Properties Reproduced Below: I. A Filling Station Called “Rijiyar Lemo Filling Station” Located At Rijiyar Lemo Katsina Road, Kano Ii. Atlasfield Filling Station With 41 Pumps Located Opposite Federal Secretariat, Kano Iii. Atlasfield Filling Station With 39 Pumps Located Along BUK Road, Kano. Iv. Atlasfield Filling Station With 31 Pumps Located Along Ring Road, Kano V. Atlasfield Filling Station With 31 Pumps Located Along Maiduguri Road, Kano Vi. Atlasfield Filling Station With 29 Pumps Located Along Maiduguri Bypass, Kano. Vii. Atlasfield Filling Station With 23 Pumps Located Along Naibawa, Kano. Viii. Atlasfield Filling Station With 39 Pumps Located Along Rijiyar Lemo, Kano. Ix. Atlasfield Filling Station With 51 Pumps And A Storey Building With 35 Shops Attached To The Filling Station Located Along Sheik Ja’afar Road, Dorayi, Kano X. Atlasfield LPG Plant With 30 Shops Attached To It Located Along Zaria Road, Kano. Xi. Marhaba Event Centre, Guda Abdullahi Road Farm Centre, Kano. Xii. A Three Storey Building (Plaza) With 28 Shops Located On Hadeja Road, Next To Sheshe Supermarket, Kano. Xiii. A Three Storey Building (Plaza) With 126 Shops On Audu Bako Way, Opp. Nation Plaza, Kano. Xiv. Classic Block Industry At Maiduguri Road, Adjacent To Sahas Filling Station, Kano. Xv. Atlasfield Corporate Headquarters No. 16 Ahmadu Bello Way, Kaduna. Xvi. Undeveloped Plot Located At Sharada, Adjacent To A.A. Rano Filling Station, Kano Xvii. Undeveloped Plot Located At Yan Rake, Adjacent To Dala Orthopaedic Hospital, Kano. Xviii. Undeveloped Plot Located Along Kano-Gwarzo Road, Adjacent To Kedco Regional Office, Kano Xix. Undeveloped Plot Located Along Kano-Gwarzo Road, Opp. Markaz Mosque, Kano. Xx. Undeveloped Plot Located On Sani Marshal Road, Opp. Nissan Automobile, Kano. Xxi. 11.7 Hectares Of Land Located At Adiabo, Odukpani L.G. Covered By Certificate Of Occupancy No. OD/23/2011 Dated 21/4/2011 In Cross River State. Xxii. Truck Assembly At Ring Road, Adjacent A. A. Alfa Filling Station, Kano. Xxiii. Event Centre Located At Ndidem Usang Iso Boulevard, Calabar, Cross River State. Xxiv. A Polythene Production Factory Located Behind National Eye Centre, Kaduna.
APPELLANTS
1. ECONOMIC AND FINANCIAL CRIMES COMMISSION
2. GEELINKS BEVERAGES & INDUSTRIES LIMITED (Interested Person As It Relates To The Property: Geelinks Table Water Factory Located Behind National Eye Center, Kaduna) 3. TASAF GENERAL MERCHANDISE LIMITED (Interested Person As It Relates To The Properties Reproduced Below: I. Two Story Building Located At Tal’udu Roundabout, Near Hanan International School, Kano Ii. An Undeveloped Plot Located On Kano Road, Formerly Ashaka Cement Depot, Katsina)
4. BINJABAL GLOBAL RESOURCES LIMITED (Interested Person As It Relates To The Filling Station Located Along Airport Road, Sokoto)
5. HIGH CHIEF EDEM DUKE (Interested Person As It Relates To Property Listed As Xxi Above)
RESPONDENTS
AREA(S) OF LAW
APPEAL, EVIDENCE, FINANCIAL CRIME, PRACTICE AND PROCEDURE, PROPERTY LAW
SUMMARY OF FACTS
The 1st respondent instituted an action via an Originating Motion filed on May 12, 2020, seeking an order from the Court granting an interim forfeiture of the Appellants’ properties listed in a Schedule of assets/properties attached to the motion to the Federal Government of Nigeria. On May 13, 2020, the trial Court granted an interim order of forfeiture of the Appellants’ properties and directed the publication of the interim order in a National daily newspaper, inviting interested parties to show cause why a final order of forfeiture to the Federal Government of Nigeria should not be made.
Following the Court’s directive, the Appellants filed a notice to Show Cause on May 29, 2020, stating reasons why the interim order of forfeiture should not be made final. In response to the Appellants’ Notice to show cause, the 1st respondent filed a counter-affidavit dated July 6, 2020. In further response, the Appellants filed a further affidavit in support of their Notice to show cause on November 2, 2020. Subsequently, the 1st respondent filed a further and better counter-affidavit to the Appellants’ Notice to show cause. Also, the 1st respondent filed a motion on notice for final order of forfeiture on June 3, 2020. In response, the Appellants filed a counter affidavit on November 3, 2020.
The trial Court heard the application and delivered its judgment on the 14th day of February, 2022, forfeiting the Appellants’ twenty-four (24) properties to the Federal Government of Nigeria.
Dissatisfied with the judgment, the Appellants filed the instant appeal.
HELD
Appeal dismissed
ISSUES
1. Whether having regard to the materials placed before the trial Court, there was any evidence to support the findings and conclusions reached by the Court and whether the learned trial judge properly evaluated the evidence relied upon by the parties to justify the final order for the forfeiture of the properties of the Appellants to the Federal Government of Nigeria?
RATIONES DECIDENDI
RESPONDENTS – DUTY OF RESPONDENTS TO A PUBLICATION OF AN INTERIM ORDER OF FORFEITURE
In simple and clear terms, at the time the lower Court made the interim order of forfeiture, it only acted on the basis of a case of strong suspicion placed before it by the Economic and Financial Crimes Commission that the properties are proceeds of crime.
Now, the fact of the circumstances of the acquisition or purchase of the properties is one within the peculiar knowledge of the Appellants who stepped forward in response to the publication of the interim order to show that the properties belong to them. It is not sufficient to step forward as the owners of the properties because any person can easily step forward to say that he is the owner of the properties or any of them. As a matter of fact, the issue is not who owns the properties because a property must necessarily have an owner. The issue is for whoever that will step forward as the owner of the properties to bring forward satisfactory evidence of the lawfulness of the funds used to acquire the properties and thereby dismantle the suspicion that the properties are proceeds of unlawful activities. – Per P. C. Obiorah, JCA
ADVANCE FEE FRAUD ACT – THE EFFECT OF SECTION 17 OF THE ADVANCE FEE FRAUD ACT, 2006
In effect, the procedure to show cause why the properties should not be finally forfeited under Section 17 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 merely shifts the evidential burden of proof unto the Appellants to disprove the facts raised by the 1st Respondent for final forfeiture of the properties since it is the Appellants who are asserting that the funds used in acquiring the properties came from legitimate source or origin. See Jonathan v. FRN (2018) LPELR- 43505(CA) pages 60-61 paras. C, Daudu v. FRN (2018) LPELR-43637(SC) pages 51-53 paras. C – E and Adigun v. EFCC & Ors (2020) LPELR-52302(CA) pages 23 – 28 paras. B – D. – Per P. C. Obiorah, JCA
INFERENCES – WHETHER A COURT OR JUDGE CAN DRAW INFERENCES FROM EVIDENCE
it is trite law that a Court is entitled to draw inferences from facts which are established by the parties in their pleadings and evidence before the Court in the course of evaluation in a bid to arrive at its conclusion. In Asheik v. Borno State Government & Ors (2011) LPELR-9214(CA) at page 23 paras. F – G, Dongban-Mensem, JCA (now PCA) rightly held that:
“The allegation that the learned trial Judge went on voyage of investigation is misconceived. A Judge is entitled to draw inferences from exhibits tendered before it especially one tendered without a shred of objection.”
Furthermore, in MTN v. Corporate Communication Investment Ltd (2019) LPELR-47042(SC) at page 24 paras C – C. (Pp. 24 paras. C-C), Kekere-Ekun, JSC emphasized that:
“The Court is also entitled to draw inferences from the evidence before it”
See Nsirim v. Onuma Construction Company (Nig) Ltd (2001) LPELR-2067(SC), Super Ceramics Manufacturers Ltd v. H.E.P. Engineering (Nig) Ltd (2020) LPELR-55369(SC); Onyekwuluje & Ors v. Onyekwuluje & Ors (2021) LPELR- 54490(CA) (Pp. 26 paras. B) and Nigeria Bank for Commerce & Industry v. Ogbemi & Anor (2012) LPELR-14354(CA) (Pp. 49 paras. C). – Per P. C. Obiorah, JCA
MONEY LAUNDERING (PROHIBITION) ACT – THE LIMIT ON CASH TRANSACTIONS UNDER S. 1 OF MONEY LAUNDERING (PROHIBITION) ACT, 2011
By Section 1 of the Money Laundering (Prohibition) Act, 2011, no person or body corporate shall except in a transaction through a financial institution make or accept cash payment of sum exceeding N5,000,000.00 or its equivalent in the case of an individual and N10,000,000.00 or its equivalent in the case of a body corporate. In the light of the facts contained in the statement of Alhaji Tanimu Inusa. The lower Court was therefore on firm ground to draw the inference that there was a breach of Section 1 of the Money Laundering (Prohibition) Act, 2011 which placed a limit on cash transactions.
See Ikuforiji v. FRN (2018) LPELR-43884(SC) and Atoyebi v. FRN (2017) LPELR-43831 (SC). – Per P. C. Obiorah, JCA
AFFIDAVIT – DUTY OF A PARTY DRAFTING AN ‘AFFIDAVIT TO SHOW CAUSE’
As my Lord, Ebiowei Tobi, JCA held in Adigun v. EFCC & Ors (2020) LPELR-52302(CA) – “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.” – Per P. C. Obiorah, JCA
TITLE DOCUMENTS – WHETHER TITLE DOCUMENTS PRESENTED IN A FORFEITURE CLAIM EXTINGUISH ALLEGATIONS
Like in the instant case where the Appellants only exhibited title documents of the properties sought to be forfeited, this Court has held in the case of Katah Property & Investments Ltd v. Chairman EFCC (2023) LPELR at page 62, paras. C-D, per Senchi, JCA, that:
“Title documents presented to show ownership of properties in a forfeiture claim do not adequately extinguish allegations before the trial Court to act otherwise.
The Appellant has the inured duty to prove that the properties being sort to be forfeited were not procured with proceeds of unlawful activities. This is the very core within which the interim and final forfeiture orders were predicated upon.” – Per P. C. Obiorah, JCA
CIVIL FORFEITURE PROCEEDING – MEANING AND NATURE OF A CIVIL FORFEITURE PROCEEDING
My Lords, permit me to stress that a civil forfeiture proceeding, otherwise called a non-conviction-based forfeiture proceeding, is a civil proceeding whose aim is only to recover property or proceeds derived from an unlawful activity. Unlike in a criminal forfeiture where the burden is solely on the prosecution to obtain the conviction of the defendant by establishing his guilt beyond reasonable doubt before forfeiture of the proceeds from the criminal activity can be secured, a civil forfeiture proceeding is one in which the Government proceeds against the properties or proceeds of unlawful activity only and not any suspected defendant. In other words, it is an action in rem and not in personam. Its objective is to confiscate the material motive in criminal/unlawful activities through the civil Courts. – Per A. B. Mohammed, JCA
CIVIL FORFEITURE PROCEEDING – THE PROCESS OF THE CIVIL FORFEITURE PROCEEDING
A civil forfeiture proceeding is commenced by way of an ex parte application to Court for an interim order of forfeiture of assets suspected to be properties or proceeds of unlawful activity. Upon showing by way of affidavit evidence that the properties or proceeds are reasonably suspected to be derived from some unlawful activity, the Court grants an interim forfeiture order of the properties or proceeds and directs that same be published with a notice to the public to show cause why the interim order shall not be made final, thus forfeiting the properties or proceeds to the Government. With the issuance by the Court of such an interim order of forfeiture and a notice to the public to show cause why the interim order of forfeiture should not be made final, the burden then shifts to that person who comes to show cause why the interim order should not be made final. Such a person must establish by affidavit evidence that the properties or proceeds which are the subject of the interim forfeiture order were acquired with legitimate funds and not funds of unlawful activity. See JONATHAN v FRN (2018) LPELR-43505(CA) at 60 – 61, paras. D – C, per Owoade, JCA and KATAH PROPERTY & INVESTMENTS LTD v CHAIRMAN, EFCC (2023) LPELR-59736(CA) at 62, paras. A – C, per Senchi, JCA. – Per A. B. Mohammed, JCA
CASES CITED
STATUTES REFERRED TO
1. Money Laundering (Prohibition) Act 2011
2. Evidence Act, 2011
3. Advance Fee Fraud and Other Fraud Related Offences Act, 2006
4. Money Laundering Act of 2004
